Datasets:

tomh

/

grace-scotus

like 1

United States Supreme Court HANCOCK v. TRAIN(1976) No. 74-220 Argued: January 13, 1976Decided: June 7, 1976 </s> Although 118 of the Clean Air Act obligates federal installations discharging air pollutants to join with nonfederal facilities in complying with state "requirements respecting control and abatement of air pollution," obtaining a permit from a State with a federally approved implementation plan is not among such requirements. There cannot be found in 118, either on its face or in relation to the Act as a whole, nor can there be derived from the legislative history of the Clean Air Amendments of 1970, any clear and unambiguous declaration by Congress that such federal installations may not operate without a state permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under the State's federally approved plan it is only through the permit system that compliance schedules and other requirements may be administratively enforced against federal installations. Pp. 178-199. </s> 497 F.2d 1172, affirmed. </s> WHITE, J., delivered the opinion of the Court in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART and REHNQUIST, JJ., filed a dissenting statement, post, p. 199. </s> David D. Beals, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the briefs were Ed W. Hancock, Attorney General, pro se, and David C. Short, Assistant Attorney General. </s> Deputy Solicitor General Friedman argued the cause for respondents. On the brief were Solicitor General Bork, Assistant Attorney General Johnson, Deputy Solicitor [426 U.S. 167, 168] General Randolph, Jacques B. Gelin, Robert L. Klarquist, Robert H. Marquis, Herbert S. Sanger, Jr., and Beauchamp E. Brogan. * </s> [Footnote * Briefs of amici curiae urging reversal were filed by William J. Baxley, Attorney General, and Henry H. Caddell and Frederick S. Middleton III, Assistant Attorneys General, for the State of Alabama; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Weinberg and Richard G. Berger, Assistant Attorneys General for the State of New York; by John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Philip K. Maxwell, Assistant Attorney General, for the State of Texas; by Andrew P. Miller, Attorney General, and J. Thomas Steger, Assistant Attorney General, for the Commonwealth of Virginia; and by Evelle J. Younger, Attorney General, Robert H. O'Brien and Carl Boronkay, Assistant Attorneys General, and Nicholas C. Yost, Roderick Walston, Daniel Taaffe, and C. Foster Knight, Deputy Attorneys General, for the State of California et al., joined by Arthur K. Bolton, Attorney General, and Robert E. Hall, Assistant Attorney General, for the State of Georgia. </s> MR. JUSTICE WHITE delivered the opinion of the Court. </s> The question for decision in this case is whether a State whose federally approved implementation plan forbids an air contaminant source to operate without a state permit may require existing federally owned or operated installations to secure such a permit. The case presents an issue of statutory construction requiring examination of the Clean Air Act, as amended, 42 U.S.C. 1857 et seq., and its legislative history in light of established constitutional principles governing the determination of whether and the extent to which federal installations have been subjected to state regulation. 1 The specific question is whether obtaining a permit to operate [426 U.S. 167, 169] is among those "requirements respecting control and abatement of air pollution" with which existing federal facilities must comply under 118 of the Clean Air Act. 2 </s> I </s> Last Term in Train v. Natural Resources Defense Council, 421 U.S. 60 (1975), we reviewed the development of federal air pollution legislation through the Clean Air Amendments of 1970 (Amendments) 3 and observed that although the Amendments "sharply increased federal authority and responsibility in the continuing effort to combat air pollution," they "explicitly preserved the principle" that "`[e]ach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . . .,'" id., at 64, quoting from 107 (a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S.C. 1857c-2 (a). Consistently with this principle, the Amendments required that within nine months after the Environmental Protection Agency (EPA) promulgated the primary and secondary ambient air quality standards required by 109 (a) of the Clean Air Act, as added, 84 Stat. 1679, 42 U.S.C. 1857c-4 (a), 4 for certain air pollutants, 5 each State submit to the EPA a plan by which it would implement and maintain those standards within its territory. 110 (a) (1) of the Clean Air Act, as added, 84 Stat. 1680, 42 U.S.C. 1857c-5 (a) (1). See 40 CFR pt. 51 (1975). The EPA was required to approve each State's [426 U.S. 167, 170] implementation plan as long as it was adopted after public hearings and satisfied the conditions specified in 110 (a) (2). </s> For existing sources 6 the State must propose "emission limitations, schedules, and timetables for compliance with such limitations" necessary to meet the air quality standards. 110 (a) (2) (B). As we observed in Train, supra, at 78-79, given the EPA's nationwide air quality standards, the State is to adopt a plan setting </s> "the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. </s> "[The EPA] is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. . . . The Act gives [the EPA] no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of 110 (a) (2). . . . Thus, so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation." (Footnote omitted.) </s> Along with increasing federal authority and "taking a stick to the States" 7 by requiring them to implement the [426 U.S. 167, 171] federal standards promulgated pursuant to that authority, Congress also intended the Amendments "to strengthen the strictures against air pollution by federal facilities." 8 Before 1970, 111 (a) of the Clean Air Act simply declared "the intent of Congress" to be that federal installations "shall, to the extent practicable and consistent with the interests of the United States and within any available appropriations, cooperate with" federal and state air pollution control authorities "in preventing and controlling the pollution of the air in any area insofar as the discharge of any matter from or by such" federal installation "may cause or contribute to pollution of the air in such area." 9 </s> Experience with performance by federal sources of air pollution under this voluntary scheme 10 led the Congress to conclude that admonishing federal agencies to prevent and control air pollution was inadequate, because "[i]nstead of exercising leadership in controlling or eliminating air pollution" 11 "Federal agencies have been notoriously laggard in abating pollution." 12 Both to provide the leadership to private industry and to abate violations of air pollution standards by federal facilities, in 1970 Congress added 118 to the Clean Air Act. The first sentence of the section provides: </s> "Each department, agency, and instrumentality of the executive, legislative, and judicial branches of [426 U.S. 167, 172] the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements." 42 U.S.C. 1857f. </s> The remainder of 118 authorizes the President, upon a determination that it is "in the paramount interest of the United States to do so" and subject to several limitations, to exempt certain federal emission sources from "compliance with such a requirement." 13 </s> After enactment of 118 there is no longer any question whether federal installations must comply with established air pollution control and abatement measures. The question has become how their compliance is to be enforced. </s> II </s> In February 1972, Kentucky submitted its implementation plan to the EPA. On May 31, 1972, the plan was approved by the Administrator in relevant part. 14 Chapter 7 of the plan included Kentucky Air Pollution Control Commission (Commission) Regulation No. AP-1, 5 (1), which provides: </s> "No person shall construct, modify, use, operate, or maintain an air contaminant source or maintain [426 U.S. 167, 173] or allow physical conditions to exist on property owned by or subject to the control of such person, resulting in the presence of air contaminants in the atmosphere, unless a permit therefor has been issued by the Commission and is currently in effect." 15 </s> An applicant for a permit must complete a form supplied by the Commission and, "when specifically requested by the Commission, include an analysis of the characteristics, properties, and volume of the air contaminants based upon source or stack samples of the air contaminants taken under normal operating conditions." 16 The process of review of the application may include hearings. 17 Permits are denied if the applicant does not supply the "information required or deemed necessary by the Commission to enable it to act upon the permit application," 18 or when "the air contaminant source will prevent or interfere with the attainment or maintenance of state or federal air quality standards." 19 When granted, a permit may be "subject to such terms and conditions set forth and embodied in the permit as the Commission shall deem necessary to insure compliance with its standards." 20 Once issued, a permit may be revoked or modified for failure to comply with the terms and conditions of the permit, with emission standards applicable to the air contaminant source, or with the [426 U.S. 167, 174] ambient air standards for the area in which the air contaminant source is located. Reg. AP-1, 5 (5), CA App. 122. </s> Soon after the implementation plan was approved, a Commission official wrote to numerous officials responsible for various Kentucky facilities of the United States Army, 21 of the Tennessee Valley Authority (TVA), 22 and of the Atomic Energy Commission (AEC) 23 requesting that they apply for and obtain permits as requested by the EPA-approved plan. The responses to these requests were to the effect that federally owned or operated facilities located in Kentucky were not required to secure an operating permit. Each response, however, either offered to or did supply the information and data requested on the standard permit application form. 24 </s> The Commission continued to press the federal officials [426 U.S. 167, 175] to apply for operating permits. In October 1972, the Regional Administrator of the EPA sent a letter to the operators of all federal facilities in the region, including those to which the Kentucky officials had addressed their requests, and to the Commission. Setting forth EPA policy and the agency's interpretation of 118 of the Clean Air Act, 25 the Regional Administrator stated: "It is clear that Section 118 . . . requires Federal facilities to meet state air quality standards and emission limitations and to comply with deadlines established in the approved state air implementation plans." App. 57. To aid the States in accomplishing these objections, wrote the Administrator, each federal facility should develop a compliance schedule and should provide "reasonable and specific" data requested by the State. Id., at 58. On the question whether federal facilities must apply for state permits, the letter reiterated the EPA position that although "Federal agencies are [not] required to apply for state operating permits . . . [o]ur aim is to encourage Federal agencies to provide the states with all the information required to assess compliance of pollution sources with standards, emission and discharge limitations and the needs for additional abatement measures." 26 Ibid. [426 U.S. 167, 176] </s> Kentucky then brought this suit in the United States District Court for the Western District of Kentucky. 27 The complaint sought declaratory and injunctive relief requiring the Army, TVA, and AEC facilities to secure operating permits. Kentucky also named several EPA officials as defendants and asked the District Court to order them to commence appropriate actions under 113 of the Clean Air Act, directing the Army, the TVA, and the AEC facilities to comply with the provisions of Regulation AP-1, 5 (1). 28 On cross-motions for summary [426 U.S. 167, 177] judgment, the District Court ordered the complaint dismissed. Kentucky ex rel. Hancock v. Ruckelshaus, 362 F. Supp. 360 (1973). </s> The Court of Appeals affirmed, 497 F.2d 1172 (CA6 1974). Like the District Court, 362 F. Supp., at 363 n. 3, the Court of Appeals found it unnecessary to determine whether the federal installations were in compliance with Kentucky's emission limitations or had adopted adequate compliance schedules, for it was Kentucky's position that notwithstanding possible compliance "the Kentucky Plan is so formulated that the State cannot meet its primary responsibility under the Clean Air Act without the use of permits." 497 F.2d, at 1174-1175. After examining 118 and its purposes in relation to other provisions of the Clean Air Act, the court concluded: </s> "We do not believe the congressional scheme for accomplishment of these purposes included subjection of federal agencies to state or local permit requirements. Congress did commit the United States to compliance with air quality and emission standards, and it is undisputed in this record that the federal facilities in Kentucky have cooperated with the Commission toward this end." 497 F.2d, at 1177. </s> We granted Kentucky's petition for certiorari, 420 U.S. 971 (1975), to resolve a conflict in the Courts of Appeals, 29 and now affirm. [426 U.S. 167, 178] </s> III </s> It is a seminal principle of our law "that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them." M'Culloch v. Maryland, 4 Wheat. 316, 426 (1819). From this principle is deduced the corollary that </s> "[i]t is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." Id., at 427. </s> The effect of this corollary, which derives from the Supremacy Clause 30 and is exemplified in the Plenary Powers Clause 31 giving Congress exclusive legislative authority over federal enclaves purchased with the consent of a State, is "that the activities of the Federal Government are free from regulation by any state." 32 As Mr. Justice Holmes put it in Johnson v. Maryland, 254 U.S. 51, 57 (1920): </s> "[T]he immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they [426 U.S. 167, 179] desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them . . . ." </s> Taken with the "old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign" 33 "without a clear expression or implication to that effect," 34 this immunity means that where "Congress does not affirmatively declare its instrumentalities or property subject to regulation," "the federal function must be left free" of regulation. 35 Particular deference should be accorded that "old and well-known rule" where, as here, the rights and privileges of the Federal Government at stake not only find their origin in the Constitution, but are to be divested in favor of and subjected to regulation by a subordinate sovereign. Because of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is "a clear congressional mandate," 36 "specific congressional action" 37 that makes this authorization of state regulation "clear and unambiguous." 38 </s> Neither the Supremacy Clause nor the Plenary Powers Clause bars all state regulation which may touch the activities of the Federal Government. See Penn Dairies [426 U.S. 167, 180] v. Pennsylvania Milk Control Comm'n, 318 U.S. 261 (1943); Alabama v. King & Boozer, 314 U.S. 1, 9 (1941), and cases cited. "Here, however, the State places a prohibition on the Federal Government." 39 The permit requirement is not intended simply to regulate the amount of pollutants which the federal installations may discharge. Without a permit, an air contaminant source is forbidden to operate even if it is in compliance with every other state measure respecting air pollution control and abatement. It is clear from the record that prohibiting operation of the air contaminant sources for which the State seeks to require permits, App. 14-17, is tantamount to prohibiting operation of the federal installations on which they are located. Id., at 89-93. </s> Kentucky, like the Court of Appeals for the Fifth Circuit in Alabama v. Seeber, 502 F.2d 1238, 1247-1248 (1974), finds in 118 a sufficient congressional authorization to the States, not only to establish the amount of pollutants a federal installation may discharge, but also to condition operation of federal installations on securing a state permit. We disagree because we are not convinced that Congress intended to subject federal agencies to state permits. We are unable to find in 118, on its face or in relation to the Clean Air Act as a whole, or to derive from the legislative history of the Amendments any clear and unambiguous declaration by the Congress that federal installations may not perform their activities unless a state official issues a permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under Kentucky's EPA-approved implementation plan it is only through the permit system that compliance schedules and other [426 U.S. 167, 181] requirements may be administratively enforced against federal installations. </s> IV </s> The parties rightly agree that 118 obligates federal installations to conform to state air pollution standards or limitations and compliance schedules. 40 With the enactment of the Amendments in 1970 came the end of the era in which it was enough for federal facilities to volunteer their cooperation with federal and state officials. In Kentucky's view that era has been replaced by one in which federal installations are not only required to limit their air pollutant emissions to the same extent as their nonfederal neighbors, but also, subject only to case-by-case Presidential exemption, to submit themselves completely to the state regime by which the necessary information to promulgate emission limitations and compliance schedules is gathered and by which collection of that information and enforcement of the emission limitations and compliance schedules are accomplished. Respondents (hereafter sometimes EPA) take the position that the Congress has not gone so far. While federal and nonfederal installations are governed by the same emission standards, standards which the States have the primary responsibility to develop, the EPA maintains that the authority to compel federal installations to provide necessary information to the States and to conform to state standards necessary to carry out the federal policy to control and regulate air pollution has not been extended to the States. [426 U.S. 167, 182] </s> Analysis must begin with 118. 41 Although the language of this provision is notable for what it states in comparison with its predecessor, 42 it is also notable for what it does not state. It does not provide that federal installations "shall comply with all federal, state, interstate, and local requirements to the same extent as any other person." Nor does it state that federal installations "shall comply with all requirements of the applicable state implementation plan." Section 118 states only to what extent - the same as any person - federal installations must comply with applicable state requirements; it does not identify the applicable requirements. There is agreement that 118 obligates existing federal installations to join nonfederal sources in abating [426 U.S. 167, 183] air pollution, that comparable federal and nonfederal sources are expected to achieve the same levels of performance in abating air pollution, and that those levels of performance are set by the States. Given agreement that 118 makes it the duty of federal facilities to comply with state-established air quality and emission standards, the question is, as the Fifth Circuit put it in another case, "whether Congress intended that the enforcement mechanisms of federally approved state implementation plans, in this case permit systems, would be" available to the States to enforce that duty. Alabama v. Seeber, 502 F.2d, at 1247. In the case before us the Court of Appeals concluded that federal installations were obligated to comply with state substantive requirements, as opposed to state procedural requirements, 497 F.2d, at 1177, but Kentucky rejects the distinction between procedural and substantive requirements, saying that whatever is required by a state implementation plan is a "requirement" under 118. </s> The heart of the argument that the requirement that all air contaminant sources secure an operating permit is a "requirement respecting control and abatement of air pollution" is that Congress necessarily implied the power to enforce from the conceded authority to develop and set emission standards. Under Kentucky's EPA-approved implementation plan, the permit requirement "is the mechanism through which [it] is able to compel the production of data concerning air contaminant sources, including the ability to prescribe the monitoring techniques to be employed, and it is the only mechanism which allows [it] to develop and review a source's compliance schedule and insure that schedule is followed." 43 When a State is without administrative means of implementing and enforcing its standards [426 U.S. 167, 184] against federal sources, a duty to comply with those standards is said to be utterly meaningless. 44 </s> The difficulty with this position is threefold. First, it assumes that only the States are empowered to enforce federal installations' compliance with the standards. Second, it assumes the Congress intended to grant the States such authority over the operation of federal installations. Third, it unduly disregards the substantial change in the responsibilities of federal air contaminant sources under 118 in comparison with 42 U.S.C. 1857f (a) (1964 ed., Supp. V), supra, at 171. Contrary to Kentucky's contention that Congress necessarily intended to subject federal facilities to the enforcement mechanisms of state implementation plans, our study of the Clean Air Act not only discloses no clear declaration or implication of congressional intention to submit federal installations to that degree of state regulation and control but also reveals significant indications that in preserving a State's "primary responsibility for assuring air quality within [its] entire geographic area" the Congress did not intend to extend that responsibility by subjecting federal installations to such authority. </s> The Clean Air Act, as amended, does not expressly provide for a permit system as part of a State's implementation plan. 45 It is true that virtually every State [426 U.S. 167, 185] has adopted a form of permit system much like that adopted by Kentucky, see 40 CFR pt. 52 (1975), as a means of gathering information to determine what emission standards to set and compliance schedules to approve and of assuring compliance with them. Also, only an implementation plan enabling a State to meet these - and other - objectives can be approved by the EPA. 46 Nonetheless we find in the 1970 Amendments several firm indications that the Congress intended to treat emission standards and compliance schedules - those requirements which when met work the actual reduction of air pollutant discharge - differently from administrative and enforcement [426 U.S. 167, 186] methods and devices - those provisions by which the States were to establish and enforce emission standards, compliance schedules, and the like. This is so in spite of the absence of any definition of the word "requirements" or of the phrase "requirements respecting control and abatement of air pollution." 47 </s> [426 U.S. 167, 187] </s> In 110 (e) (1) (A), for example, the EPA is authorized to extend for two years a State's three-year deadline for attaining a national primary air quality standard if, upon timely application, it is determined that an emission source is unable to meet "the requirements of such plan which implement such primary standard because the necessary technology" is unavailable. 42 U.S.C. 1857c-5 (e) (1) (A). Although compiling the information necessary for a permit may require familiarity with technology, it is plain that the "requirements" to which this section refers are those for which technologically adequate industrial processes might not be available. Section 110 (e) (2) (A) necessarily contemplates the same meaning of "requirements," that is, emission standards and compliance schedules, as does 110 (f) which provides for one-year postponement of the application of "requirements" to sources the continued operation of which is "essential to national security or to the public health." 42 U.S.C. 1857c-5 (f) (1) (D). See Train, 421 U.S., at 80 -84. 48 </s> Stronger indications that the term "requirements" as used in 118 does not embrace every measure incorporated in a State's implementation limitations and compliance [426 U.S. 167, 188] schedules appear in the emergence of 118 from the House bill and Senate amendment from which it was derived. </s> The House bill provided that federal installations "shall comply with applicable Federal, State, interstate, and local emission standards." 49 The House Report stated that this "legislation directs Federal agencies in the executive, legislative, and judicial branches to comply with applicable Federal, State, interstate, and local emission standards." 50 The Senate amendment provided that federal agencies "shall provide leadership in carrying out the policy and purposes of this Act and shall comply with the requirements of this Act in the same manner as any person . . . ." 51 The Senate Report stated that this provision "requires that Federal facilities meet the emission standards necessary to achieve ambient air quality standards as well as those established in other sections of Title I." 52 </s> Thus while the House bill spoke of "emission standards," the Senate amendment, like 118 as enacted, spoke of "requirements." In accommodating the different language in the two bills and formulating what is now 118, the Conference Committee simply combined the House and Senate provisions. If, as Kentucky argues, [426 U.S. 167, 189] the Conference Committee in taking the Senate language of "requirements" meant thereby to subject federal facilities to enforcement measures obviously not embraced in the language of the House bill, it is remarkable that it made no reference to its having reconciled this difference in favor of extending state regulation over federal installations. Given the interchangeable use of "emission standards" and "emission requirements" in the Senate amendment, see n. 52, supra, the predominance of the language of the Senate version in 118 as enacted, 53 and the absence of any mention of disagreement between the two bills, it is more probable that the Conference Committee intended only that federal installations comply with emission standards and compliance schedules than that its intention was to empower a State to require federal installations to comply with every measure in its implementation plan. See Alabama v. Seeber, 502 F.2d, at 1247. </s> The impression that Congress intended only that federal agencies comply with emission limitations and standards is strengthened by the Conference Report, which stated in full: </s> "The House bill and the Senate amendment declared that Federal departments and agencies should comply with applicable standards of air quality and emissions. </s> "The conference substitute modifies the House [426 U.S. 167, 190] provision to require that the President rather than the Administrator be responsible for assuring compliance by Federal agencies." 54 </s> This examination of 118 and the central phrase "requirements respecting control or abatement of air pollution," discloses a regime of divided responsibility for the mobilization of federal installations in the effort to abate air pollution. Kentucky agrees but persists in its contention that existing federal sources have been subjected to state regulation by differing on where that division places authority to enforce compliance by existing federal facilities - "`sources with respect to which state implementation plans establish the criteria for enforcement.'" 55 For such - existing - sources, Kentucky maintains, the States are granted primary enforcement authority while "`the responsibility and authority for [426 U.S. 167, 191] enforcement . . . is granted to EPA in those instances (i. e., new sources and hazardous pollutants) where EPA establishes the criteria.' " 56 Perhaps we could agree if the issue were not whether there is a clear and unambiguous congressional authorization for the regulatory authority petitioner seeks, for as the Fifth Circuit has said, such a "scheme is a reasonable one." Alabama v. Seeber, supra, at 1244. But that is the issue, and the implications Kentucky draws from its evaluation of the manner in which the Congress divided responsibility for regulation of new sources and of hazardous air pollutants do not persuade us. </s> In drawing on the manner in which the Clean Air Act has divided the authority to regulate new sources of air pollutants 57 and the emission of hazardous air pollutants 58 in comparison with existing air pollutant sources, Kentucky makes two separate though related arguments. The first is that when Congress wanted to exempt federal facilities from compliance with a state requirement, it did so by express exclusionary language. Thus 111 (c) (1) authorizes the Administrator to delegate to a State "any authority he has under this Act to implement and enforce" new-source standards of performance - with which new sources owned or operated by the United States must comply ( 111 (b) (4)) - "except with respect to new sources owned or operated by the United States." 42 U.S.C. 1857c-6 (c) (1). Section 114 (b) (1) of the Clean Air Act, as added, 84 Stat. 1688, is to the same [426 U.S. 167, 192] effect respecting inspections, monitoring, and entry of an emission source. 42 U.S.C. 1857c-9 (b) (1). Similarly, 112 (d) (1) authorizes the Administrator, upon finding that a State's plan to enforce emission standards for hazardous pollutants is adequate to the task, to delegate to that State "any authority he has under this Act to implement and enforce such standards (except with respect to stationary sources owned or operated by the United States)." 42 U.S.C. 1857c-7 (d) (1). The argument that these specific exemptions of federal facilities from state enforcement and implementation methods are necessary only because 118 has, as a general matter, subjected federal installations to all state requirements fails on several counts. First, as we have demonstrated, by itself 118 does not have the effect petitioner claims. Second, the relevant portions of 111, 112, and 114 assume that the Administrator possesses the authority to enforce and implement the respective requirements against sources owned or operated by the United States. See 111 (c) (2), 112 (d) (2), and 114 (b) (2). Third, just as in providing for Presidential exemptions in 118 Congress separated the requirements of 111 and 112 from other requirements, Congress naturally treated the submission of federal installations to state regulation under 111, 112, and 114 separately from general provisions for meeting ambient air quality standards under 110 implementation plans devised by the States and approved by the EPA. A State must promulgate an implementation plan. 110 (a). The delegation provisions of 111, 112, and 114, on the other hand, are permissive, providing that "[e]ach State may develop and submit to the Administrator a procedure" to carry out the section. (Emphasis added.) </s> Kentucky's second argument is that the manner in which Congress differentiated treatment of new sources [426 U.S. 167, 193] and existing sources in 111 and 114 clearly implies that existing federal sources were to be subject to the enforcement provisions of a State's implementation plan. The implication is said to arise from the different nature of the control required for the two types of installations. The difference is explained as follows: For existing sources the first step for a State is to determine the general quality of air in the relevant air quality region and then to compute the amounts of pollution attributable to each source. Next, appropriate emission standards necessary to meet the national ambient air quality standards must be assigned to the various sources, followed by determining the compliance schedule by which each installation will achieve the assigned standards by the attainment date prescribed in the Act. To carry out this process of gathering information and coordinating control throughout the State, it is said to be necessary for the States to have ready administrative authority over all sources, federal and nonfederal. This administrative authority, concededly a major part of an implementation plan as to nonfederal sources, must therefore have been intended to extend to federal sources as well. </s> In contrast, controlling "new sources" is described as a straightforward task. This is because "standards of performance" for such sources, which are established in light of technologically feasible emission controls and not in relation to ambient air quality standards 59 are set by the EPA for various categories of sources and are uniform throughout the Nation. A comprehensive enforcement [426 U.S. 167, 194] mechanism to develop and coordinate application of these standards is unnecessary, especially because all new sources must be in compliance before operation begins, 111 (e). The Congress is said, therefore, to have exempted new federal installations from state enforcement of federally promulgated standards of performance because it was unnecessary to submit those installations to the same kind of coordinated control to which existing sources had been submitted. </s> The Act itself belies this contention. It recognizes that a "new source," even one in full compliance with applicable standards of performance, may hinder or prevent attainment or maintenance of air quality standards within the air quality region in which it is located, and requires a state implementation plan to include procedures for averting such problems. See 110 (a) (2) (D), (a) (4). </s> The arguments respecting the federal new-source exception in 114 also fail to bear the weight they must carry if Kentucky is to prevail. Section 114 provides for the establishment of various means by which to collect information </s> "[f]or the purpose (i) of developing or assisting in the development of any implementation plan under section 110 or 111 (d), any standard of performance under section 111, or any emission standard under section 112, [or] (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan . . . ." 84 Stat. 1687, as added, 42 U.S.C. 1857c-9 (a). </s> Unlike 111 and 112, 114 is doubly permissive. First, although the Administrator "shall" publish 111 new-source standards of performance and 112 hazardous air-pollutant-emission standards, under 114 (a) the Administrator "may," but need not, require operators [426 U.S. 167, 195] of emission sources to keep records, to make reports, to install, use, and maintain monitoring equipment, and to sample its emissions. Second, as with 111 and 112, the States "may" develop procedures to carry out the section. That Congress provided for this slight possibility that existing federal sources would be obliged to conform to state procedures for carrying out 114 in addition to emission standards and compliance schedules scarcely implies, as petitioner suggests, that Congress intended existing federal sources to comply with all state regulatory measures, not only emission standards and compliance schedules. Rather than exempting new federal sources from an obligation to which they would otherwise have been subject, Congress may as well have been extending the obligation to conform to state 114 regulatory procedures to existing - but not to new - federal sources which would not otherwise have been thought subject to such regulation. </s> Finally, we reject the argument that 304 of the Clean Air Act, reveals congressional intention to grant the States authority to subject existing federal sources to the enforcement mechanisms of their enforcement plan. The section provides in part: </s> "(a) Except as provided in subsection (b), any person may commence a civil action on his own behalf - </s> "(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . ." 42 U.S.C. 1857h-2. </s> [426 U.S. 167, 196] </s> Section 302 (e) includes a "State" in the definition of a "person," 42 U.S.C. 1857h (e), and 304 (f) provides: </s> "For purposes of this section, the term `emission standard or limitation under this Act' means - (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard . . . which is in effect under this Act (including a requirement applicable by reason of section 118) or under an applicable implementation plan." 42 U.S.C. 1857h-2 (f). </s> Although it is argued that 304 was not intended to permit a State to sue violators under the Act, we agree with the EPA that 304 is the only means provided by the Act for the States to remedy noncompliance by federal facilities with 118. That 304 was so intended is plain from both the language of 304 (f) and the legislative origins of 304. The Senate version of 118 provided that a State "in which any Federal property, facility, or activity is located may seek to enforce the provisions of this section pursuant to section 304 of this Act." 60 When the Conference Committee eliminated this subsection from the Senate amendment, it retained the definition of "person," which included a "State" in 302 (e), and added 304 (f) with the parenthetical phrase "including a requirement applicable by reason of section 118." This made clear that 118 was to be enforced through 304, and 304 is the only provision in the Act for state enforcement of the duties of a federal installation under 118. In short, 118 establishes the duty of federal installations to comply with state "requirements," and 304 provides the means of enforcing that duty in federal court. In light of this [426 U.S. 167, 197] close relationship between the two sections, we find it significant that 304 (f) extends the enforcement power only to "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard," and not to all state implementation measures. Thus circumscribed, the scope of the 304 power to enforce 118 strongly suggests that 118 duties themselves are similarly limited, for it seems most unlikely that in providing that a State might bring suit in district court to enforce the duties of federal installations under 118, the Congress would not make all of those duties enforceable in district court. Yet this is exactly what Kentucky argues, saying: "There can be no explanation for the existence of Section 118 if it imposes no obligations other than those imposed under Section 304." 61 </s> The argument is defective on another count. Even if, standing alone, 304 could be read to require federal facilities to comply with the matters within 304 (f), the assumption that the two sections independently impose duties on federal installations conflicts with the legislative history. Section 304 (a) was first extended to apply to federal sources of pollution in Conference, at the same point at which the express provision for enforcement authority over federal installations was removed from 118. 62 Given this relationship between [426 U.S. 167, 198] the two measures, we cannot credit the argument that 118 was intended to impose on federal installations any broader duty to comply with state implementation measures than specified in 304. The absence in 304 of any express provision for enforcing state permit requirements in federal court is therefore too substantial an indication that congressional understanding was that the "requirements" federal facilities are obliged to meet under 118 did not include permit requirements to be overcome by assertions to the contrary. </s> V </s> In view of the undoubted congressional awareness of the requirement of clear language to bind the United States, 63 our conclusion is that with respect to subjecting federal installations to state permit requirements, the Clean Air Act does not satisfy the traditional requirement that such intention be evinced with satisfactory clarity. Should this nevertheless be the desire of Congress, it need only amend the Act to make its intention manifest. 64 Absent such amendment, we can only conclude that to the extent it considered the matter in enacting 118 Congress has fashioned a compromise which, while requiring federal installations to abate their pollution to the same extent as any other air contaminant source and under standards which the States have prescribed, [426 U.S. 167, 199] stopped short of subjecting federal installations to state control. </s> This conclusion does not mean that we are persuaded that the States are as able to administer their implementation plans as they would be if they possessed the degree of authority over federal installations urged here, although, as Kentucky acknowledged at oral argument, the EPA, acting under the impetus of Executive Order No. 11752, 3 CFR 380 (1974), has promulgated guidelines for compliance by federal agencies with stationary source air pollution standards, 40 Fed. Reg. 20664 (1975), which will lead to federal agencies' entering "consent agreements which are exactly identical in every respect to what a compliance schedule would have been." 65 </s> The judgment of the Court of Appeals is </s> Affirmed. </s> Footnotes [Footnote 1 In EPA v. California ex rel. State Water Resources Control Board, post. p. 200, also decided this day, we consider a closely related issue under the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. (1970 ed., Supp. IV). </s> [Footnote 2 As renumbered and amended, 84 Stat. 1689, 42 U.S.C. 1857f. </s> [Footnote 3 Pub. L. 91-604, 84 Stat. 1676. </s> [Footnote 4 36 Fed. Reg. 8186 (1971). See 40 CFR pt. 50 (1975). Title 40 CFR 50.1 (e) (1975) defines "ambient air" as "that portion of the atmosphere, external to buildings, to which the general public has access." </s> [Footnote 5 The EPA is guided in compiling a list of air pollutants by 108 (a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S.C. 1857c-3 (a). </s> [Footnote 6 The range of a State's initiative in meeting its primary responsibility to assure air quality is somewhat greater for existing sources of air pollution, such as those involved in this case, than for "new sources." See infra, at 190-194. </s> [Footnote 7 Train v. Natural Resources Defense Council, 421 U.S. 60, 64 (1975). </s> [Footnote 8 Brief for Respondents 27. </s> [Footnote 9 As amended, 81 Stat. 499, 42 U.S.C. 1857f (a) (1964 ed., Supp. V). </s> [Footnote 10 Congress first called on federal agencies to cooperate with efforts to reduce air pollution in 1959, Pub. L. 86-365, 73 Stat. 646. </s> [Footnote 11 H. R. Rep. No. 91-1146, p. 4 (1970), 2 Legislative History of the Clean Air Amendments of 1970 (Comm. Print compiled for the Senate Committee on Public Works by the Library of Congress), p. 894 (1974) (hereafter Leg. Hist.). </s> [Footnote 12 S. Rep. No. 91-1196, p. 37 (1970), 1 Leg Hist. 437. </s> [Footnote 13 The full text of 118 appears at n. 41, infra. </s> [Footnote 14 37 Fed. Reg. 10842, 10868-10869 (1972). Approval of the plan was later vacated because the EPA had not given interested persons an opportunity to participate in its consideration of the plan. Buckeye Power, Inc. v. EPA, 481 F.2d 162 (CA6 1973). After resubmission to the EPA and publication as a proposed rule-making, 39 Fed. Reg. 10277 (1974), the plan was approved with an exception not pertinent here. Id., at 29357. </s> [Footnote 15 Pet. for Cert. 46a. Although 5 (1) does not explicitly apply to federal facilities, the definition of "person" in 2 (32) of the Regulation includes any "government agency . . . or other entity whatsoever." App. in No. 73-2099 (CA6), p. 111 (hereafter CA App.). The applicability of 5 (1) to federal facilities as a matter of Kentucky law has not been disputed. </s> [Footnote 16 Reg. AP-1 5 (2) (a), (c), CA App. 120. </s> [Footnote 17 See generally Reg. AP-10, CA App. 209-227. </s> [Footnote 18 Reg. AP-1, 5 (2) (c), CA App. 120. </s> [Footnote 19 Id., 5 (3) (a), CA App. 121. </s> [Footnote 20 Id., 5 (4), CA App. 121. </s> [Footnote 21 The Army facilities are the United States Army Armor Center and Fort Knox, Fort Campbell, and the Lexington and Blue Grass Activities, Lexington-Blue Grass Army Depot. </s> [Footnote 22 Two TVA facilities are involved, the Shawnee and Paradise Power Plants. </s> [Footnote 23 The AEC facility is the Paducah Gaseous Diffusion Plant for the production of enriched uranium, operated under contract by the Union Carbide Corp. Since the Commission initiated its efforts to secure a permit application from the AEC or its contractor, the Energy Research and Development Administration has succeeded to the AEC's responsibility for the Paducah plant. Pub. L. 93-438, 88 Stat. 1233; see 40 Fed. Reg. 3242, 3250 (1975). </s> [Footnote 24 Fort Campbell officials, for example, after asserting that "current Department of the Army regulations do not allow us to apply for such a permit," submitted "pertinent information on our heating plants which appear to be covered by your regulations" and asked to be "advise[d] if any further information is desired." App. 48. TVA officials likewise disclaimed any duty to apply for a permit but submitted "the same emission data and other information for [TVA] power plants which your permit application forms are designed to elicit from applicants who are required to secure permits in order to continue their operations." For the Commission's convenience, [426 U.S. 167, 175] the TVA supplied the information on the Commission's own permit forms. Id., at 52. </s> [Footnote 25 In addition to 118, the letter referred to Executive Order No. 11507, 3 CFR 889 (1966-1970 Comp.), which antedates the Amendments, as a policy source. This Order, cited in the complaint, has been superseded by Executive Order No. 11752, 3 CFR 380 (1974). See infra, at 199. </s> [Footnote 26 The letter explained to the federal officials that the EPA's "advice on this matter, at this time, is to provide the data specifically requested by the states so they may make a determination as to: (1) the facilities compliance with the approved state air implementation plans and (2) the abatement action facilities must take in order to meet implementation plan requirements. </s> "We recommend that each Federal facility under your jurisdiction [426 U.S. 167, 176] which has an air pollution discharge should initiate immediate discussion, if it has not already been accomplished, with the respective states, regarding development of a compliance schedule as required by their implementation plan. This compliance schedule should include the standards or emission limitations which must be met, the abatement equipment to be constructed, corrective measures to be taken, and the timetable for taking these actions in order to meet established implementation plan deadlines. Your agency will be obligated under the compliance schedule to conduct monitoring and to keep operating records. Whenever a state makes a reasonable and specific request to review operating records, we recommend that your agency adopt an open-door policy by providing the requested data." App. 57-58. </s> [Footnote 27 The suit was brought by the Attorney General without the concurrence of the Commission. The District Court's ruling that Kentucky law permitted the Attorney General to sue without a request from the Commission is not challenged here. </s> [Footnote 28 Section 113, as added, 84 Stat. 1686, 42 U.S.C. 1857c-8, empowers the EPA Administrator, upon finding that any person is in violation of an applicable provision of an implementation plan or that violations of an applicable implementation plan are so widespread as to appear to result from ineffective state enforcement and upon giving notice, to commence appropriate action either by issuing an order to any person requiring compliance with the plan's requirements or by bringing a civil action under 113 (b) in district court. The District Court and the Court of Appeals both ruled that, even if federal facilities were obligated to secure operating permits, the Administrator's duty to proceed under 113 was discretionary. The decision not to commence actions [426 U.S. 167, 177] under 113 was therefore unreviewable. 5 U.S.C. 701 (a) (2); 304 (a) (2) of the Clean Air Act, as added, 84 Stat. 1706, 42 U.S.C. 1857h-2 (a) (2). Our disposition of the case makes it unnecessary to reach this alternative ground for judgment in favor of the EPA respondents. </s> [Footnote 29 After the petition was filed, a divided panel of the Fifth Circuit concluded that 118 does require federal facilities to secure a state operating permit and to comply with state "enforcement mechanisms." [426 U.S. 167, 178] Alabama v. Seeber, 502 F.2d 1238 (1974), cert. pending, No. 74-851. See also California v. Stastny, 382 F. Supp. 222 (CD Cal. 1972). </s> [Footnote 30 Art. VI, cl. 2. </s> [Footnote 31 Art. I, 8, cl. 17: </s> "[The Congress shall have power to] exercise exclusive Legislat[ive] . . . . Authority over all places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings . . . ." </s> [Footnote 32 Mayo v. United States, 319 U.S. 441, 445 (1943) (footnote omitted). </s> [Footnote 33 United States v. United Mine Workers, 330 U.S. 258, 272 (1947) (footnote omitted). See United States v. Herron, 20 Wall. 251, 263 (1874); United States v. Knight, 14 Pet. 301, 315 (1840). </s> [Footnote 34 United States v. Wittek, 337 U.S. 346, 359 (1949) (footnote omitted). </s> [Footnote 35 Mayo v. United States, supra, at 447, 448 (footnote omitted). </s> [Footnote 36 Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954). </s> [Footnote 37 Paul v. United States, 371 U.S. 245, 263 (1963). </s> [Footnote 38 California ex rel. State Water Resources Control Board v. EPA, 511 F.2d 963, 968 (CA9 1975), rev'd on other grounds, post, p. 200. </s> [Footnote 39 California Pub. Util. Comm'n v. United States, 355 U.S. 534, 544 (1958). </s> [Footnote 40 Title 40 CFR 51.1 (p) (1975) defines "compliance schedule" as "the date or dates by which a source or category of sources is required to comply with specific emission limitations contained in an implementation plan and with any increments of progress toward such compliance." Basically a compliance schedule is a means by which a State phases in attainment with the ultimate emission limitations that must be achieved. See Train, 421 U.S., at 68 -69. </s> [Footnote 41 "Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements. The President may exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so, except that no exemption may be granted from section 111, and an exemption from section 112 may be granted only in accordance with section 112 (c). No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President's making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting each such exemption." 42 U.S.C. 1857f. </s> [Footnote 42 See 42 U.S.C. 1857f (a) (1964 ed., Supp. V). supra, at 171. </s> [Footnote 43 Brief for Petitioner 21 (emphasis added). </s> [Footnote 44 Id., at 30. Several States which have filed briefs as amici curiae join Kentucky in recognizing that the issue is whether a State may enforce its emission limitations against a federal installation. See Brief for Alabama as Amicus Curiae 4, 5, 37-38; Brief for California as Amicus Curiae 9. </s> [Footnote 45 Although use of permit system may have been "encouraged" by the EPA as its "preferred approach," see Train, 421 U.S., at 68 -69, the EPA has never made a permit system to control emissions from existing stationary sources a mandatory part of an implementation plan. The closest the EPA has come to this was a provision in a proposed rulemaking, 36 Fed. Reg. 6680, 6682 (1971), later eliminated, id., at 15486, that might have been interpreted to [426 U.S. 167, 185] mean that an implementation plan must include a system requiring permits for the construction and operation of modifications to existing sources that would be modified before the Administrator promulgated proposed standards of performance for new sources under 111 of the Clean Air Act. Compare 42 U.S.C. 1857c-6 (a) (2), (b), with 36 Fed. Reg. 6682 (1971), proposing 42 CFR 420.11 (a) (4). </s> [Footnote 46 Among the eight conditions, 110 (a) (2) (A)-(H), each implementation plan must meet are: </s> "(A) (i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e)) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained; </s> "(B) it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of . . . primary or secondary standard[s], including, but not limited to, land-use and transportation controls; [and] </s> "(C) it includes provision for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality and, (ii) upon request, make such data available to the Administrator . . . ." </s> [Footnote 47 The phrase "requirement respecting control or abatement of air pollution" also appears in 116 of the Clean Air Act, as added, 84 Stat. 1689, 42 U.S.C. 1857d-1. That section provides that, with certain exceptions pre-empting state regulation of moving sources, </s> "nothing in this Act shall preclude or deny the right of any State . . . to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 111 or 112, such State . . . may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section." (Emphasis added.) </s> Although the meaning of the italicized phrase in this section, which was added by the Conference Committee, see H. R. Conf. Rep. No. 91-1783, p. 48 (1970), 1 Leg. Hist. 198, is not entirely clear, it seems plain that as employed in 116 the phrase is not synonymous with "emission standards and limitations." As the Fifth Circuit observed in Alabama v. Seeber, 502 F.2d, at 1245, the use of "`or' in 116 is clearly disjunctive." Yet it is agreed that, as used in 118, the phrase does embrace such standards and limitations; indeed the EPA argues the two are synonymous. </s> It is suggested by an amicus that it is logical to read 116 to mean that a "`standard or limitation respecting emissions of air pollutants' is a subcategory of the broader class of `requirement[s] respecting control or abatement of air pollution.'" Brief for Alabama as Amicus Curiae 20. To the contrary, from 116 it appears more logical to conclude that "standards" and "requirements" are separate categories which, together, compose all measures which a State is not denied the right to adopt or enforce. </s> Unlike Kentucky and the Fifth Circuit, Alabama v. Seeber, supra, at 1245-1246, which conclude that use of the phrase in 116 elucidates its scope and meaning in 118, we are unable [426 U.S. 167, 187] to draw from 116 any support for the position that Congress affirmatively declared that federal installations must secure state permits. To reaffirm, as does 116, a State's inherent right as a general matter to employ permits in the exercise of its police power in the area of air pollution control may mean that the Federal Government has not pre-empted the area from state regulation, but does not constitute the kind of clear and unambiguous authorization necessary to subject federal installations and activities to state enforcement. </s> [Footnote 48 Provision in 118 for Presidential exemption on a case-by-case basis and in the "paramount interest of the United States" from compliance with emission standards or compliance schedules does not clearly imply that federal installations are otherwise subject to the enforcement mechanisms of a state implementation plan. </s> [Footnote 49 H. R. 17255, 91st Cong., 2d Sess., 10 ( 111) (1970), 2 Leg. Hist. 938 (emphasis added). </s> [Footnote 50 H. R. Rep. No. 91-1146, supra, n. 11, at 4, 2 Leg. Hist. 894 (emphasis added). </s> [Footnote 51 S. 4358, 91st Cong., 2d Sess., 7 ( 118 (a)) (1970), 1 Leg. Hist. 573 (emphasis added). </s> [Footnote 52 S. Rep. No. 91-1196, supra, n. 12, at 23, 1 Leg. Hist. 423 (emphasis added). Throughout the Senate amendment and in the Report the terms "requirements," "emission requirements," and "emission standards" were used interchangeably. Compare proposed 118 (a) ("requirements") and the Report ("emission standards") with proposed 111 (a) (2) (D) ("emission requirements"), 1 Leg. Hist. 545. </s> [Footnote 53 For example, only the Senate amendment equated the federal installation's duty to comply with "requirements" to any person's duty, a feature of 118 as enacted. Similarly, only the Senate amendment, in 118 (b) (1 Leg. Hist. 574), provided that a State might sue in federal court to enforce the provisions of 118 (a). H. R. Conf. Rep. No. 91-1783, supra, at 55, 1 Leg. Hist. 205. That provision was incorporated in the Amendments in 304 (a), through the definition of "person" retained in 302 (e), as added, 77 Stat, 400, 42 U.S.C. 1857h (e). </s> [Footnote 54 H. R. Conf. Rep. 91-1783, supra, at 48, 1 Leg. Hist. 198. We are not persuaded by the argument that reference to the President's replacing the EPA Administrator as the one "responsible for assuring compliance by Federal agencies" only implicates the President's power to "exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with . . . a requirement." 42 U.S.C. 1857f. Both the House and Senate Reports referred quite plainly to the power to exempt and to make exceptions when referring to the President's (or the Administrator's) power to act in the paramount interest of the United States on a case-by-case basis. S. Rep. No. 91-1196, supra, at 23, 1 Leg. Hist. 423; H. R. Rep. No. 91-1146, supra, at 15, 2 Leg. Hist. 905. Thus, reference in the Conference Report to the President's authority to assure compliance merely expresses what is implied by the very grant of authority to exempt some federal sources - the authority, as to those installations subject to Presidential control, to enforce in the first instance the new regimen of federal compliance with primarily state formulated and administered implementation plans rests in the Federal Government, not in the States. </s> [Footnote 55 Brief for Petitioner 33, quoting Alabama v. Seeber, 502 F.2d, at 1244. </s> [Footnote 56 Ibid. </s> [Footnote 57 Regulation of "new sources" of air pollutants, by EPA-promulgated "standards of performance" (see infra, n. 59), is provided for in 111 of the Clean Air Act, as added, 84 Stat. 1683, 42 U.S.C. 1857c-6. </s> [Footnote 58 Regulation of "hazardous air pollutants" is provided for in 112 of the Clean Air Act, as added, 84 Stat. 1685, 42 U.S.C. 1857c-7. </s> [Footnote 59 Section 111 (a) (1) defines a "standard of performance" to be "a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." 42 U.S.C. 1857c-6 (a) (1). </s> [Footnote 60 S. 4358, 7 ( 118 (b)), 1 Leg. Hist. 574. See n. 53, supra. </s> [Footnote 61 Reply Brief for Petitioner 15-16. </s> [Footnote 62 The House bill included no provision for suit in federal court. H. R. Conf. Rep. No. 91-1783, supra, at 55, 1 Leg. Hist. 205. The Senate amendment did provide for suit in district court "to require the enforcement of, the provisions of this Act including any applicable schedule or timetable of compliance, emission requirement, standard of performance, emission standard, or prohibition established pursuant to this Act . . . against any person, including, but not limited to, a governmental instrumentality or agency . . . ." S. 4358, 9 ( 304 (a) (1)), 1 Leg. Hist. 704. Because the [426 U.S. 167, 198] Senate amendment retained previously enacted 302 (e) of the Clean Air Act, see n. 53, supra, defining "person" as "an individual, corporation, partnership, association, State, municipality, and political subdivision of a State," it is clear, as the Senate Report confirms, that in the Senate amendment it was only by virtue of 118 that a State could sue a federal facility for enforcement in district court under 304. S. Rep. No. 91-1196, supra, at 37, 1 Leg. Hist. 437. </s> [Footnote 63 See United States v. United Mine Workers, 330 U.S., at 273 . </s> [Footnote 64 The Senate Committee on Public Works has recently reported such legislation. See S. Rep. No. 94-717 (1976). </s> [Footnote 65 Tr. of Oral Arg. 22. </s> MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST dissent. They agree substantially with the reasoning of the Court of Appeals for the Fifth Circuit in Alabama v. Seeber, 502 F.2d 1238, and they would reverse the judgment before us on the grounds set out in that opinion. </s> [426 U.S. 167, 200]

United States Supreme Court AMERICAN MOTORS CORP. v. KENOSHA(1958) No. 343 Argued: Decided: March 10, 1958 </s> 274 Wis. 315, 80 N. W. 2d 363, affirmed. </s> Solicitor General Rankin, Assistant Attorney General Rice, John N. Stull, A. F. Prescott and H. Eugene Heine, Jr. for the United States, and Alfred E. LaFrance for the American Motors Corporation, appellants. </s> Wm. J. P. Abert and Robert V. Baker for appellee. </s> PER CURIAM. </s> The motion to affirm is granted and the judgment is affirmed. </s> MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON, MR. JUSTICE HARLAN, and MR. JUSTICE WHITTAKER dissent for the reasons set forth in their dissenting opinions in City of Detroit v. Murray Corp., 355 U.S. 489, 495 , 505, 511, decided March 3, 1958. </s> [356 U.S. 21, 22]

United States Supreme Court PIPER AIRCRAFT CO. v. REYNO(1981) No. 80-848 Argued: October 14, 1981Decided: December 8, 1981 </s> Respondent, as representative of the estates of several citizens and residents of Scotland who were killed in an airplane crash in Scotland during a charter flight, instituted wrongful-death litigation in a California state court against petitioners, which are the company that manufactured the plane in Pennsylvania and the company that manufactured the plane's propellers in Ohio. At the time of the crash the plane was registered in Great Britain and was owned and operated by companies organized in the United Kingdom. The pilot and all of the decedents' heirs and next of kin were Scottish subjects and citizens, and the investigation of the accident was conducted by British authorities. Respondent sought to recover from petitioners on the basis of negligence or strict liability (not recognized by Scottish law), and admitted that the action was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to respondent's position than those of Scotland. On petitioners' motion, the action was removed to a Federal District Court in California and was then transferred to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. 1404(a). The District Court granted petitioners' motion to dismiss the action on the ground of forum non conveniens. Relying on the test set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 , and analyzing the "private interest factors" affecting the litigants' convenience and the "public interest factors" affecting the forum's convenience, as set forth in Gilbert, the District Court concluded that Scotland was the appropriate forum. However, the Court of Appeals reversed, holding that the District Court had abused its discretion in conducting the Gilbert analysis and that, in any event, dismissal is automatically barred where [454 U.S. 235, 236] the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. </s> Held: </s> 1. Plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413 . Pp. 247-255. </s> (a) Under Gilbert, supra, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient, and the forum non conveniens doctrine would become virtually useless. Such an approach not only would be inconsistent with the purpose of the forum non conveniens doctrine, but also would pose substantial practical problems, requiring that trial courts determine complex problems in conflict of laws and comparative law, and increasing the flow into American courts of litigation by foreign plaintiffs against American manufacturers. Pp. 248-252. </s> (b) Nor may an analogy be drawn between forum non conveniens dismissals and transfers between federal courts pursuant to 28 U.S.C. 1404(a), which was construed in Van Dusen v. Barrack, 376 U.S. 612 , as precluding a transfer if it resulted in a change in the applicable law. The statute was enacted to permit change of venue between federal courts, and although it was drafted in accordance with the doctrine of forum non conveniens, it was intended to be a revision rather than a codification of the common law. District courts were given more discretion to transfer under 1404(a) than they had to dismiss on grounds of forum non conveniens. Van Dusen v. Barrack, supra, distinguished. Pp. 253-254. </s> 2. The District Court properly decided that the presumption in favor of the plaintiff's forum choice applied with less than maximum force when the plaintiff or (as here) the real parties in interest are foreign. When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient; but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable and the plaintiff's choice deserves less deference. Pp. 255-256. [454 U.S. 235, 237] </s> 3. The forum non conveniens determination is committed to the trial court's sound discretion and may be reversed only when there has been a clear abuse of discretion. Here, the District Court did not abuse its discretion in weighing the private and public interests under the Gilbert analysis and thereby determining that the trial should be held in Scotland. Pp. 257-261. </s> (a) In analyzing the private interest factors, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland, a large proportion of the relevant evidence being located there. The District Court also correctly concluded that the problems posed by the petitioners' inability to implead potential Scottish third-party defendants - the pilot's estate, the plane's owners, and the charter company - supported holding the trial in Scotland. Pp. 257-259. </s> (b) The District Court's review of the factors relating to the public interest was also reasonable. Even aside from the question whether Scottish law might be applicable in part, all other public interest factors favor trial in Scotland, which has a very strong interest in this litigation. The accident occurred there, all of the decedents were Scottish, and apart from petitioners, all potential parties are either Scottish or English. As to respondent's argument that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products and that additional deterrence might be obtained by trial in the United States where they could be sued on the basis of both negligence and strict liability, any incremental deterrence from trial in an American court is likely to be insignificant and is not sufficient to justify the enormous commitment of judicial time and resources that would be required. Pp. 259-261. </s> 630 F.2d 149, reversed. </s> MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN and REHNQUIST, JJ., joined, and in Parts I and II of which WHITE, J., joined. WHITE J., filed an opinion concurring in part and dissenting in part, post, p. 261. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 261. POWELL, J., took no part in the decision of the cases. O'CONNOR, J., took no part in the consideration or decision of the cases. </s> [Footnote * Together with No. 80-883, Hartzell Propeller, Inc. v. Reyno, Personal Representative of the Estates of Fehilly et al., also on certiorari to the same court. </s> James M. Fitzsimons argued the cause for petitioner in No. 80-848. With him on the brief were Charles J. McKelvey, Ann S. Pepperman, and Keith A. Jones. Warner W. Gardner argued the cause for petitioner in [454 U.S. 235, 238] No. 80-883. With him on the briefs were Nancy J. Bregstein and Ronald C. Scott. </s> Daniel C. Cathcart argued the cause and filed a brief for respondent in both cases.Fn </s> Thomas G. Smith filed a brief for the Law Offices of Gerald C. Stearns as amicus curiae urging affirmance. </s> Fn [454 U.S. 235, 238] John D. Dillow, Samuel F. Pearce, John J. Hennelly, Jr., and Thomas C. Walsh filed a brief for Boeing Co. et al. as amici curiae urging reversal. </s> JUSTICE MARSHALL delivered the opinion of the Court. </s> These cases arise out of an air crash that took place in Scotland. Respondent, acting as representative of the estates of several Scottish citizens killed in the accident, brought wrongful-death actions against petitioners that were ultimately transferred to the United States District Court for the Middle District of Pennsylvania. Petitioners moved to dismiss on the ground of forum non conveniens. After noting that an alternative forum existed in Scotland, the District Court granted their motions. 479 F. Supp. 727 (1979). The United States Court of Appeals for the Third Circuit reversed. 630 F.2d 149 (1980). The Court of Appeals based its decision, at least in part, on the ground that dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Because we conclude that the possibility of an unfavorable change in law should not, by itself, bar dismissal, and because we conclude that the District Court did not otherwise abuse its discretion, we reverse. </s> I </s> A </s> In July 1976, a small commercial aircraft crashed in the Scottish highlands during the course of a charter flight from [454 U.S. 235, 239] Blackpool to Perth. The pilot and five passengers were killed instantly. The decedents were all Scottish subjects and residents, as are their heirs and next of kin. There were no eyewitnesses to the accident. At the time of the crash the plane was subject to Scottish air traffic control. </s> The aircraft, a twin-engine Piper Aztec, was manufactured in Pennsylvania by petitioner Piper Aircraft Co. (Piper). The propellers were manufactured in Ohio by petitioner Hartzell Propeller, Inc. (Hartzell). At the time of the crash the aircraft was registered in Great Britain and was owned and maintained by Air Navigation and Trading Co., Ltd. (Air Navigation). It was operated by McDonald Aviation, Ltd. (McDonald), a Scottish air taxi service. Both Air Navigation and McDonald were organized in the United Kingdom. The wreckage of the plane is now in a hangar in Farnsborough, England. </s> The British Department of Trade investigated the accident shortly after it occurred. A preliminary report found that the plane crashed after developing a spin, and suggested that mechanical failure in the plane or the propeller was responsible. At Hartzell's request, this report was reviewed by a three-member Review Board, which held a 9-day adversary hearing attended by all interested parties. The Review Board found no evidence of defective equipment and indicated that pilot error may have contributed to the accident. The pilot, who had obtained his commercial pilot's license only three months earlier, was flying over high ground at an altitude considerably lower than the minimum height required by his company's operations manual. </s> In July 1977, a California probate court appointed respondent Gaynell Reyno administratrix of the estates of the five passengers. Reyno is not related to and does not know any of the decedents or their survivors; she was a legal secretary to the attorney who filed this lawsuit. Several days after her appointment, Reyno commenced separate wrongful-death [454 U.S. 235, 240] actions against Piper and Hartzell in the Superior Court of California, claiming negligence and strict liability. 1 Air Navigation, McDonald, and the estate of the pilot are not parties to this litigation. The survivors of the five passengers whose estates are represented by Reyno filed a separate action in the United Kingdom against Air Navigation, McDonald, and the pilot's estate. 2 Reyno candidly admits that the action against Piper and Hartzell was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to her position than are those of Scotland. Scottish law does not recognize strict liability in tort. Moreover, it permits wrongful-death actions only when brought by a decedent's relatives. The relatives may sue only for "loss of support and society." 3 </s> On petitioners' motion, the suit was removed to the United States District Court for the Central District of California. Piper then moved for transfer to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. 1404(a). 4 Hartzell moved to dismiss for lack of personal jurisdiction, or in the alternative, to transfer. 5 In December 1977, the District Court quashed service on [454 U.S. 235, 241] Hartzell and transferred the case to the Middle District of Pennsylvania. Respondent then properly served process on Hartzell. </s> B </s> In May 1978, after the suit had been transferred, both Hartzell and Piper moved to dismiss the action on the ground of forum non conveniens. The District Court granted these motions in October 1979. It relied on the balancing test set forth by this Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and its companion case, Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518 (1947). In those decisions, the Court stated that a plaintiff's choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would "establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience," or when the "chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems," the court may, in the exercise of its sound discretion, dismiss the case. Koster, supra, at 524. To guide trial court discretion, the Court provided a list of "private interest factors" affecting the convenience of the litigants, and a list of "public interest factors" affecting the convenience of the forum. Gilbert, supra, at 508-509. 6 </s> [454 U.S. 235, 242] </s> After describing our decisions in Gilbert and Koster, the District Court analyzed the facts of these cases. It began by observing that an alternative forum existed in Scotland; Piper and Hartzell had agreed to submit to the jurisdiction of the Scottish courts and to waive any statute of limitations defense that might be available. It then stated that plaintiff's choice of forum was entitled to little weight. The court recognized that a plaintiff's choice ordinarily deserves substantial deference. It noted, however, that Reyno "is a representative of foreign citizens and residents seeking a forum in the United States because of the more liberal rules concerning products liability law," and that "the courts have been less solicitous when the plaintiff is not an American citizen or resident, and particularly when the foreign citizens seek to benefit from the more liberal tort rules provided for the protection of citizens and residents of the United States." 479 F. Supp., at 731. </s> The District Court next examined several factors relating to the private interests of the litigants, and determined that these factors strongly pointed towards Scotland as the appropriate forum. Although evidence concerning the design, manufacture, and testing of the plane and propeller is located in the United States, the connections with Scotland are otherwise "overwhelming." Id., at 732. The real parties in interest are citizens of Scotland, as were all the decedents. Witnesses who could testify regarding the maintenance of the aircraft, the training of the pilot, and the investigation of the accident - all essential to the defense - are in Great Britain. Moreover, all witnesses to damages are located in Scotland. Trial would be aided by familiarity with Scottish topography, and by easy access to the wreckage. </s> The District Court reasoned that because crucial witnesses and evidence were beyond the reach of compulsory process, and because the defendants would not be able to implead potential Scottish third-party defendants, it would be "unfair to make Piper and Hartzell proceed to trial in this forum." Id., [454 U.S. 235, 243] at 733. The survivors had brought separate actions in Scotland against the pilot, McDonald, and Air Navigation. "[I]t would be fairer to all parties and less costly if the entire case was presented to one jury with available testimony from all relevant witnesses." Ibid. Although the court recognized that if trial were held in the United States, Piper and Hartzell could file indemnity or contribution actions against the Scottish defendants, it believed that there was a significant risk of inconsistent verdicts. 7 </s> The District Court concluded that the relevant public interests also pointed strongly towards dismissal. The court determined that Pennsylvania law would apply to Piper and Scottish law to Hartzell if the case were tried in the Middle District of Pennsylvania. 8 As a result, "trial in this forum would be hopelessly complex and confusing for a jury." Id., at 734. In addition, the court noted that it was unfamiliar with Scottish law and thus would have to rely upon experts from that country. The court also found that the trial would be enormously costly and time-consuming; that it would be unfair to burden citizens with jury duty when the Middle District [454 U.S. 235, 244] of Pennsylvania has little connection with the controversy; and that Scotland has a substantial interest in the outcome of the litigation. </s> In opposing the motions to dismiss, respondent contended that dismissal would be unfair because Scottish law was less favorable. The District Court explicitly rejected this claim. It reasoned that the possibility that dismissal might lead to an unfavorable change in the law did not deserve significant weight; any deficiency in the foreign law was a "matter to be dealt with in the foreign forum." Id., at 738. </s> C </s> On appeal, the United States Court of Appeals for the Third Circuit reversed and remanded for trial. The decision to reverse appears to be based on two alternative grounds. First, the Court held that the District Court abused its discretion in conducting the Gilbert analysis. Second, the Court held that dismissal is never appropriate where the law of the alternative forum is less favorable to the plaintiff. </s> The Court of Appeals began its review of the District Court's Gilbert analysis by noting that the plaintiff's choice of forum deserved substantial weight, even though the real parties in interest are nonresidents. It then rejected the District Court's balancing of the private interests. It found that Piper and Hartzell had failed adequately to support their claim that key witnesses would be unavailable if trial were held in the United States: they had never specified the witnesses they would call and the testimony these witnesses would provide. The Court of Appeals gave little weight to the fact that piper and Hartzell would not be able to implead potential Scottish third-party defendants, reasoning that this difficulty would be "burdensome" but not "unfair," 630 F.2d, at 162. 9 Finally, the court stated that resolution of the suit [454 U.S. 235, 245] would not be significantly aided by familiarity with Scottish topography, or by viewing the wreckage. </s> The Court of Appeals also rejected the District Court's analysis of the public interest factors. It found that the District Court gave undue emphasis to the application of Scottish law: "`the mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before the court.'" Id., at 163 (quoting Hoffman v. Goberman, 420 F.2d 423, 427 (CA3 1970)). In any event, it believed that Scottish law need not be applied. After conducting its own choice-of-law analysis, the Court of Appeals determined that American law would govern the actions against both Piper and Hartzell. 10 The same choice-of-law analysis apparently led it to conclude that Pennsylvania and Ohio, rather than Scotland, are the jurisdictions with the greatest policy interests in the dispute, and that all other public interest factors favored trial in the United States. 11 </s> [454 U.S. 235, 246] </s> In any event, it appears that the Court of Appeals would have reversed even if the District Court had properly balanced the public and private interests. The court stated: </s> "[I]t is apparent that the dismissal would work a change in the applicable law so that the plaintiff's strict liability claim would be eliminated from the case. But . . . a dismissal for forum non conveniens, like a statutory transfer, `should not, despite its convenience, result in a change in the applicable law.' Only when American law is not applicable, or when the foreign jurisdiction would, as a matter of its won choice of law, give the plaintiff the benefit of the claim to which she is entitled here, would dismissal be justified." 630 F.2d, at 163-164 (footnote omitted) (quoting DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977), cert. denied, 435 U.S. 904 (1978)). </s> In other words, the court decided that dismissal is automatically barred if it would lead to a change in the applicable law unfavorable to the plaintiff. </s> We granted certiorari in these case to consider the questions they raise concerning the proper application of the doctrine of forum non conveniens. 450 U.S. 909 (1981). 12 </s> [454 U.S. 235, 247] </s> II </s> The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. </s> We expressly rejected the position adopted by the Court of Appeals in our decision in Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413 (1932). That case arose out of a collision between two vessels in American waters. The Canadian owners of cargo lost in the accident sued the Canadian owners of one of the vessels in Federal District Court. The cargo owners chose an American court in large part because the relevant American liability rules were more favorable than the Canadian rules. The District Court dismissed on grounds of forum non conveniens. The plaintiffs argued that dismissal was inappropriate because Canadian laws were less favorable to them. This Court nonetheless affirmed: </s> "We have no occasion to enquire by what law rights of the parties are governed, as we are of the opinion [454 U.S. 235, 248] that, under any view of that question, it lay within the discretion of the District Court to decline to assume jurisdiction over the controversy. . . . `[T]he court will not take cognizance of the case if justice would be as well done by remitting the parties to their home forum.'" Id., at 419-420 (quoting Charter Shipping Co. v. Bowring, Jones & Tidy, Ltd., 281 U.S. 515, 517 (1930). </s> The Court further stated that "[t]here was no basis for the contention that the District Court abused its discretion." 285 U.S., at 423 . </s> It is true that Canada Malting was decided before Gilbert, and that the doctrine of forum non conveniens was not fully crystallized until our decision in that case. 13 However, Gilbert in no way affects the validity of Canada Malting. Indeed, [454 U.S. 235, 249] by holding that the central focus of the forum non conveniens inquiry is convenience, Gilbert implicitly recognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law. 14 Under Gilbert, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. 15 If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient. </s> The Court of Appeals' decision is inconsistent with this Court's earlier forum non conveniens decisions in another respect. Those decisions have repeatedly emphasized the need to retain flexibility. In Gilbert, the Court refused to identify specific circumstances "which will justify or require either grant or denial of remedy." 330 U.S., at 508 . Similarly, in Koster, the Court rejected the contention that where a trial would involve inquiry into the internal affairs of a foreign corporation, dismissal was always appropriate. "That is one, but only one, factor which may show convenience." 330 U.S., at 527 . And in Williams v. Green Bay & Western R. Co., 326 U.S. 549, 557 (1946), we stated that we would not lay down a rigid rule to govern discretion, and that "[e]ach case turns on its facts." If central emphasis were [454 U.S. 235, 250] placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable. </s> In fact, if conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among several forums. Ordinarily, these plaintiffs will select that forum whose choice-of-law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper. </s> Except for the court below, every Federal Court of Appeals that has considered this question after Gilbert has held that dismissal on grounds of forum non conveniens may be granted even though the law applicable in the alternative forum is less favorable to the plaintiff's chance of recovery. See, e. g., Pain v. United Technologies Corp., 205 U.S. App. D.C. 229, 248-249, 637 F.2d 775, 794-795 (1980); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (CA2 1975), cert. denied, 423 U.S. 1052 (1976); Anastasiadis v. S.S. Little John, 346 F.2d 281, 283 (CA5 1965), cert. denied, 384 U.S. 920 (1966). 16 Several Courts have relied expressly on Canada Malting to hold that the possibility of an unfavorable change of law should not, by itself, bar dismissal. See Fitzgerald [454 U.S. 235, 251] v. Texaco, Inc., supra; Anglo-American Grain Co. v. The S/T Mina D'Amico, 169 F. Supp. 908 (ED Va. 1959). </s> The Court of Appeals' approach is not only inconsistent with the purpose of the forum non conveniens doctrine, but also poses substantial practical problems. If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice-of-law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions. First, the trial court would have to determine what law would apply if the case were tried in the chosen forum, and what law would apply if the case were tried in the alternative forum. It would then have to compare the rights, remedies, and procedures available under the law that would be applied in each forum. Dismissal would be appropriate only if the court concluded that the law applied by the alternative forum is as favorable to the plaintiff as that of the chosen forum. The doctrine of forum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal where the court would be required to "untangle problems in conflict of laws, and in law foreign to itself." 330 U.S., at 509 . </s> Upholding the decision of the Court of Appeals would result in other practical problems. At least where the foreign plaintiff named an American manufacturer as defendant, 17 a court could not dismiss the case on grounds of forum non [454 U.S. 235, 252] conveniens where dismissal might lead to an unfavorable change in law. The American courts, which are already extremely attractive to foreign plaintiffs, 18 would become even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts. 19 </s> [454 U.S. 235, 253] </s> The Court of Appeals based its decision, at least in part, on an analogy between dismissals on grounds of forum non conveniens and transfers between federal courts pursuant to 1404(a). In Van Dusen v. Barrack, 376 U.S. 612 (1964), this Court ruled that a 1404(a) transfer should not result in a change in the applicable law. Relying on dictum in an earlier Third Circuit opinion interpreting Van Dusen, the court below held that that principle is also applicable to a dismissal on forum non conveniens grounds. 630 F.2d, at 164, and n. 51 (citing DeMateos v. Texaco, Inc., 562 F.2d, at 899). However, 1404(a) transfers are different than dismissals on the ground of forum non conveniens. </s> Congress enacted 1404(a) to permit change of venue between federal courts. Although the statute was drafted in accordance with the doctrine of forum non conveniens, see Revisor's Note, H. R. Rep. No. 308, 80th Cong., 1st Sess., A132 (1947); H. R. Rep. No. 2646, 79th Cong., 2d Sess., A127 (1946), it was intended to be a revision rather than a codification of the common law. Norwood v. Kirkpatrick, 349 U.S. 29 (1955). District courts were given more discretion to transfer under 1404(a) than they had to dismiss on grounds of forum non conveniens. Id., at 31-32. </s> The reasoning employed in Van Dusen v. Barrack is simply inapplicable to dismissals on grounds of forum non conveniens. That case did not discuss the common-law doctrine. Rather, it focused on "the construction and application" of 1404(a). 376 U.S., at 613 . 20 Emphasizing the remedial [454 U.S. 235, 254] purpose of the statute, Barrack concluded that Congress could not have intended a transfer to be accompanied by a change in law. Id., at 622. The statute was designed as a "federal housekeeping measure," allowing easy change of venue within a unified federal system. Id., at 613. The Court feared that if a change in venue were accompanied by a change in law, forum-shopping parties would take unfair advantage of the relaxed standards for transfer. The rule was necessary to ensure the just and efficient operation of the statute. 21 </s> We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice. 22 In these cases, however, the remedies that [454 U.S. 235, 255] would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly. </s> III </s> The Court of Appeals also erred in rejecting the District Court's Gilbert analysis. The Court of Appeals stated that more weight should have been given to the plaintiff's choice of forum, and criticized the District Court's analysis of the private and public interests. However, the District Court's decision regarding the deference due plaintiff's choice of forum was appropriate. Furthermore, we do not believe that the District Court abused its discretion in weighing the private and public interests. </s> A </s> The District Court acknowledged that there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. It held, however, that the presumption applies with less force when the plaintiff or real parties in interest are foreign. </s> The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified. In Koster, the Court indicated that a plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. 330 U.S., at 524 . 23 When the home forum has [454 U.S. 235, 256] been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference. 24 </s> [454 U.S. 235, 257] </s> B </s> The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Gilbert, 330 U.S., at 511 -512; Koster, 330 U.S., at 531 . Here, the Court of Appeals expressly acknowledged that the standard of review was one of abuse of discretion. In examining the District Court's analysis of the public and private interests, however, the Court of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the District Court. </s> (1) </s> In analyzing the private interest factors, the District Court stated that the connections with Scotland are "overwhelming." 479 F. Supp., at 732. This characterization may be somewhat exaggerated. Particularly with respect to the question of relative ease of access to sources of proof, the private interests point in both directions. As respondent emphasizes, records concerning the design, manufacture, and testing of the propeller and plane are located in the United States. She would have greater access to sources of proof relevant to her strict liability and negligence theories if trial were held here. 25 However, the District Court did not act [454 U.S. 235, 258] unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland. A large proportion of the relevant evidence is located in Great Britain. </s> The Court of Appeals found that the problems of proof could not be given any weight because Piper and Hartzell failed to describe with specificity the evidence they would not be able to obtain if trial were held in the United States. It suggested that defendants seeking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial were held in the alternative forum. Such detail is not necessary. 26 Piper and Hartzell have moved for dismissal precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult to identify or interview. Requiring extensive investigation would defeat the purpose of their motion. Of course, defendants must provide enough information to enable the District Court to balance the parties' interests. Our examination of the record convinces us that sufficient information [454 U.S. 235, 259] was provided here. Both Piper and Hartzell submitted affidavits describing the evidentiary problems they would face if the trial were held in the United States. 27 </s> The District Court correctly concluded that the problems posed by the inability to implead potential third-party defendants clearly supported holding the trial in Scotland. Joinder of the pilot's estate, Air Navigation, and McDonald is crucial to the presentation of petitioners' defense. If Piper and Hartzell can show that the accident was caused not by a design defect, but rather by the negligence of the pilot, the plane's owners, or the charter company, they will be relieved of all liability. It is true, of course, that if Hartzell and Piper were found liable after a trial in the United States, they could institute an action for indemnity or contribution against these parties in Scotland. It would be far more convenient, however, to resolve all claims in one trial. The Court of Appeals rejected this argument. Forcing petitioners to rely on actions for indemnity or contributions would be "burdensome" but not "unfair." 630 F.2d, at 162. Finding that trial in the plaintiff's chosen forum would be burdensome, however, is sufficient to support dismissal on grounds of forum non conveniens. 28 </s> (2) </s> The District Court's review of the factors relating to the public interest was also reasonable. On the basis of its [454 U.S. 235, 260] choice-of-law analysis, it concluded that if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws would be confusing to the jury. It also noted its own lack of familiarity with Scottish law. Consideration of these problems was clearly appropriate under Gilbert; in that case we explicitly held that the need to apply foreign law pointed towards dismissal. 29 The Court of Appeals found that the District Court's choice-of-law analysis was incorrect, and that American law would apply to both Hartzell and Piper. Thus, lack of familiarity with foreign law would not be a problem. Even if the Court of Appeals' conclusion is correct, however, all other public interest factors favored trial in Scotland. </s> Scotland has a very strong interest in this litigation. The accident occurred in its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is "a local interest in having localized controversies decided at home." 330 U.S., at 509 . Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if Piper and Hartzell were tried in the United States, where they could be sued on the basis of both negligence and strict liability. However, the incremental deterrence that would be gained if this trial were held in an [454 U.S. 235, 261] American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here. </s> IV </s> The Court of Appeals erred in holding that the possibility of an unfavorable change in law bars dismissal on the ground of forum non conveniens. It also erred in rejecting the District Court's Gilbert analysis. The District Court properly decided that the presumption in favor of the respondent's forum choice applied with less than maximum force because the real parties in interest are foreign. It did not act unreasonably in deciding that the private interests pointed towards trial in Scotland. Nor did it act unreasonably in deciding that the public interests favored trial in Scotland. Thus, the judgment of the Court of Appeals is </s> Reversed. </s> JUSTICE POWELL took no part in the decision of these cases. </s> JUSTICE O'CONNOR took no part in the consideration or decision of these cases. </s> JUSTICE WHITE, concurring in part and dissenting in part. </s> I join Parts I and II of the Court's opinion. However, like JUSTICE BRENNAN and JUSTICE STEVENS, I would not proceed to deal with the issues addressed in Part III. To that extent, I am in dissent. </s> Footnotes [Footnote 1 Avco-Lycoming, Inc., the manufacturer of the plane's engines, was also named as a defendant. It was subsequently dismissed from the suit by stipulation. </s> [Footnote 2 The pilot's estate has also filed suit in the United Kingdom against Air Navigation, McDonald, Piper, and Hartzell. </s> [Footnote 3 See Affidavit of Donald Ian Kerr MacLeod, App. A19 (affidavit submitted to District Court by petitioners describing Scottish law). Suits for damages are governed by The Damages (Scotland) Act 1976. </s> [Footnote 4 Section 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." </s> [Footnote 5 The District Court concluded that it could not assert personal jurisdiction over Hartzell consistent with due process. However, it decided not to dismiss Hartzell because the corporation would be amenable to process in Pennsylvania. </s> [Footnote 6 The factors pertaining to the private interests of the litigants included the "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gilbert, 330 U.S., at 508 . The public factors bearing on the question included the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Id., at 509. </s> [Footnote 7 The District Court explained that inconsistent verdicts might result if petitioners were held liable on the basis of strict liability here, and then required to prove negligence in an indemnity action in Scotland. Moreover, even if the same standard of liability applied, there was a danger that different juries would find different facts and produce inconsistent results. </s> [Footnote 8 Under Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941), a court ordinarily must apply the choice-of-law rules of the State in which it sits. However, where a case is transferred pursuant to 28 U.S.C. 1404(a), it must apply the choice-of-law rules of the State from which the case was transferred. Van Dusen v. Barrack, 376 U.S. 612 (1946). Relying on these two cases, the District Court concluded that California choice-of-law rules would apply to Piper, and Pennsylvania choice-of-law rules would apply to Hartzell. It further concluded that California applied a "governmental interests" analysis in resolving choice-of-law problems, and that Pennsylvania employed a "significant contacts" analysis. The court used the "governmental interests" analysis to determine that Pennsylvania liability rules would apply to Piper, and the "significant contacts" analysis to determine that Scottish liability rules would apply to Hartzell. </s> [Footnote 9 The court claimed that the risk of inconsistent verdicts was slight because Pennsylvania and Scotland both adhere to principles of res judicata. </s> [Footnote 10 The Court of Appeals agreed with the District Court that California choice-of-law rules applied to Piper, and that Pennsylvania choice-of-law rules applied to Hartzell, see n. 8, supra. It did not agree, however, that California used a "governmental interests" analysis and that Pennsylvania used a "significant contacts" analysis. Rather, it believed that both jurisdictions employed the "false conflicts" test. Applying this test, it concluded that Ohio and Pennsylvania had a greater policy interest in the dispute than Scotland, and that American law would apply to both Piper and Hartzell. </s> [Footnote 11 The court's reasoning on this point is somewhat unclear. It states: </s> "We have held that under the applicable choice of law rules Pennsylvania and Ohio are the jurisdictions with the greatest policy interest in this dispute. It follows that the other public interest factors that should be considered under the Supreme Court cases of Gilbert and Koster favor trial in this country rather than Scotland." 630 F.2d, at 171. </s> The Court of Appeals concluded as part of its choice-of-law analysis that the United States had the greatest policy interest in the dispute. See n. 10, supra. It apparently believed that this conclusion necessarily implied that the forum non conveniens public interest factors pointed toward trial in the United States. </s> [Footnote 12 We granted certiorari in No. 80-848 to consider the question "[w]hether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation." We granted certiorari in No. 80-883 to consider the question whether "a motion to dismiss on grounds of forum non conveniens [should] be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court." </s> In this opinion, we begin by considering whether the Court of Appeals properly held that the possibility of an unfavorable change in law automatically bars dismissal. Part II, infra. Since we conclude that the Court of Appeals erred, we then consider its review of the District Court's Gilbert analysis to determine whether dismissal was otherwise appropriate. Part [454 U.S. 235, 247] III, infra. We believe that it is necessary to discuss the Gilbert analysis in order to properly dispose of the cases. </s> The questions on which certiorari was granted are sufficiently broad to justify our discussion of the District Court's Gilbert analysis. However, even if the issues we discuss in Part III are not within the bounds of the questions with respect to which certiorari was granted, our consideration of these issues is not inappropriate. An order limiting the grant of certiorari does not operate as a jurisdictional bar. We may consider questions outside the scope of the limited order when resolution of those questions is necessary for the proper disposition of the case. See Olmstead v. United States, 277 U.S. 438 (1928); McCandless v. Furlaud, 293 U.S. 67 (1934); Redrup v. New York, 386 U.S. 767 (1967). </s> [Footnote 13 The doctrine of forum non conveniens has a long history. It originated in Scotland, see Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 909-911 (1947), and became part of the common law of many States, see id., at 911-912; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1 (1929). The doctrine was also frequently applied in federal admiralty actions. See, e. g., Canada Malting Co. v. Paterson Steamships, Ltd.; see also Bickel, The Doctrine of Forum Non Conveniens As Applied in the Federal Courts in Matters of Admiralty, 35 Cornell L. Q. 12 (1949). In Williams v. Green Bay & Western R. Co., 326 U.S. 549 (1946), the Court first indicated that motions to dismiss on grounds of forum non conveniens could be made in federal diversity actions. The doctrine became firmly established when Gilbert and Koster were decided one year later. </s> In previous forum non conveniens decisions, the Court has left unresolved the question whether under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), state or federal law of forum non conveniens applies in a diversity case. Gilbert, 330 U.S., at 509 ; Koster, 330 U.S., at 529 ; Williams v. Green Bay & Western R. Co., supra, at 551, 558-559. The Court did not decide this issue because the same result would have been reached in each case under federal or state law. The lower courts in these cases reached the same conclusion: Pennsylvania and California law on forum non conveniens dismissals are virtually identical to federal law. See 630 F.2d, at 158. Thus, here also, we need not resolve the Erie question. </s> [Footnote 14 See also Williams v. Green Bay & Western R. Co., supra, at 555, n. 4 (citing with approval a Scottish case that dismissed an action on the ground of forum non conveniens despite the possibility of an unfavorable change in law). </s> [Footnote 15 In other words, Gilbert held that dismissal may be warranted where a plaintiff chooses a particular forum, not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law. This is precisely the situation in which the Court of Appeals' rule would bar dismissal. </s> [Footnote 16 Cf. Dahl v. United Technologies Corp., 632 F.2d 1027, 1032 (CA3 1980) (dismissal affirmed where "Norwegian substantive law will predominate the trial of this case and the mere presence of a count pleaded under Connecticut law but which may have little chance of success does not warrant a different conclusion"). But see DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977) (dictum) (principle that 1404(a) transfer should not result in change in law is no less applicable to dismissal on grounds of forum non conveniens), cert. denied, 435 U.S. 904 (1978). The court below relied on the dictum in DeMateos in reaching its decision. See infra, at 253-254. </s> [Footnote 17 In fact, the defendant might not even have to be American. A foreign plaintiff seeking damages for an accident that occurred abroad might be able to obtain service of process on a foreign defendant who does business in the United States. Under the Court of Appeals' holding, dismissal would be barred if the law in the alternative forum were less favorable to the plaintiff - even though none of the parties are American, and even though there is absolutely no nexus between the subject matter of the litigation and the United States. </s> [Footnote 18 First, all but 6 of the 50 American States - Delaware, Massachusetts, Michigan, North Carolina, Virginia, and Wyoming - offer strict liability. 1 CCH Prod. Liability Rep. 4016 (1981). Rules roughly equivalent to American strict liability are effective in France, Belgium, and Luxembourg. West Germany and Japan have a strict liability statute for pharmaceuticals. However, strict liability remains primarily an American innovation. Second, the tort plaintiff may choose, at least potentially, from among 50 jurisdictions if he decides to file suit in the United States. Each of these jurisdictions applies its own set of malleable choice-of-law rules. Third, jury trials are almost always available in the United States, while they are never provided in civil law jurisdictions. G. Gloss, Comparative law 12 (1979); J. Merryman, the Civil Law Tradition 121 (1969). Even in the United Kingdom, most civil actions are not tried before a jury. 1 G. Keeton, The United Kingdom, The Development of its Laws and Constitutions 309 (1955). Fourth, unlike most foreign jurisdictions, American courts allow contingent attorney's fees, and do not tax losing parties with their opponents' attorney's fees. R. Schlesinger, Comparative Laws: Cases, Text, Materials 275-277 (3d ed. 1970); Orban, Product Liability: A Comparative Legal Restatement - Foreign National Law and the EEC Directive, 8 Ga. J. Int'l & Comp. L. 342, 393 (1978). Fifth, discovery is more extensive in American than in foreign courts. R. Schlesinger, supra, at 307, 310, and n. 33. </s> [Footnote 19 In holding that the possibility of a change in law unfavorable to the plaintiff should not be given substantial weight, we also necessarily hold that the possibility of a change in law favorable to defendant should not be considered. Respondent suggests that Piper and Hartzell filed the motion to dismiss, not simply because trial in the United States would be inconvenient, but also because they believe the laws of Scotland are more favorable. She argues that this should be taken into account in the analysis of the private interests. We recognize, of course, that Piper and Hartzell may be engaged in reverse forum-shopping. However, this possibility ordinarily should not enter into a trial court's analysis of the private interests. If the defendant is able to overcome the presumption in favor of plaintiff by showing that trial in the chosen forum would be unnecessarily [454 U.S. 235, 253] burdensome, dismissal is appropriate - regardless of the fact that defendant may also be motivated by a desire to obtain a more favorable forum. Cf. Koleckener Reederieund Kohlenhandel v. A/S Hakedal, 210 F.2d 754, 757 (CA2) (defendant not entitled to dismissal on grounds of forum non conveniens solely because the law of the original forum is less favorable to him than the law of the alternative forum), cert. dism'd by stipulation, 348 U.S. 801 (1954). </s> [Footnote 20 Barrack at least implicitly recognized that the rule it announced for transfer under 1404(a) was not the common-law rule. It cited several [454 U.S. 235, 254] decisions under 1404(a) in which lower courts had been "strongly inclined to protect plaintiffs against the risk that transfer might be accompanied by a prejudicial change in applicable state laws." 376 U.S., at 630 , n. 26. These decisions frequently rested on the assumption that a change in law would have been unavoidable under common law forum non conveniens, but could be avoided under 1404(a). See, e. g., Greve v. Gibraltar Enterprises, Inc., 85 F. Supp. 410, 414 (NM 1949). </s> [Footnote 21 The United States Court of Appeals for the Second Circuit has expressly rejected the contention that rules governing transfers pursuant to 1404(a) also govern forum non conveniens dismissals. Schertenleib v. Traum, 589 F.2d 1156 (1978). </s> [Footnote 22 At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other jurisdiction. Gilbert, 330 U.S., at 506 -507. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute. Cf. Phoenix Canada Oil Co. [454 U.S. 235, 255] Ltd. v. Texaco, Inc., 78 F. R. D. 445 (Del. 1978) (court refuses to dismiss, where alternative forum is Ecuador, it is unclear whether Ecuadorean tribunal will hear the case, and there is n generally codified Ecuadorean legal remedy for the unjust enrichment and tort claims asserted). </s> [Footnote 23 In Koster, we stated that "[i]n any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will [454 U.S. 235, 256] normally outweigh the inconvenience the defendant may have shown." 330 U.S., at 524 . See also Swift & Co. Packers v. Compania Colombiana del Caribe, 339 U.S. 684, 697 (1950) ("suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners"); Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S., at 421 ("[t]he rule recognizing an unqualified discretion to decline jurisdiction in suits in admiralty between foreigners appears to be supported by an unbroken line of decisions in the lower federal courts"). </s> As the District Court correctly noted in its opinion, 479 F. Supp., at 731; see also n. 10, supra, the lower federal courts have routinely given less weight to a foreign plaintiff's choice of forum. See, e. g., Founding Church of Scientology v. Verlag, 175 U.S. App. D.C. 402, 408, 536 F.2d 429, 435 (1976); Paper Operations Consultants Int'l, Ltd. v. SS Hong Kong Amber, 513 F.2d 667, 672 (CA9 1975); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 (CA2 1975), cert. denied, 423 U.S. 1052 (1976); Mobil Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611, 614 (CA3), cert. denied, 385 U.S. 945 (1966); Ionescu v. E. F. Hutton & Co. (France), 465 F. Supp. 139 (SDNY 1979); Michell v. General Motors Corp., 439 F. Supp. 24, 27 (ND Ohio 1977). </s> A citizen's forum choice should not be given dispositive weight, however. See Pain v. United Technologies Corp., 205 U.S. App. D.C. 229, 252-253, 637 F.2d 775, 796-797 (1980); Mizokami Bros. of Arizona, Inc. v. Baychem Corp., 556 F.2d 975 (CA9 1977), cert. denied, 434 U.S. 1035 (1978). Citizens or residents deserve somewhat more deference than foreign plaintiffs, but dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal in proper. </s> [Footnote 24 See Pain v. United Technologies Corp., supra, at 253, 637 F.2d, at 797 (citizenship and residence are proxies for convenience); see also Note, Forum Non Conveniens and American Plaintiffs in the Federal Courts, 47 U. Chi. L. Rev. 373, 382-383 (1980). </s> Respondent argues that since plaintiffs will ordinarily file suit in the [454 U.S. 235, 257] jurisdiction that offers the most favorable law, establishing a strong presumption in favor of both home and foreign plaintiffs will ensure that defendants will always be held to the highest possible standard of accountability for their purported wrongdoing. However, the deference accorded a plaintiff's choice of forum has never been intended to guarantee that the plaintiff will be able to select the law that will govern the case. See supra, at 247-250. </s> [Footnote 25 In the future, where similar problems are presented, district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintiff's claims. </s> [Footnote 26 The United States Court of Appeals for the Second Circuit has expressly rejected such a requirement. Fitzgerald v. Texaco, Inc., supra, at 451, n. 3. In other cases, dismissals have been affirmed despite the failure to provide detailed affidavits. See Farmanfarmaian v. Gulf Oil Corp., 437 F. Supp. 910, 924 (SDNY 1977), aff'd., 588 F.2d 880 (CA2 1978). And in a decision handed down two weeks after the decision in this case, another Third Circuit panel affirmed a dismissal without mentioning such a requirement. See Dahl v. United Technologies Corp., 632 F.2d 1027 (1980). </s> The Court of Appeals apparently relied on an analogy to motions to transfer under 28 U.S.C. 1404(a). 630 F.2d, at 160-161. It cited Marbury-Pattillo Construction Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (CA5 1974), and Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (CA10 1967), which suggest an affidavit requirement in the 1404(a) context. As we have explained, however, dismissals on grounds of forum non conveniens and 1404(a) transfers are not directly comparable. See supra, at 253-254. </s> [Footnote 27 See Affidavit of Ronald C. Scott, App. to Pet. for Cert. of Hartzell Propeller, Inc., A75; Affidavit of Charles J. McKelvey, App. to Pet. for Cert. of Piper Aircraft Co. 1f. The affidavit provided to the District Court by Piper states that it would call the following witnesses: the relatives of the decedents; the owners and employees of McDonald; the persons responsible for the training and licensing of the pilot; the persons responsible for servicing and maintaining the aircraft; and two or three of its own employees involved in the design and manufacture of the aircraft. </s> [Footnote 28 See Pain v. United Technologies Corp., 205 U.S. App. D.C., at 244, 637 F.2d, at 790 (relying on similar argument in approving dismissal of action arising out of helicopter crash that took place in Norway). </s> [Footnote 29 Many forum non conveniens decisions have held that the need to apply foreign law favors dismissal. See, e. g., Calavo Growers of California v. Belgium, 632 F.2d 963, 967 (CA2 1980), cert. denied, 449 U.S. 1084 (1981); Schertenleib v. Traum, 589 F.2d, at 1165. Of course, this factor alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff's chosen forum is appropriate. See, e. g., Founding Church of Scientology v. Verlag, 175 U.S. App. D.C., at 409, 536 F.2d, at 436; Burt v. Isthmus Development Co., 218 F.2d 353, 357 (CA5), cert. denied, 349 U.S. 922 (1955). </s> JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, dissenting. </s> In No. 80-848, only one question is presented for review to this Court: </s> "Whether, in an action in federal district court brought by foreign plaintiffs against American defendants, the plaintiffs may defeat a motion to dismiss on the ground of [454 U.S. 235, 262] forum non conveniens merely by showing that the substantive law that would be applied if the case were litigated in the district court is more favorable to them than the law that would be applied by the courts of their own nation." Pet. for Cert. in No. 80-848, p. i. </s> In No. 80-883, the Court limited its grant of certiorari, see 450 U.S. 909 , to the same question: </s> "Must a motion to dismiss on grounds of forum non conveniens be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the district court?" Pet. for Cert. in No. 80-883, p. i. </s> I agree that this question should be answered in the negative. Having decided that question, I would simply remand the case to the Court of Appeals for further consideration of the question whether the District Court correctly decided that Pennsylvania was not a convenient forum in which to litigate a claim against a Pennsylvania company that a plane was defectively designed and manufactured in Pennsylvania. </s> [454 U.S. 235, 263]

United States Supreme Court LABOR BOARD v. INSURANCE AGENTS(1960) No. 15 Argued: Decided: February 23, 1960 </s> On a complaint before the National Labor Relations Board charging that a union had refused to bargain in good faith with an employer in violation of 8 (b) (3) of the National Labor Relations Act, as amended, it appeared that the union had conferred with the employer at the bargaining table for the purpose and with the desire of reaching an agreement on contract terms, but that, during the negotiations, it had sponsored concerted on-the-job activities by its members of a harassing nature designed to interfere with the conduct of the employer's business, for the avowed purpose of putting economic pressure on the employer to accede to the union's bargaining demands. Held: Such tactics would not support a finding by the Board that the union had failed to bargain in good faith as required by 8 (b) (3). Pp. 478-500. </s> (1) The basic premise of the duty of collective bargaining required in the Act is that it is a process in which the parties deal with each other in a serious, good-faith desire to reach agreement and to enter into a contract ordering their industrial relationship. Congress did not intend that the Board control the substantive terms of collective bargaining contracts through the administration of this requirement; and it added 8 (d) in the Taft-Hartley Act to make the proper construction of the duty clear. Pp. 483-487. </s> (2) By adding 8 (b) (3) to the Act through the Taft-Hartley amendments, Congress intended to require of unions the same standard of good faith in collective bargaining that it had already required of employers. P. 487. </s> (3) Section 8 (b) (3) does not authorize the Board to infer a lack of good faith in bargaining on the part of a union solely because the union resorts to tactics designed to exert economic pressure during the negotiations. Pp. 488-490. </s> (4) The use of economic pressure is not inconsistent with the duty of bargaining in good faith; and the Board is not empowered under 8 (b) (3) to distinguish among various union economic [361 U.S. 477, 478] weapons and to brand those here involved inconsistent with good-faith collective bargaining. Pp. 490-496. </s> (a) A different conclusion is not required on the theory that a total strike is a concerted activity protected against employer interference by 7 and 8 (a) (1) of the Act, whereas the activity here involved is not a protected concerted activity. Even if an activity is not protected against disciplinary action that does not necessarily mean that it amounts to a refusal to bargain in good faith. Pp. 492-495. </s> (b) A different conclusion is not required on the theory that, because an orthodox "total" strike is "traditional," its use must be taken as being consistent with 8 (b) (3); whereas the tactics here involved are not "traditional" or "normal" and, therefore, need not be so viewed. Pp. 495-496. </s> (5) To construe 8 (b) (3) as authorizing the Board to act as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands would inject the Board into the substantive aspects of the bargaining process to an extent that Congress did not intend and has not authorized. Pp. 496-500. </s> 104 U.S. App. D.C. 218, 260 F.2d 736, affirmed. </s> Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman and Thomas J. McDermott. </s> Isaac N. Groner argued the cause and filed a brief for respondent. He was also on a brief for Insurance Workers International Union, AFL-CIO. </s> Nahum A. Bernstein filed a brief for Prudential Insurance Company of America, as amicus curiae, urging reversal. Donald R. Seawell was of counsel. </s> MR. JUSTICE BRENNAN delivered the opinion of the Court. </s> This case presents an important issue of the scope of the National Labor Relations Board's authority under 8 (b) (3) of the National Labor Relations Act, 1 which [361 U.S. 477, 479] provides that "It shall be an unfair labor practice for a labor organization or its agents . . . to refuse to bargain collectively with an employer, provided it is the representative of his employees . . . ." The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because during the negotiations it seeks to put economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer's business. </s> Since 1949 the respondent Insurance Agents' International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements covering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his "debit." He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on collections made and on new policies written; his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses. </s> In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956. 2 It is [361 U.S. 477, 480] not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract. </s> However, in April 1956, Prudential filed a 8 (b) (3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a "Work Without a Contract" program - which meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company. </s> A complaint of violation of 8 (b) (3) issued on the charge and hearings began before the bargaining was concluded. 3 It was developed in the evidence that the union's harassing tactics involved activities by the member agents such as these: refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the company's reporting procedures; refusal to participate in the company's "May Policyholders' Month Campaign"; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in "sit-in-mornings," "doing what comes naturally" and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as [361 U.S. 477, 481] directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstration there. </s> The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N. L. R. B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, 97 U.S. App. D.C. 35, 227 F.2d 409, he did not consider that he was bound to follow it. </s> However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner's recommendation, and entered a cease-and-desist order, 119 N. L. R. B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board's order. 104 U.S. App. D.C. 218, 260 F.2d 736. We granted the Board's petition for certiorari to review the important question presented. 358 U.S. 944 . </s> The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union had not fulfilled its statutory duty; in fact nothing else was relied upon by the Board's General Counsel in prosecuting the complaint. 4 The hearing examiner's analysis of the congressional [361 U.S. 477, 482] design in enacting the statutory duty to bargain led him to conclude that the Board was not authorized to find that such economically harassing activities constituted a 8 (b) (3) violation. The Board's opinion answers flatly "We do not agree" and proceeds to say ". . . the Respondent's reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could take place. In such circumstances, the fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith . . . ." 119 N. L. R. B., at 769, 770-771. Thus the Board's view is that irrespective of the union's good faith in conferring with the employer at the bargaining table for the purpose and with the desire of reaching agreement on contract terms, its tactics during the course of the negotiations constituted per se a violation of 8 (b) (3). 5 Accordingly, as is said in the Board's brief, [361 U.S. 477, 483] "The issue here . . . comes down to whether the Board is authorized under the Act to hold that such tactics, which the Act does not specifically forbid but Section 7 does not protect, 6 support a finding of a failure to bargain in good faith as required by Section 8 (b) (3)." </s> First. The bill which became the Wagner Act included no provision specifically imposing a duty on either party to bargain collectively. Senator Wagner thought that the bill required bargaining in good faith without such a provision. 7 However, the Senate Committee in charge of the bill concluded that it was desirable to include a provision making it an unfair labor practice for an employer to refuse to bargain collectively in order to assure that the Act would achieve its primary objective of requiring an employer to recognize a union selected by his employees as their representative. It was believed that other rights guaranteed by the Act would not be meaningful if the employer was not under obligation to confer with the union in an effort to arrive at the terms of an agreement. It was said in the Senate Report: </s> "But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively [361 U.S. 477, 484] through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives . . . and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment. Such a course provokes constant strife, not peace." S. Rep. No. 573, 74th Cong., 1st Sess., p. 12. </s> However, the nature of the duty to bargain in good faith thus imposed upon employers by 8 (5) of the original Act 8 was not sweepingly conceived. The Chairman of the Senate Committee declared: "When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, `Here they are, the legal representatives of your employees.' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it." 9 </s> The limitation implied by the last sentence has not been in practice maintained - practically, it could hardly have been - but the underlying purpose of the remark has remained the most basic purpose of the statutory provision. That purpose is the making effective of the duty of management to extend recognition to the union; the duty of management to bargain in good faith is essentially [361 U.S. 477, 485] a corollary of its duty to recognize the union. Decisions under this provision reflect this. For example, an employer's unilateral wage increase during the bargaining processes tends to subvert the union's position as the representative of the employees in matters of this nature, and hence has been condemned as a practice violative of this statutory provision. See Labor Board v. Crompton-Highland Mills, Inc., 337 U.S. 217 . And as suggested, the requirement of collective bargaining, although so premised, necessarily led beyond the door of, and into, the conference room. The first annual report of the Board declared: "Collective bargaining is something more than the mere meeting of an employer with the representatives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. . . . The Board has repeatedly asserted that good faith on the part of the employer is an essential ingredient of collective bargaining." 10 This standard had early judicial approval, e. g., Labor Board v. Griswold Mfg. Co., 106 F.2d 713. Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. See Heinz Co. v. Labor Board, 311 U.S. 514 . This was the sort of recognition that Congress, in the Wagner Act, wanted extended to labor unions; recognition as the bargaining agent of the employees in a process that looked to the ordering of the parties' industrial relationship through the formation of a contract. See Teamsters Union v. Oliver, 358 U.S. 283, 295 . </s> But at the same time, Congress was generally not concerned with the substantive terms on which the parties [361 U.S. 477, 486] contracted. Cf. Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6 . Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground. And in fact criticism of the Board's application of the "good-faith" test arose from the belief that it was forcing employers to yield to union demands if they were to avoid a successful charge of unfair labor practice. 11 Thus, in 1947 in Congress the fear was expressed that the Board had "gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make." H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 19. Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties' substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the good-faith test of bargaining into 8 (d) of the Act. That section defines collective bargaining as follows: </s> "For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but [361 U.S. 477, 487] such obligation does not compel either party to agree to a proposal or require the making of a concession . . . ." 12 </s> The same problems as to whether positions taken at the bargaining table violate the good-faith test continue to arise under the Act as amended. See Labor Board v. Truitt Mfg. Co., 351 U.S. 149 ; Labor Board v. Borg-Warner Corp., 356 U.S. 342, 349 . But it remains clear that 8 (d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements. Labor Board v. American National Ins. Co., 343 U.S. 395, 404 . </s> Second. At the same time as it was statutorily defining the duty to bargain collectively, Congress, by adding 8 (b) (3) of the Act through the Taft-Hartley amendments, imposed that duty on labor organizations. Unions obviously are formed for the very purpose of bargaining collectively; but the legislative history makes it plain that Congress was wary of the position of some unions, and wanted to ensure that they would approach the bargaining table with the same attitude of willingness to reach an agreement as had been enjoined on management earlier. It intended to prevent employee representatives from putting forth the same "take it or leave it" attitude that had been condemned in management. 93 Cong. Rec. 4135, 4363, 5005. 13 </s> [361 U.S. 477, 488] </s> Third. It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the overall design of achieving industrial peace. See Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45 . Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. The mainstream of cases before the Board and in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences. See Teamsters Union v. Oliver, supra, at 295. </s> We believe that the Board's approach in this case - unless it can be defended, in terms of 8 (b) (3), as resting on some unique character of the union tactics involved here - must be taken as proceeding from an erroneous view of collective bargaining. It must be realized that collective bargaining, under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth - or even with what might be thought to be the ideal of one. The parties - even granting the modification of views that may come from a realization of economic interdependence - still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among [361 U.S. 477, 489] people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors - necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms - exist side by side. One writer recognizes this by describing economic force as "a prime motive power for agreements in free collective bargaining." 14 Doubtless one factor influences the other; there may be less need to apply economic pressure if the areas of controversy have been defined through discussion; and at the same time, negotiation positions are apt to be weak or strong in accordance with the degree of economic power the parties possess. A close student of our national labor relations laws writes: "Collective bargaining is curiously ambivalent even today. In one aspect collective bargaining is a brute contest of economic power somewhat masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, [361 U.S. 477, 490] a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion." Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1409. </s> For similar reasons, we think the Board's approach involves an intrusion into the substantive aspects of the bargaining process - again, unless there is some specific warrant for its condemnation of the precise tactics involved here. The scope of 8 (b) (3) and the limitations on Board power which were the design of 8 (d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S. Rep. No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union. </s> Fourth. The use of economic pressure, as we have indicated, is of itself not at all inconsistent with the duty of [361 U.S. 477, 491] bargaining in good faith. But in three cases in recent years, the Board has assumed the power to label particular union economic weapons inconsistent with that duty. See the Personal Products case, 15 supra, 108 N. L. R. B. 743, set aside, 97 U.S. App. D.C. 35, 227 F.2d 409; 16 the Boone County case, United Mine Workers, 117 N. L. R. B. 1095, set aside, 103 U.S. App. D.C. 207, 257 F.2d 211; 17 and the present case. The Board freely (and we think correctly) conceded here that a "total" strike called by the union would not have subjected it to sanctions under 8 (b) (3), at least if it were called after the old contract, with its no-strike clause, had expired. Cf. United Mine Workers, supra. The Board's opinion in the instant case is not so unequivocal as this [361 U.S. 477, 492] concession (and therefore perhaps more logical). 18 But in the light of it and the principles we have enunciated, we must evaluate the claim of the Board to power, under 8 (b) (3), to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining. We conclude its claim is without foundation. 19 </s> (a) The Board contends that the distinction between a total strike and the conduct at bar is that a total strike is a concerted activity protected against employer interference by 7 20 and 8 (a) (1) 21 of the Act, while the activity at bar is not a protected concerted activity. We may agree arguendo with the Board 22 that this Court's decision in the Briggs-Stratton case, Automobile Workers v. Wisconsin Board, 336 U.S. 245 , establishes that [361 U.S. 477, 493] the employee conduct here was not a protected concerted activity. 23 On this assumption the employer could have discharged or taken other appropriate disciplinary action against the employees participating in these "slow-down," [361 U.S. 477, 494] "sit-in," and arguably unprotected disloyal tactics. See Labor Board v. Fansteel Metallurgical Corp., 306 U.S. 240 ; Labor Board v. Electrical Workers, 346 U.S. 464 . But surely that a union activity is not protected against disciplinary action does not mean that it constitutes a refusal to bargain in good faith. The reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of [361 U.S. 477, 495] economic pressure and good-faith collective bargaining. The Board suggests that since (on the assumption we make) the union members' activities here were unprotected, and they could have been discharged, the activities should also be deemed unfair labor practices, since thus the remedy of a cease-and-desist order, milder than mass discharges of personnel and less disruptive of commerce, would be available. The argument is not persuasive. There is little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if they were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing 8 (b) (3)'s terms, and we do not see how the availability of self-help to the employer has anything to do with the matter. </s> (b) The Board contends that because an orthodox "total" strike is "traditional" its use must be taken as being consistent with 8 (b) (3); but since the tactics here are not "traditional" or "normal," they need not be so viewed. 24 Further, the Board cites what it conceives to be the public's moral condemnation of the sort of employee tactics involved here. But again we cannot see how these distinctions can be made under a statute which simply enjoins a duty to bargain in good faith. Again, these are relevant arguments when the question is the scope of the concerted activities given affirmative protection by the Act. But as we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. On this basis, we [361 U.S. 477, 496] fail to see the relevance of whether the practice in question is time-honored or whether its exercise is generally supported by public opinion. It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it. 25 The same may be said for the Board's contention that these activities, as opposed to a "normal" strike, are inconsistent with 8 (b) (3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here, 26 but the matter does not turn on that. Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. The catalog of union and employer 27 weapons that might thus fall under ban would be most extensive. 28 </s> [361 U.S. 477, 497] </s> Fifth. These distinctions essayed by the Board here, and the lack of relationship to the statutory standard inherent in them, confirm us in our conclusion that the judgment of the Court of Appeals, setting aside the order of the Board, must be affirmed. For they make clear to us that when the Board moves in this area, with only 8 (b) (3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly "balanced" 29 bargaining power, or some new distinction of justifiable and unjustifiable, proper and "abusive" 30 economic weapons into the collective bargaining duty imposed by the Act. The Board's assertion of power under 8 (b) (3) allows it to sit in judgment upon every [361 U.S. 477, 498] economic weapon the parties to a labor contract negotiation employ, judging it on the very general standard of that section, not drafted with reference to specific forms of economic pressure. We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced. </s> It is one thing to say that the Board has been afforded flexibility to determine, for example, whether an employer's disciplinary action taken against specific workers is permissible or not, or whether a party's conduct at the bargaining table evidences a real desire to come into agreement. The statute in such areas clearly poses the problem to the Board for its solution. Cf. Labor Board v. Truck Drivers Union, 353 U.S. 87 . And specifically we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. See 8 (b) (4) of the National Labor Relations Act, as added by the Taft-Hartley Act, 61 Stat. 141, and as supplemented by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542; (29 U.S.C. 158 (b) (4); 8 (b) (7), as added by the latter Act, 73 Stat. 544. But the activities here involved have never been specifically outlawed by Congress. 31 To [361 U.S. 477, 499] be sure, the express prohibitions of the Act are not exclusive - if there were any questions of a stratagem or device to evade the policies of the Act, the Board hardly would be powerless. Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 194 . But it is clear to us that the Board needs a more specific charter than 8 (b) (3) before it can add to the Act's prohibitions here. </s> We recognize without hesitation the primary function and responsibility of the Board to resolve the conflicting interests that Congress has recognized in its labor legislation. Clearly, where the "ultimate problem is the balancing of the conflicting legitimate interests" it must be remembered that "The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." Labor Board v. Truck Drivers Union, supra, at 96. Certainly a "statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application." Phelps Dodge Corp. v. Labor Board, supra, at 194. But recognition of the appropriate sphere of the administrative power here obviously cannot exclude all judicial review of the Board's actions. On the facts of this case we need not attempt a detailed delineation of the respective functions of court and agency in this area. We think the Board's resolution of the issues here amounted not to a resolution of interests which the Act had left to it for case-by-case adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked. We see no indication here that Congress [361 U.S. 477, 500] has put it to the Board to define through its processes what economic sanctions might be permitted negotiating parties in an "ideal" or "balanced" state of collective bargaining. </s> It is suggested here that the time has come for a reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of "pure" negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties' grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress' policy has not yet moved to this point, and with only 8 (b) (3) to lean on, we do not see how the Board can do so on its own. 32 </s> Affirmed. </s> Footnotes [Footnote 1 As added by the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 141, 29 U.S.C. 158 (b) (3). </s> [Footnote 2 A stenographic record of the discussions at the bargaining table was kept, and the transcription of it fills 72 volumes. </s> [Footnote 3 The hearings on the unfair labor practice charge were recessed in July to allow the parties to concentrate on the effort to negotiate the settlement which was arrived at in the new contract of July 17, 1956. </s> [Footnote 4 Examining the matter de novo without the Personal Products decision of the Board as precedent, the examiner called repeatedly upon the Board's General Counsel for some evidence of failure to bargain in good faith, besides the harassing tactics themselves. When such evidence was not forthcoming, he commented, "It may well be [361 U.S. 477, 482] that the Board will be able to `objectively evaluate' the `impact' of activities upon `collective-bargaining negotiations' from the mere `nature of the activities,' but the Trial Examiner is reluctant even to attempt this feat of mental pole vaulting with only presumption as a pole." 119 N. L. R. B., at 781-782. </s> [Footnote 5 The Board observed that the union's continued participation in negotiations and desire to reach an agreement only indicated that it "was prepared to go through the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands." 119 N. L. R. B., at 771. The only apparent basis for the conclusion that the union was only going through the "motions" of bargaining is the Board's own postulate that the tactics in question were inconsistent with the statutorily required norm of collective bargaining, [361 U.S. 477, 483] and the Board's opinion, and its context, reveal that this was all that it meant. This per se rule amounted to the "pole vaulting" that the examiner said he was "reluctant even to attempt." See note 4, supra. </s> [Footnote 6 We will assume without deciding that the activities in question here were not "protected" under 7 of the Act. See p. 492 and note 22, infra. </s> [Footnote 7 See Hearings before the Senate Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess., p. 43: "Therefore, while the bill does not state specifically the duty of an employer to recognize and bargain collectively with the representatives of his employees, because of the difficulty of setting forth this matter precisely in statutory language, such a duty is clearly implicit in the bill." </s> [Footnote 8 49 Stat. 453. The corresponding provision in the current form of the Act is 8 (a) (5), 61 Stat. 141, 29 U.S.C. 158 (a) (5). </s> [Footnote 9 Senator Walsh, at 79 Cong. Rec. 7660. </s> [Footnote 10 1 N. L. R. B. Ann. Rep., pp. 85-86. </s> [Footnote 11 This Court related the history in Labor Board v. American National Ins. Co., 343 U.S. 395, 404 . </s> [Footnote 12 61 Stat. 142, 29 U.S.C. 158 (d). </s> [Footnote 13 Senator Ellender was most explicit on the matter at 93 Cong. Rec. 4135. The legislative history seems also to have contemplated that the provision would be applicable to a union which declined to identify its bargaining demands while attempting financially to exhaust the employer. See the remark by Senator Hatch at 93 Cong. Rec. 5005. Cf. note 15, infra. A closely related application is developed in American Newspaper Publishers Assn. v. Labor Board, 193 F.2d 782, 804-805, affirmed as to other issues on limited grant of certiorari, 345 U.S. 100 . </s> [Footnote 14 G. W. Taylor, Government Regulation of Industrial Relations, p. 18. </s> [Footnote 15 The facts in Personal Products did, in the Board's view, present the case of a union which was using economic pressure against an employer in a bargaining situation without identifying what its bargaining demands were - a matter which can be viewed quite differently in terms of a 8 (b) (3) violation from the present case. See note 13, supra. The Board's decision in Personal Products may have turned on this to some extent, see 108 N. L. R. B., at 746; but its decision in the instant case seems to view Personal Products as turning on the same point as does the present case. </s> [Footnote 16 This Court granted certiorari, 350 U.S. 1004 , on the Board's petition, to review that judgment; but in the light of intervening circumstances which at least indicated that the litigation had become less meaningful to the parties, cf. The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180 , the order granting certiorari was vacated and certiorari was denied. 352 U.S. 864 . </s> [Footnote 17 The court there displayed a want of sympathy to the Board's theory that a strike in breach of contract violated 8 (b) (3), see 103 U.S. App. D.C., at 210-211, 257 F.2d, at 214-215. Cf. Feinsinger, The National Labor Relations Act and Collective Bargaining, 57 Mich. L. Rev. 806-807. However, the court turned its decision on its ruling, contra the Board, that there was no breach of the contract involved. On this point, contra is United Mine Workers v. Benedict Coal Corp., 259 F.2d 346, 351, affirmed this day by an equally divided Court, ante, p. 459. </s> [Footnote 18 Said the Board: "Consequently, whether or not an inference of bad faith is permissible where a union engages in a protected strike to enforce its demands, there is nothing unreasonable in drawing such an inference where, as here, the union's conduct is not sanctioned by the Act." 119 N. L. R. B., at 771-772. </s> [Footnote 19 Our holding on this ground makes it unnecessary for us to pass on the other grounds for affirmance of the Court of Appeals' judgment urged by respondent. These we take to include the argument that the Board's order violated the standards of 8 (c) of the Act, 61 Stat. 142, 29 U.S.C. 158 (c), and the points touched upon in notes 22 and 23, infra. </s> [Footnote 20 "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. 157. </s> [Footnote 21 "It shall be an unfair labor practice for an employer - (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 . . . ." 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. 158 (a) (1). </s> [Footnote 22 Respondent cites a number of specific circumstances in the activities here that might distinguish them from the Briggs-Stratton case as to protection under 7. We do not pass on the matter. </s> [Footnote 23 Briggs-Stratton held, among other things, that employee conduct quite similar to the conduct at bar was neither protected by 7 of the Act nor prohibited (made an unfair labor practice) by 8. The respondent urges that the holding there that the conduct was not prohibited by 8 in and of itself requires an affirmance of the judgment here, since in this case the Board's order found a violation of 8. In fact the Board's General Counsel on oral argument made the concession that Briggs-Stratton would have to be overruled for the Board to prevail here. But regardless of the status today of the other substantive rulings in the Briggs-Stratton case, we cannot say that the case's holding as to 8 requires a judgment for the respondent here. Briggs-Stratton was a direct review on certiorari here of a state board order, as modified and affirmed in the State Supreme Court, against the union conduct in question. The order was assailed by the union here primarily as being beyond the competence of the State to make, by reason of the federal labor relations statutes. This Court held that the activities in question were neither protected by 7 nor prohibited by 8, and allowed the state order to stand. The primary focus of attention was whether the activities were protected by 7; there seems to have been no serious contention made that they were prohibited by 8. The case arose long before the line of cases beginning with Personal Products in which the Board began to relate such activities to 8 (b) (3). But of special significance is the fact that the approach to pre-emption taken in Briggs-Stratton was that the state courts and this Court on review were required to decide whether the activities were either protected by 7 or prohibited by 8. This approach is "no longer of general application," San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 , n. 4, as this Court has since developed the doctrine in pre-emption cases that questions of interpretation of the National Labor Relations Act are generally committed in the first instance to the Board's administrative processes, San Diego Building Trades Council v. Garmon, supra, except in the atypical situation where those processes are not relevant to an answer to the question. See Teamsters Union v. Oliver, supra. Therefore to view Briggs-Stratton as controlling on the 8 issue here would be to compound the defects of a now discarded approach to pre-emption; it would amount to [361 U.S. 477, 494] saying that the Board would be foreclosed in its adjudicative development of interpretation of the Act by a decision rendered long ago, not arising in review of one of its own orders, at a time when its own views had not come to what they now are, and in which the precise issue (as to 8 (b) (3) was not litigated at all, and the general 8 issue not litigated seriously. Hence we construe 8 here uninfluenced by what was said in Briggs-Stratton. However, we will not here re-examine what was said in Briggs-Stratton as to 13 and 501. The union here contends that the definition of "strike" in 501 (2) of the Taft-Hartley Act, 61 Stat. 161, 29 U.S.C. 142 (2), which is broad enough to include the activities here in question, must be applied here under 13 of the NLRA, which provides that "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." 49 Stat. 457, as amended, 61 Stat. 151, 29 U.S.C. 163. And if it is so applied, the union argues that 13 would prevent the Board from considering the conduct in question as an unfair labor practice. The issue was tendered in much the same light in Briggs-Stratton, and the Court quite plainly indicated that the definition in 501 (2) was only to be considered in connection with 8 (b) (4) and not with 13, see 336 U.S., at 258 -263, especially the last page; at the very least this was a holding alternative to a holding, 336 U.S., at 263 -264, that, however defined, 13, unlike 7, was not an inhibition on state power. Perhaps this element of the Briggs-Stratton decision has become open also, but certainly this is not so clear as is the fact that the 8 point is open. In any event, we shall not consider the matter further since our affirmance of the Court of Appeals' reversal of the Board's order is, we believe, more properly bottomed on a construction of 8 (b) (3). </s> [Footnote 24 The Board quotes, in support of this, general language from a decision of this Court, Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 346 , dealing with a wholly different matter - the scope of subjects appropriate for collective bargaining. </s> [Footnote 25 "To say `there ought to be a law against it' does not demonstrate the propriety of the NLRB's imposing the prohibition." Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1437. </s> [Footnote 26 Though it is much urged in the Board's brief here as a general proposition, the Board's opinion (following its per se approach) contains no discussion of this point at all insofar as the facts of the case were concerned; it did not discuss the economic effect of the activities on the agents themselves and expressly declined to pass on their effect on the employer. 119 N. L. R. B., at 771. Respondent here urges that the evidence establishes quite the opposite conclusion. </s> [Footnote 27 "If relative power be the proper test, surely one who believed the unions to be weak would come to the opposite conclusion. Is it an abuse of `bargaining powers' to threaten a strike at a department store two weeks before Easter instead of engaging in further discussion, postponing the strike until after Easter when the employer will feel it less severely? Is it unfair for an employer to stall negotiations through a busy season or while he is building up inventory so that he can stand a strike better than the workers?" Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1440-1441. </s> [Footnote 28 There is a suggestion in the Board's opinion that it regarded the union tactics as a unilateral setting of the terms and conditions of [361 U.S. 477, 497] employment and hence also on this basis violative of 8 (b) (3), just as an employer's unilateral setting of employment terms during collective bargaining may amount to a breach of its duty to bargain collectively. Labor Board v. Crompton-Highland Mills, Inc., 337 U.S. 217 . See 119 N. L. R. B., at 772. Prudential, as amicus curiae here, renews this point though the Board does not make it here. It seems baseless to us. There was no indication that the practices that the union was engaging in were designed to be permanent conditions of work. They were rather means to another end. The question whether union conduct could be treated, analogously to employer conduct, as unilaterally establishing working conditions, in a manner violative of the duty to bargain collectively, might be raised for example by the case of a union, anxious to secure a reduction of the working day from eight to seven hours, which instructed its members, during the negotiation process, to quit work an hour early daily. Cf. Note, 71 Harv. L. Rev. 502, 509. But this situation is not presented here, and we leave the question open. </s> [Footnote 29 The Board's opinion interprets the National Labor Relations Act to require, in this particular, "a background of balanced bargaining relations." 119 N. L. R. B., at 772. </s> [Footnote 30 The Board in Personal Products condemned the union's tactics as an "abuse of the Union's bargaining powers." 108 N. L. R. B., at 746. </s> [Footnote 31 It might be noted that the House bill, when the Taft-Hartley Act was in the legislative process, contained a list of "unlawful concerted activities" one of which would quite likely have reached some of the union conduct here, but the provision never became law. H. R. 3020, 80th Cong., 1st Sess., 12. </s> [Footnote 32 After we granted certiorari, we postponed to the consideration of the case on the merits a motion by the Board to join as a party here Insurance Workers International Union, AFL-CIO, the style of a new union formed by merger of respondent and another union after the decision of this case in the Court of Appeals, and a contingent motion by respondent that it be deleted as a party. 361 U.S. 872 . In the light of our ruling on the merits, there is little point in determining here and now what the legal status of the predecessor and successor union is, and if the issue ever becomes important, we think that the matter is best decided then. For what it is worth, we shall treat both as parties before us in this proceeding. The Board's motion is granted and respondent's is denied. See Labor Board v. Lion Oil Co., 352 U.S. 282 . [361 U.S. 477, 501] </s> Separate opinion of MR. JUSTICE FRANKFURTER, which MR. JUSTICE HARLAN and MR. JUSTICE WHITTAKER join. </s> The sweep of the Court's opinion, with its far-reaching implications in a domain of lawmaking of such nationwide importance as that of legal control of collective bargaining, compels a separate statement of my views. </s> The conduct which underlies this action was the respondent union's "Work Without a Contract" program which it admittedly initiated after the expiration of its contract with the Prudential Insurance Company on March 19, 1956. In brief, the union directed its members at various times to arrive late to work; to decline, by "sitting-in" the company offices, to work according to their regular schedule; to refuse to write new business or, when writing it, not to report it in the ordinary fashion; to decline to attend special business meetings; to demonstrate before company offices; and to solicit petitions in the union's behalf from policyholders with whom they dealt. Prudential was given notice in advance of the details of this program and of the demands which the union sought to achieve by carrying it out. </s> This action was commenced by a complaint issued on June 5, 1956, alleging respondent's failure to bargain in good faith. After a hearing, the Trial Examiner recommended that the complaint be dismissed, finding that "[f]rom the `circumstantial evidence' [of the union's state of mind] of the bargaining itself . . . but one inference is possible . . . the Union's motive was one of good faith . . ."; and that "whatever inference may be as reasonably drawn from the Union's concurrent `unprotected' activities" is not sufficient to outweigh this evidence of good faith. </s> The Board sustained exceptions to the Trial Examiner's report, concluding that respondent failed to bargain in good faith. The only facts relied on by the Board were based on the "Work Without a Contract" program. The [361 U.S. 477, 502] Board found that such tactics on respondent's part "clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table" and that respondent therefore failed to bargain in good faith. In support of its conclusion of want of bargaining in good faith, the Board stated that "[h]arassing activities are plainly `irreconcilable with the Act's requirement of reasoned discussion in a background of balanced bargaining relations upon which good-faith bargaining must rest' . . . ." The Board made no finding that the outward course of the negotiations gave rise to an inference that respondent's state of mind was one of unwillingness to reach agreement. It found from the character of respondent's activities in carrying out the "Work Without a Contract" program that what appeared to be good faith bargaining at the bargaining table was in fact a sham: </s> "[T]he fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith, as the Respondent argues and the Trial Examiner believes. At most, it demonstrates that the Respondent was prepared to go through the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands." </s> The Board issued a cease-and-desist order 1 and sought its enforcement in the Court of Appeals for the District of Columbia. Respondent cross-petitioned to set it aside. [361 U.S. 477, 503] The Court of Appeals, relying exclusively on its prior decision in Textile Workers Union v. Labor Board, 97 U.S. App. D.C. 35, 227 F.2d 409 (1955), denied enforcement and set aside the order. In the Textile Workers case the court had held (one judge dissenting) that the Board could not consider the "harassing" activities of the union there involved as evidence of lack of good faith during the negotiations. "There is not the slightest inconsistency between genuine desire to come to an agreement and use of economic pressure to get the kind of agreement one wants." 97 U.S. App. D.C. 35, 36, 227 F.2d 409, 410. </s> The record presents two different grounds for the Board's action in this case. The Board's own opinion proceeds in terms of an examination of respondent's conduct as it bears upon the genuineness of its bargaining in the negotiation proceedings. From the respondent's conduct the Board drew the inference that respondent's state of mind was inimical to reaching an agreement, and that inference alone supported its conclusion of a refusal to bargain. The Board's position in this Court proceeded in terms of the relation of conduct such as respondent's to the kind of bargaining required by the statute, without regard to the bearing of such conduct on the proof of good faith revealed by the actual bargaining. The Board maintained that it </s> "could appropriately determine that the basic statutory purpose of promoting industrial peace through the collective bargaining process would be defeated by sanctioning resort to this form of industrial warfare as a collective bargaining technique." [361 U.S. 477, 504] </s> The opinion of this Court, like that of the Court of Appeals, disposes of both questions by a single broad stroke. It concludes that conduct designed to exert pressure on the bargaining situation with the aim of achieving favorable results is to be deemed entirely consistent with the duty to bargain in good faith. No evidentiary significance, not even an inference of a lack of good faith, is allowed to be drawn from the conduct in question as part of a total context. </s> I agree that the position taken by the Board here is not tenable. In enforcing the duty to bargain the Board must find the ultimate fact whether, in the case before it and in the context of all its circumstances, the respondent has engaged in bargaining without the sincere desire to reach agreement which the Act commands. I further agree that the Board's action in this case is not sustainable as resting upon a determination that respondent's apparent bargaining was in fact a sham, because the evidence is insufficient to justify that conclusion even giving the Board, as we must, every benefit of its right to draw on its experience in interpreting the industrial significance of the facts of a record. See Universal Camera Corp. v. Labor Board, 340 U.S. 474 . What the Board has in fact done is lay down a rule of law that such conduct as was involved in carrying out the "Work Without a Contract" program necessarily betokens bad faith in the negotiations. </s> The Court's opinion rests its conclusion on the generalization that "the ordinary economic strike is not evidence of a failure to bargain in good faith . . . because . . . there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining." This large statement is justified solely by reference to 8 (b) (3) and to the proposition that inherent in bargaining is room for the play of forces which reveal the strength of one party, or the weakness of [361 U.S. 477, 505] the other, in the economic context in which they seek agreement. But in determining the state of mind of a party to collective bargaining negotiations the Board does not deal in terms of abstract "economic pressure." It must proceed in terms of specific conduct which it weighs as a more or less reliable manifestation of the state of mind with which bargaining is conducted. No conduct in the complex context of bargaining for a labor agreement can profitably be reduced to such an abstraction as "economic pressure." An exertion of "economic pressure" may at the same time be part of a concerted effort to evade or disrupt a normal course of negotiations. Vital differences in conduct, varying in character and effect from mild persuasion to destructive, albeit "economic," violence 2 are obscured under cover of a single abstract phrase. </s> While 8 (b) (3) of course contemplates some play of "economic pressure," it does not follow that the purpose in engaging in tactics designed to exert it is to reach agreement through the bargaining process in the manner which the statute commands, so that the Board is precluded from considering such conduct, in the totality of circumstances, as evidence of the actual state of mind of the actor. Surely to deny this scope for allowable judgment to the Board is to deny it the special function with which it has been entrusted. See Universal Camera Corp. v. Labor Board, supra. This Court has in the past declined to pre-empt by broad proscriptions the Board's competence in the first instance to weigh the significance of the raw facts of conduct and to draw from them an informed judgment as to the ultimate fact. It has recognized that the significance of conduct, itself apparently innocent and evidently insufficient to sustain a finding of [361 U.S. 477, 506] an unfair labor practice, "may be altered by imponderable subtleties at work, which it is not our function to appraise" but which are, first, for the Board's consideration upon all the evidence. Labor Board v. Virginia Power Co., 314 U.S. 469, 479 . Activities in isolation may be wholly innocent, lawful and "protected" by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts "are bound together as the parts of a single plan [to frustrate agreement]. The plan may make the parts unlawful." Swift & Co. v. United States, 196 U.S. 375, 396 . See also Aikens v. Wisconsin, 195 U.S. 194, 206 . </s> Moreover, conduct designed to exert and exerting "economic pressure" may not have the shelter of 8 (b) (3) even in isolation. Unlawful violence, whether to person or livelihood, to secure acceptance of an offer, is as much a withdrawal of included statutory subjects from bargaining as the "take it or leave it" attitude which the statute clearly condemns. 3 One need not romanticize the community of interest between employers and employees, or be unmindful of the conflict between them, to recognize that utilization of what in one set of circumstances may only signify resort to the traditional weapons of labor may in another and relevant context offend the attitude toward bargaining commanded by the statute. Section 8 (b) (3) is not a specific direction, but an expression of a governing viewpoint or policy to which, by the process of specific application, the Board and the courts must give concrete, not doctrinaire content. </s> The main purpose of the Wagner Act was to put the force of law behind the promotion of unionism as the legitimate and necessary instrument "to give laborers opportunity to deal on equality with their employer." [361 U.S. 477, 507] Mr. Chief Justice Taft for the Court, in American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209 . Equality of bargaining power between capital and labor, to use the conventional terminology of our pre-dominant economic system, was the aim of this legislation. The presupposition of collective bargaining was the progressive enlargement of the area of reason in the process of bargaining through the give-and-take of discussion and enforcing machinery within industry, in order to substitute, in the language of Mr. Justice Brandeis, "processes of justice for the more primitive method of trial by combat." Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488 (dissenting). Promotion of unionism by the Wagner Act, with the resulting progress of rational collective bargaining, has been gathering momentum for a quarter of a century. In view of the economic and political strength which has thereby come to unions, interpretations of the Act ought not to proceed on the assumption that it actively throws its weight on the side of unionism in order to redress an assumed inequality of bargaining power. For the Court to fashion the rules governing collective bargaining on the assumption that the power and position of labor unions and their solidarity are what they were twenty-five years ago, is to fashion law on the basis of unreality. Accretion of power may carry with it increasing responsibility for the manner of its exercise. </s> Therefore, in the unfolding of law in this field it should not be the inexorable premise that the process of collective bargaining is by its nature a bellicose process. The broadly phrased terms of the Taft-Hartley Act should be applied to carry out the broadly conceived policies of the Act. At the core of the promotion of collective bargaining, which was the chief means by which the great social purposes of the National Labor Relations Act were sought to be furthered, is a purpose to discourage, more [361 U.S. 477, 508] and more, industrial combatants from pressing their demands by all available means to the limits of the justification of self-interest. This calls for appropriate judicial construction of existing legislation. The statute lays its emphasis upon reason and a willingness to employ it as the dominant force in bargaining. That emphasis is respected by declining to take as a postulate of the duty to bargain that the legally impermissible exertions of so-called economic pressure must be restricted to the crudities of brute force. Cf. Labor Board v. Fansteel Metallurgical Corp., 306 U.S. 240 . </s> However, it of course does not follow because the Board may find in tactics short of violence evidence that a party means not to bargain in good faith that every such finding must be sustained. Section 8 (b) (3) itself, as previously construed by the Board and this Court and as amplified by 8 (d), provides a substantial limitation on the Board's becoming, as the Court fears, merely "an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands." The Board's function in the enforcement of the duty to bargain does not end when it has properly drawn an inference unfavorable to the respondent from particular conduct. It must weigh that inference as part of the totality of inferences which may appropriately be drawn from the entire conduct of the respondent, particularly its conduct at the bargaining table. The state of mind with which the party charged with a refusal to bargain entered into and participated in the bargaining process is the ultimate issue upon which alone the Board must act in each case, and on the sufficiency of the whole record to justify its decision the courts must pass. Labor Board v. American National Ins. Co., 343 U.S. 395 . </s> The Board urges that this Court has approved its enforcement of 8 (b) (3) by the outlawry of conduct per se, and without regard to ascertainment of a state of [361 U.S. 477, 509] mind. It relies upon four cases: H. J. Heinz Co. v. Labor Board, 311 U.S. 514 ; Labor Board v. Crompton-Highland Mills, 337 U.S. 217 ; Labor Board v. F. W. Woolworth Co., 352 U.S. 938 ; and Labor Board v. Borg-Warner Corp., 356 U.S. 342 . These cases do not sustain its position. While it is plain that the per se proscription of an employer's refusal to reduce a collective agreement to writing was approved in the Heinz case, it is equally plain from its opinion in that case as well as its argument before this Court that the Board itself regarded the act of refusal to agree to the integration of the agreement in a writing as a manifestation that the employer's state of mind was hostile to agreement with the union. This Court so regarded the evidence. 311 U.S., at 525 -526. Decision in the Borg-Warner case proceeded from a similar premise. By forcing a deadlock upon a non-statutory subject of bargaining the employer manifested his intention to withdraw the statutory subjects from bargaining. The Crompton-Highland decision rested not on approval of a per se rule that unilateral changes of the conditions of employment by an employer during bargaining constitute a refusal to bargain, but upon the inferences of a lack of good faith which arose from the facts, among others, that the employer instituted a greater increase than it had offered the union and that it did so without consulting the union. Finally, no such conclusion as the Board urges can be drawn from the summary disposition of the Woolworth case here. 4 To the extent that in any of these cases [361 U.S. 477, 510] language referred to a per se proscription of conduct it was in relation to facts strongly indicating a lack of a sincere desire to reach agreement. </s> Moreover, in undertaking to fashion the law of collective bargaining in this case in accordance with the command of 8 (b) (3), the Board has considered 8 (b) (3) in isolation, as if it were an independent provision of law, and not a part of a reticulated legislative scheme with interlacing purposes. It is the purposes to be drawn from the statute in its entirety, with due regard to all its interrelated provisions, in relation to which 8 (b) (3) is to be applied. Cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 . A pertinent restraint on the Board's power to consider as inimical to fair bargaining the exercise of the "economic" weapons of labor is expressed in the Act by 13: 5 </s> "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." </s> Section 501 (2) of the Labor Management Relations Act provides a definition of "strike": 6 </s> "When used in this Act - . . . (2) The term "strike" includes any strike or other concerted stoppage of [361 U.S. 477, 511] work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operations by employees." </s> As the last clause of 13 makes plain, the section does not recognize an unqualified right, free of Board interference, to engage in "strikes," as respondent contends. The Senate Report 7 dealing with the addition of the clause to the section confirms that its purpose was to approve the elaboration of limitations on the right to engage in activities nominally within the definition of 501 (2) which this Court had heretofore developed in such cases as Labor Board v. Fansteel Metallurgical Corp., supra; Labor Board v. Sands Mfg. Co., 306 U.S. 332 ; and Southern S. S. Co. v. Labor Board, 316 U.S. 31 . But "limitations and qualifications" do not extinguish the rule. For the Board to proceed, as it apparently claims [361 U.S. 477, 512] power to do, against conduct which, but for the bargaining context in which it occurs, would not be within those limitations, 8 it must rely upon the specific grant of power to enforce the duty to bargain which is contained in 8 (b) (3). In construing that section the policy of the rule of construction set forth by 13, see Automobile Workers v. Wisconsin Board, 336 U.S. 245, 259 , must be taken into account. In the light of that policy there is no justification for divorcing from the total bargaining situation particular tactics which the Board finds undesirable, without regard to the actual conduct of bargaining in the case before it. </s> The scope of the permission embodied in 13 must be considered by the Board in determining, under a proper rule of law, whether the totality of the respondent's conduct justifies the conclusion that it has violated the "specific" command of 8 (b) (3). When the Board emphasizes tactics outside the negotiations themselves as the basis of the conclusion that the color of illegitimacy is imparted to otherwise apparently bona fide negotiations, 13 becomes relevant. A total, peaceful strike in compliance with the requirements of 8 (d) would plainly not suffice to sustain the conclusion; prolonged union-sponsored violence directed at the company to secure compliance [361 U.S. 477, 513] as plainly would. Here, as in so many legal situations of different gradations, drawing the line between them is not an abstract, speculative enterprise. Where the line ought to be drawn should await the decision of particular cases by the Board. It involves experienced judgment regarding the justification of the means and the severity of the effect of particular conduct in the specialized context of bargaining. </s> Section 8 (d), which was added in the amendments of 1947, is also inconsistent with the Board's claim of power to proscribe conduct without regard to the state of mind with which the actor participated in negotiations. The 1935 Act did not define the "practice and procedure of collective bargaining" which it purposed to "encourage." Act of July 5, 1935, 1, 49 Stat. 449. That definition, until 1947, was evolved by the Board and the courts in the light of experience in the administration of the Act. See, e. g., H. J. Heinz Co. v. Labor Board, supra. In 1947, after considerable controversy over the need to objectify the elements of the duty to bargain, 8 (d) was enacted. We have held that the history of that enactment demonstrates an intention to restrain the Board's power to regulate, whether directly or indirectly, the substantive terms of collective agreements. Labor Board v. American National Ins. Co., supra, at 404. In the same case we recognized that implicit in that purpose is a restraint upon the Board's proceeding by the proscription of conduct per se and without regard to inferences as to state of mind to be drawn from the totality of the conduct in each case. Id., at 409. </s> Finally, it is not disputed that the duty to bargain imposed on unions in 1947 was the same as that previously imposed on employers, and it is therefore not without significance for its present assertion of power that for 25 years of administration of the employer's duty [361 U.S. 477, 514] to bargain, which was imposed by the Act of 1935 and preserved by the amendments of 1947, the Board has not found it necessary to assert that it may proscribe conduct as undesirable in bargaining without regard to the actual course of the negotiations. See Federal Trade Comm'n v. Bunte Bros., 312 U.S. 349, 351 -352. </s> These considerations govern the disposition of the case before the Court. Viewed as a determination upon all the evidence that the respondent bargained without the sincere desire to compose differences and reach agreement which the statute commands, the Board's conclusion must fall for want of support in the evidence as a whole. See Universal Camera Corp. v. Labor Board, supra. Apart from any restraint upon its conclusion imposed by 13, a matter which the Board did not consider, no reason is manifest why the respondent's nuisance tactics here should be thought a sufficient basis for the conclusion that all its bargaining was in reality a sham. On this record it does not appear that respondent merely stalled at the bargaining table until its conduct outside the negotiations might force Prudential to capitulate to its demands, nor does any other evidence give the color of pretence to its negotiating procedure. From the conduct of its counsel before the Trial Examiner, and from its opinion, it is apparent that the Board proceeded upon the belief that respondent's tactics were, without more, sufficient evidence of a lack of a sincere desire to reach agreement to make other consideration of its conduct unnecessary. For that reason the case should be remanded to the Board for further opportunity to introduce pertinent evidence, if any there be, of respondent's lack of good faith. </s> Viewed as a determination by the Board that it could, quite apart from respondent's state of mind, proscribe its tactics because they were not "traditional," or were [361 U.S. 477, 515] thought to be subject to public disapproval, or because employees who engaged in them may have been subject to discharge, the Board's conclusion proceeds from the application of an erroneous rule of law. </s> The decision of the Court of Appeals should be vacated, and the case remanded to the Board for further proceedings consistent with these views. </s> [Footnote 1 The order in part provided: "[T]he Respondent . . . shall: 1. Cease and desist from refusing to bargain collectively in good faith with The Prudential Insurance Company of America . . . by authorizing, directing, supporting, inducing or encouraging the Company's employees to engage in slowdowns, harassing activities or [361 U.S. 477, 503] other unprotected conduct, in the course of their employment and in disregard of their duties and customary routines, for the purpose of forcing the Company to accept its bargaining demands, or from engaging in any like or related conduct in derogation of its statutory duty to bargain . . . ." </s> [Footnote 2 "There are plenty of methods of coercion short of actual physical violence." Senator Taft, at 93 Cong. Rec. 4024. </s> [Footnote 3 As the Court states, the prevention of union conduct designed to enforce such an attitude was a primary purpose of the enactment of 8 (b) (3). See, e. g., 93 Cong. Rec. 4135. </s> [Footnote 4 The Court held that "The Board acted within its allowable discretion in finding that under the circumstances of this case failure to furnish the wage information constituted an unfair labor practice." It cited Labor Board v. Truitt Mfg. Co., 351 U.S. 149 ; and in Truitt the entire Court was in agreement both that the withholding of wage information by the employer was weighty evidence of a lack of willingness to bargain sincerely, and that the judgment of the Board had to be predicted on all the facts pertinent to state [361 U.S. 477, 510] of mind. 351 U.S., at 153 , 155. Moreover, the lower court in the Woolworth case found that the Board had not proceeded by a per se determination, 235 F.2d 319, 322 (C. A. 9th Cir.), but that there was no basis for its conclusion that the information requested was relevant to administration of the agreement. </s> [Footnote 5 While the Board does consider these sections in connection with respondent's assertion that they afford protection to its conduct from Board regulation, see n. 8, infra, it does not consider their application as a rule of construction of 8 (b) (3). </s> [Footnote 6 Although I am in sympathy with the Court's conclusion that the construction of 8 in this case is to be uninfluenced by what [361 U.S. 477, 511] was said in Automobile Workers v. Wisconsin Board, 336 U.S. 245 , I do not agree that case held that the definitions of 501 (2) are inapplicable to 13. The question which the Court there considered was whether 13, as defined in 501 (2), independently rendered activities within its terms immune from state regulation. The Court's observation that for 501 (2) to have so extended the force of 13 would have been inconsistent with the purpose of the inclusion of the definition, which was to extend the Board's power with reference to the unfair labor practice defined by 8 (b) (4), 336 U.S., at 263 , was made in light of the contention that 13 itself had the effect of precluding the States. The crux of the decision with regard to 13 was that it announced no more than a rule of construction of the Federal Act. It was neither argued nor decided that 501 (2) does not apply to 13. There appears to be no support for such a conclusion either in the text of the Act or in its legislative history. It is hardly conceivable that such a word as "strike" could have been defined in these statutes without congressional realization of the obvious scope of its application. </s> [Footnote 7 S. Rep. No. 105, 80th Cong., 1st Sess. (1947), at p. 28. This provision of the Taft bill was adopted by the Conference. H. R. Cong. Rep. No. 510, 80th Cong., 1st Sess. (1947), at p. 59. </s> [Footnote 8 The Board urges that respondent's activities are not within the "dispensation or protection" of 13, because Automobile Workers v. Wisconsin Board, 336 U.S. 245 , held "slowdowns" to be "unprotected" activities subject to state regulation. The argument misreads the significance of that case as regards 13. See n. 6, supra. Nor is it valid to assume that all conduct loosely described as a "slowdown" has the same legal significance, or that union sponsorship of such conduct falls within the "limitations or qualifications" on the right to strike incorporated in 13 in every case in which employee participation in it would be "unprotected" by 7, and therefore subject to economic retaliation by the employer. See the portions of the Board's order quoted in n. 1, supra. </s> [361 U.S. 477, 516]

United States Supreme Court UNITED STATES v. MOORE(1975) No. 74-687 Argued: October 15, 1975Decided: December 2, 1975 </s> Obligations of an insolvent debtor arising from default in the performance of Government contracts, occurring before an assignment for the benefit of creditors held entitled to the statutory priority accorded "debts due to the United States" under 31 U.S.C. 191, even though the obligations were unliquidated in amount at the time of the assignment. Pp. 80-86. </s> (a) Nothing on the face of 191, and no potential difficulty in administering it, require any distinction between liquidated and unliquidated debts for purpose of the statutory priority; the statute's language looks to the time of payment rather than the time when the assignment is made. P. 83. </s> (b) To construe the words "debts due to the United States" as including unliquidated claims and as not being restricted to those obligations that would on the date of the assignment have given rise to a common-law action for debt, comports with the treatment of unliquidated claims in the Bankruptcy Acts, including the current Act. Pp. 83-85. </s> (c) The obligations in question were fixed and independent of "events after insolvency," and only the precise amount of those obligations awaited future events. Pp. 85-86. </s> 497 F.2d 976, reversed and remanded. </s> BURGER, C. J., delivered the opinion for a unanimous Court. </s> Harriet S. Shapiro argued the cause for the United States. On the briefs were Solicitor General Bork, Acting Assistant Attorney General Jaffe, Gerald P. Norton, Robert E. Kopp, and Larry R. O'Neal. </s> Thomas Osa Harris argued the cause and filed a brief for respondents. [423 U.S. 77, 78] </s> MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We granted certiorari to decide whether obligations of an insolvent debtor arising from default in the performance of Government contracts, occurring before an assignment for the benefit of creditors, are entitled to the statutory priority for "debts due to the United States" when the amount of the obligation was not fixed at the time of the assignment. We hold that the obligations, even though unliquidated in amount when the insolvent debtor made the assignment, are entitled to the statutory priority accorded debts due the United States under Rev. Stat. 3466, 31 U.S.C. 191, and we reverse. </s> (1) </s> The facts are not in dispute. In June 1966 respondent Emsco Screen and Pipe Company of Texas, Inc., contracted with the United States in three separate contracts to supply to the Navy, the Army, and the Defense Supply Agency certain fabricated items at an aggregate agreed price of $310,296. Emsco subsequently advised the Navy that it could not perform the contracts without an advance of money not yet due under the terms of the contracts; the Government was unwilling to make the advance. The Navy treated its contract as terminated on August 31, 1966. Emsco repudiated the Army contract, and the Army notified Emsco of its intent to treat the contract as terminated during the same month, although formal termination was not made until December 6, 1966. The Defense Supply Agency terminated its contract with Emsco on October 19, 1966, for failure to deliver. </s> Respondent Emsco made a voluntary assignment of all its assets, totaling $55,707.28, on October 20, 1966, to respondent Thomas W. Moore, Jr., as assignee for the [423 U.S. 77, 79] benefit of creditors. The company at that time owed the city of Houston approximately $6,000, and it owed more than $68,000 to the private creditors who consented to the assignment. Thus the claims of the private creditors alone exceeded all known corporate assets of the debtor. </s> The United States did not consent to the assignment, but filed proof of claims with the respondent Moore. The amount of the Government's claim, after reprocurement of the contract goods and negotiations with respondent Moore, was eventually set at $51,680, exclusive of interest. Respondent Moore refused to accord these claims priority under Rev. Stat. 3466, 31 U.S.C. 191, which provides: </s> "Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed." </s> The United States then sued respondents Moore and Emsco in District Court. That court found the amount owed under the three defaulted contracts to be in excess of $67,000, including interest, and held that 3466 afforded priority status to them as "debts due to the United States." </s> The Court of Appeals reversed, with one judge dissenting, holding that the claims of the United States were not, at the time of the assignment for creditors, amounts [423 U.S. 77, 80] certain and then payable and hence not "debts due" entitled to statutory priority. 497 F.2d 976 (CA5 1974). To define this term, the court looked to the limits of a common-law action for debt, which permitted recovery of only liquidated obligations - "sums certain or which could be made certain by mathematical computation." Id., at 978. One judge concurred separately, concluding that to have priority the claim of the United States must be one ascertained in amount prior to assignment, by a tribunal having jurisdiction to bind the contracting parties. Judge Thornberry dissented; he relied on King v. United States, 379 U.S. 329 (1964), and other holdings to the effect that Congress intended to give special status and protection to claims of the Government and the statute was to be construed to accomplish that objective. Small Business Administration v. McClellan, 364 U.S. 446 (1960); United States v. Emory, 314 U.S. 423 (1941); Bramwell v. U.S. Fidelity & Guaranty Co., 269 U.S. 483 (1926). The dissent viewed the existence of an obligation as determinative, even though the extent of the obligation was unliquidated at the time of the assignment. </s> (2) </s> The statute at issue is almost as old as the Constitution, and its roots reach back even further into the English common law; the Crown exercised a sovereign prerogative to require that debts owed it be paid before the debts owed other creditors. 3 R. Clark, Law of Receivers 669, p. 1223 (3d ed. 1959). Many of the States claim the same prerogative, as an inherent incident of sovereignty. Pauley v. California, 75 F.2d 120, 133 (CA9 1934); People v. Farmers' State Bank, 335 Ill. 617, 167 N. E. 804 (1929); In re Carnegie Trust Co., 206 N. Y. 390, 99 N. E. 1096 (1912); State v. Bank of Maryland, 6 Gill & Johns. 205, 26 Am. Dec. 561 (Md. [423 U.S. 77, 81] 1834). The Federal Government's claim to priority, however, rests as a matter of settled law only on statute. Price v. United States, 269 U.S. 492, 499 -500 (1926); United States v. State Bank of North Carolina, 6 Pet. 29, 35 (1832). </s> The earliest priority statute was enacted in the Act of July 31, 1789, 1 Stat. 29, which dealt with bonds posted by importers in lieu of payment of duties for release of imported goods. It provided that the "debt due to the United States" for such duties shall be discharged first "in all cases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased . . . ." 21, 1 Stat. 42. A 1792 enactment broadened the Act's coverage by providing that the language "cases of insolvency" should be taken to include cases in which a debtor makes a voluntary assignment for the benefit of creditors, and the other situations that 3466, 31 U.S.C. 191, now covers. 1 Stat. 263. </s> In 1797 Congress applied the priority to any "person hereafter becoming indebted to the United States, by bond or otherwise . . . ." 1 Stat. 515. Then in 1799, Congress gave the priority teeth by making the administrator of any insolvent or decedent's estate personally liable for any amount not paid the United States because he gave another creditor preference. Act of Mar. 2, 1799, 1 Stat. 627, 676. The 1797 and 1799 Acts have survived to this day essentially unchanged, as 31 U.S.C. 191 and 192 (Rev. Stat. 3466 and 3467). </s> The priority statute serves the same public policy as the Crown's common-law prerogative. As Mr. Justice Story wrote for the Court in 1832, the priority proceeds from "motives of public policy, in order to secure an adequate revenue to sustain the public burthens and discharge the public debts. . . . [A]s that policy has [423 U.S. 77, 82] mainly a reference to the public good, there is no reason for giving to [the statute] a strict and narrow interpretation." United States v. State Bank of North Carolina, supra, at 35. For nearly two centuries this Court has applied the statute with this policy in mind. In State Bank itself, 6 Pet., at 38, the Court rejected the bank's argument that bonds payable only in the future were not "debts due to the United States" because they were not presently payable, using language apt for today's case as well: </s> "No reason can be perceived, why, in cases of a deficiency of assets of deceased persons, the legislature should make a distinction between bonds which should be payable at the time of their decease, and bonds which should become payable afterwards. The same public policy which would secure a priority of payment to the United States in one case, applies with equal force to the other; and an omission to provide for such priority in regard to bonds payable in futuro, would amount to an abandonment of all claims, except for a pro rata dividend. In cases of general assignments by debtors, there would be a still stronger reason against making a distinction between bonds then payable and bonds payable in futuro; for the debtor might, at his option, give any preferences to other creditors, and postpone the debts of the United States of the latter description, and even exclude them altogether." </s> For similar reasons, and using similar language, the courts have applied the priority statute to Government claims of all types. See 3A J. Moore & R. Oglebay, Collier on Bankruptcy § 64,502 (14th ed. 1975); see also Plumb, The Federal Priority In Insolvency: Proposals for Reform, 70 Mich. L. Rev. 3, 10-12 (1971). Indeed, under the decisions of this Court, "[o]nly the plainest [423 U.S. 77, 83] inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of 3466." United States v. Emory, 314 U.S., at 433 . </s> (3) </s> Respondent Moore argues that in this case we should read the statute narrowly, to accord priority only to those claims that are liquidated and certain in amount at the time an assignment for the benefit of creditors is made. Three factors lead us to a different result. </s> First, nothing on the face of the statute, and no potential difficulty in administering it, require that a distinction be drawn for this purpose between liquidated and unliquidated debts. The statute's express command is that "debts due the United States shall be first satisfied"; its language looks to the time of payment rather than the moment at which the assignment of obligations is made. Respondent Moore concedes here, as he has throughout this litigation, that the debt owed the United States is a valid claim against the debtor's assets; he argues only that the United States should be paid pro rata, as a general creditor. While the concession does not dispose of the case, it does dispose of any argument that giving priority to debts unliquidated at the time of assignment would unduly delay distribution of the debtor's estate, since payment pro rata would occasion a like delay. Moreover, if the claim can be paid on a pro rata basis, Congress could, as we hold it did in this statute, provide for priority payment. </s> Second, respondent Moore urges and the Court of Appeals held that the words "debts due to the United States" must be read to mean only those obligations that would on the date of the assignment have given rise to a common-law action for debt. But we see no persuasive reason why the technical requirements of a common-law [423 U.S. 77, 84] pleading should be read into the statute. 1 We look instead to the provisions of the several Bankruptcy Acts that Congress has enacted, as the Court has for the definition of other phrases used in the statute here at issue. See, e. g., United States v. Oklahoma, 261 U.S. 253 (1923); United States v. Emory, supra, at 426. The Bankruptcy Acts focus more precisely on the problems of insolvency and are more apt an analogy to a statute giving the United States priority in payments to be made from insolvents' estates. </s> The first Bankruptcy Act, passed in 1800, was a near contemporary of the priority statute. It permitted creditors to prove not only debts liquidated at the time of bankruptcy, but some other debts that became certain during the proceedings. 2 The debtor would receive a discharge of these debts "as if such money had been due and payable before the time of his or her becoming bankrupt." 39, 2 Stat. 32. The Acts of 1841 and 1867 contained similar provisions. 3 The current Bankruptcy [423 U.S. 77, 85] Act permits proof of unliquidated claims, which will be allowed if they are liquidated or can reasonably be estimated soon enough that the distribution of the estate will not unduly be delayed. 11 U.S.C. 103 (a) (8), (9), 93 (d). 4 The priority statute "is not to be defeated by unnecessarily restricting the application of the word `debts' within a narrow or technical meaning," Price v. United States, 269 U.S., at 500 , and to give "debts" a meaning more restrictive than the bankruptcy statutes have given it over 175 years would do just that. </s> Finally, the parties agree that this Court and other federal courts have regularly applied the priority statute to debts that in fact were unliquidated, although without discussing the precise issue before us in this case. See, e. g., King v. United States, 379 U.S. 329 (1964); United States v. National Surety Co., 254 U.S. 73 (1920); United States v. Brunner, 282 F.2d 535 (CA10 1960); United States v. Barnes, 31 F. 705 (CCSDNY 1887). Respondent Moore relies on dicta in Massachusetts v. United States, 333 U.S. 611, 627 (1948), to the effect that "obligations wholly contingent for ultimate maturity and obligation upon the happening of events after insolvency" are not "debts due." But the obligation here, and in the cases cited, was fixed and independent of "events after insolvency"; only the precise amount of that obligation awaited future events. 5 </s> [423 U.S. 77, 86] Given the consistent application of the priority statute to fixed but unliquidated obligations, Mr. Justice Story's remarks in State Bank, 6 Pet., at 39-40, are particularly appropriate: </s> "It is not unimportant to state, that the construction which we have given to the terms of the act, is that which is understood to have been practically acted upon by the government, as well as by individuals, ever since its enactment. Many estates, as well of deceased persons, as of persons insolvent who have made general assignments, have been settled upon the footing of its correctness. A practice so long and so general, would, of itself, furnish strong grounds for a liberal construction; and could not now be disturbed without introducing a train of serious mischiefs. We think the practice was founded in the true exposition of the terms and intent of the act: but if it were susceptible of some doubt, so long an acquiescence in it would justify us in yielding to it as a safe and reasonable exposition." </s> For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 Respondent Moore relies upon some language in United States v. State Bank of North Carolina, 6 Pet. 29, 39 (1832): "Wherever the common law would hold a debt to be debitum in presenti, solvendum in futuro, the statute embraces it just as much as if it were presently payable." But the Court relied upon this common-law phrase to hold that at least such debts were within the reach of the priority statute; it certainly did not hold that any debts but these were excluded from the statute. And the Court rested its decision upon more than just this phrase. See supra, at 82, and infra, at 86. </s> [Footnote 2 The Act of 1800, 39, 2 Stat. 19, 32, provided that the "obligee of any bottomry or respondentia bond, and the assured in any policy of insurance, shall be admitted to claim, and after the contingency or loss, to prove the debt thereon." </s> [Footnote 3 The Act of 1841, 5, 5 Stat. 440, 445, provided that contingent or uncertain claims might be proved and paid when they became absolute; debts payable in the future might also be proved, and paid with an appropriate discount. The Act of 1867, c. 176, 14 Stat. 517, allowed in 19 proof of debts due and payable as of bankruptcy, [423 U.S. 77, 85] debts payable in the future, and unliquidated contract damages claims: "[T]he court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No debts other than those above specified shall be proved or allowed . . . ." </s> [Footnote 4 Title 11 U.S.C. 1 (14) defines a debt as "any debt, demand, or claim provable in bankruptcy." </s> [Footnote 5 In Massachusetts, the Court held that insolvency cut off a debtor's right to elect to pay the State rather than the Federal [423 U.S. 77, 86] Government an unemployment compensation tax. Permitting post-insolvency election would mean that the priority statute applied to contingent obligations, the Court reasoned, and that result would be anomalous. The "contingency" in Massachusetts, of course, was the debtor's election to pay someone other than the United States, and so defeat the obligation entirely. The present case is, as we note, quite different: liability vel non will be determined on the facts as they exist at the time of the assignment for the benefit of creditors; subsequent events cannot defeat the obligation. </s> [423 U.S. 77, 87]

United States Supreme Court U.S. v. WIESENFELD WAREHOUSE CO.(1964) No. 92 Argued: January 16, 1964Decided: February 17, 1964 </s> Appellee, a public storage warehouseman, was charged by criminal information with violations of 301 (k) of the Federal Food, Drug, and Cosmetic Act, which prohibits acts involving defacement of labels of food and other specified articles held for sale after interstate shipment and the "doing of any other act" with respect to such articles which results in their being adulterated or misbranded. Under 402 (a) (4) adulteration is defined to include holding food under insanitary conditions whereby it may have been contaminated with filth. The District Court, construing the statute under the rule of ejusdem generis as applying only to acts of the same general nature as those specifically enumerated with respect to label-defacing and as being too vague to include the mere "holding" of articles, dismissed the information for failure to state an offense. Held: </s> 1. Section 301 (k), as is clear from its wording and legislative history, defines two distinct offenses - one concerning label-defacing and the other concerning adulteration; and the criminal information properly charged an offense for adulteration under the Act. Pp. 89-92. </s> 2. Section 301 (k) is not limited to one holding title to goods and therefore applies to a public storage warehouseman whether he owns the goods stored or not. P. 92. </s> 217 F. Supp. 638, reversed and remanded. </s> Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and William W. Goodrich. </s> James S. Taylor argued the cause for appellee. With him on the brief was Clarence G. Ashby. [376 U.S. 86, 87] </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> Section 301 (k) of the Federal Food, Drug, and Cosmetic Act prohibits the "alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale . . . after shipment in interstate commerce and results in such article being adulterated or misbranded." 1 Section 402 of the Act provides, among other things, that "[a] food shall be deemed to be adulterated - (a) . . . (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health . . . ." 2 The question presented by this appeal is whether a criminal information which alleges the holding of food by a public storage warehouseman (after interstate shipment and before ultimate sale) under insanitary conditions in a building accessible to rodents, birds and insects, where it may have become contaminated with filth, charges an offense under 301 (k). </s> The Government filed a criminal information containing allegations to this effect 3 in the District Court for [376 U.S. 86, 88] the Middle District of Florida, charging the appellee, a public storage warehouseman, with violations of 301 (k). The court construed 301 (k) as not applying to the mere act of "holding" goods, and dismissed the information for failure to allege an offense under the statute. 217 F. Supp. 638, 639. The order of dismissal was appealed by the Government under the Criminal Appeals Act, which gives this Court jurisdiction to review on direct appeal a judgment dismissing an information on the basis of a "construction of the statute upon which the . . . information is founded." 4 We noted probable jurisdiction. 373 U.S. 921 . For the reasons which follow, we reverse the judgment of the District Court. </s> In arriving at its construction of the statute, the District Court reasoned that 301 (k) "as it is presently written, is too vague and indefinite to apply to the mere act of `holding' goods." 217 F. Supp., at 639. Accordingly, "in an effort to uphold the statute as constitutional," the court applied the rule of ejusdem generis to limit the words "the doing of any other act" in 301 (k) to acts of "the same general nature" as those specifically enumerated in the subsection, i. e., acts relating to the alteration, mutilation, destruction, obliteration, or removal of the labeling of articles. Ibid. We find such reliance on the rule of ejusdem generis misplaced; its application to 301 (k) is contrary to both the text and legislative history [376 U.S. 86, 89] of the subsection, and unnecessary to a constitutionally permissible construction of the statute. </s> The language of 301 (k) unambiguously defines two distinct offenses with respect to food held for sale after interstate shipment. As originally enacted in 1938, the subsection prohibited "[t]he alteration, mutilation, destruction, obliteration, or removal" of the label, or "the doing of any other act" with respect to the product which "results in such article being misbranded." 5 The section was amended in 1948 to prohibit additionally "the doing of any other act" with respect to the product which "results in such article being adulterated." 6 The acts specifically enumerated in the original enactment relate to the offense of misbranding through labeling or the lack thereof. The separate offense of adulteration, on the other hand, is concerned solely with deterioration or contamination of the commodity itself. For the most part, acts resulting in misbranding and acts resulting in adulteration are wholly distinct. Consequently, since the enumerated label-defacing offenses bear no textual or logical relation to the scope of the general language condemning acts of product adulteration, 7 application of the rule of ejusdem generis to limit the words "the doing of [376 U.S. 86, 90] any other act" resulting in product adulteration in 301 (k) to acts of the same general character as those specifically enumerated with respect to misbranding is wholly inappropriate. </s> Moreover, the legislative history makes plain that no such application of the rule was intended. As the House Committee Report on the proposed 1948 amendment unequivocally stated: </s> "It seems clear that under the subsection as now in force the rule of ejusdem generis would not apply in interpreting the words `or the doing of any other act . . .,' and it is even more clear that this rule will not apply in the interpretation of the subsection as amended by this bill." 8 </s> It is equally clear from this legislative history that Congress intended to proscribe the particular conduct charged in the information filed below - the holding of food under insanitary conditions whereby it may have become contaminated. The House Committee Report noted that the amended section would "penalize, among other acts resulting in adulteration or misbranding, the act of holding articles under insanitary conditions whereby they may become contaminated with filth or rendered injurious to health," and emphasized that the Committee intended the amendments to be applied to their fullest constitutional limits. 9 </s> [376 U.S. 86, 91] </s> Congress chose statutory language appropriate to effectuate this purpose. Section 301 (k), as amended, prohibits "any . . . act" which results in adulteration of the product. And food is adulterated if it "has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth." 10 This language defines with particularity an explicit standard of conduct. Section 301 (k), read together with the definition of food adulteration contained in 402 (a) (4), therefore, gives ample warning that the "holding" or storing of food under insanitary conditions whereby it may have become contaminated is prohibited. </s> It is settled law in the area of food and drug regulation that a guilty intent is not always a prerequisite to the imposition of criminal sanctions. Food and drug legislation, concerned as it is with protecting the lives and health of human beings, under circumstances in which they might be unable to protect themselves, often "dispenses with the conventional requirement for criminal conduct - awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U.S. 250 ." United States v. Dotterweich, 320 U.S. 277, 281 . </s> It is argued, nevertheless, that the Government in this case is seeking to impose criminal sanctions upon one "who is, by the very nature of his business powerless" to protect against this kind of contamination, however high the standard of care exercised. Whatever the truth of this claim, it involves factual proof to be raised defensively at a trial on the merits. We are here concerned only with the construction of the statute as it relates to the sufficiency of the information, and not with the scope and [376 U.S. 86, 92] reach of the statute as applied to such facts as may be developed by evidence adduced at a trial. </s> Finally, the appellee attempts to uphold the dismissal of the information on a ground not relied on by the District Court. The appellee says that it was a bailee of the food, not a seller, and that it was not holding the food for sale within the meaning of 301 (k). Both the language and the purpose of the statute refute this construction. The language of 301 (k) does not limit its application to one holding title to the goods, and since the danger to the public from insanitary storage of food is the same regardless of the proprietary status of the person storing it, the purpose of the legislation - to safeguard the consumer from the time the food is introduced into the channels of interstate commerce to the point that it is delivered to the ultimate consumer - would be substantially thwarted by such an unwarranted reading of the statutory language. United States v. Kocmond, 200 F.2d 370, 372; cf. United States v. Sullivan, 332 U.S. 689, 696 ; United States v. Dotterweich, 320 U.S. 277, 282 . </s> Accordingly, we hold that a criminal information charging a public storage warehouseman with holding food (after interstate shipment and before ultimate sale) under insanitary conditions whereby it may have become contaminated with filth, charges an offense under 301 (k) of the Federal Food, Drug, and Cosmetic Act. The order of the District Court dismissing the information is therefore reversed and the case is remanded to that court for further proceedings consistent with this opinion. </s> Reversed and remanded. </s> Footnotes [Footnote 1 52 Stat. 1040, 21 U.S.C. 331 (k). </s> [Footnote 2 52 Stat. 1040, 21 U.S.C. 342 (a) (3) and (4). </s> [Footnote 3 The information was in six counts, the counts differing only with respect to the particular shipment or product involved. Each count charged that appellee had received an article of food which had been shipped in interstate commerce, and that while this food was being held for sale, appellee caused it to be held in a building accessible to rodents, birds, and insects, thus exposing it to contamination, and thereby adulterating the food within the meaning of 402 (a) of the Act, 21 U.S.C. 342 (a), in that the food consisted in part of a filthy [376 U.S. 86, 88] substance, to wit, rodent excreta, insect larvae, etc., and in that it was held under insanitary conditions whereby it might have become contaminated with filth. </s> [Footnote 4 "An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: "From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. . . ." 62 Stat. 844, 18 U.S.C. 3731. </s> [Footnote 5 52 Stat. 1042, 21 U.S.C. 331 (k). See United States v. Sullivan. 332 U.S. 689 . </s> [Footnote 6 62 Stat. 582, 21 U.S.C. 331 (k). </s> [Footnote 7 The House Committee concerned with the proposed amendment to 301 (k) was aware of this textual problem. "The present section 301 (k) forbids, first, certain acts with respect to the labeling of an article, and, second, `any other act with respect to' the article itself which results in its being misbranded. . . . [A]dulteration more often occurs as a result of acts done to or with respect to the article itself. Since the section already contains the broad phrase `any other act with respect to' the article, and since this phrase is not limited by the preceding enumeration of forbidden acts with respect to the labeling, there is no need in making it applicable to adulteration, to change the existing statutory language in this regard." H. R. Rep. No. 807, 80th Cong., 1st Sess., p. 3. </s> [Footnote 8 Id., at pp. 3-4. </s> [Footnote 9 Id., at p. 6. During the Senate hearings on the amendment, the Associate Commissioner of Food and Drugs explained that "under the bill as enacted here, if there was a definite showing of violation on the part of the warehouse which had this material stored, a prosecution of them criminally for doing the act of holding under these insanitary conditions, which result in adulteration could ensue." Hearing before a Subcommittee of the Committee on Interstate and Foreign Commerce, United States Senate, on S. 1190 and H. R. 4071, 80th Cong., 2d Sess., April 17, 1948. </s> [Footnote 10 See note 2, supra. </s> [376 U.S. 86, 93]

United States Supreme Court ROBERTS v. LOUISIANA(1977) No. 76-5206 Argued: March 28, 1977Decided: June 6, 1977 </s> The mandatory death sentence imposed upon petitioner pursuant to a Louisiana statute for the first-degree murder of a police officer engaged in the performance of his lawful duties held to violate the Eighth and Fourteenth Amendments, since the statute allows for no consideration of particularized mitigating factors in deciding whether the death sentence should be imposed. </s> 331 So.2d 11, reversed and remanded. </s> Garland R. Rolling argued the cause and filed briefs for petitioner. </s> Louise Korns argued the cause for respondent. With her on the briefs were William J. Guste, Jr., Attorney General of Louisiana, and Harry F. Connick. </s> Jules E. Orenstein, Assistant Attorney General, argued the cause for the State of New York as amicus curiae. With him on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General. * </s> [Footnote * Frank Carrington, Wayne W. Schmidt, Glen R. Murphy, Courtney Evans, Cecil Hicks, and James P. Costello filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore and William E. James, Assistant Attorneys General, and Howard J. Schwab and Alexander W. Kirkpatrick, Deputy Attorneys General, filed a brief for the State of California as amicus curiae. </s> PER CURIAM. </s> Petitioner Harry Roberts was indicted, tried, and convicted of the first-degree murder of Police Officer Dennis McInerney, who at the time of his death was engaged in the performance [431 U.S. 633, 634] of his lawful duties. As required by a Louisiana statute, petitioner was sentenced to death. La. Rev. Stat. Ann. 14:30 (2) (1974). 1 On appeal, the Supreme Court of Louisiana affirmed his conviction and sentence. 331 So.2d 11 (1976). Roberts then filed a petition for a writ of certiorari in this Court. The petition presented the question whether Louisiana's mandatory death penalty could be imposed pursuant to his conviction of first-degree murder as defined in subparagraph (2) of 14:30. </s> Shortly before that petition was filed, we held in another case (involving a different petitioner named Roberts) that Louisiana could not enforce its mandatory death penalty for a [431 U.S. 633, 635] conviction of first-degree murder as defined in subparagraph (1) of 14:30 of La. Rev. Stat. Ann. (1974). Roberts v. Louisiana, 428 U.S. 325 (1976) (hereafter cited as Stanislaus Roberts for purposes of clarity). In the plurality opinion in that case, the precise question presented in this case was explicitly answered. 2 </s> This precise question was again answered by the Court in Washington v. Louisiana, 428 U.S. 906 (1976). The petitioner in the Washington case had killed a policeman and was tried and sentenced to death under the same provision of the Louisiana statute as was the petitioner in the present case. We vacated the death sentence, holding: "Imposition and carrying out of the death penalty [in this case] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Roberts v. Louisiana. . . ." Ibid. See also Sparks v. North Carolina, 428 U.S. 905 (1976); Green v. Oklahoma, 428 U.S. 907 (1976). [431 U.S. 633, 636] </s> Recognizing that this Court had already decided that a mandatory death sentence could not be imposed for the crime that Harry Roberts committed, the Attorney General of Louisiana initially conceded that "under this Court's decision in Stanislaus Roberts v. Louisiana, No. 75-5844, [the sentence of death in the present case] cannot be carried out unless, of course, this Court grants Louisiana's Application for Rehearing and modifies its former holding." Brief in Opposition 2-3. The Court nevertheless granted certiorari on November 8, 1976, 429 U.S. 938 , and on November 29 limited the grant to the question "[w]hether the imposition and carrying out of the sentence of death for the crime of first-degree murder of a police officer under the law of Louisiana violates the Eighth and Fourteenth Amendments to the Constitution of the United States." 429 U.S. 975 . </s> In Woodson v. North Carolina, 428 U.S. 280, 304 (1976), this Court held that "the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." In Stanislaus Roberts, supra, we made clear that this principle applies even where the crime of first-degree murder is narrowly defined. See n. 2, supra. </s> To be sure, the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance. There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property. 3 But it is incorrect to suppose that no mitigating [431 U.S. 633, 637] circumstances can exist when the victim is a police officer. Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct are all examples of mitigating facts which might attend the killing of a peace officer and which are considered relevant in other jurisdictions. 4 </s> As we emphasized repeatedly in Stanislaus Roberts and its companion cases decided last Term, it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. 5 Because the Louisiana statute does not allow for consideration of particularized mitigating factors, it is unconstitutional. 6 </s> [431 U.S. 633, 638] </s> Accordingly, we hold that the death sentence imposed upon this petitioner violates the Eighth and Fourteenth Amendments and must be set aside. The judgment of the Supreme Court of Louisiana is reversed insofar as it upholds the death sentence upon petitioner. The case is remanded for further proceedings not inconsistent with this opinion. 7 </s> It is so ordered. </s> Footnotes [Footnote 1 That section provides in part: "First degree murder "First degree murder is the killing of a human being: "(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or "(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or "(3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or "(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; [or] "(5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder. "For the purpose of Paragraph (2) herein, the term peace officer shall be defined [as] and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorney's investigator. "Whoever commits the crime of first degree murder shall be punished by death." In 1975, 14:30 (1) was amended to add the crime of aggravated burglary as a predicate felony for first-degree murder. 1975 La. Acts, No. 327. </s> [Footnote 2 "The diversity of circumstances presented in cases falling within the single category of killings during the commission of a specified felony, as well as the variety of possible offenders involved in such crimes, underscores the rigidity of Louisiana's enactment and its similarity to the North Carolina statute. Even the other more narrowly drawn categories of first-degree murder in the Louisiana law [one of these being the wilful, deliberate, and premeditated homicide of a fireman or a police officer engaged in the performance of his lawful duties] afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender." 428 U.S., at 333 -334. "Only the third category of the Louisiana first-degree murder statute, covering intentional killing by a person serving a life sentence or by a person previously convicted of an unrelated murder, defines the capital crime at least in significant part in terms of the character or record of the individual offender. Although even this narrow category does not permit the jury to consider possible mitigating factors, a prisoner serving a life sentence presents a unique problem that may justify such a law. See Gregg v. Georgia, [428 U.S. 153, 186 (1976)]; Woodson v. North Carolina, [428 U.S. 280, 287 n. 7, 292-293, n. 25 (1976)]." Id., at 334 n. 9 (emphasis added). </s> [Footnote 3 We recognize that the life of a police officer is a dangerous one. Statistics show that the number of police officers killed in the line of duty has more than doubled in the last 10 years. In 1966, 57 law enforcement officers were killed in the line of duty; in 1975, 129 were killed. Federal Bureau of Investigation, Crime in the United States 1975, Uniform Crime Reports 223 (1976). </s> [Footnote 4 See, e. g., the portion of the proposed standards of the Model Penal Code quoted in Gregg v. Georgia, 428 U.S. 153, 193 -194, n. 44 (1976). </s> [Footnote 5 We reserve again the question whether or in what circumstances mandatory death sentence statutes may be constitutionally applied to prisoners serving life sentences. See n. 2, supra, quoting 428 U.S., at 334 n. 9. </s> [Footnote 6 Indeed, our holding in Jurek v. Texas, 428 U.S. 262 (1976), that the Texas sentencing procedure was constitutionally adequate rested squarely on the fact that mitigating circumstances could be considered by the jury. In that case the joint opinion of JUSTICES STEWART, POWELL, and STEVENS stated: "But a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, [428 U.S.,] at 303-305, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana [428 U.S. 325 (1976)]. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed. "Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances. In Gregg v. Georgia, we [431 U.S. 633, 638] today hold constitutionally valid a capital-sentencing system that directs the jury to consider any mitigating factors, and in Proffitt v. Florida we likewise hold constitutional a system that directs the judge and advisory jury to consider certain enumerated mitigating circumstances. The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." Id., at 271-272 (footnote omitted). </s> [Footnote 7 In joining this opinion for the Court, MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL agree that the plurality opinion in Stanislaus Roberts, supra, controls this case, but adhere to their view that capital punishment is in all circumstances prohibited as cruel and unusual punishment by the Eighth and Fourteenth Amendments. </s> MR. CHIEF JUSTICE BURGER, dissenting. </s> I would sustain the Louisiana statute and I therefore dissent on the basis of my dissenting statement in Roberts v. Louisiana, 428 U.S. 325, 337 (1976), and that of MR. JUSTICE WHITE in Woodson v. North Carolina, 428 U.S. 280, 306 (1976). </s> MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST join, dissenting. </s> The Court, feeling itself bound by the plurality opinion in Roberts v. Louisiana, 428 U.S. 325 (1976) (hereafter Stanislaus Roberts), has painted itself into a corner. I did not join that plurality opinion, and I decline to be so confined. I therefore dissent from the Court's disposition of the present [431 U.S. 633, 639] case and from its holding that the mandatory imposition of the death penalty for killing a peace officer, engaged in the performance of his lawful duties, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. I would uphold the State's power to impose such a punishment under La. Rev. Stat. Ann. 14:30 (2) (1974), and I would reject any statements or intimations to the contrary in the Court's prior cases. </s> The per curiam opinion asserts that "the precise question presented in this case was explicitly answered" in Stanislaus Roberts. Ante, at 635. It also relies on the summary disposition of Washington v. Louisiana, 428 U.S. 906 (1976), where a death sentence that had been imposed under 14:30 (2) was vacated and where it was stated that the imposition and carrying out of the death penalty constituted cruel and unusual punishment. Ante, at 635. Finally, the per curiam states that "it is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense." Ante, at 637. Since 14:30 (2) does not allow for consideration of mitigating factors, the per curiam strikes down the death sentence imposed on petitioner. </s> In my view, the question of the constitutionality of Louisiana's mandatory death penalty for killing a peace officer was not answered in Stanislaus Roberts. Washington may be said to be a summary ruling on the merits, but that case was decided without the benefit of plenary consideration, and without focusing on the identity and activity of the victim. I believe its result to be incorrect as a constitutional matter and I would disapprove and withhold its further application. </s> Stanislaus Roberts was charged and convicted under a different subsection, that is, 14:30 (1), of the Louisiana first-degree murder statute. See 428 U.S., at 327 . See also ante, at 634-635. Subsection (1) provided a mandatory death penalty in the case where the killer had a specific intent to kill or [431 U.S. 633, 640] to inflict great bodily harm and was engaged in the perpetration or attempted perpetration of aggravated kidnaping, aggravated rape, or armed robbery. See ante, at 634 n. 1. Subsection (2), in contrast, provides that first-degree murder is committed when the killer has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who is engaged in the performance of his lawful duties. Ibid. The two subsections obviously should involve quite different considerations with regard to the lawfulness of a mandatory death penalty, even accepting the analysis set forth in the joint opinions of last Term. * Thus, to the extent that the plurality in Stanislaus Roberts alluded to subsections of the Louisiana law that were not before the Court, those statements are nonbinding dicta. It is indisputable that carefully focused consideration was not given to the special problem of a mandatory death sentence for one who has intentionally killed a police officer engaged in the performance of his lawful duties. I therefore approach this case as a new one, not predetermined and governed by the plurality in Stanislaus Roberts. </s> Washington may present a different problem. It did decide the issue now before the Court, but it did so without the benefit of full briefing and argument, and it was one of three pending Louisiana cases treated as a cluster and routinely remanded at the Term's end in the immediate wake of Stanislaus Roberts. Because an explicit finding was made that the death penalty constituted cruel and unusual punishment, perhaps Washington is not to be treated in the same way as summary affirmances were treated in Edelman v. Jordan, 415 U.S. 651, 670 -671 (1974). I would simply inquire, as to Washington, whether its holding should not be overruled, [431 U.S. 633, 641] now that the Court has had the benefit of more careful and complete consideration of the issue. </s> On the merits, for reasons I have expressed before, I would not find 14:30 (2) constitutionally defective. See Furman v. Georgia, 408 U.S. 238, 405 -414 (1972) (dissenting opinion). See also Stanislaus Roberts, 428 U.S., at 337 -363 (WHITE, J., dissenting). Furthermore, even under the opinions of last Term, I would conclude that 14:30 (2) falls within that narrow category of homicide for which a mandatory death sentence is constitutional. See Gregg v. Georgia, 428 U.S. 153, 186 (1976); Woodson v. North Carolina, 428 U.S. 280, 287 n. 7, 292-293, n. 25 (1976); Stanislaus Roberts, 428 U.S., at 334 n. 9. Since the decision in Washington is inconsistent with this view, I would overrule it. </s> I should note that I do not read the per curiam opinion today as one deciding the issue of the constitutionality of a mandatory death sentence for a killer of a peace officer for all cases and all times. Reference to the plurality opinion in Stanislaus Roberts reveals that the Louisiana statute contained what that opinion regarded as two fatal defects: lack of an opportunity to consider mitigating factors, and standardless jury discretion inherent in the Louisiana responsive verdict system. Without the latter, as here, a different case surely is presented. Furthermore, it is evident, despite the per curiam's general statement to the contrary, that mitigating factors need not be considered in every case; even the per curiam continues to reserve the issue of a mandatory death sentence for murder by a prisoner already serving a life sentence. Ante, at 637 n. 5. Finally, it is possible that a state statute that required the jury to consider, during the guilt phase of the trial, both the aggravating circumstance of killing a peace officer and relevant mitigating circumstances would pass the plurality's test. Cf. Jurek v. Texas, 428 U.S. 262, 270 -271 (1976). For me, therefore, today's decision must be viewed in the context of the Court's previous criticism of the Louisiana system; [431 U.S. 633, 642] it need not freeze the Court into a position that condemns every statute with a mandatory death penalty for the intentional killing of a peace officer. </s> [Footnote * Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Stanislaus Roberts, 428 U.S. 325 (1976). </s> MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins, dissenting. </s> The Court today holds that the State of Louisiana is not entitled to vindicate its substantial interests in protecting the foot soldiers of an ordered society by mandatorily sentencing their murderers to death. This is so even though the State has demonstrated to a jury in a fair trial, beyond a reasonable doubt, that a particular defendant was the murderer, and that he committed the act while possessing "a specific intent to kill, or to inflict great bodily harm upon, . . . a peace officer who was engaged in the performance of his lawful duties . . . ." La. Rev. Stat. Ann. 14:30 (2) (1974). That holding would have shocked those who drafted the Bill of Rights on which it purports to rest, and would commend itself only to the most imaginative observer as being required by today's "evolving standards of decency." </s> I am unable to agree that a mandatory death sentence under such circumstances violates the Eighth Amendment's proscription against "cruel and unusual punishments." I am equally unable to see how this limited application of the mandatory death statute violates even the scope of the Eighth Amendment as seen through the eyes of last Term's plurality in Roberts v. Louisiana, 428 U.S. 325 (1976) (hereafter Stanislaus Roberts). Nor does the brief per curiam opinion issued today demonstrate why the application of a mandatory death sentence to the criminal who intentionally murders a peace officer performing his official duties should be considered "cruel and unusual punishment" in light of either the view of society when the Eighth Amendment was passed, Gregg v. Georgia, 428 U.S. 153, 176 -177 (1976); the "objective indicia that reflect the public attitude" today, id., at 173; or even the more [431 U.S. 633, 643] generalized "basic concept of human dignity" test relied upon last Term in striking down several more general mandatory statutes. </s> While the arguments weighing in favor of individualized consideration for the convicted defendant are much the same here as they are for one accused of any homicide, the arguments weighing in favor of society's determination to impose a mandatory sentence for the murder of a police officer in the line of duty are far stronger than in the case of an ordinary homicide. Thus the Court's intimation that this particular issue was considered and decided last Term in Stanislaus Roberts, supra, simply does not wash. A footnoted dictum in Stanislaus Roberts discussing a different section of the Louisiana law from the one now before us scarcely rises to the level of plenary, deliberate consideration which has traditionally preceded a declaration of unconstitutionality. </s> Such a meager basis for stare decisis would be less offensive were we not dealing with large questions of how men shall be governed, and how liberty and order should be balanced in a civilized society. But authority which might suffice to determine whether the rule against perpetuities applies to a particular devise in a will does not suffice when making a constitutional adjudication that a punishment imposed by properly enacted state law is "cruel and unusual." Mr. Justice Frankfurter wisely noted that a "footnote hardly seems to be an appropriate way of announcing a new constitutional doctrine," Kovacs v. Cooper, 336 U.S. 77, 90 -91 (1949); it is hardly a more appropriate device by which to anticipate a constitutional issue not presented by the case in which it appears. This seemingly heedless wielding of our power is least acceptable when we engage in what Mr. Justice Holmes described as "the gravest and most delicate duty that this Court is called upon to perform." Blodgett v. Holden, 275 U.S. 142, 147 -148 (1927) (separate opinion). [431 U.S. 633, 644] </s> Five Terms ago, in Furman v. Georgia, 408 U.S. 238 (1972), this Court invalidated the then-current system of capital punishments, condemning jury discretion as resulting in "freakish" punishment. The Louisiana Legislature has conscientiously determined, in an effort to respond to that holding, that the death sentence would be made mandatory upon the conviction of particular types of offenses, including, as in the case before us, the intentional killing of a peace officer while in the performance of his duties. For the reasons stated by MR. JUSTICE WHITE for himself, THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and me in his dissent in Stanislaus Roberts, supra, and by me in my dissent in Woodson v. North Carolina, 428 U.S. 280, 308 (1976), I am no more persuaded now than I was then that a mandatory death sentence for all, let alone for a limited class of, persons who commit premeditated murder constitutes "cruel and unusual punishment" under the Eighth and Fourteenth Amendments. </s> But even were I now persuaded otherwise by the plurality's analysis last Term, and were I able to conclude that the mandatory death penalty constituted "cruel and unusual punishment" when applied generally to all those convicted of first-degree murder, I would nonetheless disagree with today's opinion. Louisiana's decision to impose a mandatory death sentence upon one convicted of the particular offense of premeditated murder of a peace officer engaged in the performance of his lawful duties is clearly not governed by the holding of Stanislaus Roberts, and I do not believe that it is controlled by the reasoning of the plurality's opinion in that case. Today's opinion assumes, without analysis, that the faults of the generalized mandatory death sentence under review in Stanislaus Roberts, must necessarily inhere in such a sentence imposed on those who commit this much more carefully limited and far more serious crime. 1 In words that would be [431 U.S. 633, 645] equally appropriate today, MR. JUSTICE WHITE noted last Term, 428 U.S., at 358 : </s> "Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death. Moreover, quite apart from the character of a criminal, a State should constitutionally be able to conclude that the need to deter some crimes and that the likelihood that the death penalty will succeed in deterring these crimes is such that the death penalty may be made mandatory for all people who commit them. Nothing resembling a reasoned basis for the rejection of these propositions is to be found in the plurality opinion." [431 U.S. 633, 646] </s> Under the analysis of last Term's plurality opinion, a State, before it is constitutionally entitled to put a murderer to death, must consider aggravating and mitigating circumstances. It is possible to agree with the plurality in the general case without at all conceding that it follows that a mandatory death sentence is impermissible in the specific case we have before us: the deliberate killing of a peace officer. The opinion today is willing to concede that "the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance." Ante, at 636. But it seems to me that the factors which entitle a State to consider it as an aggravating circumstance also entitle the State to consider it so grave an aggravating circumstance that no permutation of mitigating factors exists which would disable it from constitutionally sentencing the murderer to death. If the State would be constitutionally entitled, due to the nature of the offense, to sentence the murderer to death after going through such a limited version of the plurality's "balancing" approach, I see no constitutional reason why the "Cruel and Unusual Punishments" Clause precludes the State from doing so without engaging in that process. </s> The elements that differentiate this case from the Stanislaus Roberts case are easy to state. In both cases, the factors weighing on the defendant's side of the scale are constant. It is consideration of these factors alone that the opinion today apparently relies on for its holding. But this ignores the significantly different factors which weigh on the State's side of the scale. In all murder cases, and of course this one, the State has an interest in protecting its citizens from such ultimate attacks; this surely is at the core of the Lockean "social contract" idea. But other, and important, state interests exist where the victim was a peace officer performing his lawful duties. Policemen on the beat are exposed, in the service of society, to all the risks which the constant effort to prevent crime and apprehend criminals entails: Because these people [431 U.S. 633, 647] are literally the foot soldiers of society's defense of ordered liberty, the State has an especial interest in their protection. </s> We are dealing here not merely with the State's determination as to whether particular conduct on the part of an individual should be punished, and in what manner, but also with what sanctions the State is entitled to bring into play to assure that there will be a police force to see that the criminal laws are enforced at all. It is no service to individual rights, or to individual liberty, to undermine what is surely the fundamental right and responsibility of any civilized government: the maintenance of order so that all may enjoy liberty and security. Learned Hand surely had it right when he observed: </s> "And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow." The Spirit of Liberty 190 (3d ed., 1960). </s> Policemen are both symbols and outriders of our ordered society, and they literally risk their lives in an effort to preserve it. To a degree unequaled in the ordinary first-degree murder presented in the Stanislaus Roberts case, the State therefore has an interest in making unmistakably clear that those who are convicted of deliberately killing police officers acting in the line of duty be forewarned that punishment, in the form of death, will be inexorable. 2 </s> [431 U.S. 633, 648] </s> This interest of the State, I think, entitled the Louisiana Legislature, in its considered judgment, to make the death penalty mandatory for those convicted of the intentional murder of a police officer. I had thought JUSTICES STEWART, POWELL, and STEVENS had conceded that this response - this need for a mandatory penalty - could be permissible when, focusing on the crime, not the criminal, they wrote last Term in Gregg, 428 U.S., at 184 , that </s> "the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." (Emphasis added.) </s> I am quite unable to decipher why the Court today concludes that the intentional murder of a police officer is not one of these "certain crimes." The Court's answer appears to lie in its observation that "it is incorrect to suppose that no mitigating circumstances can exist when the victim is a police officer." Ante, at 636-637. The Court, however, has asked the wrong question. The question is not whether mitigating [431 U.S. 633, 649] factors might exist, but, rather, whether whatever "mitigating" factors that might exist are of sufficient force so as to constitutionally require their consideration as counterweights to the admitted aggravating circumstance. Like MR. JUSTICE WHITE, I am unable to believe that a State is not entitled to determine that the premeditated murder of a peace officer is so heinous and intolerable a crime that no combination of mitigating factors can overcome the demonstration "that the criminal's character is such that he deserves death." 428 U.S., at 358 . </s> As an example of a mitigating factor which, presumably, may "overcome" the aggravating factor inherent in the murder of a peace officer, the Court today gives us the astonishing suggestion of "the existence of circumstances which the offender reasonably believed provided a moral justification for his conduct . . . ." Ante, at 637. I cannot believe that States are constitutionally required to allow a defense, even at the sentencing stage, which depends on nothing more than the convict's moral belief that he was entitled to kill a peace officer in cold blood. John Wilkes Booth may well have thought he was morally justified in murdering Abraham Lincoln, whom, while fleeing from the stage of Ford's Theater, he characterized as a "tyrant"; I am appalled to believe that the Constitution would have required the Government to allow him to argue that as a "mitigating factor" before it could sentence him to death if he were found guilty. I am equally appalled that a State should be required to instruct a jury that such individual beliefs must or should be considered as a possible balancing factor against the admittedly proper aggravating factor. </s> The historical and legal content of the "Cruel and Unusual Punishments" Clause was stretched to the breaking point by the plurality's opinion in the Stanislaus Roberts case last Term. Today this judicially created superstructure, designed and erected more than 180 years after the Bill of Rights was [431 U.S. 633, 650] adopted, is tortured beyond permissible limits of judicial review. There is nothing in the Constitution's prohibition against cruel and unusual punishment which disables a legislature from imposing a mandatory death sentence on a defendant convicted after a fair trial of deliberately murdering a police officer. </s> [Footnote 1 In Woodson, the plurality noted that a public opinion poll "revealed that a `substantial majority' of persons opposed mandatory capital [431 U.S. 633, 645] punishment." 428 U.S., at 298 -299, n. 34. It does not follow, even accepting that poll, that a "substantial majority" oppose mandatory capital punishment for the murderers of police officers. What meager statistics there are indicate that public opinion is at best pretty evenly divided on the subject. In a June 1973 Harris Survey, 41% of the people surveyed thought that "all" persons convicted of killing a policeman or a prison guard should get the death penalty, as opposed to 28% for the more general crime of first-degree murder. Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan. L. Rev. 1245, 1252 (1974). A May 1973 poll in Minnesota revealed that 49% of the sample favored "automatic" capital punishment for "`murder of a law enforcement officer.'" Id., at 1251. With such substantial public support, one would have thought that the determination as to whether a mandatory death penalty should exist was for the legislature, not for the judiciary through some newfound construction of the term "cruel and unusual punishments." Yet while the plurality observes that "[c]entral to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment," 428 U.S., at 288 , the opinion today makes absolutely no attempt to discuss "contemporary standards" with respect to the particular category now before us. The reason, of course, is not hard to deduce: the plurality's separation of "standards of decency" from "the dignity of man" indicates that, with respect to the latter, the plurality itself, and not society, is to be the arbiter. </s> [Footnote 2 Cf. 4 W. Blackstone, Commentaries *82: "To resist the king's forces by defending a castle against them, is a levying of war . . . . But a tumult, with a view to pull down a particular house, or lay open a particular inclosure, amounts at most to a riot; this being no general defiance of public government." As recently noted by Chief Justice Laskin of the Canadian Supreme Court, [431 U.S. 633, 648] Miller and Cockriell v. The Queen, 70 D. L. R. 3d 324, 337, 1976. 5 W. W. R. 711, 735 (1976), in discussing whether a mandatory death sentence constituted "cruel and unusual punishment" within the meaning of 2 (b) of the Canadian Bill of Rights: "I do not think, however, that it can be said that Parliament, in limiting the mandatory death penalty to the murder of policemen and prison guards, had only vengeance in view. There was obviously the consideration that persons in such special positions would have a sense of protection by reason of the grave penalty that would follow their murder . . . . It was open to Parliament to act on these additional considerations in limiting the mandatory death penalty as it did, and I am unable to say that they were not acted upon. On this view, I cannot find that there was no social purpose served by the mandatory death penalty so as to make it offensive to 2 (b)." (Concurring opinion.) </s> [431 U.S. 633, 651]

United States Supreme Court LIBERTY MUTUAL INS. CO. v. WETZEL(1976) No. 74-1245 Argued: January 19, 1976Decided: March 23, 1976 </s> Respondents filed a complaint alleging that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964, and seeking injunctive relief, damages, costs, and attorneys' fees. After ruling in respondents' favor on their motion for a partial summary judgment on the issue of petitioner's liability under the Act, the District Court, upon denying petitioner's motion for reconsideration, issued an amended order stating that injunctive relief would be withheld because petitioner had filed an appeal and had asked for a stay of any injunction, and directing that, pursuant to Fed. Rule Civ. Proc. 54 (b), final judgment be entered for respondents, there being no just reason for delay. The Court of Appeals, holding that it had jurisdiction of petitioner's appeal under 28 U.S.C. 1291, affirmed on the merits. Held: </s> 1. The District Court's order was not appealable as a final decision under 1291. Pp. 742-744. </s> (a) Even assuming that the order was a declaratory judgment on the issue of liability, it nevertheless left unresolved and did not finally dispose of any of the respondents' prayers for relief. P. 742. </s> (b) The order did not become appealable as a final decision pursuant to 1291 merely because it made the recital required by Rule 54 (b), since that Rule applies only to multiple-claim actions in which one or more but less than all of the claims have been finally decided and are found otherwise ready for appeal, and does not apply to a single-claim action such as this one where the complaint advanced a single legal theory that was applied to only one set of facts. Pp. 742-744. </s> (c) The order, apart from its reference to Rule 54 (b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability, is by its terms interlocutory, and, where [424 U.S. 737, 738] damages or other relief remain to be resolved, cannot be considered "final" within the meaning of 1291. P. 744. </s> 2. Nor was the order appealable pursuant to 28 U.S.C. 1292's provisions for interlocutory appeals. Pp. 744-745. </s> (a) Even if the order insofar as it failed to include the requested injunctive relief could be considered an interlocutory order refusing an injunction within the meaning of 1292 (a) (1), and thus would have allowed respondents then to obtain review in the Court of Appeals, there was no denial of any injunction sought by petitioner and it could not avail itself of that grant of jurisdiction. Pp. 744-745. </s> (b) Even if the order could be considered as an order that the District Court certified for immediate appeal pursuant to 1292 (b) as involving a controlling question of law as to which there was substantial ground for difference of opinion, it does not appear that petitioner applied to the Court of Appeals for permission to appeal within 10 days as required by 1292 (b); moreover, there can be no assurance had the other requirements of 1292 (b) been met that the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal. P. 745. </s> 511 F.2d 199, vacated and remanded. </s> REHNQUIST, J., delivered the opinion of the Court, in which all Members joined except BLACKMUN, J., who took no part in the consideration or decision of the case. </s> Kalvin M. Grove argued the cause for petitioner. With him on the briefs were Lawrence M. Cohen, Jeffrey S. Goldman, and Robert A. Penney. </s> Howard A. Specter argued the cause and filed a brief for respondents. * </s> [Footnote * Briefs of amici curiae urging reversal were filed by Gordon Dean Booth, Jr., for Alaska Airlines, Inc., et al.; by Edward Silver, Larry M. Lavinsky, Sara S. Portnoy, and Kenneth L. Kimble for the American Life Insurance Assn. et al.; by William Martin and Paul C. Blume for the American Mutual Insurance Alliance et al.; by Thompson Powers for the American Telephone & Telegraph Co.; by Simon H. Rifkind, Frazer F. Hilder, and Edmond J. Dilworth, Jr., for General Motors Corp.; by Richard D. Godown for the National Association of Manufacturers; by Lloyd Sutter for Owens-Illinois, [424 U.S. 737, 739] Inc., et al.; and by John G. Wayman and Scott F. Zimmerman for Westinghouse Electric Corp. </s> Briefs of amici curiae urging affirmance were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Brian K. Landsberg, Walter W. Barnett, Abner W. Sibal, Joseph T. Eddins, and Beatrice Rosenberg for the United States et al.; by Francis X. Bellotti, Attorney General, and Barbara J. Rouse and Terry Jean Seligmann, Assistant Attorneys General, for the Commonwealth of Massachusetts et al.; by William J. Brown, Attorney General, and Andrew J. Ruzicho and Earl M. Manz, Assistant Attorneys General, for the State of Ohio; by Henry Spitz and Paul Hartman for the New York State Division of Human Rights; by Ruth Bader Ginsburg, Melvin L. Wulf, and David Rubin for the American Civil Liberties Union et al.; by J. Albert Woll, Laurence Gold, Stephen I. Schlossberg, and John Fillion for the American Federation of Labor and Congress of Industrial Organizations et al.; by Diane Serafin Blank and Nancy E. Stanley for Blank Goodman Kelly Rone & Stanley; by Wendy W. Williams, Rhonda Copelon, Sylvia Roberts, Marilyn Hall Patel, Judith Lonnquist, Gladys Kessler, and Peter Hart Weiner for the Center for Constitutional Rights et al.; and by Mary K. O'Melveny, Jonathan W. Lubell, H. Howard Ostrin, and Charles V. Koons for the Communication Workers of America, AFL-CIO. [424 U.S. 737, 739] </s> MR. JUSTICE REHNQUIST delivered the opinion of the Court. </s> Respondents filed a complaint in the United States District Court for the Western District of Pennsylvania in which they asserted that petitioner's employee insurance benefits and maternity leave regulations discriminated against women in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000e et seq. (1970 ed. and Supp. IV). The District Court ruled in favor of respondents on the issue of petitioner's liability under that Act, and petitioner appealed to the Court of Appeals for the Third Circuit. That court held that it had jurisdiction of petitioner's appeal under 28 U.S.C. 1291, and proceeded to affirm on the merits the judgment of the District Court. We [424 U.S. 737, 740] granted certiorari, 421 U.S. 987 (1975), and heard argument on the merits. Though neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists. Mansfield, Coldwater & Lake Michigan R. Co. v. Swan, 111 U.S. 379 (1884). Because we conclude that the District Court's order was not appealable to the Court of Appeals, we vacate the judgment of the Court of Appeals with instructions to dismiss petitioner's appeal from the order of the District Court. </s> Respondents' complaint, after alleging jurisdiction and facts deemed pertinent to their claim, prayed for a judgment against petitioner embodying the following relief: </s> "(a) requiring that defendant establish non-discriminatory hiring, payment, opportunity, and promotional plans and programs; </s> "(b) enjoining the continuance by defendant of the illegal acts and practices alleged herein; </s> "(c) requiring that defendant pay over to plaintiffs and to the members of the class the damages sustained by plaintiffs and the members of the class by reason of defendant's illegal acts and practices, including adjusted backpay, with interest, and an additional equal amount as liquidated damages, and exemplary damages; </s> "(d) requiring that defendant pay to plaintiffs and to the members of the class the costs of this suit and a reasonable attorneys' fee, with interest; and </s> "(e) such other and further relief as the Court deems appropriate." App. 19. </s> After extensive discovery, respondents moved for partial summary judgment only as to the issue of liability. Fed. Rule Civ. Proc. 56 (c). The District Court on January 9, 1974, finding no issues of material fact in dispute, [424 U.S. 737, 741] entered an order to the effect that petitioner's pregnancy-related policies violated Title VII of the Civil Rights Act of 1964. It also ruled that Liberty Mutual's hiring and promotion policies violated Title VII. 1 Petitioner thereafter filed a motion for reconsideration which was denied by the District Court. Its order of February 20, 1974, denying the motion for reconsideration, contains the following concluding language: </s> "In its Order the court stated it would enjoin the continuance of practices which the court found to be in violation of Title VII. The Plaintiffs were invited to submit the form of the injunction order and the Defendant has filed Notice of Appeal and asked for stay of any injunctive order. Under these circumstances the court will withhold the issuance of the injunctive order and amend the Order previously issued under the provisions of Fed. R. Civ. P. 54 (b), as follows: </s> "And now this 20th day of February, 1974, it is directed that final judgment be entered in favor of Plaintiffs that Defendant's policy of requiring female employees to return to work within three months of delivery of a child or be terminated is in violation of the provisions of Title VII of the Civil Rights Act of 1964; that Defendant's policy of denying disability income protection plan benefits to female employees for disabilities related to pregnancies or childbirth are [sic] in violation of Title VII of the Civil Rights Act of 1964 and that it is expressly directed that Judgment be entered for the [424 U.S. 737, 742] Plaintiffs upon these claims of Plaintiffs' Complaint; there being no just reason for delay." 372 F. Supp. 1146, 1164. </s> It is obvious from the District Court's order that respondents, although having received a favorable ruling on the issue of petitioner's liability to them, received none of the relief which they expressly prayed for in the portion of their complaint set forth above. They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys' fees, but received none. </s> Counsel for respondents when questioned during oral argument in this Court suggested that at least the District Court's order of February 20 amounted to a declaratory judgment on the issue of liability pursuant to the provisions of 28 U.S.C. 2201. Had respondents sought only a declaratory judgment, and no other form of relief, we would of course have a different case. But even if we accept respondents' contention that the District Court's order was a declaratory judgment on the issue of liability, it nonetheless left unresolved respondents' requests for an injunction, for compensatory and exemplary damages, and for attorneys' fees. It finally disposed of none of respondents' prayers for relief. </s> The District Court and the Court of Appeals apparently took the view that because the District Court made the recital required by Fed. Rule Civ. Proc. 54 (b) that final judgment be entered on the issue of liability, and that there was no just reason for delay, the orders thereby became appealable as a final decision pursuant to 28 U.S.C. 1291. We cannot agree with this application of the Rule and statute in question. </s> Rule 54 (b) 2 "does not apply to a single claim [424 U.S. 737, 743] action . . . . It is limited expressly to multiple claims actions in which `one or more but less than all' of the multiple claims have been finally decided and are found otherwise to be ready for appeal." Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 (1956). 3 Here, however, respondents set forth but a single claim: that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964. They prayed for several different types of relief in the event that they sustained the allegations of their complaint, see Fed. Rule Civ. Proc. 8 (a) (3), but their complaint advanced a single legal theory which was applied to only one set of facts. 4 Thus, despite the fact that the District Court undoubtedly made the findings required [424 U.S. 737, 744] under the Rule, had it been applicable, those findings do not in a case such as this make the order appealable pursuant to 28 U.S.C. 1291. See Mackey, supra, at 437-438. </s> We turn to consider whether the District Court's order might have been appealed by petitioner to the Court of Appeals under any other theory. The order, viewed apart from its discussion of Rule 54 (b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability. Such judgments are by their terms interlocutory, see Fed. Rule Civ. Proc. 56 (c), and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be "final" within the meaning of 28 U.S.C. 1291. See, e. g., Borges v. Art Steel Co., 243 F.2d 350 (CA2 1957); Leonidakis v. International Telecoin Corp., 208 F.2d 934 (CA2 1953); Tye v. Hertz Drivurself Stations, 173 F.2d 317 (CA3 1949); Russell v. Barnes Foundation, 136 F.2d 654 (CA3 1943). Thus the only possible authorization for an appeal from the District Court's order would be pursuant to the provisions of 28 U.S.C. 1292. </s> If the District Court had granted injunctive relief but had not ruled on respondents' other requests for relief, this interlocutory order would have been appealable under 1292 (a) (1). 5 But, as noted above, the court did not issue an injunction. It might be argued that the order of the District Court, insofar as it failed to include the injunctive relief requested by respondents, is an interlocutory [424 U.S. 737, 745] order refusing an injunction within the meaning of 1292 (a) (1). But even if this would have allowed respondents to then obtain review in the Court of Appeals, there was no denial of any injunction sought by petitioner and it could not avail itself of that grant of jurisdiction. </s> Nor was this order appealable pursuant to 28 U.S.C. 1292 (b). 6 Although the District Court's findings made with a view to satisfying Rule 54 (b) might be viewed as substantial compliance with the certification requirement of that section, there is no showing in this record that petitioner made application to the Court of Appeals within the 10 days therein specified. And that court's holding that its jurisdiction was pursuant to 1291 makes it clear that it thought itself obliged to consider on the merits petitioner's appeal. There can be no assurance that had the other requirements of 1292 (b) been complied with, the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal. </s> Were we to sustain the procedure followed here, we would condone a practice whereby a district court in virtually any case before it might render an interlocutory decision on the question of liability of the defendant, [424 U.S. 737, 746] and the defendant would thereupon be permitted to appeal to the court of appeals without satisfying any of the requirements that Congress carefully set forth. We believe that Congress, in enacting present 1291 and 1292 of Title 28, has been well aware of the dangers of an overly rigid insistence upon a "final decision" for appeal in every case, and has in those sections made ample provision for appeal of orders which are not "final" so as to alleviate any possible hardship. We would twist the fabric of the statute more than it will bear if we were to agree that the District Court's order of February 20, 1974, was appealable to the Court of Appeals. </s> The judgment of the Court of Appeals is therefore vacated, and the case is remanded with instructions to dismiss the petitioner's appeal. </s> It is so ordered. </s> MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 The portion of the District Court's order concerning petitioner's hiring and promotion policies was separately appealed to a different panel of the Court of Appeals. The judgment rendered by the Third Circuit upon that appeal is not before us in this case. See Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, cert. denied, 421 U.S. 1011 (1975). </s> [Footnote 2 "Judgment upon multiple claims or involving multiple parties. "When more than one claim for relief is presented in an action, [424 U.S. 737, 743] whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." </s> [Footnote 3 Following Mackey, the Rule was amended to insure that orders finally disposing of some but not all of the parties could be appealed pursuant to its provisions. That provision is not implicated in this case, however, to which Mackey's exposition of the Rule remains fully accurate. </s> [Footnote 4 We need not here attempt any definitive resolution of the meaning of what constitutes a claim for relief within the meaning of the Rules. See 6 J. Moore, Federal Practice §§ 54.24, 54.33 (2d ed. 1975). It is sufficient to recognize that a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief. </s> [Footnote 5 "The courts of appeals shall have jurisdiction of appeals from: </s> "(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." </s> [Footnote 6 "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order." </s> [424 U.S. 737, 747]

United States Supreme Court MUNAF ET AL. v. GEREN, SECRETARY OF THE ARMY, ET AL.(2008) No. 06-1666 Argued: March 25, 2008Decided: June 12, 2008 </s> The Multinational Force-Iraq (MNF-I) is an international coalition force composed of 26 nations, including the United States. It operates in Iraq under the unified command of U.S. military officers, at the Iraqi Government's request, and in accordance with United Nations Security Council Resolutions. Pursuant to the U.N. mandate, MNF-I forces detain individuals alleged to have committed hostile or warlike acts in Iraq, pending investigation and prosecution in Iraqi courts under Iraqi law. </s> Shawqi Omar and Mohammad Munaf (hereinafter petitioners) are American citizens who voluntarily traveled to Iraq and allegedly committed crimes there. They were each captured by military forces operating as part of the MNF-I; given hearings before MNF-I Tribunals composed of American officers, who concluded that petitioners posed threats to Iraq's security; and placed in the custody of the U.S. military operating as part of the MNF-I. Family members filed next-friend habeas corpus petitions on behalf of both petitioners in the United States District Court for the District of Columbia. </s> In Omar's case, after the Department of Justice informed Omar that the MNF-I had decided to refer him to the Central Criminal Court of Iraq for criminal proceedings, his attorney sought and obtained a preliminary injunction from the District Court barring Omar's removal from United States or MNF-I custody. Affirming, the D. C. Circuit first upheld the District Court's exercise of habeas jurisdiction, finding that Hirota v. MacArthur, 338 U.S. 197, did not preclude review because Omar, unlike the habeas petitioners in Hirota, had yet to be convicted by a foreign tribunal. </s> Meanwhile, the District Court in Munaf's case dismissed his habeas petition for lack of jurisdiction. The court concluded that Hirota controlled and required that the petition be dismissed for lack of jurisdiction because the American forces holding Munaf were operating as part of an international force--the MNF-I. The D. C. Circuit agreed and affirmed. It distinguished its prior decision in Omar, which upheld jurisdiction over Omar's habeas petition, on the grounds that Munaf had been convicted by a foreign tribunal while Omar had not. Held: 1.The habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command. The Government's argument that the federal courts lack jurisdiction over the detainees' habeas petitions in such circumstances because the American forces holding Omar and Munaf operate as part of a multinational force is rejected. The habeas statute, 28 U.S.C. §2241(c)(1), applies to persons held "in custody under or by color of the authority of the United States." The disjunctive "or" in §2241(c)(1) makes clear that actual Government custody suffices for jurisdiction, even if that custody could be viewed as "under ... color of" another authority, such as the MNF-I. </s> The Court also rejects the Government's contention that the District Court lacks jurisdiction in these cases because the multinational character of the MNF-I, like the multinational character of the tribunal at issue in Hirota, means that the MNF-I is not a United States entity subject to habeas. The present cases differ from Hirota in several respects. The Court in Hirota may have found it significant, in considering the nature of the tribunal established by General MacArthur, that in that case the Government argued that General MacArthur was not subject to United States authority, that his duty was to obey the Far Eastern Commission and not the U.S. War Department, and that no process this Court could issue would have any effect on his action. Here, in contrast, the Government acknowledges that U.S. military commanders answer to the President. These cases also differ from Hirota in that they concern American citizens, and the Court has indicated that habeas jurisdiction can depend on citizenship. See e.g., Johnson v. Eisentrager, 339 U.S. 763, 781. Pp.7-11. </s> 2. Federal district courts, however, may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign for criminal prosecution. Because petitioners state no claim in their habeas petitions for which relief can be granted, their habeas petitions should have been promptly dismissed, and no injunction should have been entered. Pp.11-28. </s> (a)The District Court abused its discretion in granting Omar a preliminary injunction, which the D.C. Circuit interpreted as prohibiting the Government from (1) transferring Omar to Iraqi custody, (2) sharing with the Iraqi Government details concerning any decision to release him, and (3) presenting him to the Iraqi courts for investigation and prosecution, without even considering the merits of the habeas petition. A preliminary injunction is an "extraordinary and drastic remedy." It should never be awarded as of right, Yakus v. United States, 321 U.S. 414, 440, and requires a demonstration of, inter alia, "a likelihood of success on the merits," Gonzales v. O Centro Espírita Beneficente Uni&abreve;o do Vegetal, 546 U.S. 418, 428. But neither the District Court nor the D. C. Circuit considered the likelihood of success as to the merits of Omar's habeas petition. Instead, the lower courts concluded that the "jurisdictional issues" implicated by Omar's petition presented difficult and substantial questions. A difficult question as to jurisdiction is, of course, no reason to grant a preliminary injunction. </s> The foregoing analysis would require reversal and remand in each of these cases: The lower courts in Munaf erred in dismissing for want of jurisdiction, and the lower courts in Omar erred in issuing and upholding the preliminary injunction. Our review of a preliminary injunction, however, "is not confined to the act of granting the injunctio[n]." City and County of Denver v. New York Trust Co., 229 U. S. 123, 136. Rather, a reviewing court has the power on appeal from an interlocutory order "to examine the merits of the case ... and upon deciding them in favor of the defendant to dismiss the bill." North Carolina R. Co. v. Story, 268 U.S. 288, 292. In short, there are occasions when it is appropriate for a court reviewing a preliminary injunction to proceed to the merits; given that the present cases implicate sensitive foreign policy issues in the context of ongoing military operations, this is one of them. Pp.11-14. </s> (b)Petitioners argue that they are entitled to habeas relief because they have a legally enforceable right not to be transferred to Iraqi authorities for criminal proceedings and because they are innocent civilians unlawfully detained by the Government. With respect to the transfer claim, they request an injunction prohibiting the Government from transferring them to Iraqi custody. With respect to the unlawful detention claim, they seek release but only to the extent it would not result in unlawful transfer to Iraqi custody. Because both requests would interfere with Iraq's sovereign right to "punish offenses against its laws committed within its borders," Wilson v. Girard, 354 U.S. 524, 529, petitioners' claims do not state grounds upon which habeas relief may be granted. Their habeas petitions should have been promptly dismissed and no injunction should have been entered. Pp.14-28. </s> (1)Habeas is governed by equitable principles. Thus, prudential concerns may "require a federal court to forgo the exercise of its habeas ... power." Francis v. Henderson, 425 U.S. 536, 539. Here, the unusual nature of the relief sought by petitioners suggests that habeas is not appropriate. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U.S. 507, 536. The typical remedy is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484. But the habeas petitioners in these cases do not want simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution--precisely what they went to federal court to avoid. </s> The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF-I custody, Iraq would be free to arrest and prosecute them under Iraqi law. Further, Munaf is the subject of ongoing Iraqi criminal proceedings and Omar would be but for the present injunction. Given these facts, Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution, see Neely v. Henkel, 180 U.S. 109, 123. As Chief Justice Marshall explained nearly two centuries ago, "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute." Schooner Exchange v. McFaddon, 7 Cranch 116, 136. </s> This Court has twice applied that principle in rejecting claims that the Constitution precludes the Executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial. Wilson, supra, at 529-530; Neely, supra, at 112-113, 122. Omar and Munaf concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. But habeas corpus does not bar the United States from transferring a prisoner to the sovereign authority he concedes has a right to prosecute him. Petitioners' "release" claim adds nothing to their "transfer" claim and fails for the same reasons, given that the release they seek is release that would avoid transfer. </s> There is of course even more at issue here: Neely involved a charge of embezzlement and Wilson the peacetime actions of a serviceman. The present cases concern individuals captured and detained within an ally's territory during ongoing hostilities involving our troops. It would be very odd to hold that the Executive can transfer individuals such as those in the Neely and Wilson cases, but cannot transfer to an ally detainees captured by our Armed Forces for engaging in serious hostile acts against that ally in what the Government refers to as "an active theater of combat." Pp.15-23. </s> (2)Petitioners' allegations that their transfer to Iraqi custody is likely to result in torture are a matter of serious concern but those allegations generally must be addressed by the political branches, not the judiciary. The recognition that it is for the democratically elected branches to assess practices in foreign countries and to determine national policy in light of those assessments is nothing new. As Chief Justice Marshall explained in the Schooner Exchange, "exemptions from territorial jurisdiction . . . must be derived from the consent of the sovereign of the territory" and are "rather questions of policy than of law, ... they are for diplomatic, rather than legal discussion." 7 Cranch, at 143, 146. In the present cases, the Government explains that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result and that the State Department has determined that the Justice Ministry--the department which has authority over Munaf and Omar--as well as its prison and detention facilities, have generally met internationally accepted standards for basic prisoner needs. The judiciary is not suited to second-guess such determinations. Pp.23-26. </s> (3)Petitioners' argument that, under Valentine v. United States ex rel. Neidecker, 299 U.S. 5, the Executive lacks discretion to transfer a citizen to Iraqi custody unless "legal authority" to do so "is given by act of Congress or by the terms of a treaty," id., at 9, is rejected. Valentine was an extradition case; the present cases involve the transfer to a sovereign's authority of an individual captured and already detained in that sovereign's territory. Wilson, supra, also forecloses petitioners' contention. A Status of Forces Agreement there seemed to give the habeas petitioner a right to trial by an American military tribunal, rather than a Japanese court, 354 U.S., at 529, but this Court found no "constitutional or statutory" impediment to the Government's waiver of its jurisdiction in light of Japan's sovereign interest in prosecuting crimes committed within its borders, id., at 530. Pp.26-28. No. 06-1666, 482 F.3d 582; No. 07-394, 479 F.3d 1, vacated and remanded. Roberts, C.J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. </s> MOHAMMAD MUNAF, etal., PETITIONERS </s> 06-1666v. </s> PETE GEREN, SECRETARY OF THE ARMY, etal. </s> PETE GEREN, SECRETARY OF THE ARMY, etal., PETITIONERS </s> 07-394v. </s> SANDRA K. OMAR and AHMED S. OMAR, as next friends of SHAWQI AHMAD OMAR on writs of certiorari to the united states court ofappeals for the district of columbia circuit [June 12, 2008] </s> Chief Justice Roberts delivered the opinion of the Court. </s> The Multinational Force-Iraq (MNF-I) is an international coalition force operating in Iraq composed of 26 different nations, including the United States. The force operates under the unified command of United States military officers, at the request of the Iraqi Government, and in accordance with United Nations (U.N.) Security Council Resolutions. Pursuant to the U.N. mandate, MNF-I forces detain individuals alleged to have committed hostile or warlike acts in Iraq, pending investigation and prosecution in Iraqi courts under Iraqi law. </s> These consolidated cases concern the availability of habeas corpus relief arising from the MNF-I's detention of American citizens who voluntarily traveled to Iraq and are alleged to have committed crimes there. We are confronted with two questions. First, do United States courts have jurisdiction over habeas corpus petitions filed on behalf of American citizens challenging their detention in Iraq by the MNF-I? Second, if such jurisdiction exists, may district courts exercise that jurisdiction to enjoin the MNF-I from transferring such individuals to Iraqi custody or allowing them to be tried before Iraqi courts? </s> We conclude that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition. Under circumstances such as those presented here, however, habeas corpus provides petitioners with no relief. I </s> Pursuant to its U.N. mandate, the MNF-I has "'the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq.'" App. G to Pet. for Cert. in 07-394, p.74a, ¶10 (quoting U.N. Security Council, U.N. Doc. S/Res/1546, ¶10 (June 2004)). To this end, the MNF-I engages in a variety of military and humanitarian activities. The multinational force, for example, conducts combat operations against insurgent factions, trains and equips Iraqi security forces, and aids in relief and reconstruction efforts. MNF-I forces also detain individuals who pose a threat to the security of Iraq. The Government of Iraq retains ultimate responsibility for the arrest and imprisonment of individuals who violate its laws, but because many of Iraq's prison facilities have been destroyed, the MNF-I agreed to maintain physical custody of many such individuals during Iraqi criminal proceedings. MNF-I forces are currently holding approximately 24,000 detainees. An American military unit, Task Force 134, oversees detention operations and facilities in Iraq, including those located at Camp Cropper, the detention facility currently housing Shawqi Omar and Mohammad Munaf (hereinafter petitioners). The unit is under the command of United States military officers who report to General David Petraeus. A </s> Petitioner Shawqi Omar, an American-Jordanian citizen, voluntarily traveled to Iraq in 2002. In October 2004, Omar was captured and detained in Iraq by U.S. military forces operating as part of the MNF-I during a raid of his Baghdad home. Omar is believed to have provided aid to Abu Musab al-Zarqawi--the late leader of al Qaeda in Iraq--by facilitating his group's connection with other terrorist groups, bringing foreign fighters into Iraq, and planning and executing kidnappings in Iraq. MNF-I searched his home in an effort to capture and detain insurgents who were associated with al-Zarqawi. The raid netted an Iraqi insurgent and four Jordanian fighters along with explosive devices and other weapons. The captured insurgents gave sworn statements implicating Omar in insurgent cell activities. The four Jordanians testified that they had traveled to Iraq with Omar to commit militant acts against American and other Coalition Forces. Each of the insurgents stated that, while living in Omar's home, they had surveilled potential kidnap victims and conducted weapons training. The insurgents explained that Omar's fluency in English allowed him to lure foreigners to his home in order to kidnap and sell them for ransom. </s> Following Omar's arrest, a three-member MNF-I Tribunal composed of American military officers concluded that Omar posed a threat to the security of Iraq and designated him a "security internee." The tribunal also found that Omar had committed hostile and warlike acts, and that he was an enemy combatant in the war on terrorism. In accordance with Article 5 of the Geneva Convention, Omar was permitted to hear the basis for his detention, make a statement, and call immediately available witnesses. </s> In addition to the review of his detention by the MNF-I Tribunal, Omar received a hearing before the Combined Review and Release Board (CRRB)--a nine-member board composed of six representatives of the Iraqi Government and three MNF-I officers. The CRRB, like the MNF-I Tribunal, concluded that Omar's continued detention was necessary because he posed a threat to Iraqi security. At all times since his capture, Omar has remained in the custody of the United States military operating as part of the MNF-I. </s> Omar's wife and son filed a next-friend petition for a writ of habeas corpus on Omar's behalf in the District Court for the District of Columbia. Omar v. Harvey, 479 F.3d 1, 4 (CADC 2007). After the Department of Justice informed Omar that the MNF-I had decided to refer him to the Central Criminal Court of Iraq (CCCI) for criminal proceedings, his attorney sought and obtained a preliminary injunction barring Omar's "remov[al] ... from United States or MNF-I custody." App. to Pet. in No. 07-394, supra, at 59a. The order directed that "the [United States], their agents, servants, employees, confederates, and any persons acting in concert or participation with them, or having actual or implicit knowledge of this Order ... shall not remove [Omar] from United States or MNF-I custody, or take any other action inconsistent with this court's memorandum opinion." Ibid. </s> The United States appealed and the Court of Appeals for the District of Columbia Circuit affirmed. Omar, 479 F.3d 1. The Court of Appeals first upheld the District Court's exercise of habeas jurisdiction, finding that this Court's decision in Hirota v. MacArthur, 338 U.S. 197 (1948) (per curiam), did not preclude review. The Court of Appeals distinguished Hirota on the ground that Omar, unlike the petitioner in that case, had yet to be convicted by a foreign tribunal. 479 F.3d, at 7-9. The Court of Appeals recognized, however, that the writ of habeas corpus could not be used to enjoin release. Id., at 11. It therefore construed the injunction only to bar transfer to Iraqi custody and upheld the District Court's order insofar as it prohibited the United States from: (1) transferring Omar to Iraqi custody, id., at 11-13; (2) sharing details concerning any decision to release Omar with the Iraqi Government, id., at 13; and (3) presenting Omar to the Iraqi Courts for investigation and prosecution, id., at 14. </s> Judge Brown dissented. She joined the panel's jurisdictional ruling, but would have vacated the injunction because, in her view, the District Court had no authority to enjoin a transfer that would allow Iraqi officials to take custody of an individual captured in Iraq--something the Iraqi Government "undeniably h[ad] a right to do." Id., at 19. We granted certiorari. 552 U.S. ___ (2007). B </s> Petitioner Munaf, a citizen of both Iraq and the United States, voluntarily traveled to Iraq with several Romanian journalists. He was to serve as the journalists' translator and guide. Shortly after arriving in Iraq, the group was kidnapped and held captive for two months. After the journalists were freed, MNF-I forces detained Munaf based on their belief that he had orchestrated the kidnappings. A three-judge MNF-I Tribunal conducted a hearing to determine whether Munaf's detention was warranted. The MNF-I Tribunal reviewed the facts surrounding Munaf's capture, interviewed witnesses, and considered the available intelligence information. Munaf was present at the hearing and had an opportunity to hear the grounds for his detention, make a statement, and call immediately available witnesses. At the end of the hearing, the tribunal found that Munaf posed a serious threat to Iraqi security, designated him a "security internee," and referred his case to the CCCI for criminal investigation and prosecution. </s> During his CCCI trial, Munaf admitted on camera and in writing that he had facilitated the kidnapping of the Romanian journalists. He also appeared as a witness against his alleged co-conspirators. Later in the proceedings, Munaf recanted his confession, but the CCCI nonetheless found him guilty of kidnapping. On appeal, the Iraqi Court of Cassation vacated Munaf's conviction and remanded his case to the CCCI for further investigation. In re Hikmat, No. 19/Pub. Comm'n/2007, p.5 (Feb. 19, 2008). The Court of Cassation directed that Munaf was to "remain in custody pending the outcome" of further criminal proceedings. Ibid. </s> Meanwhile, Munaf's sister filed a next-friend petition for a writ of habeas corpus in the District Court for the District of Columbia. Mohammed v. Harvey, 456 F. Supp. 2d 115, 118 (2006). The District Court dismissed the petition for lack of jurisdiction, finding that this Court's decision in Hirota controlled: Munaf was "in the custody of coalition troops operating under the aegis of MNF-I, who derive their ultimate authority from the United Nations and the MNF-I member nations acting jointly." 456 F.Supp. 2d, at 122. </s> The Court of Appeals for the District of Columbia Circuit affirmed. 482 F.3d 582 (2007) (hereinafter Muraf). The Court of Appeals, "[c]onstrained by precedent," agreed with the District Court that Hirota controlled and dismissed Munaf's petition for lack of jurisdiction. 482 F. 3d, at 583. It distinguished the prior opinion in Omar on the ground that Munaf, like the habeas petitioner in Hirota but unlike Omar, had been convicted by a foreign tribunal. 482 F.3d, at 583-584. </s> Judge Randolph concurred in the judgment. Id., at 585. He concluded that the District Court had improperly dismissed for want of jurisdiction because "Munaf is an American citizen . . . held by American forces overseas." Ibid. Nevertheless, Judge Randolph would have held that Munaf's habeas petition failed on the merits. Id., at 586. He relied on this Court's holding in Wilson v. Girard, 354 U.S. 524, 529 (1957), that a "sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders," and concluded that the fact that the United States was holding Munaf because of his conviction by a foreign tribunal was conclusive. Ibid.1 </s> We granted certiorari and consolidated the Omar and Munaf cases. 552 U.S. ___ (2007). II </s> The Solicitor General argues that the federal courts lack jurisdiction over the detainees' habeas petitions because the American forces holding Omar and Munaf operate as part of a multinational force. Brief for Federal Parties 17-36. The habeas statute provides that a federal district court may entertain a habeas application by a person held "in custody under or by color of the authority of the United States," or "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§2241(c)(1), (3). MNF-I forces, the argument goes, "are not operating solely under United States authority, but rather 'as the agent of' a multinational force." Brief for Federal Parties 23 (quoting Hirota, supra, at 198). Omar and Munaf are thus held pursuant to international authority, not "the authority of the United States," §2241(c)(1), and they are therefore not within the reach of the habeas statute. Brief for Federal Parties 17-18.2 The United States acknowledges that Omar and Munaf are American citizens held overseas in the immediate "'physical custody'" of American soldiers who answer only to an American chain of command. Id., at 21. The MNF-I itself operates subject to a unified American command. Id., at 23. "[A]s a practical matter," the Government concedes, it is "the President and the Pentagon, the Secretary of Defense, and the American commanders that control what ... American soldiers do," Tr. of Oral Arg. 15, including the soldiers holding Munaf and Omar. In light of these admissions, it is unsurprising that the United States has never argued that it lacks the authority to release Munaf or Omar, or that it requires the consent of other countries to do so. We think these concessions the end of the jurisdictional inquiry. The Government's argument--that the federal courts have no jurisdiction over American citizens held by American forces operating as multinational agents--is not easily reconciled with the text of §2241(c)(1). See Duncan v. Walker, 533 U.S. 167, 172 (2001) ("We begin, as always, with the language of the statute"). That section applies to persons held "in custody under or by color of the authority of the United States." §2241(c)(1). An individual is held "in custody" by the United States when the United States official charged with his detention has "the power to produce" him. Wales v. Whitney, 114 U.S. 564, 574 (1885); see also §2243 ("The writ . . . shall be directed to the person having custody of the person detained"). The disjunctive "or" in §2241(c)(1) makes clear that actual custody by the United States suffices for jurisdiction, even if that custody could be viewed as "under ... color of" another authority, such as the MNF-I. </s> The Government's primary contention is that the District Courts lack jurisdiction in these cases because of this Court's decision in Hirota. That slip of a case cannot bear the weight the Government would place on it. In Hirota, Japanese citizens sought permission to file habeas corpus applications directly in this Court. The petitioners were noncitizens detained in Japan. They had been convicted and sentenced by the International Military Tribunal for the Far East--an international tribunal established by General Douglas MacArthur acting, as the Court put it, in his capacity as "the agent of the Allied Powers." 338 U.S., at 198. Although those familiar with the history of the period would appreciate the possibility of confusion over who General MacArthur took orders from, the Court concluded that the sentencing tribunal was "not a tribunal of the United States." Ibid. The Court then held that, "[u]nder the foregoing circumstances," United States courts had "no power or authority to review, to affirm, set aside or annul the judgments and sentences" imposed by that tribunal. Ibid. Accordingly, the Court denied petitioners leave to file their habeas corpus applications, without further legal analysis. Ibid. </s> The Government argues that the multinational character of the MNF-I, like the multinational character of the tribunal at issue in Hirota, means that it too is not a United States entity subject to habeas. Reply Brief for Federal Parties 5-7. In making this claim, the Government acknowledges that the MNF-I is subject to American authority, but contends that the same was true of the tribunal at issue in Hirota. In Hirota, the Government notes, the petitioners were held by the United States Eighth Army, which took orders from General MacArthur, 338 U. S., at 199 (Douglas, J., concurring), and were subject to an "unbroken" chain of U. S. command, ending with the President of the United States, id., at 207. </s> The Court in Hirota, however, may have found it significant, in considering the nature of the tribunal established by General MacArthur, that the Solicitor General expressly contended that General MacArthur, as pertinent, was not subject to United States authority. The facts suggesting that the tribunal in Hirota was subject to an "unbroken" United States chain of command were not among the "foregoing circumstances" cited in the per curiam opinion disposing of the case, id., at 198. They were highlighted only in Justice Douglas's belated opinion concurring in the result, published five months after that per curiam. Id., at 199, n.*. Indeed, arguing before this Court, Solicitor General Perlman stated that General MacArthur did not serve "under the Joint Chiefs of Staff," that his duty was "to obey the directives of the Far Eastern Commission and not our War Department," and that "no process that could be issued from this court ... would have any effect on his action." Tr. of Oral Arg. in Hirota v. MacArthur, O.T. 1948, No. 239, pp. 42, 50, 51. Here, in contrast, the Government acknowledges that our military commanders do answer to the President. </s> Even if the Government is correct that the international authority at issue in Hirota is no different from the international authority at issue here, the present "circumstances" differ in another respect. These cases concern American citizens while Hirota did not, and the Court has indicated that habeas jurisdiction can depend on citizenship. See Johnson v. Eisentrager, 339 U.S. 763, 781 (1950); Rasul v. Bush, 542 U.S. 466, 486 (2004) (Kennedy, J., concurring in judgment). See also Munaf, 482 F.3d, at 584 ("[W]e do not mean to suggest that we find the logic of Hirota especially clear or compelling, particularly as applied to American citizens"); id., at 585 (Randolph, J., concurring in judgment).3 "Under the foregoing circumstances," we decline to extend our holding in Hirota to preclude American citizens held overseas by American soldiers subject to a United States chain of command from filing habeas petitions. III </s> We now turn to the question whether United States district courts may exercise their habeas jurisdiction to enjoin our Armed Forces from transferring individuals detained within another sovereign's territory to that sovereign's government for criminal prosecution. The nature of that question requires us to proceed "with the circumspection appropriate when this Court is adjudicating issues inevitably entangled in the conduct of our international relations." Romero v. International Terminal Operating Co., 358 U.S. 354, 383 (1959). Here there is the further consideration that those issues arise in the context of ongoing military operations conducted by American Forces overseas. We therefore approach these questions cognizant that "courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." Department of Navy v. Egan, 484 U.S. 518, 530 (1988). In Omar, the District Court granted and the D.C. Circuit upheld a preliminary injunction that, as interpreted by the Court of Appeals, prohibited the United States from (1) effectuating "Omar's transfer in any form, whether by an official handoff or otherwise," to Iraqi custody, 479 F.3d, at 12; (2) sharing details concerning any decision to release Omar with the Iraqi Government, id., at 13; and (3) "presenting Omar to the [Iraqi courts] for trial," id., at 14. This is not a narrow injunction. Even the habeas petitioners do not defend it in its entirety. They acknowledge the authority of the Iraqi courts to begin criminal proceedings against Omar and wisely concede that any injunction "clearly need not include a bar on 'information-sharing.'" Brief for Habeas Petitioners 61. As Judge Brown noted in her dissent, such a bar would impermissibly "enjoin the United States military from sharing information with an allied foreign sovereign in a war zone." Omar, supra, at 18. </s> We begin with the basics. A preliminary injunction is an "extraordinary and drastic remedy," 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948, p. 129 (2d ed. 1995) (hereinafter Wright & Miller) (footnotes omitted); it is never awarded as of right, Yakus v. United States, 321 U.S. 414, 440 (1944). Rather, a party seeking a preliminary injunction must demonstrate, among other things, "a likelihood of success on the merits." Gonzales v. O Centro Espírita Beneficente Uni&abreve;o do Vegetal, 546 U.S. 418, 428 (2006) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)). But one searches the opinions below in vain for any mention of a likelihood of success as to the merits of Omar's habeas petition. Instead, the District Court concluded that the "jurisdictional issues" presented questions "so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberative investigation." Omar v. Harvey, 416 F. Supp. 2d 19, 23-24, 27 (DC 2006) (internal quotation marks omitted; emphasis added). </s> The D.C. Circuit made the same mistake. In that court's view, the "only question before [it] at th[at] stage of the litigation relate[d] to the district court's jurisdiction." 479 F.3d, at 11. As a result, the Court of Appeals held that it "need not address" the merits of Omar's habeas claims: those merits had "no relevance." Ibid. </s> A difficult question as to jurisdiction is, of course, no reason to grant a preliminary injunction. It says nothing about the "likelihood of success on the merits," other than making such success more unlikely due to potential impediments to even reaching the merits. Indeed, if all a "likelihood of success on the merits" meant was that the district court likely had jurisdiction, then preliminary injunctions would be the rule, not the exception. In light of these basic principles, we hold that it was an abuse of discretion for the District Court to grant a preliminary injunction on the view that the "jurisdictional issues" in Omar's case were tough, without even considering the merits of the underlying habeas petition. </s> What we have said thus far would require reversal and remand in each of these cases: The lower courts in Munaf erred in dismissing for want of jurisdiction, and the lower courts in Omar erred in issuing and upholding the preliminary injunction. There are occasions, however, when it is appropriate to proceed further and address the merits. This is one of them. </s> Our authority to address the merits of the habeas petitioners' claims is clear. Review of a preliminary injunction "is not confined to the act of granting the injunctio[n], but extends as well to determining whether there is any insuperable objection, in point of jurisdiction or merits, to the maintenance of [the] bill, and, if so, to directing a final decree dismissing it." City and County of Denver v. New York Trust Co., 229 U.S. 123, 136 (1913). See also Deckert v. Independence Shares Corp., 311 U.S. 282, 287 (1940) ("'If insuperable objection to maintaining the bill clearly appears, it may be dismissed and the litigation terminated'" (quoting Meccano, Ltd. v. John Wanamaker, N. Y., 253 U.S. 136, 141 (1920))). This has long been the rule: "By the ordinary practice in equity as administered in England and this country," a reviewing court has the power on appeal from an interlocutory order "to examine the merits of the case ... and upon deciding them in favor of the defendant to dismiss the bill." North Carolina R. Co. v. Story, 268 U.S. 288, 292 (1925). Indeed, "[t]he question whether an action should be dismissed for failure to state a claim is one of the most common issues that may be reviewed on appeal from an interlocutory injunction order." 16 Wright & Miller, Jurisdiction and Related Matters, §3921.1, at 32 (2d ed. 1996). </s> Adjudication of the merits is most appropriate if the injunction rests on a question of law and it is plain that the plaintiff cannot prevail. In such cases, the defendant is entitled to judgment. See, e.g., Deckert, supra, at 287; North Carolina R. Co., supra, at 292; City and County of Denver, supra, at 136. </s> Given that the present cases involve habeas petitions that implicate sensitive foreign policy issues in the context of ongoing military operations, reaching the merits is the wisest course. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584-585 (1952) (finding the case ripe for merits review on appeal from stay of preliminary injunction). For the reasons we explain below, the relief sought by the habeas petitioners makes clear under our precedents that the power of the writ ought not to be exercised. Because the Government is entitled to judgment as a matter of law, it is appropriate for us to terminate the litigation now. IV </s> The habeas petitioners argue that the writ should be granted in their cases because they have "a legally enforceable right" not to be transferred to Iraqi authority for criminal proceedings under both the Due Process Clause and the Foreign Affairs Reform and Restructuring Act of 1998 (FARR Act), div. G, 112 Stat. 2681-761, and because they are innocent civilians who have been unlawfully detained by the United States in violation of the Due Process Clause. Brief for Habeas Petitioners 48-52. With respect to the transfer claim, petitioners request an injunction prohibiting the United States from transferring them to Iraqi custody. With respect to the unlawful detention claim, petitioners seek "release"--but only to the extent that release would not result in "unlawful" transfer to Iraqi custody. Tr. of Oral Arg. 48. Both of these requests would interfere with Iraq's sovereign right to "punish offenses against its laws committed within its borders." Wilson, 354 U.S., at 529. We accordingly hold that the detainees' claims do not state grounds upon which habeas relief may be granted, that the habeas petitions should have been promptly dismissed, and that no injunction should have been entered. A </s> Habeas corpus is "governed by equitable principles." Fay v. Noia, 372 U.S. 391, 438 (1963). We have therefore recognized that "prudential concerns," Withrow v. Williams, 507 U.S. 680, 686 (1993), such as comity and the orderly administration of criminal justice, may "require a federal court to forgo the exercise of its habeas corpus power," Francis v. Henderson, 425 U.S. 536, 539 (1976). The principle that a habeas court is "not bound in every case" to issue the writ, Ex parte Royall, 117 U.S. 241, 251 (1886), follows from the precatory language of the habeas statute, and from its common-law origins. The habeas statute provides only that a writ of habeas corpus "may be granted," §2241(a) (emphasis added), and directs federal courts to "dispose of [habeas petitions] as law and justice require," §2243. See Danforth v. Minnesota, 552 U.S. ___, ___ (2008) (slip op., at 13-14). Likewise, the writ did not issue in England "as of mere course," but rather required the petitioner to demonstrate why the "extraordinary power of the crown" should be exercised, 3 W. Blackstone, Commentaries on the Laws of England 132 (1768); even then, courts were directed to "do as to justice shall appertain," 1 id., at 131 (1765). The question, therefore, even where a habeas court has the power to issue the writ, is "whether this be a case in which [that power] ought to be exercised." Ex parte Watkins, 3 Pet. 193, 201 (1830) (Marshall, C.J.). </s> At the outset, the nature of the relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). The typical remedy for such detention is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he traditional function of the writ is to secure release from illegal custody"). But here the last thing petitioners want is simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution--precisely what petitioners went to federal court to avoid. At the end of the day, what petitioners are really after is a court order requiring the United States to shelter them from the sovereign government seeking to have them answer for alleged crimes committed within that sovereign's borders. </s> The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF-I custody, Iraq would be free to arrest and prosecute them under Iraqi law. See Tr. in Omar, No. 06-5126 (CADC), pp. 48-49, 59 (Sept. 11, 2006); Tr. in Mohammed, No. 06-1455 (DC), pp. 15-16 (Oct. 10, 2006). There is, moreover, no question that Munaf is the subject of ongoing Iraqi criminal proceedings and that Omar would be but for the present injunction. Munaf was convicted by the CCCI, and while that conviction was overturned on appeal, his case was remanded to and is again pending before the CCCI. The MNF-I referred Omar to the CCCI for prosecution at which point he sought and obtained an injunction that prohibits his prosecution. See 479 F.3d, at 16, n.3 (Brown, J., dissenting in part) ("'[Omar] has not yet had a trial or even an investigative hearing in the CCCI due to the district court's unprecedented injunction'" (citing Opposition to Petitioner's Emergency Motion for Injunctive Relief 18-19, in Munaf v. Harvey, No. 06-5324 (CADC, Oct. 25, 2006))). </s> Given these facts, our cases make clear that Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil. As Chief Justice Marshall explained nearly two centuries ago, "[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute." Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812). See Wilson, supra, at 529 ("A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction"); Reid v. Covert, 354 U.S. 1, 15, n.29 (1957) (opinion of Black, J.) ("[A] foreign nation has plenary criminal jurisdiction ... over all Americans ... who commit offenses against its laws within its territory"); Kinsella v. Krueger, 351 U.S. 470, 479 (1956) (nations have a "sovereign right to try and punish [American citizens] for offenses committed within their borders," unless they "have relinquished [their] jurisdiction" to do so). </s> This is true with respect to American citizens who travel abroad and commit crimes in another nation whether or not the pertinent criminal process comes with all the rights guaranteed by our Constitution. "When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people." Neely v. Henkel, 180 U.S. 109, 123 (1901). </s> The habeas petitioners nonetheless argue that the Due Process Clause includes a "[f]reedom from unlawful transfer" that is "protected wherever the government seizes a citizen." Brief for Habeas Petitioners 48. We disagree. Not only have we long recognized the principle that a nation state reigns sovereign within its own territory, we have twice applied that principle to reject claims that the Constitution precludes the Executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial. </s> In Wilson, 354 U.S. 524, we reversed an injunction similar to the one at issue here. During a cavalry exercise at the Camp Weir range in Japan, Girard, a Specialist Third Class in the United States Army, caused the death of a Japanese woman. Id., at 525-526. After Japan indicted Girard, but while he was still in United States custody, Girard filed a writ of habeas corpus in the United States District Court for the District of Columbia. Ibid. The District Court granted a preliminary injunction against the United States, enjoining the "proposed delivery of [Girard] to the Japanese Government." Girard v. Wilson, 152 F. Supp. 21, 27 (DC 1957). In the District Court's view, to permit the transfer to Japanese authority would violate the rights guaranteed to Girard by the Constitution. Ibid. </s> We granted certiorari, and vacated the injunction. 354 U.S., at 529-530. We noted that Japan had exclusive jurisdiction "to punish offenses against its laws committed within its borders," unless it had surrendered that jurisdiction. Id., at 529. Consequently, even though Japan had ceded some of its jurisdiction to the United States pursuant to a bilateral Status of Forces Agreement, the United States could waive that jurisdiction--as it had done in Girard's case--and the habeas court was without authority to enjoin Girard's transfer to the Japanese authorities. Id., at 529-530. </s> Likewise, in Neely v. Henkel, supra, this Court held that habeas corpus was not available to defeat the criminal jurisdiction of a foreign sovereign, even when application of that sovereign's law would allegedly violate the Constitution. Neely--the habeas petitioner and an American citizen--was accused of violating Cuban law in Cuba. Id., at 112-113. He was arrested and detained in the United States. Id., at 113. The United States indicated its intent to extradite him, and Neely filed suit seeking to block his extradition on the grounds that Cuban law did not provide the panoply of rights guaranteed him by the Constitution of the United States. Id., at 122. We summarily rejected this claim: "The answer to this suggestion is that those [constitutional] provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country." Ibid. Neely alleged no claim for which a "discharge on habeas corpus" could issue. Id., at 125. Accordingly, the United States was free to transfer him to Cuban custody for prosecution. </s> In the present cases, the habeas petitioners concede that Iraq has the sovereign authority to prosecute them for alleged violations of its law, yet nonetheless request an injunction prohibiting the United States from transferring them to Iraqi custody. But as the foregoing cases make clear, habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them. </s> Petitioners' "release" claim adds nothing to their "transfer" claim. That claim fails for the same reasons the transfer claim fails, given that the release petitioners seek is release in a form that would avoid transfer. See Tr. of Oral Arg. 47-48; App. 40 (coupling Munaf's claim for release with a request for order requiring the United States to bring him to a U.S. court); App. 123 (same with respect to Omar). Such "release" would impermissibly interfere with Iraq's "exclusive jurisdiction to punish offenses against its laws committed within its borders," Wilson, supra, at 529; the "release" petitioners seek is nothing less than an order commanding our forces to smuggle them out of Iraq. Indeed, the Court of Appeals in Omar's case took the extraordinary step of upholding an injunction that prohibited the Executive from releasing Omar--the quintessential habeas remedy--if the United States shared information about his release with its military ally, Iraq. 479 F.3d, at 13. Habeas does not require the United States to keep an unsuspecting nation in the dark when it releases an alleged criminal insurgent within its borders. </s> Moreover, because Omar and Munaf are being held by United States Armed Forces at the behest of the Iraqi Government pending their prosecution in Iraqi courts, Mohammed, 456 F.Supp. 2d, at 117, release of any kind would interfere with the sovereign authority of Iraq "to punish offenses against its laws committed within its borders," Wilson, supra, at 529. This point becomes clear given that the MNF-I, pursuant to its U.N. mandate, is authorized to "take all necessary measures to contribute to the maintenance of security and stability in Iraq," App. G to Pet. for Cert. in No. 07-394, p. 74a, ¶10, and specifically to provide for the "internment [of individuals in Iraq] where this is necessary for imperative reasons of security," id., at 86a. </s> While the Iraqi Government is ultimately "responsible for [the] arrest, detention and imprisonment" of individuals who violate its laws, S.C. Res. 1790, Annex I, ¶4, p.6, U.N. Doc. S/RES/1790 (Dec. 18, 2007), the MNF-I maintains physical custody of individuals like Munaf and Omar while their cases are being heard by the CCCI, Mohammed, supra, at 117. Indeed, Munaf is currently held at Camp Cropper pursuant to the express order of the Iraqi Courts. See In re Hikmat, No. 19/Pub. Comm'n/2007, at 5 (directing that Munaf "remain in custody pending the outcome" of further Iraqi proceedings). As that court order makes clear, MNF-I detention is an integral part of the Iraqi system of criminal justice. MNF-I forces augment the Iraqi Government's peacekeeping efforts by functioning, in essence, as its jailor. Any requirement that the MNF-I release a detainee would, in effect, impose a release order on the Iraqi Government. </s> The habeas petitioners acknowledge that some interference with a foreign criminal system is too much. They concede that "it is axiomatic that an American court does not provide collateral review of proceedings in a foreign tribunal." Brief for Habeas Petitioners 39 (citing Republic of Austria v. Altmann, 541 U.S. 677, 700 (2004)). We agree, but see no reason why habeas corpus should permit a prisoner detained within a foreign sovereign's territory to prevent a trial from going forward in the first place. It did not matter that the habeas petitioners in Wilson and Neely had not been convicted. 354 U. S., at 525-526; 180 U.S., at 112-113. Rather, "the same principles of comity and respect for foreign sovereigns that preclude judicial scrutiny of foreign convictions necessarily render invalid attempts to shield citizens from foreign prosecution in order to preempt such nonreviewable adjudications." Omar, 479 F.3d, at 17 (Brown, J., dissenting in part). </s> To allow United States courts to intervene in an ongoing foreign criminal proceeding and pass judgment on its legitimacy seems at least as great an intrusion as the plainly barred collateral review of foreign convictions. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417-418 (1964) ("'To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly "imperil the amicable relations between governments and vex the peace of nations"'" (quoting Oetjen v. Central Leather Co., 246 U.S. 297, 303-304 (1918); punctuation omitted)).4 </s> There is of course even more at issue here: Neither Neely nor Wilson concerned individuals captured and detained within an ally's territory during ongoing hostilities involving our troops. Neely involved a charge of embezzlement; Wilson the peacetime actions of a serviceman. Yet in those cases we held that the Constitution allows the Executive to transfer American citizens to foreign authorities for criminal prosecution. It would be passing strange to hold that the Executive lacks that same authority where, as here, the detainees were captured by our Armed Forces for engaging in serious hostile acts against an ally in what the Government refers to as "an active theater of combat." Brief for Federal Parties 16. </s> Such a conclusion would implicate not only concerns about interfering with a sovereign's recognized prerogative to apply its criminal law to those alleged to have committed crimes within its borders, but also concerns about unwarranted judicial intrusion into the Executive's ability to conduct military operations abroad. Our constitutional framework "requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters." Orloff v. Willoughby, 345 U.S. 83, 94 (1953). Those who commit crimes within a sovereign's territory may be transferred to that sovereign's government for prosecution; there is hardly an exception to that rule when the crime at issue is not embezzlement but unlawful insurgency directed against an ally during ongoing hostilities involving our troops. B 1 </s> Petitioners contend that these general principles are trumped in their cases because their transfer to Iraqi custody is likely to result in torture. This allegation was raised in Munaf's petition for habeas, App. 39, ¶46, but not in Omar's. Such allegations are of course a matter of serious concern, but in the present context that concern is to be addressed by the political branches, not the judiciary. See M. Bassiouni, International Extradition: United States Law and Practice 921 (2007) ("Habeas corpus has been held not to be a valid means of inquiry into the treatment the relator is anticipated to receive in the requesting state"). This conclusion is reflected in the cases already cited. Even with respect to claims that detainees would be denied constitutional rights if transferred, we have recognized that it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments. Thus, the Court in Neely concluded that an American citizen who "commits a crime in a foreign country" "cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people," but went on to explain that this was true "unless a different mode be provided for by treaty stipulation between that country and the United States." 180 U.S., at 123. Diplomacy was the means of addressing the petitioner's concerns. </s> By the same token, while the Court in Wilson stated the general principle that a "sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders," it recognized that this rule could be altered by diplomatic agreement in light of particular concerns--as it was in that case--and by a decision of the Executive to waive jurisdiction granted under that agreement--as it was in that case. 354 U.S., at 529. See also Kinsella, 351 U.S., at 479 (alteration of jurisdictional rule through "carefully drawn agreements"). This recognition that it is the political branches that bear responsibility for creating exceptions to the general rule is nothing new; as Chief Justice Marshall explained in the Schooner Exchange, "exemptions from territorial jurisdiction ... must be derived from the consent of the sovereign of the territory" and are "rather questions of policy than of law, that they are for diplomatic, rather than legal discussion." 7 Cranch, at 143, 146. The present concerns are of the same nature as the loss of constitutional rights alleged in Wilson and Neely, and are governed by the same principles.5 </s> The Executive Branch may, of course, decline to surrender a detainee for many reasons, including humanitarian ones. Petitioners here allege only the possibility of mistreatment in a prison facility; this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway. Indeed, the Solicitor General states that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result. Brief for Federal Parties 47; Reply Brief for Federal Parties 23. In these cases the United States explains that, although it remains concerned about torture among some sectors of the Iraqi Government, the State Department has determined that the Justice Ministry--the department that would have authority over Munaf and Omar--as well as its prison and detention facilities have "'generally met internationally accepted standards for basic prisoner needs.'" Ibid. The Solicitor General explains that such determinations are based on "the Executive's assessment of the foreign country's legal system and ... the Executive['s] ... ability to obtain foreign assurances it considers reliable." Brief for Federal Parties 47. </s> The Judiciary is not suited to second-guess such determinations--determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government's ability to speak with one voice in this area. See The Federalist No. 42, p. 279 (J. Cooke ed. 1961) (J. Madison) ("If we are to be one nation in any respect, it clearly ought to be in respect to other nations"). In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is. As Judge Brown noted, "we need not assume the political branches are oblivious to these concerns. Indeed, the other branches possess significant diplomatic tools and leverage the judiciary lacks." 479 F.3d, at 20, n.6 (dissenting opinion). </s> Petitioners briefly argue that their claims of potential torture may not be readily dismissed on the basis of these principles because the FARR Act prohibits transfer when torture may result. Brief for Habeas Petitioners 51-52. Neither petitioner asserted a FARR Act claim in his petition for habeas, and the Act was not raised in any of the certiorari filings before this Court. Even in their merits brief in this Court, the habeas petitioners hardly discuss the issue. Id., at 17, 51-52, 57-58. The Government treats the issue in kind. Reply Brief for Federal Parties 24-26. Under such circumstances we will not consider the question.6 2 </s> Finally, the habeas petitioners raise the additional argument that the United States may not transfer a detainee to Iraqi custody, not because it would be unconstitutional to do so, but because the "[G]overnment may not transfer a citizen without legal authority." Brief for Habeas Petitioners 54. The United States, they claim, bears the burden of "identify[ing] a treaty or statute that permits it to transfer the[m] to Iraqi custody." Id., at 49. The habeas petitioners rely prominently on Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936), where we ruled that the Executive may not extradite a person held within the United States unless "legal authority" to do so "is given by act of Congress or by the terms of a treaty," id., at 9. But Valentine is readily distinguishable. It involved the extradition of an individual from the United States; this is not an extradition case, but one involving the transfer to a sovereign's authority of an individual captured and already detained in that sovereign's territory. In the extradition context, when a "fugitive criminal" is found within the United States, "'there is no authority vested in any department of the government to seize [him] and surrender him to a foreign power,'" in the absence of a pertinent constitutional or legislative provision. Ibid. But Omar and Munaf voluntarily traveled to Iraq and are being held there. They are therefore subject to the territorial jurisdiction of that sovereign, not of the United States. Moreover, as we have explained, the petitioners are being held by the United States, acting as part of MNF-I, at the request of and on behalf of the Iraqi Government. It would be more than odd if the Government had no authority to transfer them to the very sovereign on whose behalf, and within whose territory, they are being detained. </s> The habeas petitioners further contend that this Court's decision in Wilson supports their argument that the Executive lacks the discretion to transfer a citizen absent a treaty or statute. Brief for Habeas Petitioners 54-55. Quite the opposite. Wilson forecloses it. The only "authority" at issue in Wilson--a Status of Forces Agreement--seemed to give the habeas petitioner in that case a right to be tried by an American military tribunal, not a Japanese court. 354 U.S., at 529. Nevertheless, in light of the background principle that Japan had a sovereign interest in prosecuting crimes committed within its borders, this Court found no "constitutional or statutory" impediment to the United States's waiver of its jurisdiction under the agreement. Id., at 530. *  *  * </s> Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U.N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them. For all the reasons given above, petitioners state no claim in their habeas petitions for which relief can be granted, and those petitions should have been promptly dismissed. The judgments below and the injunction entered against the United States are vacated, and the cases are remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> MOHAMMAD MUNAF, etal., PETITIONERS </s> 06-1666v. </s> PETE GEREN, SECRETARY OF THE ARMY, etal. </s> PETE GEREN, SECRETARY OF THE ARMY, etal., PETITIONERS </s> 07-394v. </s> SANDRA K. OMAR and AHMED S. OMAR, as next friends of SHAWQI AHMAD OMAR on writs of certiorari to the united states court of appeals for the district of columbia circuit [June 12, 2008] </s> Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring. </s> The Court holds that "[u]nder circumstances such as those presented here, ... habeas corpus provides petitioners with no relief." Ante, at 2. The Court's opinion makes clear that those circumstances include the following: (1) Omar and Munaf "voluntarily traveled to Iraq." Ante, at 16. They are being held (2) in the "territory" of (3) an "all[y]" of the United States, ante, at 22, (4) by our troops, see ante, at 8, (5) "during ongoing hostilities" that (6) "involv[e] our troops," ante, at 22. (7) The government of a foreign sovereign, Iraq, has decided to prosecute them "for crimes committed on its soil." Ante, at 17. And (8) "the State Department has determined that ... the department that would have authority over Munaf and Omar ... as well as its prison and detention facilities have generally met internationally accepted standards for basic prisoner needs." Ante, at 25 (internal quotation marks omitted). Because I consider these circumstances essential to the Court's holding, I join its opinion. </s> The Court accordingly reserves judgment on an "extreme case in which the Executive has determined that a detainee [in United States custody] is likely to be tortured but decides to transfer him anyway." Ante, at 24-25. I would add that nothing in today's opinion should be read as foreclosing relief for a citizen of the United States who resists transfer, say, from the American military to a foreign government for prosecution in a case of that sort, and I would extend the caveat to a case in which the probability of torture is well documented, even if the Executive fails to acknowledge it. Although the Court rightly points out that any likelihood of extreme mistreatment at the receiving government's hands is a proper matter for the political branches to consider, see ante, at 23-24, if the political branches did favor transfer it would be in order to ask whether substantive due process bars the Government from consigning its own people to torture. And although the Court points out that habeas is aimed at securing release, not protective detention, see ante, at 16, habeas would not be the only avenue open to an objecting prisoner; "where federally protected rights [are threatened], it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief," Bell v. Hood, 327 U.S. 678, 684 (1946). </s> FOOTNOTESFootnote **Together with No. 07-394, Geren, Secretary of the Army, etal. v. Omar etal., also on certiorari to the same court. FOOTNOTESFootnote 1As noted above, Munaf's conviction was subsequently vacated by an Iraqi appellate court, and he is awaiting a new trial. Footnote 2These cases concern only American citizens and only the statutory reach of the writ. Nothing herein addresses jurisdiction with respect to alien petitioners or with respect to the constitutional scope of the writ. Footnote 3The circumstances in Hirota differ in yet another respect. The petitioners in that case sought an original writ, filing their motions for leave to file habeas petitions "in this Court." 338 U.S., at 198. There is, however, some authority for the proposition that this Court has original subject-matter jurisdiction only over "'cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party,'" Marbury v. Madison, 1 Cranch 137, 174 (1803) (quoting U.S. Const., Art. III, §2, cl.2), and Congress had not granted the Court appellate jurisdiction to review decisions of the International Military Tribunal for the Far East. Footnote 4The habeas petitioners claim that the injunction only bars Omar's presentation to the Iraqi courts and that the CCCI trial can go forward in Omar's absence. The injunction is not so easily narrowed. It was entered on the theory that Omar might be "presented to the CCCI and in that same day, be tried, [and] convicted," thus depriving the United States district courts of jurisdiction. Omar v. Harvey, 416 F.Supp.2d 19, 29 (DC 2006). Petitioners' interpretation makes no sense under that theory: If a conviction would deprive the habeas court of jurisdiction, a trial, with or without the defendant, could result in just such a jurisdiction-divesting order. Footnote 5The United States has in fact entered into treaties that provide procedural protections to American citizens tried in other nations. See, e.g., North Atlantic Treaty: Status of Forces, June 19, 1951, 4 U. S.T. 1802, T.I.A.S. No. 2846, Art. VII, ¶9 (guaranteeing arrested members of the Armed Forces and their civilian dependents, inter alia, an attorney, an interpreter, and a prompt and speedy trial, as well as the right to confront witnesses, obtain favorable witnesses, and communicate with a representative of the United States). Footnote 6We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand. Even if considered on the merits, several issues under the FARR Act claim would have to be addressed. First, the Act speaks to situations where a detainee is being "returned" to "a country." FARR Act §2242(a), 112 Stat. 2681-822 ("It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States"); see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, Art. 3, S. Treaty Doc. No. 20, 100th Cong., 2d Sess., p.6 (1988) ("No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture" (emphasis added)). It is not settled that the Act addresses the transfer of an individual located in Iraq to the Government of Iraq; arguably such an individual is not being "returned" to "a country"--he is already there. </s> Second, claims under the FARR Act may be limited to certain immigration proceedings. See §2242(d), 112 Stat. 2681-822 ("[N]othing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in [this section], except as part of the review of a final order of removal pursuant to [8 U. S. C. §1252 (2000 ed. and Supp. V]").

United States Supreme Court SIBRON v. NEW YORK(1968) No. 63 Argued: Decided: June 10, 1968 </s> [Footnote * Together with No. 74, Peters v. New York, argued on December 12, 1967, also on appeal from the same court. </s> In No. 63, a New York police officer on patrol observed during an eight-hour period a man (appellant Sibron), whom he did not know and had no information about, in conversation with six or eight persons whom the officer knew as narcotics addicts. Later the officer saw Sibron in a restaurant with three more known addicts. The officer on none of these occasions overheard any conversation or saw anything pass between Sibron and the others. Later the officer ordered Sibron outside the restaurant, where the officer said, "You know what I am after." When Sibron reached into his pocket the officer reached into the same pocket and found some envelopes containing heroin. Sibron was charged with the unlawful possession of the heroin. The trial court rejected Sibron's motion to suppress the heroin as illegally seized, holding that the officer had probable cause to make the arrest and to seize the heroin. Thereafter Sibron pleaded guilty, preserving his right to appeal the evidentiary ruling. Sibron, who was precluded from obtaining bail pending appeal, completed service of his six-month sentence roughly two months before it was physically possible for him to present his case on appeal. His conviction was affirmed by the intermediate state appellate court and then by the New York Court of Appeals. In this Court the State initially sought to justify the search on the basis of New York's "stop-and-frisk" law, N. Y. Code Crim. Proc. 180-a, which the New York Court of Appeals apparently viewed as authorizing the search. That law provides that a "police officer may stop any person abroad in a public place whom he reasonably suspects is committing . . ." certain crimes "and may demand . . . his name, address and an explanation of his actions," and when the officer "suspects that he is in danger . . . he may search such person for a dangerous weapon." After this Court noted probable jurisdiction the county District Attorney confessed error. In No. 74, an officer, at home in the apartment where he had lived for 12 years, heard a noise at the door. Through the peephole [392 U.S. 40, 41] he saw two strangers (appellant Peters and another) tiptoeing furtively about the hallway. He called the police, dressed, and armed himself with his service revolver. He observed the two still engaged in suspicious maneuvers and, believing that they were attempting a burglary, the officer pursued them, catching Peters by the collar in the apartment hallway. Peters said that he had been visiting a girl friend, whom he declined to identify. The officer patted Peters down for weapons and discovered a hard object which he thought might be a knife but which turned out to be a container with burglar's tools, for the possession of which Peters was later charged. The trial court denied Peters' motion to suppress that evidence, refusing to credit Peters' testimony that he had been visiting a girl friend and finding that the officer had the requisite "reasonable suspicion" under 180-a to stop and question Peters and to "frisk" him for a dangerous weapon in the apartment hallway, which the court found was a "public place," within the meaning of the statute. Peters then pleaded guilty, preserving his right to appeal the rejection of his motion to suppress. The intermediate appellate court affirmed, as did the New York Court of Appeals, which held the search justified under 180-a. The parties on both sides contend that the principal issue in both cases is the constitutionality of 180-a "on its face." Held: </s> 1. Sibron's completion of service of his sentence does not moot his appeal. Pp. 50-58. </s> (a) A State may not effectively deny a convict access to its appellate courts until his release and then argue that his case has been mooted by his failure to do what it has prevented him from doing. P. 52. </s> (b) Even though Sibron was a multiple offender he "had a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him." Fiswick v. United States, 329 U.S. 211 (1946), followed; St. Pierre v. United States, 319 U.S. 41 (1943), qualified. Pp. 55-58. </s> 2. A confession of error, though entitled to great weight, does not relieve this Court from making its own examination of the record of a case where a conviction has been erroneously obtained, particularly where a judgment of the State's highest court interpreting a state statute is challenged on constitutional grounds and the confession of error has been made by a local official rather than by an official authorized to speak for the State as a whole. Pp. 58-59. [392 U.S. 40, 42] </s> 3. Since the question in this Court is not whether the search (or seizure) was authorized by 180-a, but whether it was reasonable under the Fourth Amendment, the Court does not pass upon the facial constitutionality of the statute. Pp. 59-62. </s> 4. In No. 63, the heroin was illegally seized and therefore inadmissible in evidence. Pp. 62-66. </s> (a) The search of Sibron cannot be justified as incident to a lawful arrest since no probable cause existed before the search. Pp. 62-63. </s> (b) There were no adequate grounds for the officer to search Sibron for weapons since the officer had no reason to believe that Sibron was armed and dangerous; and even if there arguably had been such a justification, there was no initial limited exploration for arms before the officer thrust his hand into Sibron's pocket. Terry v. Ohio, ante, p. 1, distinguished. Pp. 63-65. </s> 5. In No. 74, the search was reasonable and the evidence seized was admissible. Pp. 66-67. </s> (a) The search of Peters was incident to a lawful arrest under the Fourth Amendment. Pp. 66-67. </s> (b) The "arrest" of Peters had taken place before the search, and after the arrest the officer had authority to search Peters. P. 67. </s> (c) The incident search, which was limited in scope, was justified by the need to seize weapons as well as the need to prevent destruction of evidence of the crime. P. 67. </s> No. 63, 18 N. Y. 2d 603, 219 N. E. 2d 196, reversed; No. 74, 18 N. Y. 2d 238, 219 N. E. 2d 595, affirmed. </s> Kalman Finkel and Gretchen White Oberman argued the cause and filed briefs for appellant in No. 63. Robert Stuart Friedman argued the cause and filed a brief for appellant in No. 74. </s> William I. Siegel argued the cause for appellee in No. 63. With him on the brief was Aaron E. Koota. James J. Duggan argued the cause for appellee in No. 74. With him on the briefs was Leonard Rubenfeld. </s> Michael Juviler argued the cause for the District Attorney of New York County, as amicus curiae, in [392 U.S. 40, 43] No. 63. With him on the brief filed in both cases were Frank S. Hogan and H. Richard Uviller. Mr. Siegel argued the cause for the District Attorney of Kings County, as amicus curiae, in No. 74. </s> Briefs of amici curiae, urging reversal in both cases, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al. </s> Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, filed a brief for the Attorney General of New York, as amicus curiae, urging affirmance in both cases. </s> MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. </s> These are companion cases to No. 67, Terry v. Ohio, ante, p. 1, decided today. They present related questions under the Fourth and Fourteenth Amendments, but the cases arise in the context of New York's "stop-and-frisk" law, N. Y. Code Crim. Proc. 180-a. This statute provides: </s> "1. A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or any of the offenses specified in section five hundred fifty-two of this chapter, and may demand of him his name, address and an explanation of his actions. </s> "2. When a police officer has stopped a person for questioning pursuant to this section and reasonably [392 U.S. 40, 44] suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person." </s> The appellants, Sibron and Peters, were both convicted of crimes in New York state courts on the basis of evidence seized from their persons by police officers. The Court of Appeals of New York held that the evidence was properly admitted, on the ground that the searches which uncovered it were authorized by the statute. People v. Sibron, 18 N. Y. 2d 603, 219 N. E. 2d 196, 272 N. Y. S. 2d 374 (1966) (memorandum); People v. Peters, 18 N. Y. 2d 238, 219 N. E. 2d 595, 273 N. Y. S. 2d 217 (1966). Sibron and Peters have appealed their convictions to this Court, claiming that 180-a is unconstitutional on its face and as construed and applied, because the searches and seizures which it was held to have authorized violated their rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643 (1961). We noted probable jurisdiction, 386 U.S. 954 (1967); 386 U.S. 980 (1967), and consolidated the two cases for argument with No. 67. </s> The facts in these cases may be stated briefly. Sibron, the appellant in No. 63, was convicted of the unlawful possession of heroin. 1 He moved before trial to suppress [392 U.S. 40, 45] the heroin seized from his person by the arresting officer, Brooklyn Patrolman Anthony Martin. After the trial court denied his motion, Sibron pleaded guilty to the charge, preserving his right to appeal the evidentiary ruling. 2 At the hearing on the motion to suppress, Officer Martin testified that while he was patrolling his beat in uniform on March 9, 1965, he observed Sibron "continually from the hours of 4:00 P. M. to 12:00, midnight . . . in the vicinity of 742 Broadway." He stated that during this period of time he saw Sibron in conversation with six or eight persons whom he (Patrolman Martin) knew from past experience to be narcotics addicts. The officer testified that he did not overhear any of these conversations, and that he did not see anything pass between Sibron and any of the others. Late in the evening Sibron entered a restaurant. Patrolman Martin saw Sibron speak with three more known addicts inside the restaurant. Once again, nothing was overheard and nothing was seen to pass between Sibron and the addicts. Sibron sat down and ordered pie and coffee, and, as he was eating, Patrolman Martin approached him and told him to come outside. Once outside, the officer said to Sibron, "You know what I am after." According to the officer, Sibron "mumbled something and reached into his pocket." Simultaneously, Patrolman Martin thrust his hand into the same pocket, discovering several glassine envelopes, which, it turned out, contained heroin. </s> The State has had some difficulty in settling upon a [392 U.S. 40, 46] theory for the admissibility of these envelopes of heroin. In his sworn complaint Patrolman Martin stated: </s> "As the officer approached the defendant, the latter being in the direction of the officer and seeing him, he did put his hand in his left jacket pocket and pulled out a tinfoil envelope and did attempt to throw same to the ground. The officer never losing sight of the said envelope seized it from the def[endan]t's left hand, examined it and found it to contain ten glascine [sic] envelopes with a white substance alleged to be Heroin." </s> This version of the encounter, however, bears very little resemblance to Patrolman Martin's testimony at the hearing on the motion to suppress. In fact, he discarded the abandonment theory at the hearing. 3 Nor did the officer ever seriously suggest that he was in fear of bodily harm and that he searched Sibron in self-protection to find weapons. 4 </s> [392 U.S. 40, 47] </s> The prosecutor's theory at the hearing was that Patrolman Martin had probable cause to believe that Sibron was in possession of narcotics because he had seen him conversing with a number of known addicts over an eight-hour period. In the absence of any knowledge on Patrolman Martin's part concerning the nature of the intercourse between Sibron and the addicts, however, the trial court was inclined to grant the motion to suppress. As the judge stated, "All he knows about the unknown men: They are narcotics addicts. They might have been talking about the World Series. They might have been talking about prize fights." The prosecutor, however, reminded the judge that Sibron had admitted on the stand, in Patrolman Martin's absence, that he had been talking to the addicts about narcotics. Thereupon, the trial judge changed his mind and ruled that the officer had probable cause for an arrest. </s> Section 180-a, the "stop-and-frisk" statute, was not mentioned at any point in the trial court. The Appellate Term of the Supreme Court affirmed the conviction without opinion. In the Court of Appeals of New York, Sibron's case was consolidated with the Peters case, No. 74. The Court of Appeals held that the search in Peters was justified under the statute, but it wrote no opinion in Sibron's case. The dissents of Judges Fuld and Van Voorhis, however, indicate that the court rested its holding on 180-a. At any rate, in its Brief in Opposition [392 U.S. 40, 48] to the Jurisdictional Statement in this Court, the State sought to justify the search on the basis of the statute. After we noted probable jurisdiction, the District Attorney for Kings County confessed error. </s> Peters, the appellant in No. 74, was convicted of possessing burglary tools under circumstances evincing an intent to employ them in the commission of a crime. 5 The tools were seized from his person at the time of his arrest, and like Sibron he made a pretrial motion to suppress them. When the trial court denied the motion, he too pleaded guilty, preserving his right to appeal. Officer Samuel Lasky of the New York City Police Department testified at the hearing on the motion that he was at home in his apartment in Mount Vernon, New York, at about 1 p. m. on July 10, 1964. He had just finished taking a shower and was drying himself when he heard a noise at his door. His attempt to investigate was interrupted by a telephone call, but when he returned and looked through the peephole into the hall, Officer Lasky saw "two men tiptoeing out of the alcove toward the stairway." He immediately called the police, put on some civilian clothes and armed himself with his service revolver. Returning to the peephole, he saw "a tall man tiptoeing away from the alcove and followed by this shorter man, Mr. Peters, toward the stairway." Officer Lasky testified that he had lived in the 120-unit building for 12 years and that he did not recognize either of the men as tenants. Believing that he had happened upon the two men in the course of an attempted burglary, 6 </s> [392 U.S. 40, 49] Officer Lasky opened his door, entered the hallway and slammed the door loudly behind him. This precipitated a flight down the stairs on the part of the two men, 7 and Officer Lasky gave chase. His apartment was located on the sixth floor, and he apprehended Peters between the fourth and fifth floors. Grabbing Peters by the collar, he continued down another flight in unsuccessful pursuit of the other man. Peters explained his presence in the building to Officer Lasky by saying that he was visiting a girl friend. However, he declined to reveal the girl friend's name, on the ground that she was a married woman. Officer Lasky patted Peters down for weapons, and discovered a hard object in his pocket. He stated at the hearing that the object did not feel like a gun, but that it might have been a knife. He removed the object from Peters' pocket. It was an opaque plastic envelope, containing burglar's tools. </s> The trial court explicitly refused to credit Peters' testimony that he was merely in the building to visit his girl friend. It found that Officer Lasky had the requisite "reasonable suspicion" of Peters under 180-a to stop him and question him. It also found that Peters' response was "clearly unsatisfactory," and that "under [392 U.S. 40, 50] the circumstances Lasky's action in frisking Peters for a dangerous weapon was reasonable, even though Lasky was himself armed." It held that the hallway of the apartment building was a "public place" within the meaning of the statute. The Appellate Division of the Supreme Court affirmed without opinion. The Court of Appeals also affirmed, essentially adopting the reasoning of the trial judge, with Judges Fuld and Van Voorhis dissenting separately. </s> I. </s> At the outset we must deal with the question whether we have jurisdiction in No. 63. It is asserted that because Sibron has completed service of the six-month sentence imposed upon him as a result of his conviction, the case has become moot under St. Pierre v. United States, 319 U.S. 41 (1943). 8 We have concluded that the case is not moot. [392 U.S. 40, 51] </s> In the first place, it is clear that the broad dictum with which the Court commenced its discussion in St. Pierre - that "the case is moot because, after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate" ( 319 U.S., at 42 ) - fails to take account of significant qualifications recognized in St. Pierre and developed in later cases. Only a few days ago we held unanimously that the writ of habeas corpus was available to test the constitutionality of a state conviction where the petitioner had been in custody when he applied for the writ, but had been released before this Court could adjudicate his claims. Carafas v. LaVallee, 391 U.S. 234 (1968). On numerous occasions in the past this Court has proceeded to adjudicate the merits of criminal cases in which the sentence had been fully served or the probationary period during which a suspended sentence could be reimposed had terminated. Ginsberg v. New York, 390 U.S. 629 (1968); Pollard v. United States, 352 U.S. 354 (1957); United States v. Morgan, 346 U.S. 502 (1954); Fiswick v. United States, 329 U.S. 211 (1946). Thus mere release of the prisoner does not mechanically foreclose consideration of the merits by this Court. </s> St. Pierre itself recognized two possible exceptions to its "doctrine" of mootness, and both of them appear to us to be applicable here. The Court stated that "[i]t does not appear that petitioner could not have brought his case to this Court for review before the expiration of his sentence," noting also that because the petitioner's conviction was for contempt and because his controversy with the Government was a continuing one, there was a good chance that there would be "ample opportunity to review" the important question presented on the merits in a future proceeding. 319 U.S., at 43 . This [392 U.S. 40, 52] was a plain recognition of the vital importance of keeping open avenues of judicial review of deprivations of constitutional right. 9 There was no way for Sibron to bring his case here before his six-month sentence expired. By statute he was precluded from obtaining bail pending appeal, 10 and by virtue of the inevitable delays of the New York court system, he was released less than a month after his newly appointed appellate counsel had been supplied with a copy of the transcript and roughly two months before it was physically possible to present his case to the first tier in the state appellate court system. 11 This was true despite the fact that he took all steps to perfect his appeal in a prompt, diligent, and timely manner. </s> Many deep and abiding constitutional problems are encountered primarily at a level of "low visibility" in the criminal process - in the context of prosecutions for "minor" offenses which carry only short sentences. 12 We do not believe that the Constitution contemplates that [392 U.S. 40, 53] people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct. A State may not cut off federal review of whole classes of such cases by the simple expedient of a blanket denial of bail pending appeal. As St. Pierre clearly recognized, a State may not effectively deny a convict access to its appellate courts until he has been released and then argue that his case has been mooted by his failure to do what it alone prevented him from doing. 13 </s> The second exception recognized in St. Pierre permits adjudication of the merits of a criminal case where "under either state or federal law further penalties or disabilities can be imposed . . . as a result of the judgment which [392 U.S. 40, 54] has . . . been satisfied." 319 U.S., at 43 . Subsequent cases have expanded this exception to the point where it may realistically be said that inroads have been made upon the principle itself. St. Pierre implied that the burden was upon the convict to show the existence of collateral legal consequences. Three years later in Fiswick v. United States, 329 U.S. 211 (1946), however, the Court held that a criminal case had not become moot upon release of the prisoner, noting that the convict, an alien, might be subject to deportation for having committed a crime of "moral turpitude" - even though it had never been held (and the Court refused to hold) that the crime of which he was convicted fell into this category. The Court also pointed to the fact that if the petitioner should in the future decide he wanted to become an American citizen, he might have difficulty proving that he was of "good moral character." Id., at 222. 14 </s> The next case which dealt with the problem of collateral consequences was United States v. Morgan, 346 U.S. 502 (1954). There the convict had probably been subjected to a higher sentence as a recidivist by a state court on account of the old federal conviction which he sought to attack. But as the dissent pointed out, there was no indication that the recidivist increment would be removed from his state sentence upon invalidation of the federal conviction, id., at 516, n. 4, and the Court chose to rest its holding that the case was not moot upon [392 U.S. 40, 55] a broader view of the matter. Without canvassing the possible disabilities which might be imposed upon Morgan or alluding specifically to the recidivist sentence, the Court stated: </s> "Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid." Id., at 512-513. </s> Three years later, in Pollard v. United States, 352 U.S. 354 (1957), the Court abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed. With nothing more than citations to Morgan and Fiswick, and a statement that "convictions may entail collateral legal disadvantages in the future," id., at 358, the Court concluded that "[t]he possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits." Ibid. The Court thus acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. 15 The mere "possibility" that this will be the case is enough to preserve a criminal case from ending "ignominiously in the limbo of mootness." Parker v. Ellis, 362 U.S. 574, 577 (1960) (dissenting opinion). </s> This case certainly meets that test for survival. Without pausing to canvass the possibilities in detail, we note that New York expressly provides by statute that Sibron's conviction may be used to impeach his character should he choose to put it in issue at any future [392 U.S. 40, 56] criminal trial, N. Y. Code Crim. Proc. 393-c, and that it must be submitted to a trial judge for his consideration in sentencing should Sibron again be convicted of a crime, N. Y. Code Crim. Proc. 482. There are doubtless other collateral consequences. Moreover, we see no relevance in the fact that Sibron is a multiple offender. Morgan was a multiple offender, see 346 U.S. at 503-504, and so was Pollard, see 352 U.S., at 355 -357. A judge or jury faced with a question of character, like a sentencing judge, may be inclined to forgive or at least discount a limited number of minor transgressions, particularly if they occurred at some time in the relatively distant past. 16 It is impossible for this Court to say at what point the number of convictions on a man's record renders his reputation irredeemable. 17 And even if we believed that an individual had reached that point, it would be impossible for us to say that he had no interest in beginning the process of redemption with the particular case sought to be adjudicated. We cannot foretell what opportunities might present themselves in the future for the removal of other convictions from an individual's record. The question of the validity of a criminal conviction can arise in many contexts, compare Burgett v. Texas, 389 U.S. 109 (1967), and the sooner the issue is fully litigated the better for all concerned. It is always preferable to litigate a matter [392 U.S. 40, 57] when it is directly and principally in dispute, rather than in a proceeding where it is collateral to the central controversy. Moreover, litigation is better conducted when the dispute is fresh and additional facts may, if necessary, be taken without a substantial risk that witnesses will die or memories fade. And it is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State's right to impose it on the basis of some past action. Cf. Peyton v. Rowe, 391 U.S. 54, 64 (1968). 18 </s> None of the concededly imperative policies behind the constitutional rule against entertaining moot controversies would be served by a dismissal in this case. There is nothing abstract, feigned, or hypothetical about Sibron's appeal. Nor is there any suggestion that either Sibron or the State has been wanting in diligence or fervor in the litigation. We have before us a fully developed record of testimony about contested historical facts, which reflects the "impact of actuality" 19 to a far greater degree than many controversies accepted for adjudication as a matter of course under the Federal Declaratory Judgment Act, 28 U.S.C. 2201. </s> St. Pierre v. United States, supra, must be read in light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. That certainly is not [392 U.S. 40, 58] the case here. Sibron "has a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him." Fiswick v. United States, supra, at 222. The case is not moot. </s> II. </s> We deal next with the confession of error by the District Attorney for Kings County in No. 63. Confessions of error are, of course, entitled to and given great weight, but they do not "relieve this Court of the performance of the judicial function." Young v. United States, 315 U.S. 257, 258 (1942). It is the uniform practice of this Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained. For one thing, as we noted in Young, "our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties." 315 U.S., at 259 . See also Marino v. Ragen, 332 U.S. 561 (1947). This consideration is entitled to special weight where, as in this case, we deal with a judgment of a State's highest court interpreting a state statute which is challenged on constitutional grounds. The need for such authoritative declarations of state law in sensitive constitutional contexts has been the very reason for the development of the abstention doctrine by this Court. See, e. g., Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941). Such a judgment is the final product of a sovereign judicial system, and is deserving of respectful treatment by this Court. Moreover, in this case the confession of error on behalf of the entire state executive and judicial branches is made, not by a state official, but by the elected legal officer of one political subdivision within the State. The District Attorney for Kings County seems to have come late to the opinion that this conviction violated Sibron's constitutional [392 U.S. 40, 59] rights. For us to accept his view blindly in the circumstances, when a majority of the Court of Appeals of New York has expressed the contrary view, would be a disservice to the State of New York and an abdication of our obligation to lower courts to decide cases upon proper constitutional grounds in a manner which permits them to conform their future behavior to the demands of the Constitution. We turn to the merits. </s> III. </s> The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a "on its face." We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to [392 U.S. 40, 60] embody the safeguards demanded by the Fourth and Fourteenth Amendments. </s> Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to "stop" people, "demand" explanations of them and "search [them] for dangerous weapon[s]" in certain circumstances upon "reasonable suspicion" that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. 20 New York is, of course, free to develop its own [392 U.S. 40, 61] law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure "is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." Cooper v. California, 386 U.S. 58, 61 (1967). </s> Accordingly, we make no pronouncement on the facial constitutionality of 180-a. The constitutional point [392 U.S. 40, 62] with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is "not so much . . . the language employed as . . . the conduct it authorizes." People v. Peters, 18 N. Y. 2d 238, 245, 219 N. E. 2d 595, 599, 273 N. Y. S. 2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 1, that police conduct of the sort with which 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions. </s> IV. </s> Turning to the facts of Sibron's case, it is clear that the heroin was inadmissible in evidence against him. The prosecution has quite properly abandoned the notion that there was probable cause to arrest Sibron for any crime at the time Patrolman Martin accosted him in the restaurant, took him outside and searched him. The officer was not acquainted with Sibron and had no information concerning him. He merely saw Sibron talking to a number of known narcotics addicts over a period of eight hours. It must be emphasized that Patrolman Martin was completely ignorant regarding the content of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed "have been talking about the World Series." The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security. Nothing resembling probable cause existed [392 U.S. 40, 63] until after the search had turned up the envelopes of heroin. It is axiomatic that an incident search may not precede an arrest and serve as part of its justification. E. g., Henry v. United States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10, 16 -17 (1948). Thus the search cannot be justified as incident to a lawful arrest. </s> If Patrolman Martin lacked probable cause for an arrest, however, his seizure and search of Sibron might still have been justified at the outset if he had reasonable grounds to believe that Sibron was armed and dangerous. Terry v. Ohio, ante, p. 1. We are not called upon to decide in this case whether there was a "seizure" of Sibron inside the restaurant antecedent to the physical seizure which accompanied the search. The record is unclear with respect to what transpired between Sibron and the officer inside the restaurant. It is totally barren of any indication whether Sibron accompanied Patrolman Martin outside in submission to a show of force or authority which left him no choice, or whether he went voluntarily in a spirit of apparent cooperation with the officer's investigation. In any event, this deficiency in the record is immaterial, since Patrolman Martin obtained no new information in the interval between his initiation of the encounter in the restaurant and his physical seizure and search of Sibron outside. </s> Although the Court of Appeals of New York wrote no opinion in this case, it seems to have viewed the search here as a self-protective search for weapons and to have affirmed on the basis of 180-a, which authorizes such a search when the officer "reasonably suspects that he is in danger of life or limb." The Court of Appeals has, at any rate, justified searches during field interrogation on the ground that "[t]he answer to the question propounded by the policeman may be a [392 U.S. 40, 64] bullet; in any case the exposure to danger could be very great." People v. Rivera, 14 N. Y. 2d 441, 446, 201 N. E. 2d 32, 35, 252 N. Y. S. 2d 458, 463 (1964), cert. denied, 379 U.S. 978 (1965). But the application of this reasoning to the facts of this case proves too much. The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. Patrolman Martin's testimony reveals no such facts. The suspect's mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime. Nor did Patrolman Martin urge that when Sibron put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense. His opening statement to Sibron - "You know what I am after" - made it abundantly clear that he sought narcotics, and his testimony at the hearing left no doubt that he thought there were narcotics in Sibron's pocket. 21 </s> [392 U.S. 40, 65] </s> Even assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron's pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception - the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth [392 U.S. 40, 66] Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents. </s> V. </s> We think it is equally clear that the search in Peters' case was wholly reasonable under the Constitution. The Court of Appeals of New York held that the search was made legal by 180-a, since Peters was "abroad in a public place," and since Officer Lasky was reasonably suspicious of his activities and, once he had stopped Peters, reasonably suspected that he was in danger of life or limb, even though he held Peters at gun point. This may be the justification for the search under state law. We think, however, that for purposes of the Fourth Amendment the search was properly incident to a lawful arrest. By the time Officer Lasky caught up with Peters on the stairway between the fourth and fifth floors of the apartment building, he had probable cause to arrest him for attempted burglary. The officer heard strange noises at his door which apparently led him to believe that someone sought to force entry. When he investigated these noises he saw two men, whom he had never seen before in his 12 years in the building, tiptoeing furtively about the hallway. They were still engaged in these maneuvers after he called the police and dressed hurriedly. And when Officer Lasky entered the hallway, the men fled down the stairs. It is difficult to conceive of stronger grounds for an arrest, short of actual eyewitness observation of criminal activity. As the trial court explicitly recognized, 22 deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors [392 U.S. 40, 67] to be considered in the decision to make an arrest. Brinegar v. United States, 338 U.S. 160 (1949); Husty v. United States, 282 U.S. 694 (1931); see Henry v. United States, 361 U.S. 98, 103 (1959). </s> As we noted in Sibron's case, a search incident to a lawful arrest may not precede the arrest and serve as part of its justification. It is a question of fact precisely when, in each case, the arrest took place. Rios v. United States, 364 U.S. 253, 261 -262 (1960). And while there was some inconclusive discussion in the trial court concerning when Officer Lasky "arrested" Peters, it is clear that the arrest had, for purposes of constitutional justification, already taken place before the search commenced. When the policeman grabbed Peters by the collar, he abruptly "seized" him and curtailed his freedom of movement on the basis of probable cause to believe that he was engaged in criminal activity. See Henry v. United States, supra, at 103. At that point he had the authority to search Peters, and the incident search was obviously justified "by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime." Preston v. United States, 376 U.S. 364, 367 (1964). Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons. While patting down his outer clothing, Officer Lasky discovered an object in his pocket which might have been used as a weapon. He seized it and discovered it to be a potential instrument of the crime of burglary. </s> We have concluded that Peters' conviction fully comports with the commands of the Fourth and Fourteenth Amendments, and must be affirmed. The conviction in [392 U.S. 40, 68] No. 63, however, must be reversed, on the ground that the heroin was unconstitutionally admitted in evidence against the appellant. </s> It is so ordered. </s> Footnotes [Footnote 1 N. Y. Pub. Health Law 3305 makes the unauthorized possession of any narcotic drug unlawful, and 1751 and 1751-a of the N. Y. Penal Law of 1909, then in effect, made the grade of the offense depend upon the amount of the drugs found in the possession of the defendant. The complaint in this case originally charged a felony, but the trial court granted the prosecutor's motion to reduce the [392 U.S. 40, 45] charge on the ground that "the Laboratory report will indicate a misdemeanor charge." Sibron was convicted of a misdemeanor and sentenced to six months in jail. </s> [Footnote 2 N. Y. Code Crim. Proc. 813-c provides that an order denying a motion to suppress evidence in a criminal case "may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty." </s> [Footnote 3 Patrolman Martin stated several times that he put his hand into Sibron's pocket and seized the heroin before Sibron had any opportunity to remove his own hand from the pocket. The trial court questioned him on this point: </s> "Q. Would you say at that time that he reached into his pocket and handed the packets to you? Is that what he did or did he drop the packets? </s> "A. He did not drop them. I do not know what his intentions were. He pushed his hand into his pocket. </s> "MR. JOSEPH [Prosecutor]: You intercepted it; didn't you, Officer? </s> "THE WITNESS: Yes." (Emphasis added.) </s> It is of course highly unlikely that Sibron, facing the officer at such close quarters, would have tried to remove the heroin from his pocket and throw it to the ground in the hope that he could escape responsibility for it. </s> [Footnote 4 The possibility that Sibron, who never, so far as appears from the record, offered any resistance, might have posed a danger to [392 U.S. 40, 47] Patrolman Martin's safety was never even discussed as a potential justification for the search. The only mention of weapons by the officer in his entire testimony came in response to a leading question by Sibron's counsel, when Martin stated that he "thought he [Sibron] might have been" reaching for a gun. Even so, Patrolman Martin did not accept this suggestion by the opposition regarding the reason for his action; the discussion continued upon the plain premise that he had been looking for narcotics all the time. </s> [Footnote 5 N. Y. Pen. Law of 1909, 408, made the possession of such tools under such circumstances a misdemeanor for first offenders and a felony for all those who have "been previously convicted of any crime." Peters was convicted of a felony under this section. </s> [Footnote 6 Officer Lasky testified that when he called the police immediately before leaving his apartment, he "told the Sergeant at the desk that two burglars were on my floor." </s> [Footnote 7 Officer Lasky testified that when he emerged from his apartment, "I slammed the door, I had my gun and I ran down the stairs after them." A sworn affidavit of the Assistant District Attorney, which was before the trial court when it ruled on the motion to suppress, stated that when apprehended Peters was "fleeing down the steps of the building." The trial court explicitly took note of the flight of Peters and his companion as a factor contributing to Officer Lasky's "reasonable suspicion" of them: </s> "We think the testimony at the hearing does not require further laboring of this aspect of the matter, unless one is to believe that it is legitimately normal for a man to tip-toe about in the public hall of an apartment house while on a visit to his unidentified girl-friend, and, when observed by another tenant, to rapidly descend by stairway in the presence of elevators." </s> [Footnote 8 The first suggestion of mootness in this case came upon oral argument, when it was revealed for the first time that appellant had been released. This fact did not appear in the record, despite the fact that the release occurred well over two years before the case was argued here. Nor was mootness hinted at by the State in its Brief in Opposition to the Jurisdictional Statement in this Court - where it took the position that the decision below was so clearly right that it did not merit further review - or in its brief on the merits - in which it conceded that the decision below clearly violated Sibron's constitutional rights and urged that it was an aberrant interpretation which should not impair the constitutionality of the New York statute. Following the suggestion of mootness on oral argument, moreover, the State filed a brief in which it amplified its views as to why the case should be held moot, but added the extraordinary suggestion that this Court should ignore the problem and pronounce upon the constitutionality of a statute in a case which has become moot. Normally in these circumstances we would consider ourselves fully justified in foreclosing a party upon an issue; however, since the question goes to the very existence of a controversy for us to adjudicate, we have undertaken to review it. </s> [Footnote 9 Cf. Fay v. Noia, 372 U.S. 391, 424 (1963): </s> "[C]onventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review." </s> [Footnote 10 See N. Y. Code Crim. Proc. 555 subd. 2. </s> [Footnote 11 Sibron was arrested on March 9, 1965, and was unable to make bail before trial because of his indigency. He thus remained in jail from that time until the expiration of his sentence (with good time credit) on July 10, 1965. He was convicted on April 23. His application for leave to proceed in forma pauperis was not granted until May 14, and his assigned appellate counsel was not provided with a transcript until June 11. The Appellate Term of the Supreme Court recessed on June 7 until September. Thus Sibron was released well before there had been any opportunity even to argue his case in the intermediate state appellate court. A decision by the Court of Appeals of New York was not had until July 10, 1966, the anniversary of Sibron's release. </s> [Footnote 12 Cf., e. g., Thompson v. City of Louisville, 362 U.S. 199 (1960). </s> [Footnote 13 In St. Pierre the Court noted that the petitioner could have taken steps to preserve his case, but that "he did not apply to this Court for a stay or a supersedeas." 319 U.S., at 43 . Here however, it is abundantly clear that there is no procedure of which Sibron could have availed himself to prevent the expiration of his sentence long before this Court could hear his case. A supersedeas from this Court is a purely ancillary writ, and may issue only in connection with an appeal actually taken. Ex parte Ralston, 119 U.S. 613 (1887); Sup. Ct. Rule 18; see R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States 435, at 883 (R. Wolfson & P. Kurland ed., 1951). At the time Sibron completed service of his sentence, the only judgment outstanding was the conviction itself, rendered by the Criminal Court of the City of New York, County of Kings. This Court had no jurisdiction to hear an appeal from that judgment, since it was not rendered by the "highest court of a State in which a decision could be had," 28 U.S.C. 1257, and there could be no warrant for interference with the orderly appellate processes of the state courts. Thus no supersedeas could have issued. Nor could this Court have ordered Sibron admitted to bail before the expiration of his sentence, since the offense was not bailable, 18 U.S.C. 3144; see n. 10, supra. Thus this case is distinguishable from St. Pierre in that Sibron "could not have brought his case to this Court for review before the expiration of his sentence." 319 U.S., at 43 . </s> [Footnote 14 Compare Ginsberg v. New York, 390 U.S. 629, 633 , n. 2 (1968), where this Court held that the mere possibility that the Commissioner of Buildings of the Town of Hempstead, New York, might "in his discretion" attempt in the future to revoke a license to run a luncheonette because of a single conviction for selling relatively inoffensive "girlie" magazines to a 16-year-old boy was sufficient to preserve a criminal case from mootness. </s> [Footnote 15 See generally Note, 53 Va. L. Rev. 403 (1967). </s> [Footnote 16 We do not know from the record how many convictions Sibron had, for what crimes, or when they were rendered. At the hearing he admitted to a 1955 conviction for burglary and a 1957 misdemeanor conviction for possession of narcotics. He also admitted that he had other convictions, but none were specifically alluded to. </s> [Footnote 17 We note that there is a clear distinction between a general impairment of credibility, to which the Court referred in St. Pierre, see 319 U.S., at 43 , and New York's specific statutory authorization for use of the conviction to impeach the "character" of a defendant in a criminal proceeding. The latter is a clear legal disability deliberately and specifically imposed by the legislature. </s> [Footnote 18 This factor has clearly been considered relevant by the Court in the past in determining the issue of mootness. See Fiswick v. United States, 329 U.S. 211, 221 -222 (1946). </s> [Footnote 19 Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1006 (1924). See also Parker v. Ellis, 362 U.S. 574, 592 -593 (1960) (dissenting opinion). </s> [Footnote 20 It is not apparent, for example, whether the power to "stop" granted by the statute entails a power to "detain" for investigation or interrogation upon less than probable cause, or if so what sort of durational limitations upon such detention are contemplated. And while the statute's apparent grant of a power of compulsion indicates that many "stops" will constitute "seizures," it is not clear that all conduct analyzed under the rubric of the statute will either rise to the level of a "seizure" or be based upon less than probable cause. In No. 74, the Peters case, for example, the New York courts justified the seizure of appellant under 180-a, but we have concluded that there was in fact probable cause for an arrest when Officer Lasky seized Peters on the stairway. See infra, at 66. In any event, a pronouncement by this Court upon the abstract validity of 180-a's "stop" category would be most inappropriate in these cases, since we have concluded that neither of them presents the question of the validity of a seizure of the person for purposes of interrogation upon less than probable cause. </s> The statute's other categories are equally elastic, and it was passed too recently for the State's highest court to have ruled upon many of the questions involving potential intersections with federal constitutional guarantees. We cannot tell, for example, whether the officer's power to "demand" of a person an "explanation of his actions" contemplates either an obligation on the part of the citizen to answer or some additional power on the part of the officer in the event of a refusal to answer, or even whether the interrogation following the "stop" is "custodial." Compare Miranda v. Arizona, 384 U.S. 436 </s> [392 U.S. 40, 61] (1966). There are, moreover, substantial indications that the statutory category of a "search for a dangerous weapon" may encompass conduct considerably broader in scope than that which we approved in Terry v. Ohio, ante, p. 1. See infra, at 65-66. See also People v. Taggart, 20 N. Y. 2d 335, 229 N. E. 2d 581, 283 N. Y. S. 2d 1 (1967). At least some of the activity apparently permitted under the rubric of searching for dangerous weapons may thus be permissible under the Constitution only if the "reasonable suspicion" of criminal activity rises to the level of probable cause. Finally, it is impossible to tell whether the standard of "reasonable suspicion" connotes the same sort of specificity, reliability, and objectivity which is the touchstone of permissible governmental action under the Fourth Amendment. Compare Terry v. Ohio, supra, with People v. Taggart, supra. In this connection we note that the searches and seizures in both Sibron and Peters were upheld by the Court of Appeals of New York as predicated upon "reasonable suspicion," whereas we have concluded that the officer in Peters had probable cause for an arrest, while the policeman in Sibron was not possessed of any information which would justify an intrusion upon rights protected by the Fourth Amendment. </s> [Footnote 21 It is argued in dissent that this Court has in effect overturned factual findings by the two courts below that the search in this case was a self-protective measure on the part of Patrolman Martin, who thought that Sibron might have been reaching for a gun. It is true, as we have noted, that the Court of Appeals of New York apparently rested its approval of the search on this view. The trial court, however, made no such finding of fact. The trial judge adopted the theory of the prosecution at the hearing on the motion to suppress. This theory was that there was probable cause to arrest Sibron for some crime having to do with narcotics. The fact [392 U.S. 40, 65] which tipped the scales for the trial court had nothing to do with danger to the policeman. The judge expressly changed his original view and held the heroin admissible upon being reminded that Sibron had admitted on the stand that he spoke to the addicts about narcotics. This admission was not relevant on the issue of probable cause, and we do not understand the dissent to take the position that prior to the discovery of heroin, there was probable cause for an arrest. </s> Moreover, Patrolman Martin himself never at any time put forth the notion that he acted to protect himself. As we have noted, this subject never came up, until on re-direct examination defense counsel raised the question whether Patrolman Martin thought Sibron was going for a gun. See n. 4, supra. This was the only reference to weapons at any point in the hearing, and the subject was swiftly dropped. In the circumstances an unarticulated "finding" by an appellate court which wrote no opinion, apparently to the effect that the officer's invasion of Sibron's person comported with the Constitution because of the need to protect himself, is not deserving of controlling deference. </s> [Footnote 22 See n. 7, supra. </s> MR. JUSTICE DOUGLAS, concurring in No. 63. </s> Officer Martin testified that on the night in question he observed appellant Sibron continually from 4 p. m. to 12 midnight and that during that eight-hour period, Sibron conversed with different persons each personally known to Martin as narcotics addicts. When Sibron entered a restaurant, Martin followed him inside where he observed Sibron talking to three other persons also personally known to Martin as narcotics addicts. At that point he approached Sibron and asked him to come outside. When Sibron stepped out, Martin said, "You know what I am after." Sibron then reached inside his pocket, and at the same time Martin reached into the same pocket and discovered several glassine envelopes which were found to contain heroin. Sibron was subsequently convicted of unlawful possession of heroin. </s> Consorting with criminals may in a particular factual setting be a basis for believing that a criminal project is underway. Yet talking with addicts without more rises no higher than suspicion. That is all we have here; and if it is sufficient for a "seizure" and a "search," then there is no such thing as privacy for this vast group of "sick" people. </s> MR. JUSTICE DOUGLAS, concurring in No. 74. </s> Officer Lasky testified that he resided in a multiple-dwelling apartment house in Mount Vernon, New York. His apartment was on the sixth floor. At about 1 in the afternoon, he had just stepped out of the shower and was drying himself when he heard a noise at his door. Just then his phone rang and he answered the call. [392 U.S. 40, 69] After hanging up, he looked through the peephole of his door and saw two men, one of whom was appellant, tip-toeing out of an alcove toward the stairway. He phoned his headquarters to report this occurrence, and then put on some clothes and proceeded back to the door. This time he saw a tall man tiptoeing away from the alcove, followed by appellant, toward the stairway. Lasky came out of his apartment, slammed the door behind him, and then gave chase, gun in hand, as the two men began to run down the stairs. He apprehended appellant on the stairway between the fourth and fifth floors, and asked what he was doing in the building. Appellant replied that he was looking for a girl friend, but refused to give her name, saying that she was a married woman. Lasky then "frisked" appellant for a weapon, and discovered in his right pants pocket a plastic envelope. The envelope contained a tension bar, 6 picks and 2 Allen wrenches with the short leg filed down to a screwdriver edge. Appellant was subsequently convicted for possession of burglary tools. </s> I would hold that at the time Lasky seized appellant, he had probable cause to believe that appellant was on some kind of burglary or housebreaking mission. * In my view he had probable cause to seize appellant and accordingly to conduct a limited search of his person for weapons. </s> [Footnote * See N. Y. Pen. Code 140.20, 140.25 (1967). </s> MR. JUSTICE WHITE, concurring. </s> I join Parts I-IV of the Court's opinion. With respect to appellant Peters, I join the affirmance of his conviction, not because there was probable cause to arrest, a question I do not reach, but because there was probable cause to stop Peters for questioning and thus to frisk him for dangerous weapons. See my concurring [392 U.S. 40, 70] opinion in Terry v. Ohio, ante, p. 34. While patting down Peters' clothing the officer "discovered an object in his pocket which might have been used as a weapon." Ante, at 67. That object turned out to be a package of burglar's tools. In my view those tools were properly admitted into evidence. </s> MR. JUSTICE FORTAS, concurring. </s> 1. I would construe St. Pierre v. United States, 319 U.S. 41 (1943), in light of later cases, to mean that a criminal case is moot if it appears that no collateral legal consequences will be imposed on the basis of the challenged conviction. (Cf. majority opinion, ante, at 57-58.) </s> 2. I join without qualification in the Court's judgment and opinion concerning the standards to be used in determining whether 180-a as applied to particular situations is constitutional. But I would explicitly reserve the possibility that a statute purporting to authorize a warrantless search might be so extreme as to justify our concluding that it is unconstitutional "on its face," regardless of the facts of the particular case. To the extent that the Court's opinion may indicate the contrary, I disagree. (Cf. majority opinion, ante, at 59-62.) </s> 3. In Sibron's case (No. 63), I would conclude that we find nothing in the record of this case or pertinent principles of law to cause us to disregard the confession of error by counsel for Kings County. I would not discourage confessions of error nor would I disregard them. (Cf. majority opinion, pt. II, ante, at 58-59.) </s> MR. JUSTICE HARLAN, concurring in the result. </s> I fully agree with the results the Court has reached in these cases. They are, I think, consonant with and dictated by the decision in Terry v. Ohio, ante, p. 1. For reasons I do not understand, however, the Court has declined to rest the judgments here upon the principles [392 U.S. 40, 71] of Terry. In doing so it has, in at least one particular, made serious inroads upon the protection afforded by the Fourth and Fourteenth Amendments. </s> The Court is of course entirely correct in concluding that we should not pass upon the constitutionality of the New York stop-and-frisk law "on its face." The statute is certainly not unconstitutional on its face: that is, it does not plainly purport to authorize unconstitutional activities by policemen. Nor is it "constitutional on its face" if that expression means that any action now or later thought to fall within the terms of the statute is, ipso facto, within constitutional limits as well. No statute, state or federal, receives any such imprimatur from this Court. </s> This does not mean, however, that the statute should be ignored here. The State of New York has made a deliberate effort to deal with the complex problem of on-the-street policework. Without giving carte blanche to any particular verbal formulation, we should, I think, where relevant, indicate the extent to which that effort has been constitutionally successful. The core of the New York statute is the permission to stop any person reasonably suspected of crime. Under the decision in Terry a right to stop may indeed be premised on reasonable suspicion and does not require probable cause, and hence the New York formulation is to that extent constitutional. This does not mean that suspicion need not be "reasonable" in the constitutional as well as the statutory sense. Nor does it mean that this Court has approved more than a momentary stop or has indicated what questioning may constitutionally occur during a stop, for the cases before us do not raise these questions. 1 </s> [392 U.S. 40, 72] </s> Turning to the individual cases, I agree that the conviction in No. 63, Sibron, should be reversed, and would do so upon the premises of Terry. At the outset, I agree that sufficient collateral legal consequences of Sibron's conviction have been shown to prevent this case from being moot, and I agree that the case should not be reversed simply on the State's confession of error. </s> The considerable confusion that has surrounded the "search" or "frisk" of Sibron that led to the actual recovery of the heroin seems to me irrelevant for our purposes. Officer Martin repudiated his first statement, which might conceivably have indicated a theory of "abandonment," see ante, at 45-46. No matter which of the other theories is adopted, it is clear that there was at least a forcible frisk, comparable to that which occurred in Terry, which requires constitutional justification. </s> Since carrying heroin is a crime in New York, probable cause to believe Sibron was carrying heroin would also have been probable cause to arrest him. As the Court says, Officer Martin clearly had neither. Although Sibron had had conversations with several known addicts, he had done nothing, during the several hours he was under surveillance, that made it "probable" that he was either carrying heroin himself or engaging in transactions with these acquaintances. </s> Nor were there here reasonable grounds for a Terry-type "stop" short of an arrest. I would accept, as an adequate general formula, the New York requirement that the officer must "reasonably suspect" that the person he stops "is committing, has committed or is about to commit a felony." N. Y. Code Crim. Proc. 180-a. "On its face," this requirement is, if anything, more stringent than the requirement stated by the Court in Terry: "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ." [392 U.S. 40, 73] Ante, at 30. The interpretation of the New York statute is of course a matter for the New York courts, but any particular stop must meet the Terry standard as well. </s> The forcible encounter between Officer Martin and Sibron did not meet the Terry reasonableness standard. In the first place, although association with known criminals may, I think, properly be a factor contributing to the suspiciousness of circumstances, it does not, entirely by itself, create suspicion adequate to support a stop. There must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended. That was the case in Terry, but it palpably was not the case here. For eight continuous hours, up to the point when he interrupted Sibron eating a piece of pie, Officer Martin apparently observed not a single suspicious action and heard not a single suspicious word on the part of Sibron himself or any person with whom he associated. If anything, that period of surveillance pointed away from suspicion. </s> Furthermore, in Terry, the police officer judged that his suspect was about to commit a violent crime and that he had to assert himself in order to prevent it. Here there was no reason for Officer Martin to think that an incipient crime, or flight, or the destruction of evidence would occur if he stayed his hand; indeed, there was no more reason for him to intrude upon Sibron at the moment when he did than there had been four hours earlier, and no reason to think the situation would have changed four hours later. While no hard-and-fast rule can be drawn, I would suggest that one important factor, missing here, that should be taken into account in determining whether there are reasonable grounds for a forcible intrusion is whether there is any need for immediate action. [392 U.S. 40, 74] </s> For these reasons I would hold that Officer Martin lacked reasonable grounds to intrude forcibly upon Sibron. In consequence, the essential premise for the right to conduct a self-protective frisk was lacking. See my concurring opinion in Terry, ante, p. 31. I therefore find it unnecessary to reach two further troublesome questions. First, although I think that, as in Terry, the right to frisk is automatic when an officer lawfully stops a person suspected of a crime whose nature creates a substantial likelihood that he is armed, it is not clear that suspected possession of narcotics falls into this category. If the nature of the suspected offense creates no reasonable apprehension for the officer's safety, I would not permit him to frisk unless other circumstances did so. Second, I agree with the Court that even where a self-protective frisk is proper, its scope should be limited to what is adequate for its purposes. I see no need here to resolve the question whether this frisk exceeded those bounds. </s> Turning now to No. 74, Peters, I agree that the conviction should be upheld, but here I would differ strongly and fundamentally with the Court's approach. The Court holds that the burglar's tools were recovered from Peters in a search incident to a lawful arrest. I do not think that Officer Lasky had anything close to probable cause to arrest Peters before he recovered the burglar's tools. Indeed, if probable cause existed here, I find it difficult to see why a different rationale was necessary to support the stop and frisk in Terry and why States such as New York have had to devote so much thought to the constitutional problems of field interrogation. This case will be the latest in an exceedingly small number of cases in this Court indicating what suffices for probable cause. While, as the Court noted in Terry, the influence of this Court on police tactics "in [392 U.S. 40, 75] the field" is necessarily limited, the influence of a decision here on hundreds of courts and magistrates who have to decide whether there is probable cause for a real arrest or a full search will be large. </s> Officer Lasky testified that at 1 o'clock in the afternoon he heard a noise at the door to his apartment. He did not testify, nor did any state court conclude, that this "led him to believe that someone sought to force entry." Ante, at 66. He looked out into the public hallway and saw two men whom he did not recognize, surely not a strange occurrence in a large apartment building. One of them appeared to be tip-toeing. Lasky did not testify that the other man was tip-toeing or that either of them was behaving "furtively." Ibid. Lasky left his apartment and ran to them, gun in hand. He did not testify that there was any "flight," ante, at 66, 2 though flight at the approach of a gun-carrying stranger (Lasky was apparently not in uniform) is hardly indicative of mens rea. </s> Probable cause to arrest means evidence that would warrant a prudent and reasonable man (such as a magistrate, actual or hypothetical) in believing that a particular person has committed or is committing a crime. 3 </s> [392 U.S. 40, 76] Officer Lasky had no extrinsic reason to think that a crime had been or was being committed, so whether it would have been proper to issue a warrant depends entirely on his statements of his observations of the men. Apart from his conclusory statement that he thought the men were burglars, he offered very little specific evidence. I find it hard to believe that if Peters had made good his escape and there were no report of a burglary in the neighborhood, this Court would hold it proper for a prudent neutral magistrate to issue a warrant for his arrest. 4 </s> In the course of upholding Peters' conviction, the Court makes two other points that may lead to future confusion. The first concerns the "moment of arrest." If there is an escalating encounter between a policeman and a citizen, beginning perhaps with a friendly conversation but ending in imprisonment, and if evidence is developing during that encounter, it may be important to identify the moment of arrest, i. e., the moment when the policeman was not permitted to proceed further unless he by then had probable cause. This moment-of-arrest problem is not, on the Court's premises, in any way involved in this case: the Court holds that Officer Lasky had probable cause to arrest at the moment he caught Peters, and hence probable cause clearly preceded anything that might be thought an arrest. The Court implies, however, that although there is no problem about whether the arrest of Peters occurred [392 U.S. 40, 77] late enough, i. e., after probable cause developed, there might be a problem about whether it occurred early enough, i. e., before Peters was searched. This seems to me a false problem. Of course, the fruits of a search may not be used to justify an arrest to which it is incident, but this means only that probable cause to arrest must precede the search. If the prosecution shows probable cause to arrest prior to a search of a man's person, it has met its total burden. There is no case in which a defendant may validly say, "Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards." </s> This fact is important because, as demonstrated by Terry, not every curtailment of freedom of movement is an "arrest" requiring antecedent probable cause. At the same time, an officer who does have probable cause may of course seize and search immediately. Hence while certain police actions will undoubtedly turn an encounter into an arrest requiring antecedent probable cause, the prosecution must be able to date the arrest as early as it chooses following the development of probable cause. </s> The second possible source of confusion is the Court's statement that "Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects." Ante, at 67. Since the Court found probable cause to arrest Peters, and since an officer arresting on probable cause is entitled to make a very full incident search, 5 I assume that this is merely a factual observation. As a factual matter, I agree with it. </s> Although the articulable circumstances are somewhat less suspicious here than they were in Terry, I would affirm on the Terry ground that Officer Lasky had reasonable [392 U.S. 40, 78] cause to make a forced stop. Unlike probable cause to arrest, reasonable grounds to stop do not depend on any degree of likelihood that a crime has been committed. An officer may forcibly intrude upon an incipient crime even where he could not make an arrest for the simple reason that there is nothing to arrest anyone for. Hence although Officer Lasky had small reason to believe that a crime had been committed, his right to stop Peters can be justified if he had a reasonable suspicion that Peters was about to attempt burglary. </s> It was clear that the officer had to act quickly if he was going to act at all, and, as stated above, it seems to me that where immediate action is obviously required, a police officer is justified in acting on rather less objectively articulable evidence than when there is more time for consideration of alternative courses of action. Perhaps more important, the Court's opinion in Terry emphasized the special qualifications of an experienced police officer. While "probable cause" to arrest or search has always depended on the existence of hard evidence that would persuade a "reasonable man," in judging on-the-street encounters it seems to me proper to take into account a police officer's trained instinctive judgment operating on a multitude of small gestures and actions impossible to reconstruct. Thus the statement by an officer that "he looked like a burglar to me" adds little to an affidavit filed with a magistrate in an effort to obtain a warrant. When the question is whether it was reasonable to take limited but forcible steps in a situation requiring immediate action, however, such a statement looms larger. A court is of course entitled to disbelieve the officer (who is subject to cross-examination), but when it believes him and when there are some articulable supporting facts, it is entitled to find action taken under fire to be reasonable. [392 U.S. 40, 79] </s> Given Officer Lasky's statement of the circumstances, and crediting his experienced judgment as he watched the two men, the state courts were entitled to conclude, as they did, that Lasky forcibly stopped Peters on "reasonable suspicion." The frisk made incident to that stop was a limited one, which turned up burglar's tools. Although the frisk is constitutionally permitted only in order to protect the officer, if it is lawful the State is of course entitled to the use of any other contraband that appears. </s> For the foregoing reasons I concur in the result in these cases. </s> [Footnote 1 For a thoughtful study of many of these points, see ALI Model Code of Pre-Arraignment Procedure, Tentative Draft No. 1, 2.01, 2.02, and the commentary on these sections appearing at 87-105. </s> [Footnote 2 It is true, as the Court states, that the New York courts attributed such a statement to him. The attribution seems to me unwarranted by the record. </s> [Footnote 3 E. g., Beck v. Ohio, 379 U.S. 89 ; Rios v. United States, 364 U.S. 253 ; Henry v. United States, 361 U.S. 98 . In Henry, supra, at 100, the Court said that 18 U.S.C. 3052 "states the constitutional standard" for felony arrests by FBI agents without warrant. That section authorized agents to "make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony." Under Ker v. California, 374 U.S. 23 , a parallel standard is applicable to warrantless arrests by state and local police. </s> [Footnote 4 Compare Henry v. United States, 361 U.S. 98 , in which the Court said there was "far from enough evidence . . . to justify a magistrate in issuing a warrant." Id., at 103. Agents knew that a federal crime, theft of whisky from an interstate shipment, had been committed "in the neighborhood." Petitioner was observed driving into an alley, picking up packages, and driving away. I agree that these facts did not constitute probable cause, but find it hard to see that the evidence here was more impressive. </s> [Footnote 5 The leading case is United States v. Rabinowitz, 339 U.S. 56 . </s> MR. JUSTICE BLACK, concurring in No. 74 and dissenting in No. 63. </s> I concur in the affirmance of the judgment against Peters but dissent from the reversal of No. 63, Sibron v. New York, and would affirm that conviction. Sibron was convicted of violating New York's anti-narcotics law on the basis of evidence seized from him by the police. The Court reverses on the ground that the narcotics were seized as the result of an unreasonable search in violation of the Fourth Amendment. The Court has decided today in Terry v. Ohio and in No. 74, Peters v. New York, that a policeman does not violate the Fourth Amendment when he makes a limited search for weapons on the person of a man who the policeman has probable cause to believe has a dangerous weapon on him with which he might injure the policeman or others or both, unless he is searched and the weapon is taken away from him. And, of course, under established principles it is not a violation of the Fourth Amendment for a policeman to search a person who he has probable cause to believe is committing a felony at the time. For both these reasons I think the seizure of the narcotics from Sibron was not unreasonable [392 U.S. 40, 80] under the Fourth Amendment. Because of a different emphasis on the facts, I find it necessary to restate them. </s> About 4 p. m. Patrolman Martin saw appellant Sibron in the vicinity of 742 Broadway. From then until 12 o'clock midnight Sibron remained there. During that time the policeman saw Sibron talking with six or eight persons whom the policeman knew from past experience to be narcotics addicts. Later, at about 12 o'clock, Sibron went into a restaurant and there the patrolman saw Sibron speak with three more known addicts. While Sibron was eating in the restaurant the policeman went to him and asked him to come out. Sibron came out. There the officer said to Sibron, "You know what I am after." Sibron mumbled something and reached into his left coat pocket. The officer also moved his hand to the pocket and seized what was in it, which turned out to be heroin. The patrolman testified at the hearing to suppress use of the heroin as evidence that he "thought he [Sibron] might have been" reaching for a gun. </s> Counsel for New York for some reason that I have not been able to understand, has attempted to confess error - that is, that for some reason the search or seizure here violated the Fourth Amendment. I agree with the Court that we need not and should not accept this confession of error. But, unlike the Court, I think, for two reasons, that the seizure did not violate the Fourth Amendment and that the heroin was properly admitted in evidence. </s> First. I think there was probable cause for the policeman to believe that when Sibron reached his hand to his coat pocket, Sibron had a dangerous weapon which he might use if it were not taken away from him. This, according to the Court's own opinion, seems to have been the ground on which the Court of Appeals of New York justified the search, since it "affirmed on the [392 U.S. 40, 81] basis of 180-a, which authorizes such a search when the officer `reasonably suspects that he is in danger of life or limb.'" Ante, at 63. And it seems to me to be a reasonable inference that when Sibron, who had been approaching and talking to addicts for eight hours, reached his hand quickly to his left coat pocket, he might well be reaching for a gun. And as the Court has emphasized today in its opinions in the other stop-and-frisk cases, a policeman under such circumstances has to act in a split second; delay may mean death for him. No one can know when an addict may be moved to shoot or stab, and particularly when he moves his hand hurriedly to a pocket where weapons are known to be habitually carried, it behooves an officer who wants to live to act at once as this officer did. It is true that the officer might also have thought Sibron was about to get heroin instead of a weapon. But the law enforcement officers all over the Nation have gained little protection from the courts through opinions here if they are now left helpless to act in self defense when a man associating intimately and continuously with addicts, upon meeting an officer, shifts his hand immediately to a pocket where weapons are constantly carried. </s> In appraising the facts as I have I realize that the Court has chosen to draw inferences different from mine and those drawn by the courts below. The Court for illustration draws inferences that the officer's testimony at the hearing continued upon the "plain premise that he had been looking for narcotics all the time." Ante, at 47, n. 4. But this Court is hardly, at this distance from the place and atmosphere of the trial, in a position to overturn the trial and appellate courts on its own independent finding of an unspoken "premise" of the officer's inner thoughts. </s> In acting upon its own findings and rejecting those of the lower state courts, this Court, sitting in the marble halls of the Supreme Court Building in Washington, [392 U.S. 40, 82] D.C., should be most cautious. Due to our holding in Mapp v. Ohio, 367 U.S. 643 , we are due to get for review literally thousands of cases raising questions like those before us here. If we are setting ourselves meticulously to review all such findings our task will be endless and many will rue the day when Mapp was decided. It is not only wise but imperative that where findings of the facts of reasonableness and probable cause are involved in such state cases, we should not overturn state court findings unless in the most extravagant and egregious errors. It seems fantastic to me even to suggest that this is such a case. I would leave these state court holdings alone. </s> Second, I think also that there was sufficient evidence here on which to base findings that after recovery of the heroin, in particular, an officer could reasonably believe there was probable cause to charge Sibron with violating New York's narcotics laws. As I have previously argued, there was, I think, ample evidence to give the officer probable cause to believe Sibron had a dangerous weapon and that he might use it. Under such circumstances the officer had a right to search him in the very limited fashion he did here. Since, therefore, this was a reasonable and justified search, the use of the heroin discovered by it was admissible in evidence. </s> I would affirm. </s> [392 U.S. 40, 83]

United States Supreme Court PHILLIPS PETROLEUM CO. v. WISCONSIN(1954) No. 280 Argued: Decided: June 7, 1954 </s> The Company here involved engages in the production, gathering, processing and sale of natural gas. It does not engage in the interstate transmission of gas from the producing fields to consumer markets and is not affiliated with any company that does so; but it sells natural gas to five interstate pipeline companies which transport and resell the gas to consumers and local distributing companies in 14 states. The gas flows from producing wells through a network of converging pipelines to one of 12 processing plants, where extractable products and impurities are removed. Thence it flows a short distance to a delivery point where it is sold and delivered to an interstate pipeline company. It then continues its flow through an interstate pipeline system until delivered in other states. Held: This Company is a "natural-gas company" within the meaning of the Natural Gas Act, and its sales in interstate commerce of natural gas for resale are subject to the jurisdiction of, and rate regulation by, the Federal Power Commission. Pp. 674-685. </s> (a) The Company admittedly is engaged in "the sale in interstate commerce of natural gas for resale" within the meaning of the Act. P. 677. </s> (b) The sales by this Company are not a part of the "production or gathering of natural gas," which are excluded from the Commission's jurisdiction under 1 (b), since the production and gathering end before the sales occur. Interstate Natural Gas Co. v. Federal Power Comm'n, 331 U.S. 682 . Pp. 677-681. </s> (c) Congress did not intend to regulate only interstate pipeline companies. Rather the legislative history indicates a congressional intent to give the Commission jurisdiction over the rates of all wholesales of natural gas in interstate commerce, whether by a pipeline company or not and whether occurring before, during, or after transmission by an interstate pipeline company. Pp. 681-684. [347 U.S. 672, 673] </s> (d) Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179 , and Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190 , do not require a different result. Pp. 684-685. </s> (e) Regulation of sales in interstate commerce for resale made by a so-called independent natural-gas producer is not essentially different from regulation of such sales when made by an affiliate of an interstate pipeline company. P. 685. </s> 92 U.S. App. D.C. 284, 205 F.2d 706, affirmed. </s> [Footnote * Together with No. 281, Texas et al. v. Wisconsin et al.; and No. 418, Federal Power Commission v. Wisconsin et al., also on certiorari to the same court. </s> Hugh B. Cox argued the cause for petitioner in No. 280. With him on the brief were Rayburn L. Foster, Harry D. Turner and Stanley L. Temko. </s> Dan Moody argued the cause for petitioners in No. 281. On the brief were John Ben Shepperd, Attorney General, Charles E. Crenshaw, Special Assistant Attorney General, and Mr. Moody for the State of Texas et al., Mac Q. Williamson, Attorney General of Oklahoma, for the Corporation Commission of Oklahoma, and Richard H. Robinson, Attorney General, and George A. Graham, Special Assistant Attorney General, for the State of New Mexico et al., petitioners. J. Paull Marshall was also of counsel. </s> Solicitor General Sobeloff argued the cause for the Federal Power Commission, petitioner in No. 418. With him on the brief were Assistant Attorney General Burger, Melvin Richter, Willard W. Gatchell, William J. Grove and Louis C. Kaplan. </s> Stewart G. Honeck, Deputy Attorney General of Wisconsin, William E. Torkelson, Charles S. Rhyne, James H. Lee and Harry G. Slater argued the causes for respondents. On a joint brief were Vernon W. Thomson, Attorney General, and Mr. Honeck, for the State of Wisconsin, Mr. Torkelson for the Public Service Commission of Wisconsin, Mr. Lee for the City of Detroit, Michigan, David M. Proctor and Mr. Rhyne for Kansas City. Missouri, and Walter J. Mattison and Mr. Slater for the City of Milwaukee, Wisconsin, respondents. [347 U.S. 672, 674] </s> A brief of amici curiae urging reversal was filed by Fred S. LeBlanc, Attorney General, for the State of Louisiana, J. P. Coleman, Attorney General, for the State of Mississippi, E. T. Christianson, Attorney General, for the State of North Dakota, Howard B. Black, Attorney General, for the State of Wyoming, and Jay Kyle for the State Corporation Commission of Kansas. J. Paull Marshall was also of counsel. </s> Briefs of amici curiae urging affirmance were filed by J. A. A. Burnquist, Attorney General, and George B. Sjoselius for the State of Minnesota, John F. Bonner for the City of Minneapolis, Minnesota, Leo A. Hoegh, Attorney General, for the State of Iowa, and Clarence S. Beck, Attorney General, for the State of Nebraska; and by J. W. Anderson, John J. Mortimer, Dale H. Fillmore, John C. Banks, Henry B. Curtis, Abraham L. Freedman, Alexander G. Brown, Dion R. Holm and Charles S. Rhyne for the National Institute of Municipal Law Officers. </s> MR. JUSTICE MINTON delivered the opinion of the Court. </s> These cases present a common question concerning the jurisdiction of the Federal Power Commission over the rates charged by a natural-gas producer and gatherer in the sale in interstate commerce of such gas for resale. All three cases are an outgrowth of the same proceeding before the Power Commission and involve the same facts and issues. </s> The Phillips Petroleum Company 1 is a large integrated oil company which also engages in the production, gathering, processing, and sale of natural gas. We are here concerned only with the natural-gas operations. Phillips is [347 U.S. 672, 675] known as an "independent" natural-gas producer in that it does not engage in the interstate transmission of gas from the producing fields to consumer markets and is not affiliated with any interstate natural-gas pipeline company. As revealed by the record before us, however, Phillips does sell natural gas to five interstate pipeline transmission companies which transport and resell the gas to consumers and local distributing companies in fourteen states. </s> Approximately 50% of this gas is produced by Phillips, and the remainder is purchased from other producers. A substantial part is casinghead gas - i. e., produced in connection with the production of oil. The gas flows from the producing wells, in most instances at well pressure, through a network of converging pipelines of progressively larger size to one of twelve processing plants, where extractable products and impurities are removed. Of the nine such networks of pipelines involved in these cases, five are located entirely in Texas, one in Oklahoma, one in New Mexico, and two extend into both Texas and Oklahoma. After processing is completed, the gas flows from the processing plant through an outlet pipe, of varying lengths up to a few hundred feet, to a delivery point where the gas is sold and delivered to an interstate pipeline company. The gas then continues its flow through the interstate pipeline system until delivered in other states. </s> The Federal Power Commission, on October 28, 1948, instituted an investigation to determine whether Phillips is a natural-gas company within the jurisdiction of the Commission, and, if so, whether its natural-gas rates are unjust or unreasonable. In extensive hearings before an examiner, the facts described above were developed, as well as much additional information. An intermediate decision having been dispensed with, the Commission [347 U.S. 672, 676] issued an opinion and order in which it held that Phillips is not a "natural-gas company" within the meaning of that term as used in the Natural Gas Act, 2 and therefore is not within the Commission's jurisdiction over rates. 3 Consequently, the Commission did not proceed to investigate the reasonableness of the rates charged by Phillips. On appeals, the decision of the Commission was reversed by the United States Court of Appeals for the District of Columbia Circuit, one judge dissenting. 92 U.S. App. D.C. 284, 205 F.2d 706. We granted certiorari. 346 U.S. 934, 935 . </s> The Power Commission is authorized by 4 of the Natural Gas Act to regulate the "rates and charges made, demanded, or received by any natural-gas company for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission . . . ." "Natural-gas company" is defined by 2 (6) of the Act to mean "a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale." The jurisdiction of the Commission is set forth in 1 (b) as follows: </s> "The provisions of this Act shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas." [347 U.S. 672, 677] </s> Petitioners admit that Phillips engages in "the sale in interstate commerce of natural gas for resale," as, of course, they must. Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682, 687 -689; cf. Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 166 -168. They contend, however, that the affirmative grant of jurisdiction over such sales in the first clause of 1 (b) is limited by the negative second clause of the section. In particular, the contention is made that the sales by Phillips are a part of the "production or gathering of natural gas" to which the Commission's jurisdiction expressly does not extend. </s> We do not agree. In our view, the statutory language, the pertinent legislative history, and the past decisions of this Court all support the conclusion of the Court of Appeals that Phillips is a "natural-gas company" within the meaning of that term as defined in the Natural Gas Act, and that its sales in interstate commerce of natural gas for resale are subject to the jurisdiction of and regulation by the Federal Power Commission. </s> The Commission found that Phillips' sales are part of the production and gathering process, or are "at least an exempt incident thereof." 4 This determination appears to have been based primarily on the Commission's reading of legislative history and its interpretation of certain decisions of this Court. Also, there is some testimony in the record to the effect that the meaning of "gathering" commonly accepted in the natural-gas industry comprehends the sales incident to the physical activity of collecting and processing the gas. Petitioners contend that the Commission's finding has a reasonable basis in law and is supported by substantial evidence of record and therefore should be accepted by the courts, particularly since the Commission has "consistently" interpreted the Act [347 U.S. 672, 678] as not conferring jurisdiction over companies such as Phillips. 5 See Gray v. Powell, 314 U.S. 402 ; Labor Board v. Hearst Publications, Inc., 322 U.S. 111 . We are of the opinion, however, that the finding is without adequate basis in law, and that production and gathering, in the sense that those terms are used in 1 (b), end before the sales by Phillips occur. </s> In Federal Power Commission v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 505 , we observed that the "natural and clear meaning" of the phrase "production or gathering of natural gas" is that it encompasses "the producing properties and gathering facilities of a natural-gas company." Similarly, in Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581, 598 , we stated that "[t]ransportation and sale do not include production or gathering," and indicated that the "production or gathering" exemption applies to the physical activities, facilities, and properties used in the production and gathering of natural gas. Id., at 602-603. See also Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 612 -615; Peoples Natural Gas Co. v. Federal Power Commission, 75 U.S. App. D.C. 235, 127 F.2d 153; cf. United States v. Public Utilities Commission, 345 U.S. 295, 307 -311. 6 </s> [347 U.S. 672, 679] </s> Even more directly in point is our decision in Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682 . The Interstate Company produced or purchased natural gas which it in turn sold and delivered to three interstate pipeline companies, all the activities occurring within the same state. We noted that "[e]xceptions to the primary grant of jurisdiction in the section [1 (b)] are to be strictly construed," 7 id., at 690-691, and held that 1 (b) conferred jurisdiction over such sales on the Federal Power Commission, stating: </s> "Petitioner asserts . . . that the sales to the three pipe-line companies are a part of the gathering process and consequently not within the Commission's power of regulation. This basic contention has given rise to a great many subsidiary questions such as whether the sales were made from petitioner's `gathering' lines or from petitioner's `transmission' lines and whether the gathering process continued to the [347 U.S. 672, 680] points of sale or was, as the Commission found, completed at some point prior to surrender of custody and passage of title. We have found it unnecessary to resolve those issues. The gas moved by petitioner to the points of sale consisted of gas produced from petitioner's wells commingled with that produced and gathered by other companies and introduced into petitioner's pipe-line system during the course of the movement. By the time the sales are consummated, nothing further in the gathering process remains to be done. We have held that these sales are in interstate commerce. It cannot be doubted that their regulation is predominantly a matter of national, as contrasted to local concern. All the gas sold in these transactions is destined for consumption in States other than Louisiana. Unreasonable charges exacted at this stage of the interstate movement become perpetuated in large part in fixed items of costs which must be covered by rates charged subsequent purchasers of the gas, including the ultimate consumer. It was to avoid such situations that the Natural Gas Act was passed." Id., at 692-693. </s> Petitioners attempt to distinguish the Interstate case on the grounds that the Interstate Company transported the gas in its pipelines after completion of gathering and before sale, and that the Interstate Company was affiliated with an interstate pipeline company and therefore subject to Commission jurisdiction in any event. This Court, however, refused to rely on such refinements 8 and instead based its decision in Interstate on the broader ground that sales in interstate commerce for resale by [347 U.S. 672, 681] producers to interstate pipeline companies do not come within the "production or gathering" exemption. </s> The Interstate case is also said to be distinguishable in that it did not involve an asserted conflict with state regulation, and federal control was not opposed by the state authorities, while in the instant cases there are said to be conflicting state regulations, and federal jurisdiction is vigorously opposed by the producing states. The short answer to this contention is that the jurisdiction of the Federal Power Commission was not intended to vary from state to state, depending upon the degree of state regulation and of state opposition to federal control. We expressly rejected any implication to the contrary, in the Interstate case. 331 U.S., at 691 -692. See Federal Power Commission v. Hope Natural Gas Co., supra, at 607-615. </s> The cases discussed above supply a ready answer to the determination of the Commission and also to petitioners' suggestion that "production or gathering" should be construed to mean the "business" of production and gathering, with the sale of the product considered as an integral part of such "business." We see no reason to depart from our previous decisions, especially since they are consistent with the language and legislative history of the Natural Gas Act. </s> In general, petitioners contend that Congress intended to regulate only the interstate pipeline companies since certain alleged excesses of those companies were the evil which brought about the legislation. If such were the case, we have difficulty in perceiving why the Commission's jurisdiction over the transportation or sale for resale in interstate commerce of natural gas is granted in the disjunctive. It would have sufficed to give the Commission jurisdiction over only those natural-gas companies that engage in "transportation" or "transportation and sale for resale" in interstate commerce, if only interstate [347 U.S. 672, 682] pipeline companies were intended to be covered. 9 See Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464, 468 . </s> Rather, we believe that the legislative history indicates a congressional intent to give the Commission jurisdiction over the rates of all wholesales of natural gas in interstate commerce, whether by a pipeline company or not and whether occurring before, during, or after transmission by an interstate pipeline company. 10 There can be no dispute that the overriding congressional purpose was to plug the "gap" in regulation of natural-gas companies resulting from judicial decisions prohibiting, on [347 U.S. 672, 683] federal constitutional grounds, state regulation of many of the interstate commerce aspects of the natural-gas business. 11 A significant part of this gap was created by cases 12 holding that "the regulation of wholesale rates of gas and electrical energy moving in interstate commerce is beyond the constitutional powers of the States." Interstate Natural Gas Co. v. Federal Power Commission, supra, at 689. The committee reports on the bill that became the Natural Gas Act specifically referred to two of these cases and to the necessity of federal regulation to occupy the hiatus created by them. 13 Thus, we are [347 U.S. 672, 684] satisfied that Congress sought to regulate wholesales of natural gas occurring at both ends of the interstate transmission systems. </s> Petitioners cite our recent decisions in Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179 , and Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190 , as authority for the proposition that the states may regulate the sales in question here and, hence, that such sales are not within the gap which the Natural Gas Act was intended to fill. Those cases upheld as constitutional state minimum price orders, justified as conservation measures, applying to sales of natural gas in interstate commerce. But it is well settled that the gap referred to is that thought to exist at the time the Natural Gas Act was passed, and the jurisdiction of the Commission is not affected by subsequent decisions of this Court which have somewhat loosened the constitutional restrictions on state activities affecting interstate commerce, in the absence of conflicting federal regulation. Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 508 ; Federal Power Commission v. East Ohio Gas Co., supra, at 472. The Federal Power Commission did not participate in the Cities Service and Phillips Petroleum cases, the appellants there did not assert a possible conflict with federal authority under the Natural Gas Act, and consequently we expressly refused to consider at that time "[w]hether the Gas Act authorizes [347 U.S. 672, 685] the Power Commission to set field prices on sales by independent producers, or leaves that function to the states . . . ." 340 U.S., at 188 -189. </s> Regulation of the sales in interstate commerce for resale made by a so-called independent natural-gas producer is not essentially different from regulation of such sales when made by an affiliate of an interstate pipeline company. In both cases, the rates charged may have a direct and substantial effect on the price paid by the ultimate consumers. Protection of consumers against exploitation at the hands of natural-gas companies was the primary aim of the Natural Gas Act. Federal Power Commission v. Hope Natural Gas Co., supra, at 610. Attempts to weaken this protection by amendatory legislation exempting independent natural-gas producers from federal regulation have repeatedly failed, 14 and we refuse to achieve the same result by a strained interpretation of the existing statutory language. </s> The judgment is </s> Affirmed. </s> MR. JUSTICE JACKSON took no part in the consideration or decision of these cases. </s> Footnotes [Footnote 1 Hereinafter referred to as Phillips. </s> [Footnote 2 52 Stat. 821, as amended, 15 U.S.C. 717 et seq. </s> [Footnote 3 10 F. P. C. 246. One Commissioner concurred in the decision and one dissented. </s> [Footnote 4 10 F. P. C. 246, 278. </s> [Footnote 5 The consistency of the Commission in this regard may be questioned. Compare: Columbian Fuel Corp., 2 F. P. C. 200, with Interstate Natural Gas Co., 3 F. P. C. 416; Brief for Federal Power Commission, Interstate Natural Gas Co. v. Federal Power Commission, 156 F.2d 949, with Brief for Federal Power Commission, Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682 ; Federal Power Commission Order No. 139, 12 Fed. Reg. 5585, with Federal Power Commission Order No. 154, 15 Fed. Reg. 4633. See Scanlan, Administrative Abnegation in the Face of Congressional Coercion: The Interstate Natural Gas Company Affair, 23 Notre Dame Law. 173; Note, 59 Yale L. J. 1468, 1479-1484. And, for that matter, even consistent error is still error. </s> [Footnote 6 Referring to the taking of natural gas by purchasing interstate pipeline companies at the outlet of processing plants, we recently [347 U.S. 672, 679] observed that the pipeline companies obviously "are not engaged in `gathering gas' within the meaning of that term in its ordinary usage . . . ." Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 164 . </s> [Footnote 7 The committee reports on the bill enacted as the Natural Gas Act, H. R. 6586, 75th Cong., 1st Sess., reveal that a construction of the "production or gathering" exemption which would substantially limit the affirmative grant of jurisdiction to the Commission was not contemplated. After quoting the exemptive clause of 1 (b), the House Report states that: "The quoted words are not actually necessary, as the matters specified therein could not be said fairly to be covered by the language affirmatively stating the jurisdiction of the Commission, but similar language was in previous bills, and, rather than invite the contention, however unfounded, that the elimination of the negative language would broaden the scope of the act, the committee has included it in this bill." H. R. Rep. No. 709, 75th Cong., 1st Sess. 3. The Senate Report adopted and reprinted the House Report on the bill. S. Rep. No. 1162, 75th Cong., 1st Sess. </s> [Footnote 8 Despite the fact that they were urged by the Commission as a basis for decision. Brief for Federal Power Commission, Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682 . </s> [Footnote 9 Just such wording was suggested to and rejected by the House Committee considering enactment of the Natural Gas Act, by the Chairman of the State of New York Department of Public Service, Public Service Commission. Hearings before House Committee on Interstate and Foreign Commerce on H. R. 4008, 75th Cong., 1st Sess. 146-147. An earlier bill, H. R. 11662, 74th Cong., 2d Sess., would have limited the jurisdiction of the Power Commission to "the transportation of natural gas in high-pressure mains in interstate commerce and to natural-gas companies engaged in such transportation . . . ." Much of the legislative history advanced in support of petitioners' position was developed in connection with this bill, including the testimony of Dozier A. DeVane, Solicitor of the Federal Power Commission. Because of the much different jurisdictional provision of H. R. 11662, such testimony has little relevance here. </s> [Footnote 10 The bill on which were held the hearings leading to the passage of the Natural Gas Act, H. R. 4008, 75th Cong., 1st Sess., as introduced provided, in 1 (b), for Commission jurisdiction over the sale of natural gas in interstate commerce "for resale to the public." Similarly, "natural-gas company" was defined, in 2 (5), as including a person engaged in the sale of natural gas in interstate commerce "for resale to the public." The General Solicitor of the National Association of Railroad and Utilities Commissioners suggested that the language be changed in a manner almost identical to that contained in the Natural Gas Act. Referring to the proposed changes, he commented that: "Another is designed to make certain that the bill will apply to all intercompany sales of natural gas at wholesale, even though the sale [347 U.S. 672, 683] be from one company to another company which will resell to another corporation before the gas is finally sold to the public." Hearings before House Committee on Interstate and Foreign Commerce on H. R. 4008, 75th Cong., 1st Sess. 22. See also id., at 141-143. </s> [Footnote 11 Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464, 472 -473; Federal Power Commission v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 502 -504; Panhandle Eastern Pipe Line Co. v. Public Service Commission, 332 U.S. 507, 514 -521; Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682, 689 -693; Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581, 599 -600; Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 609 -610; Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 506 -508. </s> [Footnote 12 Missouri v. Kansas Natural Gas Co., 265 U.S. 298 ; Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83 ; State Corporation Commission v. Wichita Gas Co., 290 U.S. 561 . Cf. Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 ; Lemke v. Farmers Grain Co., 258 U.S. 50 ; Shafer v. Farmers Grain Co., 268 U.S. 189 . And see Jersey Central Power & Light Co. v. Federal Power Commission, 319 U.S. 61, 69 . </s> [Footnote 13 "The States have, of course, for many years regulated sales of natural gas to consumers in intrastate transactions. The States have also been able to regulate sales to consumers even though such sales are in interstate commerce, such sales being considered local in character and in the absence of congressional prohibition subject to State regulation. . . . There is no intention in enacting the present legislation to disturb the States in their exercise of such jurisdiction. However, in the case of sales for resale, or so-called wholesale sales, [347 U.S. 672, 684] in interstate commerce (for example, sales by producing companies to distributing companies) the legal situation is different. Such transactions have been considered to be not local in character and, even in the absence of Congressional action, not subject to State regulation. (See Missouri v. Kansas Gas Co. (1924), 265 U.S. 298 , and Public Service Commission v. Attleboro Steam & Electric Co. (1927) 273 U.S. 83 .) The basic purpose of the present legislation is to occupy this field in which the Supreme Court has held that the States may not act." H. R. Rep. No. 709, 75th Cong., 1st Sess. 1-2; S. Rep. No. 1162, 75th Cong., 1st Sess. 1-2. </s> [Footnote 14 Among the bills introduced in recent Congresses to restrict the existing jurisdiction of the Federal Power Commission over natural-gas producers are: H. R. 4051, 80th Cong., 1st Sess.; H. R. 4099, 80th Cong., 1st Sess.; H. R. 1758, 81st Cong., 1st Sess.; and S. 1498, 81st Cong., 1st Sess. </s> MR. JUSTICE FRANKFURTER, concurring. </s> While I join the opinion of the Court, one consideration leading to the Court's conclusion is for me so decisive that I deem it appropriate to give it emphasis. </s> Section 1 (b) is not to be construed on its face. It comes to us with an authoritative gloss. We must construe it as though Congress had, in words, added to [347 U.S. 672, 686] the present text of 1 (b) some such language as the following: </s> "However, since sales for resale, or so-called `wholesale sales,' in interstate commerce are not local in character and are constitutionally not subject to State regulation, see Missouri v. Kansas Gas Co., 265 U.S. 298 , and Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83 , the basic purpose of the legislation is to occupy this field in which the States may not act." </s> The section must be read with such an interpolation because the Committees of Congress which were responsible for the legislation said specifically that the Natural Gas Act was designed to cover the situations which the two cited cases held to be outside the competence of State regulation. H. R. Rep. No. 709, 75th Cong., 1st Sess. 1-2; S. Rep. No. 1162, 75th Cong., 1st Sess. 1-2. * </s> To be sure, the Kansas Gas case excluded the business of piping gas by a supply company in one State to distributing [347 U.S. 672, 687] companies in another; and the Attleboro case involved the transmission of electric current by a producing company which took it from one State to the boundary of another State and there sold it to a distributing company for resale in the other State. In this case, the sale by Phillips was made in Texas to interstate pipeline transmission companies which transported the gas for resale to distributing companies and consumers in other States. But this fact - that Phillips itself did not pipe the gas to the State boundary or directly into another State - does not in the slightest alter the constitutional applicability of the Attleboro doctrine to the situation before us. The fact that the continuous transmission is not by facilities of Phillips but by the facilities of Phillips connecting with pipelines transmitting gas into other States does not change the interstate character of the transaction. For that reason, the decision in Attleboro, 273 U.S., at 86 , relying on Peoples Gas Co. v. Public Service Commission, 270 U.S. 550 , barred State regulation. </s> It may well be that if the problem in the Attleboro case came before the Court today, the constitutional doctrine there laid down would not be found compelling. This is immaterial. Congress did not leave it to the determination of this Court whether an Attleboro situation is subject to State regulation. It wrote the doctrine of the Attleboro case into the Natural Gas Act and said in effect that an Attleboro situation was to be taken over by federal regulation and was not to be left to the fluctuation of adjudications under the Commerce Clause. </s> [Footnote * The States have, of course, for many years regulated sales of natural gas to consumers in intrastate transactions. The States have also been able to regulate sales to consumers even though such sales are in interstate commerce, such sales being considered local in character and in the absence of congressional prohibition subject to State regulation. (See Pennsylvania Gas Co. v. Public Service Commission (1920), 252 U.S. 23 .) There is no intention in enacting the present legislation to disturb the States in their exercise of such jurisdiction. However, in the case of sales for resale, or so-called wholesale sales, in interstate commerce (for example, sales by producing companies to distributing companies) the legal situation is different. Such transactions have been considered to be not local in character and, even in the absence of Congressional action, not subject to State regulation. (See Missouri v. Kansas Gas Co. (1924), 265 U.S. 298 , and Public Service Commission v. Attleboro Steam & Electric Co. (1927) 273 U.S. 83 .) The basic purpose of the present legislation is to occupy this field in which the Supreme Court has held that the States may not act." H. R. Rep. No. 709, 75th Cong., 1st Sess. 1-2. </s> MR. JUSTICE DOUGLAS, dissenting. </s> The question is whether sales of natural gas by an independent producer at the mouth of an interstate pipeline are subject to regulation by the Federal Power Commission under the Natural Gas Act of 1938. This is [347 U.S. 672, 688] a question the Court has never decided. It is indeed one on which we expressly reserved decision in Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682, 690 , n. 18. </s> There is much to be said from the national point of view for regulating sales at both ends of these interstate pipelines. The power of Congress to do so is unquestioned. Whether it did so by the Natural Gas Act of 1938 is a political and legal controversy that has raged in the Commission and in the Congress for some years. The question is not free from doubts. For while 1 (b) of the Act makes the regulatory provisions applicable "to the sale in interstate commerce of natural gas for resale for ultimate public consumption," it also makes them inapplicable "to the production or gathering of natural gas." </s> The sale by this independent producer is a "sale in interstate commerce . . . for resale." It is also an integral part of "the production or gathering of natural gas," as MR. JUSTICE CLARK makes clear in his opinion, for it is the end phase of the producing and gathering process. So we must make a choice; and the choice is not an easy one. </s> The legislative history is not helpful. Congress was concerned with interstate pipelines, not with independent producers, as the thoughtful Comment in 59 Yale L. J. 1468 points out. If one can judge by the reports of the Federal Trade Commission that preceded the Act (S. Doc. No. 92, Pt. 84-A, 70th Cong., 1st Sess.), and the hearings and debates in Congress on the bills that evolved into the Act, little or no consideration was given to the need of regulating the sales by independent producers to the pipelines. The gap to be filled was that existing before the pipelines were brought under regulation - sales to distributors along the pipelines, as the opinion of MR. JUSTICE CLARK demonstrates. [347 U.S. 672, 689] </s> That was the view of the Commission in a decision that followed on the heels of the Act. Columbian Fuel Corp., 2 F. P. C. 200, 207. That decision exempted from regulation an independent producer to whom Phillips is in all material respects comparable. It was a decision made by men intimately familiar with the background and history of the Act - Leland Olds, Basil Manly, Claude L. Draper, and Clyde L. Seavey. One Commissioner, John W. Scott, dissented. That construction of the Act by the Commission has persisted from that time (see Billings Gas Co., 2 F. P. C. 288; The Fin-Ker Oil & Gas Production Co., 6 F. P. C. 92; Tennessee Gas & Transmission Co., 6 F. P. C. 98) down to its decision in the present case. 10 F. P. C. 246. </s> That construction by the Commission, especially since it was contemporaneous (United States v. American Trucking Assns., 310 U.S. 534, 539 ) and long continued (Federal Power Commission v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 513 ), is entitled to great weight. Other obtuse questions no less legal in character than the terms "production or gathering" of gas have been entrusted to the administrative agency charged with the regulation. See Shields v. Utah Idaho Central R. Co., 305 U.S. 177 ; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 ; Gray v. Powell, 314 U.S. 402 . </s> There are practical considerations which buttress that position and lead me to conclude that we should not reverse the Commission in the present case. If Phillips' sales can be regulated, then the Commission can set a rate base for Phillips. A rate base for Phillips must of necessity include all of Phillips' producing and gathering properties; and supervision over its operating expenses necessarily includes supervision over its producing and gathering expenses. We held in Colorado Interstate Gas Co. v. Federal Power Commission, 324 U.S. 581 , that the Commission's control extended that far in the case of an [347 U.S. 672, 690] interstate pipeline company which owned producing and gathering properties. And so it had to be, if regulation of the pipelines that owned their own gas supplies was to be effective. But an understanding of what regulation entails should lead to a different result in this case. The fastening of rate regulation on this independent producer brings "the production or gathering of natural gas" under effective federal control, in spite of the fact that Congress has made that phase of the natural gas business exempt from regulation. The effect is certain to be profound. The price at which the independent producer can sell his gas determines the price he is able or willing to pay for it (if he buys from other wells). The sales price determines his profits. And his profits and the profits of all the other gatherers, whose gas moves into the interstate pipelines, have profound effects on the rate of production, the methods of production, the old wells that are continued in production, the new ones explored, etc. Regulating the price at which the independent producer can sell his gas regulates his business in the most vital way any business can be regulated. That regulation largely nullifies the exemption granted by Congress. </s> There is much to be said in terms of policy for the position of Commissioner Scott, who dissented the first time the Commission ruled it had no jurisdiction over these sales. But the history and language of the Act are against it. If that ground is to be taken, the battle should be won in Congress, not here. Regulation of the business of producing and gathering natural gas involves considerations of which we know little and with which we are not competent to deal. </s> MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON concurs, dissenting. </s> Perhaps Congress should have included control over the production and gathering of natural gas among the powers [347 U.S. 672, 691] it gave the Federal Power Commission in the Natural Gas Act, but this Congress did not do. On the contrary, Congress provided that the Act "shall not apply . . . to the production or gathering of natural gas." Language could not express a clearer command, but the majority renders this language almost entirely nugatory by holding that the rates charged by a wholly independent producer and gatherer may be regulated by the Federal Power Commission. Nor does the Court stop there, for in the sweep of the opinion "the rates of all wholesales of natural gas in interstate commerce, whether by a pipeline company or not and whether occuring before, during, or after transmission by an interstate pipeline company" are covered under the Act. Ante, p. 682. (Emphasis supplied.) On its face, this language brings every gas operator, from the smallest producer to the largest pipeline, under federal regulatory control. In so doing, the Court acts contrary to the intention of the Congress, the understanding of the states, and that of the Federal Power Commission itself. The Federal Power Commission is thereby thrust into the regulatory domain traditionally reserved to the states. </s> The natural gas industry, like ancient Gaul, is divided into three parts. These parts are production and gathering, interstate transmission by pipeline, and distribution to consumers by local distribution companies. A business unit may perform more than one of these functions - typically, production and gathering in addition to interstate transmission. But Phillips' natural gas operations are confined exclusively to the first part - production and gathering. It has no interstate transmission or high-pressure trunk lines and does not sell to distribution companies; and it does not, of course, distribute to the ultimate consumer. Its nine gathering systems merely bring the gas from its own and other producers' wells to its central plants in the producing fields so it can be rendered usable as fuel. Since there are no facilities for storage, [347 U.S. 672, 692] the amount of gas, other than casinghead, * produced and gathered each day depends on the day-to-day demands of the interstate pipelines, which in turn depend on weather and other conditions in consuming areas. Gas wells are cut on and off as the market demand for the gas requires. Gathering takes place by well pressure forcing the gas through numerous small pipes connecting each well with the central gathering plant or processing station. It is there that the gas first comes to a common "header" and is processed for use as fuel. The processing of the gas at this central gathering plant is necessary to remove hydrocarbons, hydrogen sulphide and other foreign elements in order to permit its use as fuel. The plant operates only while the wells are producing. All of Phillips' operations, including the acreage from which the wells produce the gas, the wells themselves, the lines that connect with each of them and run to the central plant, form a closely knit unit that is entirely local to the field involved. After processing, the gas is immediately delivered to the interstate pipelines under long-term sales contracts. </s> The Commission found that "[t]hough technically consummated in interstate commerce, these sales [by Phillips to the pipelines] are made `during the course of production and gathering,'" and that the sales "are so closely connected with the local incidents of [production and gathering] as to render rate regulation by this Commission inconsistent or a substantial interference with [347 U.S. 672, 693] the exercise by the affected states of their regulatory functions." 10 F. P. C., at 278. We believe that this finding is correct and that it should be approved by the Court. </s> If there be any doubt that Congress thought the "production and gathering" exemption saved Phillips' sales from Federal Power Commission regulation, the Act's legislative history removes it. The Solicitor of the Commission, Mr. Dozier DeVane, at hearings in connection with a predecessor of the bill that finally became the Natural Gas Act, testified that the Federal Power Commission would have no jurisdiction over the rates for natural gas "that are paid in the gathering field." Hearings before Subcommittee of the House Committee on Interstate and Foreign Commerce on H. R. 11662, 74th Cong., 2d Sess., p. 28 (1936). The bill, he said, "does not attempt to regulate the gathering rates or the gathering business." Id., 34. See also, id., 42-43. The bill about which Mr. DeVane testified has been described as "substantially similar to the Natural Gas Act," and his views have been treated as authoritative by this Court. Federal Power Commission v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 505 , n. 7 (1949). See also Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464, 472 , n. 12 (1950). In the face of this as well as the Federal Power Commission's adherence to the DeVane views ever since its first cases on the subject, Columbian Fuel Corp., 2 F. P. C. 200 (1940), Billings Gas Co., 2 F. P. C. 288 (1940), and in the absence of any specific matter in the Act's legislative history refuting the DeVane views, the Court today erroneously finds that DeVane's "testimony has little relevance here." Ante, p. 682, n. 9. </s> There is no dispute that Congress intended the Natural Gas Act to close the "gap" created by decisions of this Court barring state regulation of certain interstate gas sales. The legislative history of the Act refers to two [347 U.S. 672, 694] decisions: Missouri v. Kansas Natural Gas Co., 265 U.S. 298 (1924); Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83 (1927). See H. R. Rep. No. 709, 75th Cong., 1st Sess., pp. 1-2 (1937). But these cases had nothing to do with sales to interstate pipelines by wholly independent, unintegrated, and unaffiliated producers and gatherers, such as Phillips. Neither of the companies involved in those cases was engaged exclusively in production and gathering; both were producing and transportation companies, Kansas of natural gas, Attleboro of electricity; both Kansas and Attleboro sold to distributing companies in the course of interstate transmission. Thus, when the House Report, id., 1-2, expressed the Act's aim to regulate wholesales such as "sales by producing companies to distributing companies," and immediately thereafter cited the Kansas and Attleboro cases, the Report's unmistakable reference was to sales by an integrated "producer-pipeline" to the local distributor. It could not refer to an independent producer and gatherer because, first, such an independent never sells to local distributors and, secondly, the two cited cases do not support a reference to such independents. That Congress aimed at abuses resulting in the "gap" at the end of the transmission process by integrated and unintegrated pipelines and not at abuses prior to transmission is clear from the final report of the Federal Trade Commission to the Senate on malpractices in the natural gas industry. S. Doc. No. 92, 70th Cong., 1st Sess. (1935). This report was the stimulus for federal intervention in the industry. The Federal Trade Commission outlined the abuses in the industry which the "gap" made the states powerless to prevent; the abuses were by monopolistically situated pipelines which gouged the consumer by charging local distribution companies unreasonable rates. The Federal Trade Commission did not find abusive pricing by independent producers and gatherers; [347 U.S. 672, 695] if anything, the independents at the producing end of the pipelines were likewise the victims of monopolistic practices by the pipelines. </s> And our decisions have certainly indicated that the "gap" was at the distribution end of the transmission process. Thus, in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944), the Court observed that "the Federal Power Commission was given no authority over `the production or gathering of natural gas'" and that the producing states had the power "to protect the interests of those who sell their gas to the interstate operator." Id., at 612-613, 614. (Emphasis supplied.) Five years later, in Federal Power Commission v. Panhandle Eastern Pipe Line Co., supra, the Court said its approval of the Commission's inclusion of the cost of production and gathering facilities of an interstate pipeline in the latter's rate base "is not a precedent for regulation of any part of production or marketing." 337 U.S., at 506 . (Emphasis supplied.) </s> By today's decision, the Court restricts the phrase "production and gathering" to "the physical activities, facilities, and properties" used in production and gathering. Such a gloss strips the words of their substance. If the Congress so intended, then it left for state regulation only a mass of empty pipe, vacant processing plants and thousands of hollow wells with scarecrow derricks, monuments to this new extension of federal power. It was not so understood. The states have been for over 35 years and are now enforcing regulatory laws covering production and gathering, including pricing, proration of gas, ratable taking, unitization of fields, processing of casinghead gas including priority over other gases, well spacing, repressuring, abandonment of wells, marginal area development, and other devices. Everyone is fully aware of the direct relationship of price and conservation. Federal Power Commission v. Panhandle [347 U.S. 672, 696] Eastern Pipe Line Co., supra, at 507. And the power of the states to regulate the producers' and gatherers' prices has been upheld in this Court. Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179 (1950); Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190 (1950). There can be no doubt, as the Commission has found, that federal regulation of production and gathering will collide and substantially interfere with and hinder the enforcement of these state regulatory measures. We cannot square this result with the House Report on this Act which states that the subsequently enacted bill "is so drawn as to complement and in no manner usurp State regulatory authority." H. R. Rep. No. 709, supra, at 2. </s> The majority rely heavily on Interstate Natural Gas Co. v. Federal Power Commission, 331 U.S. 682 (1947), to support their position. To be sure, there is language in that case which on its face seems to govern the present case. Id., at 692-693. But that case involved a materially different fact situation. The Interstate Gas Company was already subject to Federal Power Commission jurisdiction because of its interstate pipeline operations; and the company was affiliated with one of the pipelines to which it sold. In addition, the Court emphasized the fact that in Interstate no claim to state regulatory authority was made. Indeed, the Interstate Company had successfully resisted state attempts to regulate. Hence there was no possibility of conflict in that case; either the Federal Power Commission moved in or Interstate would have remained unregulated. But perhaps a more significant factual distinction in terms of the Court's reasoning in that case rests in the fact that of the total volume of gas Interstate sold, roughly 42% had been purchased from others who had produced and gathered it. This 42% was almost enough to supply all the needs of the three interstate pipelines to which Interstate sold. And the 42%, [347 U.S. 672, 697] already gathered and processed, moved into and through Interstate's branch, trunk, and main trunk lines. In short, Interstate was the equivalent of a middleman between gatherers and the pipelines for almost all the gas it sold to the pipelines and performed the function of transporting the gas it purchased from other gatherers through its branch, trunk, and main trunk lines. Phillips performs no such middleman or transmission function. In addition, the late Chief Justice Vinson in that case specifically stated that: "We express no opinion as to the validity of the jurisdictional tests employed by the Commission in these cases [Columbian and Billings, supra]." 331 U.S., at 690 -691, n. 18. Since it was in those cases that the Federal Power Commission established the policy of declining jurisdiction over the rates charged by wholly independent producers and gatherers, it is difficult to see how Interstate can control the present case. </s> If we look to Interstate for guidance, we would do better to focus on the following words of the late Chief Justice: </s> "Clearly, among the powers thus reserved to the States is the power to regulate the physical production and gathering of natural gas in the interests of conservation or of any other consideration of legitimate local concern. It was the intention of Congress to give the States full freedom in these matters. Thus, where sales, though technically consummated in interstate commerce, are made during the course of production and gathering and are so closely connected with the local incidents of that process as to render rate regulation by the Federal Power Commission inconsistent or a substantial interference with the exercise by the State of its regulatory functions, the jurisdiction of the Federal Power Commission does not attach." 331 U.S., at 690 . [347 U.S. 672, 698] </s> Even a cursory examination of Phillips' operations reveals how completely local they are and how incidental to them are its sales to the pipelines. Moreover, federal regulation of these sales means an inevitable clash with a complex of state regulatory action, including minimum pricing. These were matters found by the Federal Power Commission in language obviously patterned after the above quotation. The clear import of the cited words is that Federal Power Commission jurisdiction "does not attach" in such a situation. </s> In the words of MR. JUSTICE JACKSON, we believe "that observance of good faith with the states requires that we interpret this Act as it was represented at the time they urged its enactment, as its terms read, and as we have, until today, declared it, viz., to supplement but not to supplant state regulation." Federal Power Commission v. East Ohio Gas Co., supra, at 490. </s> [Footnote * Casinghead gas is produced with oil and furnishes the pressure under which the latter is brought to the surface. The gas cannot be shut off without closing down the oil production and it therefore is produced, regardless of demand, since the primary recovery is oil. If there are no available purchasers the gas is flared (burned). In some fields as much as one-third of the casinghead gas is still flared since no market is immediately available. Sound conservation practice dictates that, whenever possible, casinghead gas be used to satisfy demand before natural gas wells are turned on. </s> [347 U.S. 672, 1]

United States Supreme Court EASTERN R. CONF. v. NOERR MOTORS(1961) No. 50 Argued: Decided: February 20, 1961 </s> A group of trucking companies and their trade association sued under 4 of the Clayton Act for treble damages and injunctive relief against a group of railroads, a railroad association and a public relations firm, charging that the defendants had conspired to restrain trade in, and monopolize, the long-distance freight business, in violation of 1 and 2 of the Sherman Act. They alleged, inter alia, that the railroads had engaged the public relations firm to conduct a publicity campaign against the truckers designed to foster the adoption and retention of laws and law enforcement practices destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public and to impair the relationships existing between the truckers and their customers. After a trial, the District Court entered a judgment awarding damages to the plaintiffs and enjoining the practices complained of. Held: The judgment is reversed. Pp. 128-145. </s> (a) No violation of the Sherman Act can be predicated upon mere attempts to influence the passage or enforcement of laws. Pp. 135-136. </s> (b) The Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or monopoly; and it does not apply to the activities of these railroads, at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws. Pp. 136-138. </s> (c) At least insofar as the railroads' campaign was directed toward obtaining governmental action, it was not made violative of the Sherman Act by any anticompetitive purpose it may have had, such as a purpose to destroy the truckers as competitors for the long-distance freight business. Pp. 138-140. [365 U.S. 127, 128] </s> (d) Nor was the railroads' campaign made violative of the Sherman Act by their use of the so-called third-party technique, whereby propaganda actually circulated by a party in interest is given the appearance of being the spontaneously expressed views of independent persons and civic groups. Pp. 140-142. </s> (e) A different conclusion is not required by the finding of the District Court that the railroads' campaign was intended to, and did in fact, injure the truckers in their relationships with the public and with their customers. Pp. 142-145. </s> 273 F.2d 218, reversed. </s> Philip Price and Hugh B. Cox argued the cause for petitioners. With them on the briefs were C. Brewster Rhoads, Gerald E. Dwyer, Arthur Littleton, Henry S. Drinker, Charles J. Biddle, Harry E. Sprogell, Lewis M. Stevens, T. W. Pomeroy, Jr., Paul Maloney, Carl E. Glock, R. Sturgis Ingersoll, Powell Pierpoint and Cornelius C. O'Brien, Jr. </s> Harold E. Kohn argued the cause for respondents. With him on the brief was Aaron M. Fine. </s> MR. JUSTICE BLACK delivered the opinion of the Court. </s> American railroads have always largely depended upon income from the long-distance transportation of heavy freight for economic survival. During the early years of their existence, they had virtually no competition in this aspect of their business, but, as early as the 1920's, the growth of the trucking industry in this country began to bring about changes in this situation. For the truckers found, just as the railroads had learned earlier, that a very profitable part of the transportation business was the long hauling of heavy freight. As the trucking industry became more and more powerful, the competition between it and the railroads for this business became increasingly intense until, during the period following the conclusion of World War II, at least the railroads, if not both of the competing groups, came to view the struggle [365 U.S. 127, 129] as one of economic life or death for their method of transportation. The present litigation is an outgrowth of one part of that struggle. </s> The case was commenced by a complaint filed in the United States District Court in Pennsylvania on behalf of 41 Pennsylvania truck operators and their trade association, the Pennsylvania Motor Truck Association. This complaint, which named as defendants 24 Eastern railroads, an association of the presidents of those railroads known as the Eastern Railroad Presidents Conference, and a public relations firm, Carl Byoir & Associates, Inc., charged that the defendants had conspired to restrain trade in and monopolize the long-distance freight business in violation of 1 1 and 2 2 of the Sherman Act. The gist of the conspiracy alleged was that the railroads had engaged Byoir to conduct a publicity campaign against the truckers designed to foster the adoption and retention of laws and law enforcement practices destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers. The campaign so conducted was described in the complaint as "vicious, corrupt, and fraudulent," first, in that the sole motivation behind it was the desire on the part of the railroads to injure the truckers and eventually to destroy them as competitors in the long-distance freight business, and, secondly, in that the defendants utilized the [365 U.S. 127, 130] so-called third-party technique, that is, the publicity matter circulated in the campaign was made to appear as spontaneously expressed views of independent persons and civic groups when, in fact, it was largely prepared and produced by Byoir and paid for by the railroads. 3 The complaint then went on to supplement these more or less general allegations with specific charges as to particular instances in which the railroads had attempted to influence legislation by means of their publicity campaign. One of several such charges was that the defendants had succeeded in persuading the Governor of Pennsylvania to veto a measure known as the "Fair Truck Bill," 4 which would have permitted truckers to carry heavier loads over Pennsylvania roads. </s> The prayer of the complaint was for treble damages under 4 of the Clayton Act 5 and an injunction restraining the defendants from further acts in pursuance of the conspiracy. Insofar as the prayer for damages was concerned, a stipulation was entered that the only damages suffered by the individual truck operators was the loss of business that resulted from the veto of the "Fair Truck Bill" by the Governor of Pennsylvania, and accordingly the claim for damages was limited to an amount based upon the loss of profits as a result of this veto plus the expenses incurred by the truckers' trade association [365 U.S. 127, 131] for the purpose of combating the railroads' publicity campaign. The prayer for injunctive relief was much broader, however, asking that the defendants be restrained from disseminating any disparaging information about the truckers without disclosing railroad participation, from attempting to exert any pressure upon the legislature or Governor of Pennsylvania through the medium of front organizations, from paying any private or public organizations to propagate the arguments of the railroads against the truckers or their business, and from doing "any other act or thing to further . . . the objects and purposes" of the conspiracy. </s> In their answer to this complaint, the railroads admitted that they had conducted a publicity campaign designed to influence the passage of state laws relating to truck weight limits and tax rates on heavy trucks, and to encourage a more rigid enforcement of state laws penalizing trucks for overweight loads and other traffic violations, but they denied that their campaign was motivated either by a desire to destroy the trucking business as a competitor or to interfere with the relationships between the truckers and their customers. Rather, they insisted, the campaign was conducted in furtherance of their rights "to inform the public and the legislatures of the several states of the truth with regard to the enormous damage done to the roads by the operators of heavy and especially of overweight trucks, with regard to their repeated and deliberate violations of the law limiting the weight and speed of big trucks, with regard to their failure to pay their fair share of the cost of constructing, maintaining and repairing the roads, and with regard to the driving hazards they create . . . ." Such a campaign, the defendants maintained, did not constitute a violation of the Sherman Act, presumably because that Act could not properly be interpreted to apply either to restraints of trade or monopolizations that result from the passage or enforcement of laws [365 U.S. 127, 132] or to efforts of individuals to bring about the passage or enforcement of laws. 6 </s> Subsequently, defendants broadened the scope of the litigation by filing a counterclaim in which they charged that the truckers had themselves violated 1 and 2 of the Sherman Act by conspiring to destroy the railroads' competition in the long-distance freight business and to monopolize that business for heavy trucks. The means of the conspiracy alleged in the counterclaim were much the same as those with which the truckers had charged the railroads in the original complaint, including allegations of the conduct of a malicious publicity campaign designed to destroy the railroads' business by law, to create an atmosphere hostile to the railroads among the general public, and to interfere with relationships existing between the railroads and their customers. The prayer for relief of the counterclaim, like that of the truckers' original complaint, was for treble damages and an injunction restraining continuance of the allegedly unlawful practices. In their reply to this counterclaim, the truckers denied each of the allegations that charged a violation of the Sherman Act and, in addition, interposed a number of affirmative defenses, none of which are relevant here. </s> In this posture, the case went to trial. After hearings, the trial court entered a judgment, based upon extensive findings of fact and conclusions of law, that the railroads' [365 U.S. 127, 133] publicity campaign had violated the Sherman Act while that of the truckers had not. 7 In reaching this conclusion, the trial court expressly disclaimed any purpose to condemn as illegal mere efforts on the part of the railroads to influence the passage of new legislation or the enforcement of existing law. Instead, it rested its judgment upon findings, first, that the railroads' publicity campaign, insofar as it was actually directed at lawmaking and law enforcement authorities, was malicious and fraudulent - malicious in that its only purpose was to destroy the truckers as competitors, and fraudulent in that it was predicated upon the deceiving of those authorities through the use of the third-party technique; 8 and, secondly, that the railroads' campaign also had as an important, if not overriding, purpose the destruction of the truckers' goodwill, among both the general public and the truckers' existing customers, and thus injured the truckers in ways unrelated to the passage or enforcement of law. In line with its theory that restraints of trade and monopolizations resulting from valid laws are not actionable under the Sherman Act, however, the trial court awarded only nominal damages to the individual truckers, holding that no damages were recoverable for loss of business due to the veto of the Pennsylvania "Fair Truck Bill." The judgment did, however, award substantial damages to the [365 U.S. 127, 134] truckers' trade association as well as the broad injunction asked for in the complaint. 9 </s> The conclusion that the truckers' publicity campaign had not violated the Sherman Act was reached despite findings that the truckers also had engaged in a publicity campaign designed to influence legislation, as charged in the counterclaim, and despite findings that the truckers had utilized the third-party technique in this campaign. Resting largely upon the fact that the efforts of the truckers were directed, at least for the most part, 10 at trying to get legislation passed that was beneficial to them rather than harmful to the railroads, the trial court found that the truckers' campaign was purely defensive in purpose and concluded that the truckers' campaign differed from that of the railroads in that the truckers were not trying to destroy a competitor. Accordingly, it held that the truckers' campaign, though technically in restraint of trade, was well within the rule of reason which [365 U.S. 127, 135] governs the interpretation of 1 and 2 of the Sherman Act and consequently dismissed the counterclaim. </s> The railroads appealed from this judgment, both as to the conclusion that they had violated the Sherman Act as charged in the original complaint and as to the conclusion that the truckers had not violated the Act as charged in the counterclaim. The Court of Appeals for the Third Circuit, one judge dissenting in part, upheld the judgment of the District Court in every respect, stating that the findings amply support the judgment and that there was sufficient evidence to support all of the findings. 11 This was followed by a petition for certiorari filed on behalf of the railroads and Byoir limited to the question of the correctness of the judgment insofar as it held that they had violated the Sherman Act. Because the case presents a new and unusual application of the Sherman Act and involves severe restrictions upon the rights of these railroads and others to seek the passage or defeat of legislation when deemed desirable, we granted that petition. 12 </s> We accept, as the starting point for our consideration of the case, the same basic construction of the Sherman Act adopted by the courts below - that no violation of the Act can be predicated upon mere attempts to influence the passage or enforcement of laws. It has been recognized, at least since the landmark decision of this Court in Standard Oil Co. v. United States, 13 that the Sherman Act forbids only those trade restraints and monopolizations [365 U.S. 127, 136] that are created, or attempted, by the acts of "individuals or combinations of individuals or corporations." 14 Accordingly, it has been held that where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out. 15 These decisions rest upon the fact that under our form of government the question whether a law of that kind should pass, or if passed be enforced, is the responsibility of the appropriate legislative or executive branch of government so long as the law itself does not violate some provision of the Constitution. </s> We think it equally clear that the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly. Although such associations could perhaps, through a process of expansive construction, be brought within the general proscription of "combination[s] . . . in restraint of trade," they bear very little if any resemblance to the combinations normally held violative of the Sherman Act, combinations ordinarily characterized by an express or implied agreement or understanding that the participants will jointly give up their trade freedom, or help one another to take away the trade freedom of others through the use of such devices as price-fixing agreements, boycotts, market-division agreements, and other similar arrangements. 16 This essential dissimilarity between an agreement jointly to seek legislation or law enforcement and the agreements traditionally condemned by 1 of the Act, even if not itself conclusive on the question of the applicability of the [365 U.S. 127, 137] Act, does constitute a warning against treating the defendants' conduct as though it amounted to a common-law trade restraint. And we do think that the question is conclusively settled, against the application of the Act, when this factor of essential dissimilarity is considered along with the other difficulties that would be presented by a holding that the Sherman Act forbids associations for the purpose of influencing the passage or enforcement of laws. </s> In the first place, such a holding would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade. In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act. 17 Secondly, and of at least equal significance, [365 U.S. 127, 138] such a construction of the Sherman Act would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. Indeed, such an imputation would be particularly unjustified in this case in view of all the countervailing considerations enumerated above. For these reasons, we think it clear that the Sherman Act does not apply to the activities of the railroads at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws. We are thus called upon to consider whether the courts below were correct in holding that, notwithstanding this principle, the Act was violated here because of the presence in the railroads' publicity campaign of additional factors sufficient to take the case out of the area in which the principle is controlling. </s> The first such factor relied upon was the fact, established by the finding of the District Court, that the railroads' sole purpose in seeking to influence the passage and enforcement of laws was to destroy the truckers as competitors for the long-distance freight business. But we do not see how this fact, even if adequately supported in the record, 18 could transform conduct otherwise lawful [365 U.S. 127, 139] into a violation of the Sherman Act. All of the considerations that have led us to the conclusion that the Act does not apply to mere group solicitation of governmental action are equally applicable in spite of the addition of this factor. The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors. This Court has expressly recognized this fact in its opinion in United States v. Rock Royal Co-op., where it was said: "If ulterior motives of corporate aggrandizement stimulated their activities, their efforts were not thereby rendered unlawful. If the Act and Order are otherwise valid, the fact that their effect would be to give cooperatives a monopoly of the market would not violate the Sherman Act . . . ." 19 Indeed, it is quite probably people with just such a hope of personal advantage who provide much of the information upon which governments must act. A construction of the Sherman Act that would disqualify people from taking a public position on matters in which they are financially interested would thus deprive the government of a valuable source of information and, at the same time, deprive the people of their right to petition in the very instances in which that right may be of the most importance to them. We reject such a construction of the Act and hold that, at least insofar [365 U.S. 127, 140] as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had. </s> The second factor relied upon by the courts below to justify the application of the Sherman Act to the railroads' publicity campaign was the use in the campaign of the so-called third-party technique. The theory under which this factor was related to the proscriptions of the Sherman Act, though not entirely clear from any of the opinions below, was apparently that it involved unethical business conduct on the part of the railroads. As pointed out above, the third-party technique, which was aptly characterized by the District Court as involving "deception of the public, manufacture of bogus sources of reference, [and] distortion of public sources of information," depends upon giving propaganda actually circulated by a party in interest the appearance of being spontaneous declarations of independent groups. We can certainly agree with the courts below that this technique, though in widespread use among practitioners of the art of public relations, 20 is one which falls far short of the ethical standards generally approved in this country. It does not follow, however, that the use of the technique in a publicity campaign designed to influence governmental action constitutes a violation of the Sherman Act. Insofar as that Act sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity, and, as we have already pointed out, a publicity campaign to influence governmental action falls clearly into the category [365 U.S. 127, 141] of political activity. The proscriptions of the Act, tailored as they are for the business world, are not at all appropriate for application in the political arena. Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. 21 All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical. </s> Moreover, we think the courts below themselves recognized this fact to some extent for their disposition of the case is inconsistent with the position that the use of the third-party technique alone could constitute a violation of the Sherman Act. This much is apparent from the fact that the railroads' counterclaim against the truckers was not allowed. Since it is undisputed that the truckers were as guilty as the railroads of the use of the technique, 22 this factor could not have been in any sense controlling of the holding against the railroads. Rather, [365 U.S. 127, 142] it appears to have been relied upon primarily as an indication of the vicious nature of the campaign against the truckers. But whatever its purpose, we have come to the conclusion that the reliance of the lower courts upon this factor was misplaced and that the railroads' use of the third-party technique was, so far as the Sherman Act is concerned, legally irrelevant. </s> In addition to the foregoing factors, both of which relate to the intent and methods of the railroads in seeking governmental action, the courts below rested their holding that the Sherman Act had been violated upon a finding that the purpose of the railroads was "more than merely an attempt to obtain legislation. It was the purpose and intent . . . to hurt the truckers in every way possible even though they secured no legislation." (Emphasis in original.) Specifically, the District Court found that the purpose of the railroads was to destroy the goodwill of the truckers among the public generally and among the truckers' customers particularly, in the hope that by doing so the over-all competitive position of the truckers would be weakened, and that the railroads were successful in these efforts to the extent that such injury was actually inflicted. The apparent effect of these findings is to take this case out of the category of those that involve restraints through governmental action and thus render inapplicable the principles announced above. But this effect is only apparent and cannot stand under close scrutiny. There are no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers. Moreover, all of the evidence in the record, both oral and documentary, deals with the railroads' efforts to influence the passage and enforcement of laws. Circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents discuss in one way or another the railroads' charges that heavy trucks injure the roads, violate the [365 U.S. 127, 143] laws and create traffic hazards, and urge that truckers should be forced to pay a fair share of the costs of rebuilding the roads, that they should be compelled to obey the laws, and that limits should be placed upon the weight of the loads they are permitted to carry. In the light of this, the findings of the District Court that the railroads' campaign was intended to and did in fact injure the truckers in their relationships with the public and with their customers can mean no more than that the truckers sustained some direct injury as an incidental effect of the railroads' campaign to influence governmental action and that the railroads were hopeful that this might happen. 23 Thus, the issue presented by the lower courts' conclusion of a violation of the Sherman Act on the basis of this injury is no different than the issue presented by the factors already discussed. It is inevitable, whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injury. To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing [365 U.S. 127, 144] all such campaigns. We have already discussed the reasons which have led us to the conclusion that this has not been done by anything in the Sherman Act. </s> There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified. But this certainly is not the case here. No one denies that the railroads were making a genuine effort to influence legislation and law enforcement practices. Indeed, if the version of the facts set forth in the truckers' complaint is fully credited, as it was by the courts below, that effort was not only genuine but also highly successful. Under these circumstances, we conclude that no attempt to interfere with business relationships in a manner proscribed by the Sherman Act is involved in this case. </s> In rejecting each of the grounds relied upon by the courts below to justify application of the Sherman Act to the campaign of the railroads, we have rejected the very grounds upon which those courts relied to distinguish the campaign conducted by the truckers. In doing so, we have restored what appears to be the true nature of the case - a "no-holds-barred fight" 24 between two industries both of which are seeking control of a profitable source of income. 25 Inherent in such fights, which are commonplace in the halls of legislative bodies, is the possibility, and in many instances even the probability, that one group or the other will get hurt by the arguments that are made. [365 U.S. 127, 145] In this particular instance, each group appears to have utilized all the political powers it could muster in an attempt to bring about the passage of laws that would help it or injure the other. But the contest itself appears to have been conducted along lines normally accepted in our political system, except to the extent that each group has deliberately deceived the public and public officials. And that deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned. That Act was not violated by either the railroads or the truckers in their respective campaigns to influence legislation and law enforcement. Since the railroads have acquiesced in the dismissal of their counterclaim by not challenging the Court of Appeals' affirmance of that order in their petition for certiorari, we are here concerned only with those parts of the judgments below holding the railroads and Byoir liable for violations of the Sherman Act. And it follows from what we have said that those parts of the judgments below are wrong. They must be and are </s> Reversed. </s> Footnotes [Footnote 1 "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . . ." 15 U.S.C. 1. </s> [Footnote 2 "Every person who shall 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, shall be deemed guilty of a misdemeanor . . . ." 15 U.S.C. 2. </s> [Footnote 3 For a discussion of the mechanics of this technique and the purposes generally underlying its use by public relations firms, see Ross, The Image Merchants, at 118, 226-227 and 266-267. </s> [Footnote 4 The "Fair Truck Bill" referred to was introduced in the Pennsylvania Legislature in May 1951, as Senate bill 615. </s> [Footnote 5 "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. 15. </s> [Footnote 6 The answer to the truckers' complaint also interposed a number of other defenses, including the contention that the activities complained of were constitutionally protected under the First Amendment and the contention that the truckers were barred from prosecuting this suit by reason of the fact that they had themselves engaged in conduct identical to that about which they were complaining with regard to the railroads and were thus in pari delicto. Because of the view we take of the proper construction of the Sherman Act, we find it unnecessary to consider any of these other defenses. </s> [Footnote 7 The opinion of the District Court on the merits of the controversy is reported at 155 F. Supp. 768. An additional opinion dealing with the question of relief is reported at 166 F. Supp. 163. For reports of earlier opinions dealing with preliminary motions, see 113 F. Supp. 737, 14 F. R. D. 189, and 19 F. R. D. 146. </s> [Footnote 8 The District Court did not expressly find that any particular part of the railroads' publicity campaign was false in its content. Rather, it found that the technique of the railroads was "to take a dramatic fragment of truth and by emphasis and repetition distort it into falsehood." 155 F. Supp., at 814. </s> [Footnote 9 If anything, the injunction was even broader than had been requested in the complaint for it effectively enjoined the defendants from any publicity activities against the truckers whether or not the third-party technique was used. See 166 F. Supp., at 172-173. </s> [Footnote 10 The trial court did recognize that on at least one occasion the truckers attempted to encourage legislation that would have been directly harmful to the railroads rather than beneficial to themselves. Thus, the court found: "About the middle of the decade [the 1940's] PMTA had a tax manual prepared charging that the railroads of Pennsylvania themselves did not pay their fair share of taxes as compared with other states and made a wide distribution of it to legislators, banks, security investment houses, etc." The trial court found, however, that this action of the truckers also lay within the rule of reason because "the truckers had been the target of a strong campaign directed to the public with the purpose of convincing the public that trucks did not pay their fair share of taxes," thus making it necessary for the truckers to "be permitted to likewise show the public that their competitors, the railroads, were actually guilty of the fault charged against the truckers." 155 F. Supp., at 803. </s> [Footnote 11 273 F.2d 218. Chief Judge Biggs dissented from the opinion of the majority of the Court of Appeals insofar as it upheld the District Court's conclusion that the railroads and Byoir had violated the Sherman Act. For similar reasons, he concurred in that part of the majority opinion which upheld the conclusion that the truckers had not violated the Act. </s> [Footnote 12 362 U.S. 947 . </s> [Footnote 13 221 U.S. 1 , at 51-62. </s> [Footnote 14 Id., at 57. </s> [Footnote 15 United States v. Rock Royal Co-op., 307 U.S. 533 ; Parker v. Brown, 317 U.S. 341 . </s> [Footnote 16 See Apex Hosiery Co. v. Leader, 310 U.S. 469, 491 -493. </s> [Footnote 17 In Parker v. Brown, supra, this Court was unanimous in the conclusion that the language and legislative history of the Sherman Act would not warrant the invalidation of a state regulatory program as an unlawful restraint upon trade. In so holding, we rejected the contention that the program's validity under the Sherman Act was affected by the nature of the political support necessary for its implementation - a contention not unlike that rejected here. The reasoning underlying that conclusion was stated succinctly by Mr. Chief Justice Stone: "Here the state command to the Commission and to the program committee of the California Prorate Act is not rendered unlawful by the Sherman Act since, in view of the latter's words and history, it must be taken to be a prohibition of individual and not state action. It is the state which has created the machinery for establishing the prorate program. Although the organization of a prorate zone is [365 U.S. 127, 138] proposed by producers, and a prorate program, approved by the Commission, must also be approved by referendum of producers, it is the state, acting through the Commission, which adopts the program and which enforces it with penal sanctions, in the execution of a governmental policy. The prerequisite approval of the program upon referendum by a prescribed number of producers is not the imposition by them of their will upon the minority by force of agreement or combination which the Sherman Act prohibits. The state itself exercises its legislative authority in making the regulation and in prescribing the conditions of its application." 317 U.S., at 352 . </s> [Footnote 18 A study of the record reveals that the only evidence or subsidiary findings upon which this conclusory finding could be based is the undisputed fact that the railroads did seek laws by arguments and [365 U.S. 127, 139] propaganda that could have had the effect of damaging the competitive position of the truckers. There is thus an absence of evidence of intent independent of the efforts that were made to influence legislation and law enforcement. We nonetheless accept the finding of the District Court on this issue for, in our view, the disposition of this case must be the same regardless of that fact. </s> [Footnote 19 307 U.S. 533, 560 . </s> [Footnote 20 The extent to which the third-party technique is utilized in the public relations field is demonstrated by the fact, found by the District Court, that each of the several public relations firms interviewed by the railroads before they finally decided to hire the Byoir organization to conduct their publicity campaign included the use of this technique in its outline of proposed activities submitted for consideration by the railroads. See 155 F. Supp., at 778. </s> [Footnote 21 See, e. g., United States v. Harriss, 347 U.S. 612 . Cf. United States v. Rumely, 345 U.S. 41 . </s> [Footnote 22 The District Court expressly recognized this fact in its opinion: "The record discloses that both sides used, or wanted to use, fronts and/or the propaganda technique." 155 F. Supp., at 816. This conclusion was amply supported by specific findings. Thus, the court found: "The record establishes that the truckers wrote to and made personal contacts with legislators in support of bills increasing the weight of trucks; that they had representatives of other industries write and make personal contacts with legislators in Harrisburg without disclosing trucker connections; and that they had such persons intentionally refrain from advising the legislators and the said officials that the letters and contacts had been solicited; that they solicited from legislators statements in support of their position and had news releases issued thereon." 155 F. Supp., at 803. </s> [Footnote 23 Here again, the petitioners have leveled a vigorous attack upon the trial court's findings. As a part of this attack, they urge that there is no basis in reason for the finding that some shippers quit doing business with the truckers as a result of the railroads' publicity campaign. Their contention is that since the theme of the campaign was that the truckers had an unfair competitive advantage and could consequently charge unfairly low prices, the campaign would have encouraged, rather than discouraged, shippers who availed themselves of the truckers' services. This argument has considerable appeal but, as before, we find it unnecessary to pass upon the validity of these findings for we think the conclusion must be the same whether they are allowed to stand or not. </s> [Footnote 24 We borrow this phrase from the dissenting opinion below of Chief Judge Biggs. </s> [Footnote 25 Since the commencement of this litigation, a new bill increasing truck-weight limits has passed the Pennsylvania Legislature and has become law by virtue of the Governor's approval. Thus, the fight goes on. </s> [365 U.S. 127, 146]

United States Supreme Court FONG FOO v. UNITED STATES(1962) No. 64 Argued: January 16, 1962Decided: March 19, 1962 </s> [Footnote * Together with No. 65, Standard Coil Products Co., Inc., v. United States, also on certiorari to the same Court. </s> Petitioners were brought to trial under a valid indictment in a Federal District Court which had jurisdiction over them and over the subject matter. After the Government had introduced part, but not all, of its evidence, the District Judge directed the jury to return verdicts of acquittal, and a formal judgment of acquittal was entered. The Government petitioned the Court of Appeals for a writ of mandamus, praying that the judgment of acquittal be vacated and the case reassigned for trial. The Court of Appeals granted the petition on the ground that, under the circumstances revealed by the record, the District Court was without power to direct the judgment of acquittal. Held: The judgment of the Court of Appeals was contrary to the guaranty of the Fifth Amendment against double jeopardy. Pp. 141-143. </s> 286 F.2d 556, reversed. </s> Arthur Richenthal argued the causes for petitioners and filed briefs for petitioner in No. 65. David E. Feller filed briefs for petitioners in No. 64. </s> Solicitor General Cox argued the causes for the United States. With him on the briefs were Assistant Attorney General Miller, Stephen J. Pollak, Beatrice Rosenberg, Philip R. Monahan and J. F. Bishop. </s> PER CURIAM. </s> The petitioners, a corporation and two of its employees, were brought to trial before a jury in a federal district court upon an indictment charging a conspiracy and the substantive offense of concealing material facts in a matter within the jurisdiction of an agency of the United States, in violation of 18 U.S.C. 371 and 1001. After seven [369 U.S. 141, 142] days of what promised to be a long and complicated trial, three government witnesses had appeared and a fourth was in the process of testifying. At that point the district judge directed the jury to return verdicts of acquittal as to all the defendants, and a formal judgment of acquittal was subsequently entered. </s> The record shows that the district judge's action was based upon one or both of two grounds: supposed improper conduct on the part of the Assistant United States Attorney who was prosecuting the case, and a supposed lack of credibility in the testimony of the witnesses for the prosecution who had testified up to that point. </s> The Government filed a petition for a writ of mandamus in the Court of Appeals for the First Circuit, praying that the judgment of acquittal be vacated and the case reassigned for trial. The court granted the petition, upon the ground that under the circumstances revealed by the record the trial court was without power to direct the judgment in question. Judge Aldrich concurred separately, finding that the directed judgment of acquittal had been based solely on the supposed improper conduct of the prosecutor, and agreeing with his colleagues that the district judge was without power to direct an acquittal on that ground. 286 F.2d 556. We granted certiorari to consider a question of importance in the administration of justice in the federal courts. 366 U.S. 959 . </s> In holding that the District Court was without power to direct acquittals under the circumstances disclosed by the record, the Court of Appeals relied primarily upon two decisions of this Court, Ex parte United States, 242 U.S. 27 , and Ex parte United States, 287 U.S. 241 . In the first of these cases it was held that a district judge had no power to suspend a mandatory prison sentence, and that a writ of mandamus would lie to require the judge to vacate his erroneous order of suspension. In the second case the Court issued a writ of mandamus ordering a district [369 U.S. 141, 143] judge to issue a bench warrant which he had refused to do, in the purported exercise of his discretion, for a person under an indictment returned by a properly constituted grand jury. </s> Neither of those decisions involved the guaranty of the Fifth Amendment that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." That constitutional provision is at the very root of the present case, and we cannot but conclude that the guaranty was violated when the Court of Appeals set aside the judgment of acquittal and directed that the petitioners be tried again for the same offense. </s> The petitioners were tried under a valid indictment in a federal court which had jurisdiction over them and over the subject matter. The trial did not terminate prior to the entry of judgment, as in Gori v. United States, 367 U.S. 364 . It terminated with the entry of a final judgment of acquittal as to each petitioner. The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, "[t]he verdict of acquittal was final, and could not be reviewed . . . without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution." United States v. Ball, 163 U.S. 662, 671 . </s> Reversed. </s> MR. JUSTICE WHITTAKER took no part in the consideration or decision of these cases. </s> MR. JUSTICE HARLAN, concurring. </s> Were I able to find, as Judge Aldrich did, that the District Court's judgment of acquittal was based solely on the Assistant United States Attorney's alleged misconduct, I would think that a retrial of the petitioners would not be prevented by the Double Jeopardy Clause of the [369 U.S. 141, 144] Fifth Amendment. Even assuming that a trial court may have power, in extreme circumstances, to direct a judgment of acquittal, instead of declaring a mistrial, because of a prosecutor's misconduct - a proposition which I seriously doubt - I do not think that such power existed in the circumstances of this case. But since an examination of the record leaves me unable, as it did the majority of the Court of Appeals, to attribute the action of the District Court to this factor alone, I concur in the judgment of reversal. </s> MR. JUSTICE CLARK, dissenting. </s> The Court speaks with such expanse that I am obliged to dissent. It says that because "a final judgment of acquittal" was entered pursuant to a directed verdict the propriety of such "acquittal" cannot be reviewed even though the Government had not concluded its main case at the time the verdict was directed. The District Court under the circumstances here clearly had no power to direct a verdict of acquittal or to enter a judgment thereon. In my view when a trial court has no power to direct such a verdict, the judgment based thereon is a nullity. The word "acquittal" in this context is no magic open sesame freeing in this case two persons and absolving a corporation from serious grand jury charges of fraud upon the Government. </s> On the record before us it matters not whether the so-called acquittal was pursuant to the trial court's conclusion that the Government's witnesses up to that point lacked credibility or was based on the alleged misconduct of the prosecution. </s> On the first point, the Government had only examined three of its witnesses and was in the process of examining a fourth when the acquittal was entered. The first and third witnesses were merely preliminary, offered to identify [369 U.S. 141, 145] documents and explain the functions performed by the individual defendants for the corporate defendant. The second was offered to give the jury an explanation of radiosondes, devices for gathering weather data, which petitioners were furnishing the Government under contracts totaling several million dollars. It was during the latter's testimony - entirely explanatory - that the court called a recess for the stated purpose of requiring the United States Attorney to "consider whether the public interest is served by a further prosecution of this case." Upon the vigorous insistence of the United States Attorney himself, the trial was resumed and the Government called its third and fourth witnesses. The fourth witness was the first to testify as to the fraud upon the Government which related to a deliberate scheme to conceal from government inspectors defects in the devices. During direct examination the fourth witness was "not sure" as to the date of a certain conference at which representatives of the corporate defendant were present. Thereafter at a recess period his memory was refreshed during a conversation with one of the Assistant United States Attorneys. Upon resuming the stand he corrected his previous testimony as to the date, placing it a few months earlier. On cross-examination he admitted that the error had been called to his attention by the Assistant. The court then excused the jury and after excoriating the Assistant called the jury back into session and directed the verdict of acquittal. </s> It is fundamental in our criminal jurisprudence that the public has a right to have a person who stands legally indicted by a grand jury publicly tried on the charge. No judge has the power before hearing the testimony proffered by the Government or at least canvassing the same to enter a judgment of acquittal and thus frustrate the Government in the performance of its duty to prosecute those who violate its law. [369 U.S. 141, 146] </s> Here, as the United States Attorney advised the court, only three witnesses of the "many . . . to be heard from . . ." had testified. The court had only begun to hear what promised to be a protracted conspiracy case involving many witnesses. The Government had not rested. As the majority of the Court of Appeals observed, the District Court: </s> "abruptly terminated the Government's case . . . long before the Government had had an opportunity to show whether or not it had a case; and, moreover, he did so in ignorance of either the exact nature or the cogency of the specific evidence of guilt which Government's counsel said he had available and was ready to present." 286 F.2d, at 562-563. </s> At such a stage of the case the District Court had no power to prejudge the Government's proof - find it insufficient or unconvincing - and set the petitioners free. </s> On the second point, even if there were misconduct, the court still had no power to punish the Government because of the indiscretion of its lawyer. As this Court said in McGuire v. United States, 273 U.S. 95, 99 (1927), "A criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule." At most, if there had been misconduct, the remedy would have been to declare a mistrial and impose appropriate punishment upon the Assistant United States Attorney, rather than upon the public. In my view the judgment of the Court of Appeals should, therefore, be affirmed. </s> [369 U.S. 141, 147]

United States Supreme Court AIR COURIER CONFERENCE v. POSTAL WORKERS(1991) No. 89-1416 Argued: November 28, 1990Decided: February 26, 1991 </s> The United States Postal Service's monopoly over the carriage of letters in and for the Nation is codified in a group of statutes known as the Private Express Statutes (PES). The monopoly was created by Congress as a revenue protection measure for the Postal Service vis-a-vis private competitors. Pursuant to a PES provision allowing it to suspend PES restrictions as to any mail route where the public interest so requires, the Postal Service issued a regulation authorizing a practice called "international remailing," which entails bypassing the Service and using private couriers to deposit with foreign postal services letters destined for foreign addresses. Respondent Unions, representing Postal Service employees, sued in the District Court, challenging the regulation pursuant to the judicial review provisions of the Administrative Procedure Act (APA), and claiming that the rulemaking record was inadequate to support a finding that the regulation's suspension of the PES was in the public interest. The Court of Appeals vacated the District Court's grant of summary judgment in favor of the Postal Service and petitioner Air Courier Conference of America (ACCA), holding that the Unions satisfied the zone-of-interests requirement for APA review under Clarke v. Securities Industry Assn., 479 U.S. 388 , and, on the merits, that the PES suspension was not justified by the public interest. </s> Held: </s> 1. This Court declines to decide whether 39 U.S.C. 410(a) exempts the Postal Service from judicial review under the APA, since the question was not argued to, nor considered by, either of the lower courts, was not raised by ACCA in its certiorari petition, was raised by the Postal Service for the first time in its brief in opposition to the petition, and is not encompassed by the questions presented upon which certiorari was granted. Pp. 522-523. </s> 2. The Unions do not have standing to challenge the Postal Service's suspension of the PES to permit private couriers to engage in international remailing. To establish APA standing under Clarke and similar cases, the Unions must show, among other things, that the claimed adverse effect on postal workers' employment opportunities resulting from the suspension is within the zone of interests encompassed by the PES. [498 U.S. 517, 518] This they cannot do, since the language, see, e.g., 18 U.S.C. 1896(c) and 39 U.S.C. 601(a), and legislative history of the PES demonstrate that, in enacting those statutes, Congress was concerned not with protecting postal employment or furthering postal job opportunities, but with the receipt of necessary revenues for the Postal Service. The PES enable the Service to fulfill its responsibilities to provide service to all communities at a uniform rate by preventing private couriers from competing selectively on the Service's most profitable routes. The postal monopoly, therefore, exists to protect the citizenry at large, not postal workers. Nor can the courts, in applying the zone-of-interests test, look beyond the PES to the 1970 Postal Reorganization Act (PRA), which, in addition to reenacting the PES without substantive changes, contains various labor-management provisions designed to improve pay, working conditions, and labor-management relations for postal employees. None of the PES provisions have any integral relationship with the PRA labor-management provisions, and the PRA's legislative history contains no indication that such a connection exists. It stretches the zone-of-interests test too far to say that, simply because the PES may be the linchpin of the Postal Service, those whom a different part of the PRA was designed to benefit may challenge a violation of the PES. Clarke, supra, at 401, distinguished. Pp. 523-530. </s> 3. In light of the Unions' lack of standing, this Court does not reach the merits of their claim that the PES suspension was not in the public interest. Pp. 530-531. </s> 282 U.S. App. D.C. 5, 891 F.2d 304, reversed. </s> REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 531. </s> L. Peter Farkas argued the cause for petitioner. With him on the briefs was James I. Campbell, Jr. Paul J. Larkin, Jr., argued the cause for the United States Postal Service, respondent under the Court's Rule 12.4, in support of petitioner. With him on the briefs were Acting Solicitor General Roberts, Assistant Attorney General Gerson, Michael Jay Singer, and Jeffrica Jenkins Lee. </s> Keith E. Secular argued the cause for respondents. With him on the brief were Anton G. Hajjar and Laurence Gold. [498 U.S. 517, 519] </s> CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. </s> This case requires us to decide whether postal employees are within the "zone of interests" of the Private Express Statutes, so that they may challenge the action of the United States Postal Service in suspending the operation of the PES with respect to a practice of private courier services called "international remailing." We hold that they are not. </s> Since its establishment, the United States Postal Service has exercised a monopoly over the carriage of letters in and from the United States. The postal monopoly is codified in a group of statutes known as the Private Express Statutes (PES), 18 U.S.C. 1693-1699 and 39 U.S.C. 601-606. The monopoly was created by Congress as a revenue protection measure for the Postal Service to enable it to fulfill its mission. See, Regents of University of California v. Public Employment Relations Board, 485 U.S. 589, 598 (1988). It prevents private competitors from offering service on low-cost routes at prices below those of the Postal Service, while leaving the Service with high-cost routes and insufficient means to fulfill its mandate of providing uniform rates and service to patrons in all areas, including those that are remote or less populated. See J. Haldi, Postal Monopoly: An Assessment of the Private Express Statutes 9 (1974); Craig & Alvis, The Postal Monopoly: Two Hundred Years of Covering Commercial as Well as Personal Messages, 12 U.S.F.L.Rev. 57, 60, and n. 8 (1977). </s> A provision of the PES allows the Postal Service to "suspend [the PES restrictions] upon any mail route where the public interest requires the suspension." 39 U.S.C. 601(b). In 1979, the Postal Service suspended the PES restrictions for "extremely urgent letters," thereby allowing overnight delivery of letters by private courier services. 39 CFR 320.6 (1990); 44 Fed.Reg. 61178 (1979). Private courier services, including members of petitioner-intervenor Air Courier Conference of America, relied on that suspension to [498 U.S. 517, 520] engage in a practice called "international remailing." This entails bypassing the Postal Service and using private courier systems to deposit with foreign postal systems letters destined for foreign addresses. Believing this international remailing was a misuse of the urgent-letter suspension, the Postal Service issued a proposed modification and clarification of its regulation in order to make clear that the suspension for extremely urgent letters did not cover this practice. 50 Fed.Reg. 41462 (1985). The comments received in response to the proposed rule were overwhelmingly negative, and focused on the perceived benefits of international remailing: Lower cost, faster delivery, greater reliability, and enhanced ability of United States companies to remain competitive in the international market. Because of the vigorous opposition to the proposed rule, the Postal Service agreed to reconsider its position, and instituted a rulemaking "to remove the cloud" over the validity of the international remailing services. 51 Fed.Reg. 9852, 9853 (1986). After receiving additional comments and holding a public meeting on the subject, on June 17, 1986, the Postal Service issued a proposal to suspend operation of the PES for international remailing. Id., at 21929-21932. Additional comments were received, and after consideration of the record it had compiled, the Postal Service issued a final rule suspending the operation of the PES with respect to international remailing. Id., at 29637. </s> Respondents, the American Postal Workers Union, AFL-CIO and the National Association of Letter Carriers, AFL-CIO (Unions), sued in the United States District Court for the District of Columbia, challenging the international remailing regulation pursuant to the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. 702 (APA). They claimed that the rulemaking record was inadequate to support a finding that the suspension of the PES for international remailing was in the public interest. Petitioner Air Courier Conference of America (ACCA) intervened. [498 U.S. 517, 521] On December 20, 1988, the District Court granted summary judgment in favor of the Postal Service and ACCA. American Postal Workers Union, AFL-CIO v. United States Postal Service, 701 F.Supp. 880 (1988). The Unions appealed to the Court of Appeals for the District of Columbia Circuit, and that court vacated the grant of summary judgment. American Postal Workers Union, AFL-CIO v. United States Postal Service, 282 U.S. App. D.C. 5, 891 F.2d 304 (1989). It held that the Unions satisfied the zone-of-interests requirement for APA review under Clarke v. Securities Industry Assn., 479 U.S. 388 (1987), and that the Postal Service's regulation was arbitrary and capricious because it relied on too narrow an interpretation of "the public interest." In determining that the Unions' interest in employment opportunities was protected by the PES, the Court of Appeals noted that the PES were reenacted as part of the Postal Reorganization Act (PRA), Pub.L. 91-375, 84 Stat. 719, codified at 39 U.S.C. 101 et seq. The Court of Appeals found that a "key impetus" and "principal purpose" of the PRA was "to implement various labor reforms that would improve pay, working conditions and labor-management relations for postal employees." 282 U.S. App. D.C., at 10-11, 891 F.2d, at 309-310. Reasoning that "[t]he Unions' asserted interest is embraced directly by the labor reform provisions of the PRA," id., at 11, 891 F.2d, at 310, and that "[t]he PES constitute the linchpin in a statutory scheme concerned with maintaining an effective, financially viable Postal Service," ibid. the court concluded that "[t]he interplay between the PES and the entire PRA persuades us that there is an `arguable' or `plausible' relationship between the purposes of the PES and the interests of the Union[s]." Ibid. The Court of Appeals also held that "the revenue protective purposes of the PES, standing alone, plausibly relate to the Unions' interest in preventing the reduction of employment opportunities," since "postal workers benefit from the PES's [498 U.S. 517, 522] function in ensuring a sufficient revenue base" for the Postal Service's activities. Ibid. </s> Addressing the merits of the Unions' challenge to the suspension order, the Court of Appeals held that it was arbitrary and capricious, because the Postal Service had applied 601(b)'s public interest test too narrowly by considering only the benefits of the international remail rule to the small segment of the Postal Service's consumer base that engages in international commerce. We granted certiorari, 496 U.S. 904 (1990), and we now reverse. </s> The United States Postal Service, nominally a respondent, argues along with ACCA that the Unions do not have standing to challenge the Postal Service's suspension of the PES for international remailing. The Postal Service argues now that Congress precluded judicial review of Postal Service action under the APA by enacting 39 U.S.C. 410(a), which the Postal Service contends provides that Chapters 5 and 7 of Title 5 do not apply to the Postal Service. 1 Chapters 5 and 7 of Title 5 are the provisions of the APA dealing with "Administrative Procedure" (Chapter 5) and "Judicial Review" (Chapter 7). </s> The Postal Service raised this argument for the first time in its brief in opposition to the petition for writ of certiorari. It was not argued to either of the lower courts, and was not considered by either court below in deciding this case. This issue was not raised by ACCA in its petition for writ of certiorari, nor is it encompassed by the questions presented upon which we based our grant of certiorari. 2 Consequently, [498 U.S. 517, 523] we decline to decide whether 410(a) exempts the Postal Service from judicial review under the APA. 3 </s> To establish standing to sue under 702 of the APA, respondents must establish that they have suffered a legal wrong because of the challenged agency action, or are adversely affected or "aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. 702. Once they have shown that they are adversely affected, i.e., have suffered an "injury in fact," see Allen v. Wright, 468 U.S. 737, 751 (1984), the Unions must show that they are within the zone of interests sought to be protected through the PES. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990); Clarke v. Securities Industry Assn., 479 U.S. 388 (1987); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). Specifically, "the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the [498 U.S. 517, 524] legal basis of his complaint." Lujan, supra, at 883 (citing Clarke, supra, at 396-397). </s> The District Court found that the Unions had satisfied the injury-in-fact test because increased competition through international remailing services might have an adverse effect on employment opportunities of postal workers. This finding of injury in fact was not appealed. The question before us, then, is whether the adverse effects on the employment opportunities of postal workers resulting from the suspension is within the zone of interests encompassed by the PES - the statutes which the Unions assert the Postal Service has violated in promulgating the international remailing rule. </s> The Court of Appeals found that the Unions had standing because "the revenue-protective purposes of the PES, standing alone, plausibly relate to the Unions' interest in preventing the reduction of employment opportunities." 282 U.S. App. D.C., at 11, 891 F.2d, at 310. This view is mistaken, for it conflates the zone-of-interests test with injury in fact. In Lujan, this Court gave the following example illustrating how injury in fact does not necessarily mean one is within the zone of interests to be protected by a given statute: </s> "[T]he failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings, and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute." 497 U.S., at 883 . </s> We must inquire then, as to Congress' intent in enacting the PES in order to determine whether postal workers were meant to be within the zone of interests protected by those statutes. The particular language of the statutes provides no support for respondents' assertion that Congress intended [498 U.S. 517, 525] to protect jobs with the Postal Service. 4 In fact, the provisions of 18 U.S.C. 1696(c), allowing private conveyance of letters if done on a one-time basis or without compensation, and 39 U.S.C. 601(a), allowing letters to be carried out of the mails if certain procedures are followed, indicate that the congressional concern was not with opportunities for postal [498 U.S. 517, 526] workers, but with the receipt of necessary revenues for the Postal Service. </s> Nor does the history of this legislation - such as it is - indicate that the PES were intended for the benefit of postal workers. When the first statutes limiting private carriage of letters on post roads were enacted in 1792, the Post Office offered no pick-up or delivery services. See C. Scheele, A Short History of the Mail Service 66, 91 (1970). Statutory authority to employ letter carriers was not enacted until two years later, and was largely ignored until the late 1820's. Id., at 66. The 1792 restrictions on private carriage protected the Government's capital investment in the post roads, not the jobs of as yet virtually nonexistent postal employees. In 1825 and 1827, Acts were passed prohibiting the private carriage of letters through the use of stages or other vehicles, packet boats or other vessels, 19, Ch. 64 of Act of March 3, 1825, 4 Stat. 107, and foot and horse posts, 3, Ch. 61 of Act of March 2, 1827, 4 Stat. 238. Postal employees cannot have been within the zone of interests of either the 1824 or 1827 Acts; those Acts targeted transportation of mail, which even then was contracted out to private carriers. See W. Fuller, The American Mail: Enlarger of the Common Life 150 (1972). </s> Congress' consideration of the 1845 Act was the only occasion on which the postal monopoly was the subject of substantial debate. The 1845 statute, entitled "An Act to reduce the rates of postage, to limit the use and correct the abuse of the franking privilege, and for the prevention of frauds on the revenues of the Post Office Department," 5 Stat. 732, was the result of three circumstances, none of which involved the interests of postal employees. First, the Post Office Department continued to run substantial deficits in spite of high postage rates. H.R.Rep. No. 477, 28th Cong., 1st Sess., 2-3, 5 (1844). Second, high postal rates enabled private expresses to make substantial inroads into the domestic market for delivery of letters, and the 1825 and 1827 Acts proved unsuccessful in prosecuting them. Priest, The History of the [498 U.S. 517, 527] Postal Monopoly in the United States, 18 J.Law & Econ., 33, 60 (1975) (citing United States v. Gray, 26 F.Cas. 18 (No. 15,253) (Mass. 1840) and United States v. Adams, 24 F.Cas. 761 (No. 14,421) (SDNY 1843)). Third, inauguration of the "penny post" in England quadrupled use of the mails, and it was thought that a substantial reduction in American postal rates would have the dual virtues of driving private expresses out of business and increasing mail volume of the Post Office. This, in turn, would help reduce the Post Office's deficit. Cong. Globe, 28th Cong., 2d Sess., 213 (1845) (remarks of Sens. Simmons & Breese). See also H.R.Rep. No. 477, supra, at 5. </s> The legislative history of the sections of the Act limiting private carriage of letters shows a two-fold purpose. First, the Postmaster General and the States most distant from the commercial centers of the Northeast believed that the postal monopoly was necessary to prevent users of faster private expresses from taking advantage of early market intelligence and news of international affairs that had not yet reached the general populace through the slower mails. S.Doc. No. 66, 28th Cong., 2d Sess., 3-4 (1845). Second, it was thought to be the duty of the Government to serve outlying, frontier areas, even if it meant doing so below cost. H.R.Rep. No. 477, supra, at 2-3. Thus, the revenue protection provisions were not seen as an end in themselves, nor in any sense as a means of insuring certain levels of public employment, but rather were seen as the means to achieve national integration and to ensure that all areas of the Nation were equally served by the Postal Service. </s> The PES enable the Postal Service to fulfill its responsibility to provide service to all communities at a uniform rate by preventing private courier services from competing selectively with the Postal Service on its most profitable routes. If competitors could serve the lower cost segment of the market, leaving the Postal Service to handle the high-cost services, the Service would lose lucrative portions of its business, [498 U.S. 517, 528] thereby increasing its average unit cost and requiring higher prices to all users. 5 See Report of the President's Commission on Postal Organization, Towards Postal Excellence, 94th Cong., 2d Sess., 129 (Comm. Print 1968). The postal monopoly, therefore, exists to ensure that postal services will be provided to the citizenry at large, and not to secure employment for postal workers. </s> The Unions' claim on the merits is that the Postal Service has failed to comply with the mandate of 39 U.S.C. 601(b) that the PES be suspended only if the public interest requires. The foregoing discussion has demonstrated that the PES were not designed to protect postal employment or further postal job opportunities, but the Unions argue that the courts should look beyond the PES to the entire 1970 Postal Reorganization Act in applying the zone-of-interests test. The Unions argue that, because one of the purposes of the labor-management provisions of the PRA was to stabilize labor-management relations within the Postal Service, and because the PES is the "linchpin" of the Postal Service, employment opportunities of postal workers are arguably within the zone of interests covered by the PES. The Unions rely upon our opinion in Clarke v. Securities Industry Assn., 479 U.S. 388 (1987), to support this contention. [498 U.S. 517, 529] </s> Clarke is the most recent in a series of cases in which we have held that competitors of regulated entities have standing to challenge regulations. Clarke, supra; Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). In Clarke, we said that "we are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress' overall purposes in the National Bank Act. 479 U.S., at 401 . This statement, like all others in our opinions, must be taken in the context in which it was made. In the next paragraph of the opinion, the Court pointed out that 12 U.S.C. 36, which the plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself "a limited exception to the otherwise applicable requirement of 12 U.S.C. 81," limiting the places at which a national bank could transact business to its headquarters and any "branches" permitted by 36. Thus the zone-of-interests test was to be applied not merely in the light of 36, which was the basis of the plaintiffs' claim on the merits, but also in the light of 81, to which 36 was an exception. </s> The situation in the present case is quite different. The only relationship between the PES, upon which the Unions rely for their claim on the merits, and the labor-management provisions of the PRA, upon which the Unions rely for their standing, is that both were included in the general codification of postal statutes embraced in the PRA. The statutory provisions enacted and reenacted in the PRA are spread over some 65 pages in the United States Code, and take up an entire title of that volume. We said in Lujan that "the relevant statute [under the APA] of course, is the statute whose violation is the gravamen of the complaint." 497 U.S., at 886 . To adopt petitioners' contention would require us to hold that the "relevant statute" in this case is the PRA, with all of its various provisions united only by the fact that they deal with the Postal Service. But to accept this level of generality [498 U.S. 517, 530] in defining the "relevant statute" could deprive the zone-of-interests test of virtually all meaning. </s> Unlike the two sections of the National Bank Act discussed in Clarke, supra, none of the provisions of the PES has any integral relationship with the labor-management provisions of the PRA. When it enacted the PRA, Congress made no substantive changes to those portions of the PES codified in the Criminal Code, 18 U.S.C. 1693-1699; Congress readopted without change those portions of the PES codified in the Postal Service Code, 39 U.S.C. 601-606; and Congress required the Postal Service to conduct a 2-year study and reevaluation of the PES before deciding whether those laws should be modified or repealed. PRA, Pub.L. 91-375, 7, 84 Stat. 783; S.Rep. No. 91-912, p. 22 (1970); H.R.Rep. No. 91-1104, p. 48 (1970). </s> None of the documents constituting the PRA legislative history suggests that those concerned with postal reforms saw any connection between the PES and the provisions of the PRA dealing with labor-management relations. The Senate and House Reports simply note that the proposed bills continue existing law without change and require the Postal Service to conduct a study of the PES. The Court of Appeals referred to the PES as the "linchpin" of the Postal Service, which it may well be; but it stretches the zone-of-interests test too far to say that, because of that fact, those whom a different part of the PRA was designed to benefit may challenge a violation of the PES. </s> It would be a substantial extension of our holdings in Clarke, supra, Data Processing, supra, and Investment Co. Institute, supra, to allow the Unions in this case to leapfrog from their asserted protection under the labor-management provisions of the PRA to their claim on the merits under the PES. We decline to make that extension, and hold that the Unions do not have standing to challenge the Postal Service's suspension of the PES to permit private couriers to engage in international remailing. We therefore do not reach the [498 U.S. 517, 531] merits of the Unions' claim that the suspension was not in the public interest. The judgment of the Court of Appeals is </s> Reversed. </s> Footnotes [Footnote 1 Title 39 U.S.C. 410 provides in pertinent part: </s> "[N]o Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal Service." </s> [Footnote 2 The questions presented in this case are as follows: </s> "1. Are postal employees within the `zone of interest' of the Private Express Statutes that establish and allow the United States Postal Service to suspend restrictions on the private carriage of letters when `the public interest requires?' </s> "2. Did the Postal Service act unreasonably, arbitrarily, or capriciously in promulgating its international remail regulation under the "public interest" standard for suspending the Private Express Statutes where it found no adverse effects on revenues and found general benefits to the public, competition, and users of remail services?" Brief for Petitioner i. </s> [Footnote 3 The Postal Service argues that, since "congressional preclusion of judicial review is in effect jurisdictional," Block v. Community Nutrition Institute, 467 U.S. 340, 353 , n. 4 (1984), the issue cannot be waived by the parties. We do not agree. Section 410, at most, exempts the Postal Service from the APA. The judicial review provisions of the APA are not jurisdictional, Califano v. Sanders, 430 U.S. 99 (1977), so a defense based on exemption from the APA can be waived by the Government. Whether 410(a) exempts the Postal Service from APA review is in essence a question of whether Congress intended to allow a certain cause of action against the Postal Service. Whether a cause of action exists is not a question of jurisdiction, and may be assumed without being decided. Burks v. Lasker, 441 U.S. 471, 476 , n. 5 (1979). </s> [Footnote 4 Title 18 U.S.C. 1696 provides: </s> "Private express for letters and packets </s> "(a) Whoever establishes any private express for the conveyance of letters or packets, or in any manner causes or provides for the conveyance of the same by regular trips or at stated periods over any post route which is or may be established by law, or from any city, town, or place to any other city, town or place, between which mail is regularly carried, shall be fined not more than $500 or imprisoned not more than six months, or both. </s> . . . . . </s> "(b) Whoever transmits by private express or other unlawful means, or delivers to any agent thereof, or deposits at any appointed place, for the purpose of being so transmitted any letter or packet, shall be fined not more than $50. </s> "(c) This chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation, or by special messenger employed for the particular occasion only. Whenever more than twenty-five such letters or packets are conveyed or transmitted by such special messenger, the requirements of section 601 of title 39, shall be observed as to each piece. </s> Title 39 U.S.C. 601 provides: </s> "Letters carried out of the mail </s> "(a) A letter may be carried out of the mails when - </s> "(1) it is enclosed in an envelope; </s> "(2) the amount of postage which would have been charged on the letter if it had been sent by mail is paid by stamps, or postage meter stamps, on the envelope; </s> "(3) the envelope is properly addressed; </s> "(4) the envelope is so sealed that the letter cannot be taken from it without defacing the envelope; </s> "(5) any stamps on the envelope are canceled in ink by the sender; and </s> "(6) the date of the letter, of its transmission or receipt by the carrier is endorsed on the envelope in ink. </s> "(b) The Postal Service may suspend the operation of any part of this section upon any mail route where the public interest requires the suspension." </s> [Footnote 5 The PES is a competition statute that regulates the conduct of competitors of the Postal Service. The postal employees for whose benefit the unions have brought suit here are not competitors of either the Postal Service or remailers. Employees have generally been denied standing to enforce competition laws, because they lack competitive and direct injury. See, e.g., Adams v. Pan American World Airways, Inc., 264 U.S. App. D.C. 174, 828 F.2d 24 (1987), cert. denied sub nom. Union de Transports Aeriens v. Beckman, 485 U.S. 934 (1988) (former airline employees denied standing to assert antitrust claim against airline that allegedly drove their former employer out of business); Curtis v. Campbell-Taggart, Inc., 687 F.2d 336 (CA10), cert. denied, 459 U.S. 1090 (1982) (employees of corporation injured by anticompetitive conduct denied standing under antitrust laws). </s> JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in the judgment. </s> There is no ambiguity in the text of 39 U.S.C. 410(a). That section of the Postal Reorganization Act provides that the judicial review provisions of the Administrative Procedure Act (APA) do not apply to the exercise of the powers of the Postal Service. See ante, at 522, n. 1. It is therefore not only unnecessary, but also unwise, for the Court to issue an opinion on the entirely hypothetical question whether, if the APA did authorize judicial review of actions of the Postal Service, its employees would have standing to invoke such review to challenge a regulation that may curtail their job opportunities. I therefore do not join the opinion discussing this hypothetical standing question. </s> Nor do I consider it necessary to decide whether this objection to judicial review may be waived by the Government, because it is surely a matter that we may notice on our own motion. * Faithful adherence to the doctrine of judicial restraint provides a fully adequate justification for deciding this case on the best and narrowest ground available. I would do [498 U.S. 517, 532] so. Accordingly, relying solely on 39 U.S.C. 410(a), I concur in the Court's judgment that the Unions' challenge must be dismissed. </s> [Footnote * It is at least arguable that the Government did not waive this objection to judicial review. As the Court points out, the Government raised this argument in its brief in opposition to the petition for writ of certiorari. See ante, at 522. In deciding to review this case, therefore, we were cognizant that an issue antecedent to the standing issue might first have to be resolved. Moreover, although the Government's objection to judicial review was not raised in the lower courts, the Court of Appeals recognized that "the USPS is exempt from the strictures of the Administrative Procedure Act (`APA'), see 39 U.S.C. 410(a)," American Postal Workers Union, AFL-CIO v. United States Postal Service, 228 U.S. App. D.C. 5, 8, 891 F.2d 304, 307 (1989), and nevertheless continued to review the actions of the Postal Service, thus implicitly rejecting the contention made by the Government here. </s> [498 U.S. 517, 533]

United States Supreme Court ST. JOE PAPER CO. v. ATL. COAST LINE R. CO.(1954) No. 24 Argued: October 15, 1953Decided: April 5, 1954 </s> The Interstate Commerce Commission does not have the power under 77 of the Bankruptcy Act to initiate and submit to a district court a plan of reorganization whereby a debtor railroad would be compelled to merge with another railroad having no prior connection with the debtor. Pp. 299-315. </s> (a) Subsection (b) (5) of 77 of the Bankruptcy Act does not give to the Commission a power which Congress has repeatedly denied to the Commission under the Interstate Commerce Act - i. e., the power to initiate the merger or consolidation of two independent railroads. Pp. 303-306. </s> (b) The "consistency" clause of 77 (f) of the Bankruptcy Act incorporates by reference 5 of the Interstate Commerce Act, as amended, under which a merger of two independent carries may be approved by the Commission only if it originates as a voluntary proposal by the merging carriers. Pp. 306-310. </s> 201 F.2d 325, reversed. </s> [Footnote * Together with No. 33, Lynch et al. v. Atlantic Coast Line Railroad Co.; No. 36, Aird et al., Trustees, v. Atlantic Coast Line Railroad Co.; and No. 37, Welbon et al. v. Atlantic Coast Line Railroad Co., all on certiorari to the same court. </s> In a railroad reorganization proceeding under 77 of the Bankruptcy Act, the Interstate Commerce Commission formulated a plan of reorganization which provided for a forced merger of the debtor railroad and another railroad. 282 I. C. C. 81. The District Court set the plan aside. 103 F. Supp. 825. The Court of Appeals reversed. 201 F.2d 325. This Court granted certiorari. 345 U.S. 948 . Reversed and remanded, p. 315. </s> William D. Mitchell argued the cause for petitioners. With him on a brief for petitioners in No. 24 were John [347 U.S. 298, 299] B. Marsh and Edward E. Watts, Jr. Also on the brief were Howard P. Macfarlane and George W. Ericksen for Conn et al., Henry P. Adair and Donald Russell for the Trustees under the duPont Will, and Giles J. Patterson and John R. Turney for the St. Joe Paper Company, petitioners. </s> Henry L. Walker and Sidney S. Alderman filed a brief for the Southern Railway Company et al., and with them on the brief were Harold J. Gallagher, Walter H. Brown, Jr. and James B. McDonough, Jr. for the Seaboard Air Line Railroad Company, petitioners in No. 24. </s> Clarence M. Mulholland and Edward J. Hickey, Jr. filed a brief for the Railway Labor Executives' Association, petitioner in No. 24. </s> Fred N. Oliver, Willard P. Scott and J. Turner Butler filed a brief for petitioners in No. 33. </s> Clifton S. Thomson and Chester Bedell filed a brief for petitioners in No. 36. </s> Miller Walton filed a brief for petitioners in No. 37. </s> Edward W. Bourne argued the cause for respondent. With him on the brief were Charles Cook Howell, Richard B. Gwathmey and Charles Cook Howell, Jr. </s> MR. JUSTICE FRANKFURTER delivered the opinion of the Court. </s> The sole question for decision in this case is whether the Interstate Commerce Commission has the power under 77 of the Bankruptcy Act to submit a plan of reorganization to a district court whereby a debtor railroad would be compelled to merge with another railroad having no prior connection with the debtor. Answer to this problem depends on understanding of a long legislative history. First, however, it is necessary to put the problem into its relevant context. [347 U.S. 298, 300] </s> In August of 1931, the Florida East Coast Railway was thrown into equity receivership. It operated in this manner until January of 1941, when a committee representing the owners of a substantial portion of the debtor's principal bond issue filed a petition for reorganization under 77 of the Bankruptcy Act in the United States District Court for the Southern District of Florida. The petition was approved by the court, and, as provided in the statute, proceedings were initiated before the Interstate Commerce Commission for hearings on a plan of reorganization formulated by the bondholders' committee. </s> In the course of the next ten years, many proposals have been considered by the Commission. Most of them were rejected for one reason or another, but three have in turn been certified by it to the District Court. None has as yet been confirmed by that court. The initial plan provided for a simple internal reorganization. It was rejected by the court, and the case was remanded to the Commission with directions to take account of an intervening improvement in the debtor's cash position. 52 F. Supp. 420. Atlantic Coast Line Railroad, the present respondent, first appeared on the scene in November 1944 when, after the Commission's hearings for the purpose of devising a second plan had been closed, one Lynch, joined by other bondholders of the debtor, sought to reopen the proceedings for the purpose of proposing a new plan whereby each recipient of stock in the reorganized debtor would be required to sell 60% of his interest at par to Atlantic, a connecting carrier, thereby giving that railroad operating control of the debtor. On November 30, 1944, Atlantic was allowed to intervene before the Commission in support of the Lynch proposal. The St. Joe Paper Co., on the other hand, which had by that time acquired a majority interest in the debtor's principal bond issue, opposed the Lynch plan. The Commission rejected [347 U.S. 298, 301] the Lynch proposal, indicating that, in view of Atlantic's operating deficits over the past years, combining the two railroads would not be in the public interest at that time. 261 I. C. C. 151, 187. </s> The subsequent struggle for control of the debtor has been largely between these two interests - the St. Joe Paper Co., owner of the major interest in the debtor, and Atlantic, a connecting carrier anxious to acquire the debtor's coveted Florida east coast traffic from Jacksonville to Miami. Shortly after the Commission's rejection of the Lynch plan, Atlantic proposed its own plan providing for the merger of the debtor into Atlantic in return for the distribution of cash and various types of Atlantic's securities to the debtor's bondholders. St. Joe again opposed, as did various other bondholders, two competitors of Atlantic, an association representing the debtor's employees, and other interested parties. The matter was referred to an Examiner who, after a lengthy investigation, found that such a merger would not be in the public interest, and that the Atlantic plan would not constitute "fair and equitable" treatment for all the unwilling bondholders who were in substance the owners of the debtor railroad. 1 The Commission, however, by a sharply divided decision overruled the Examiner and sanctioned [347 U.S. 298, 302] a "forced merger." 2 267 I. C. C. 295. 3 Circuit Judge Sibley, sitting in the District Court, set the plan aside on the ground that the Commission had no power under the statute to force a merger; in addition, he held the plan not "fair and equitable." 81 F. Supp. 926. On appeal to the Court of Appeals for the Fifth Circuit, two judges sustained the Commission's authority to propose such a plan while the third agreed with Judge Sibley; but a majority agreed with the District Court that the plan was not "fair and equitable." 179 F.2d 538. </s> The Commission then formulated another plan, which likewise provided for a forced merger of the debtor and Atlantic, 282 I. C. C. 81, and Circuit Judge Strum, sitting in the District Court, while bound on the question of the Commission's power by the prior Court of Appeals decision, again set the plan aside as unfair and inequitable. 103 F. Supp. 825. The Court of Appeals was now convened en banc. Three of its judges, without further consideration of the Commission's power, reversed the District Court and found the plan fair and equitable. The other two judges dissented and adopted the reasoning of Judge Sibley in the earlier case, i. e., that the Commission had no power under the statute to propose such a compelled merger plan. 4 201 F.2d 325. [347 U.S. 298, 303] Because of the importance of this question in the administration of 77 of the Bankruptcy Act, we granted certiorari. 345 U.S. 948 . </s> The procedure by which the Commission is authorized to consider and approve a plan of reorganization and then submit it to the interested parties for acceptance, as well as the courts for judicial confirmation, is governed by an elaborate statutory scheme. See 77 of the Bankruptcy Act, 47 Stat. 1474, as amended, 11 U.S.C. 205. Any question such as the one now here must be resolved by reference to this governing law and its underlying purpose, imbedded as that is not merely in the formal words of the statute but in the history which gives them meaning. If ever a long course of legislation is to be treated as an organic whole, whose parts are not disjecta membra, this is true of 77. </s> The respondent relies on subsection (b) (5) to sustain the Commission's power to submit a forced merger plan of the type here involved. 5 This was subsection (b) (3) of the original 77 of the Bankruptcy Act as enacted in 1933, 47 Stat. 1474, 1475. It then read, insofar as here material, </s> "(b) A plan of reorganization within the meaning of this section . . . (3) shall provide adequate means for the execution of the plan, which may, so far as may be consistent with the provisions of sections 1 and 5 of the Interstate Commerce Act as amended, include . . . the merger of the debtor with any other railroad corporation . . . ." </s> The permissive merger provision in plans of reorganization was thus made expressly conditional on compliance with the requirements of 1 and 5 of the Interstate [347 U.S. 298, 304] Commerce Act. The reason for this proviso, commonly referred to as the "consistency clause," was stated as follows by Commissioner Joseph Eastman, Chairman of the Legislative Committee of the Interstate Commerce Commission and one of the weightiest voices before Congress on railroad matters: 6 </s> "Explanation. - This act ought not to authorize railroad mergers . . . which are inconsistent with the applicable provisions of the Interstate Commerce Act, particularly the consolidation-plan provisions. These amendments are intended to avoid that possibility." </s> In the ensuing floor debates it was further made clear that the purpose of the consistency clause was to subject mergers under 77 to whatever restrictions obtained for mergers under the Interstate Commerce Act. Representative Hatton Sumners, Chairman of the Judiciary Committee which had reported out the bill and floor manager of the bill, gave this assurance: </s> "Mr. HORR. May I inquire whether or not, where the word `reorganization' is used, the gentleman is of the opinion that this would encourage consolidations of railroads? </s> "Mr. SUMNERS of Texas. They could not be consolidated in violation of the interstate commerce act. </s> "Mr. HORR. They would first have to go through that? </s> "Mr. SUMNERS of Texas. They would first have to go through that." 76 Cong. Rec. 2909. [347 U.S. 298, 305] </s> And Congressman Rayburn, Chairman of the Committee on Interstate and Foreign Commerce, put it thus: </s> "Fear has been expressed that with the enactment of this bill the powers of the Interstate Commerce Commission and the courts over consolidations and mergers would be expanded. It is my firm conviction that this proposal in specific provisions safeguards the present consolidation and merger provisions of the interstate commerce act and gives no additional authority to the commission or the courts in these matters." 76 Cong. Rec. 2917-2918. </s> In view of this deliberate and explicit incorporation of the restrictions attending mergers under the Interstate Commerce Act into 77 of the Bankruptcy Act, it is necessary to give some consideration to the merger and consolidation provisions of the former, 49 U.S.C. 5. The history of these provisions is long and tortuous; its detailed summary is relegated to an appendix, post, p. 315. Suffice it to say here that one clear thread which runs through a course of legislation extending over a period of twenty years, as well as through the various commentaries upon it, is that only mergers voluntarily initiated by the participating carriers are encompassed by that statute and sanctioned by it. From the initial enactment in the Transportation Act of 1920, 41 Stat. 456, 480, to the most recent comprehensive re-examination of these provisions in the Transportation Act of 1940, 54 Stat. 898, 905, Congress has consistently and insistently denied the Interstate Commerce Commission the power to take the initiative in getting one railroad to turn over its properties to another railroad in return for assorted securities of the latter. The role of the Commission in this regard has traditionally been confined to approving or disapproving mergers proposed by the railroads to be merged. And this adamant position taken by Congress has not [347 U.S. 298, 306] been for want of attempts to secure relaxation. Advocacy of giving the Commission power to propose and enforce mergers has been steady and, at times, strong, but it has consistently failed in Congress. </s> The reasons for this hostility to mergers imposed by the Commission derive largely from the disadvantages attributed by Congress to such far-reaching corporate revampings. Employees of the constituent railroads would, it has been feared, almost certainly be adversely affected. Shippers and communities adequately served by railroad A may suddenly find themselves unfavorably dependent upon railroad B. Investors in one railroad would, contrary to their expectations, find their holdings transmuted into securities of a different railroad. As the Commission in its 1938 Annual Report said of consolidations: </s> "Projects of this character cannot be crammed down the throats of those who must carry them out or conform to them. Legal compulsion can be used with advantage to bring recalcitrants and stragglers into line, but not to drive hostile majorities into action." (P. 23.) 7 </s> We therefore conclude that the Commission does not have under 77 of the Bankruptcy Act a power which Congress has repeatedly denied it under the Interstate Commerce Act, namely to initiate the merger or consolidation of two railroads. In light of the continuously and vehemently reiterated policy against endowing the ICC with such a power under 5 of the Interstate Commerce Act, it is inconceivable, wholly apart from the consistency clause, that such was the sub silentio effect of 77, an emergency statute hurriedly enacted with scarcely any debate. The consistency clause serves but to strengthen [347 U.S. 298, 307] this natural presumption against such a tacit grant. It would require unambiguous language indeed to accomplish a contrary result; yet nowhere in the committee reports and the debates on the original 77, nor in any of the legislative materials relating to the thorough re-examination of that statute in 1935, 8 can we find so much as one word which conveys the impression that as to mergers under the Bankruptcy Act, Congress stealthily [347 U.S. 298, 308] designed to jettison its long-standing and oft-reiterated policy against compulsory mergers. On the contrary, after the enactment of 77 in 1933, the Commission in its annual reports, and the Federal Coordinator of Transportation in his several reports, had frequent occasion to discuss 77 of the Bankruptcy Act and 5 of the Interstate Commerce Act. It would indeed be strange for these railroad authorities to bemoan the Commission's inability to initiate mergers and consolidations 9 if it had been a fact that as to the substantial portion of the Nation's railroad mileage then in receivership or 77 proceedings 10 the Commission clearly had this very power. Had it been the declared intention of the drafters of 77 to confer such a power, it is fair to assume that, in view of the persistent opposition of organized labor and other groups [347 U.S. 298, 309] to such attempts under the Commerce Act, 11 the statute would not have passed. </s> All this of course is not to say that mergers cannot be carried out in the course of a 77 reorganization. It merely means that if they are, they must be consummated in accordance with all the requirements and restrictions applicable to mergers under the Act primarily concerned with railroad amalgamations, the Interstate Commerce Act. So far as here relevant, that means that the merger must be worked out and put before the Commission by the merging carriers. 12 It also means that one carrier [347 U.S. 298, 310] cannot be railroaded by the Commission into an undesired merger with another carrier. </s> In short, the consistency clause of 77 incorporates by reference 5 of the Interstate Commerce Act, as amended. And the very heart of 5 is that a merger of two carriers may be approved by the Interstate Commerce Commission only if it originates as a voluntary proposal by the merging carriers. This essential prerequisite for a merger between Florida East Coast and Atlantic Coast Line - two existing corporate entities - must be complied with, for by virtue of the consistency clause the command of Congress applies even if one of these carriers is in 77 proceedings just as much as it would if neither of the carriers were in receivership or trusteeship. The legislative incorporation of 5 into 77 should not result in its judicial mutilation. </s> The most recent occasion on which the Senate Committee on Interstate Commerce comprehensively re-examined the subject of railroad reorganization was the report submitted in 1946 by Chairman Wheeler, the guiding spirit of most of the legislation here under consideration. 13 Much of what the Committee says there under the heading of "Avoidance of consolidation statute" is highly relevant here: </s> "In view of [the] many interests, immediately and directly affected by any proposed consolidation, Congress has provided a series of safeguards and procedural steps, in section 5 of the Interstate Commerce Act. . . . </s> . . . . . </s> "This statute and its statutory procedure, statutory safeguards, and statutory rights have been set to one side in the proceedings under section 77 of [347 U.S. 298, 311] the Bankruptcy Act. The institutional and other groups, and the Commission, have assumed that they could effect consolidations, not under the Interstate Commerce Act, but under the Bankruptcy Act; not under a statute dealing with transportation, but under a statute dealing with financial reorganization; not under a section which considers and specifies one single financial question, the effect of consolidation on fixed charges, but under a section which deals with all sorts of financial problems, most of them not related to consolidation. They have assumed to effect consolidations, not under legislation which deals primarily with the rights and interests of States, local communities, and employees, but under a bankruptcy law which deals primarily with the interests of securityholders. </s> . . . . . </s> "Those who are trying to bypass this statute and to consolidate railroads as part of a financial reorganization proceeding bring consolidation into the proceeding as something subsidiary, a mere tail to the main kite. When governors of States and representatives of communities and employees organizations are invited to the proceedings by the Commission, they find the issue which primarily concerns them enveloped in all sorts of other questions of a financial and technical nature. If they should want to appeal to a court from a consolidation decision in this grab bag of proceedings, their task would be far more complicated and far more difficult than Congress intended when it passed section 5 of the Interstate Commerce Act. There is always the available cry - the courts should not disapprove any part of the reorganization plan, even though it be a consolidation matter, lest all the time and labor and expense [347 U.S. 298, 312] which has gone into the reorganization proceeding be lost. </s> . . . . . </s> "The Commission justifies its course of action by citing two subsections of section 77 of the Bankruptcy Act. Subsection (b) lists a number of the substantive changes which can be made through a plan of reorganization under section 77. Then it lists a number of `means for the execution of the plan,' . . . . Among these `means for the execution of the plan' is included `the merger or consolidation of the debtor with another corporation or corporations.' Subsection (f) authorizes the Commission, after the court confirms the plan, `without further proceedings' to authorize the issuance of securities, transfer of property, sale, `consolidation or merger of the debtor's property, or pooling of traffic, to the extent contemplated by the plan and not inconsistent with the provisions and purposes of the Interstate Commerce Act as now or hereafter amended.' </s> "Note should be taken of the Commission's position. It could, under its construction of the statute, authorize not only mergers, but also pooling of traffic, without complying with the requirements laid down by Congress in section 5 of the Interstate Commerce Act. Consolidations, mergers, and pooling of traffic have long been regarded as dangerous, if not carefully regulated and supervised; Congress has long had those evils in mind and sought to prevent excesses, while saving what is good in such transactions; to this end Congress carefully elaborated a considerable number of safeguards in section 5 of that act. None of those safeguards is elaborated in section 77 of the Bankruptcy Act. </s> "It may not be assumed that Congress intended, in section 77, to permit it to bypass the section 5 [347 U.S. 298, 313] procedure and proceedings. Section 77 was hurriedly passed by Congress. It was not considered by either a subcommittee or full committee of the Senate, before being taken up on the floor. It was pushed through in the final days of the Seventy-second Congress on the plea that it would prevent receiverships. Congress would not, in such a manner, legislate out of existence, for companies requiring reorganizations, its carefully elaborated safeguards with respect to consolidations or traffic pools. If the Commission's construction of section 77 is sound, that it can avoid the necessity of considering consolidations under section 5 of the Interstate Commerce Act, it is obvious that the legislation enacted as section 77 of the Bankruptcy Act contained a `joker' of serious and dangerous proportions. </s> . . . . . </s> "The most that the Commission may claim under section 77 is that, if it has approved a consolidation by an order under section 5 of the Transportation Act, it may perhaps be able to give effect to that action in the course of reorganization proceedings. </s> "This is of importance in administering both statutes. The procedure and safeguards of the Transportation Act must be preserved as a matter of law and of right; . . . ." (Emphasis added.) </s> The crucial question, therefore, is whether this merger plan meets the statutory requirements. Since it does not, as we have found, because it is sought to be imposed by Commission fiat rather than proposed by the merging carriers, it matters not that the security holders might ultimately accept it if it were put to them for a formal vote. The kind of Hobson's choice, more or less, to which security holders are put when voting on a merger plan is not to be put to them on a plan initiated by the Commission [347 U.S. 298, 314] rather than by their own corporation. And so, if a plan does not satisfy the basic conditions which circumscribe the Commission's power, it has a congenital defect, and any interested party can object to its attempted effectuation. </s> Likewise, the so-called "cramdown" clause, much relied on by respondent, has no bearing on this case. That provision was added to 77 of the Bankruptcy Act in 1935, 49 Stat. 911, 919, 11 U.S.C. 205 (e), because under the prior law a plan had to be accepted by at least two-thirds (in amount) of each class of creditors and stockholders affected by the plan. This enabled a small dissentient minority to block any plan of reorganization, no matter how "fair and equitable," in order to exact inequitable adjustments as the price of its acquiescence. Under the "cramdown" provision the district court may, under the appropriate circumstances and after making certain required findings, confirm a plan despite the disapproval of more than one-third of each class affected. From the existence of this general power in the district court to confirm a plan despite the opposition of dissentient elements, the conclusion is sought to be drawn that the Commission must therefore have initial power to submit a compulsory merger plan to the court. Obviously this does not follow. Since the vast majority of 77 proceedings involve internal reorganizations, the "cramdown" provision has a purpose and scope of application wholly independent of mergers, and it therefore has no bearing one way or the other on the question at issue in this case. 14 It is true that in view of our holding here that merger plans cannot be proposed by the Commission under the Bankruptcy Act, the "cramdown" provision can never be applied to such involuntary plans. But there [347 U.S. 298, 315] is nothing particularly startling about this. Once its terms are found to be valid, a plan may be imposed on recalcitrant dissenters. But the validity of a plan cannot be derived from the existence of such "cramdown" power. It is still true that a horse-chestnut is not a chestnut horse. </s> The judgment is reversed and the case is remanded to the District Court for further proceedings in accordance with this opinion. </s> Reversed and remanded. </s> MR. JUSTICE BLACK and MR. JUSTICE CLARK took no part in the consideration or decision of these cases. </s> [For dissenting opinion, see post, p. 321.] </s> APPENDIX TO OPINION OF THE COURT. </s> A brief outline of the history of the consolidation provisions of the Interstate Commerce Act. </s> Prior to 1920, competition was the desideratum of our railroad economy. Section 5 of the original Interstate Commerce Act of 1887 forbade any agreements for the pooling of freights or revenues, 1a and the policy of the antitrust legislation was also applied to the railroads. 2a </s> In 1919, when the Government was planning to return the railroads to private ownership, many of the smaller railroads were in very weak condition and their continued survival was in jeopardy. 3a Hence, for the first time, governmental encouragement of railroad consolidation was discussed. It was agreed that the Interstate Commerce Commission should be directed to prepare a plan for the [347 U.S. 298, 316] consolidation of the railroads of the country into a limited number of systems. But there was sharp disagreement over ways and means for carrying out this program. The House Committee opposed grant of power to the Commission to compel consolidations. 4a The Senate Committee, however, under the leadership of Senator Cummins, an ardent advocate of compulsory consolidation, recommended a bill providing for voluntary consolidation in accordance with a master plan for a period of seven years, but authorizing compulsory consolidations thereafter. 5a Although many groups, including virtually all the railroads, opposed the compulsory provisions, 6a the Senate passed the bill, 59 Cong. Rec. 952. But in conference, "[t]he Senate receded from the provisions for compulsory consolidation" and the House version was adopted. 7a </s> In 1921, the Commission promulgated a tentative consolidation plan. 8a Strong opposition immediately developed and long hearings before the Commission ensued. [347 U.S. 298, 317] The upshot was that in 1925, the Commission, recognizing the unfeasibility of working out a national plan of consolidation, asked Congress to be relieved of this burden. 9a This request was left unheeded until 1940, and in 1929 the Commission adopted its final plan of consolidation. 10a </s> Meanwhile Senator Cummins renewed his efforts to give the Interstate Commerce Commission power to compel consolidations if after a certain number of years the voluntary program had made no progress. 11a This bill again met with strong opposition, 12a but prior to his defeat in 1926, Senator Cummins made two further attempts to endow the Commission with power to force consolidations. 13a All these legislative efforts failed. </s> In February of 1933, the drive for compulsory consolidation gained new impetus when the National Transportation Committee, headed by ex-President Coolidge, issued a report recommending legislation along these lines. 14a Again the opposition was so vigorous 15a that the Emergency Railroad Transportation Act of 1933, passed some months later, contained no such provision; on the contrary it had a special section designed to protect labor against further cutbacks in employment. 16a </s> The 1933 Act also established the office of a Federal Coordinator of Transportation to investigate the entire transportation problem and make appropriate recommendations. In his first Report, the Coordinator, Commissioner [347 U.S. 298, 318] Joseph Eastman, reviewed the subject of railroad consolidations and concluded that the sweeping proposal of his legal adviser, Mr. Leslie Craven, for compulsory consolidation should not be followed, but that the remedy lay along lines of greater coordination and pooling, with some forced mergers on a "trial" basis. 17a The third and fourth Reports reiterated the Commission's inability to compel mergers. 18a Again no legislative action resulted. 19a </s> In 1938, President Roosevelt appointed Commissioners Eastman, Splawn, and Mahaffie of the Interstate Commerce Commission to make another comprehensive study of the railroad problem. This "Committee of Three," after pointing out that "voluntary consolidation of railroad companies may now be accomplished, subject to certain limitations, with the approval of the Commission," recommended new legislation, giving the Commission "authority . . . to require a unification, where it is sought by at least one carrier." 20a Subsequently the President also appointed another Committee consisting of three railroad executives and three representatives of railway labor, known as the "Committee of Six." This Committee's recommendations were vastly different: 21a </s> "We do not think the country is ready for any compulsory system of consolidations. Whether ultimate [347 U.S. 298, 319] resort must be had to the principle of compulsion is a question which we think it better to defer until after there has been an opportunity to see what can be accomplished if the railroads are relieved from these limitations and restrictions [of the consolidation plan]. In our opinion the best results will be achieved by leaving all initiative in the matter to the railroads themselves, . . . ." </s> The Transportation Act of 1940 - Congress' last word on the subject of consolidation - essentially rejected the recommendations of the Committee of Three and adopted those of the Committee of Six. The Commission was finally relieved of its duty to promulgate a national consolidation plan, and the power to initiate mergers and consolidations was left completely in the hands of the carriers. 22a </s> Perhaps the best insight into the prevailing attitude towards compulsory mergers can be obtained from the following statements of Chairman Wheeler of the Senate Committee on Interstate Commerce during the hearings on S. 2009, which ultimately became the Transportation Act of 1940. In response to some fear expressed by the General Counsel of the Brotherhood of Railroad Trainmen that the pending bill would encourage consolidations, Senator Wheeler said: 23a </s> "Of course, as you well know, some people maintain that we ought to give the Interstate Commerce Commission the power to force consolidations. </s> "There is a very strong sentiment on the part of a great many people that consolidation should be compelled. They say that nothing will be done until such time as that happens. [347 U.S. 298, 320] </s> "The railroad executives do not want forced consolidation; they are opposed to it. The railroad men are opposed to it, generally speaking. </s> . . . . . </s> "After all, when you speak of that [encouraging consolidations], the Interstate Commerce Commission has studied it for years, and no consolidation can take place under this bill until such time as it is a voluntary consolidation. . . . </s> . . . . . </s> "I cannot understand why you are talking about consolidations before this committee, because there is nothing in this bill to indicate that we have taken the position that we are in favor of forced consolidations. There is nothing in the bill that will change the situation at all. </s> . . . . . </s> "As a matter of fact, much of the objection to this bill on the part of a number of people has been that it has not got some provision in it making it easier for consolidations; as a matter of fact, forcing consolidations and coordinations, or at least setting up in the Interstate Commerce Commission a committee that will go ahead and suggest how consolidations ought to be made. </s> "We have taken that out, and I have refused to adhere to that or to listen to agruments [sic] about it, but you are coming in here and telling us that there is something in here about consolidations that you do not want. </s> . . . . . </s> "I have repeatedly said that you could not get a bill to force consolidations, or to have in here a provision that the Commission should have an opportunity of carrying on investigations of the subject to [347 U.S. 298, 321] try to force consolidations, and so forth. So, as far as this committee is concerned, with reference to this bill, you are just wasting our time in talking about consolidations, because that subject is out the window." </s> Thus, hostility to the consolidation of railroads except by the voluntary action of the merging roads has been the undeviating policy of Congress since 1920. In assessing the failure of the consolidation program initiated by the Transportation Act of 1920, most students of transportation problems agree that one difficulty was this persistent refusal on the part of Congress to give the Commission power to take the initiative in proposing and enforcing particular mergers. 24a Yet that is the policy deliberately and explicitly followed by Congress each time it considered this problem. </s> Footnotes [Footnote 1 Examiner Jewell stated that under the plan previously approved by the Commission "control would vest in the St. Joe Company by reason of its ownership of a majority in amount of the debtor's outstanding first and refunding mortgage bonds, these bonds being the only securities of the debtor exchangeable under the plan for the new securities of the reorganized debtor." R., VI, p. 736. The only other outstanding bond issue of the debtor was, under that plan, to be paid off out of available cash. Previously the Commission had decided that the claims of unsecured creditors and the equity of the stockholders could not be recognized, and that these parties would therefore be denied participation in the reorganization. 252 I. C. C. 423, 465. </s> [Footnote 2 By "forced merger" plan, or "compulsory merger" plan, is meant a merger plan foisted upon one of the parties by the Commission, as distinguished from a merger voluntarily initiated by the participating carriers. </s> [Footnote 3 Under the Commission's statutory power to revise an approved plan upon objections received within sixty days of its promulgation, 11 U.S.C. 205 (d), this decision was shortly thereafter reaffirmed by another close vote of the full Commission membership. 267 I. C. C. 729. </s> [Footnote 4 The Circuit Judges of the Fifth Circuit who have at some stage in these proceedings passed on this question of the Commission's power have thus divided evenly on the issue. Judges Hutcheson, Holmes and Rives concluded that the Commission had such power; Judges Sibley, Borah, and Russell concluded that it did not. </s> [Footnote 5 "A plan of reorganization . . . (5) shall provide adequate means for the execution of the plan, which may include . . . the merger or consolidation of the debtor with another corporation or corporations . . . ." </s> [Footnote 6 Letter from Chairman Eastman to Senator Hastings, the sponsor of 77, dated Jan. 31, 1933, reproduced in Hearings before the Senate Committee on Interstate Commerce on S. 1869, 76th Cong., 1st Sess. 288, 300. As to Eastman's authority in the field of railroad regulation, see Fuess, Joseph B. Eastman - Servant of the People. </s> [Footnote 7 See also the remarks of Senator Couzens, Chairman of the Committee on Interstate Commerce, at 74 Cong. Rec. 6041 et seq. </s> [Footnote 8 In the course of the 1935 revision of 77, the consistency clause was taken out of subsection (b) (3), combined with a similar clause in subsection (e), and, as thus combined, placed in subsection (f) of the statute, 49 Stat. 911, 920. Judge Sibley indicated that he thought the consistency clause "became accidentally misplaced in redrafting the Act." 81 F. Supp., at 932. However that may be, it seems quite clear that Congress did not intend to alter the deliberately established relationship between 5 of the Commerce Act and 77 (b) (3) of the Bankruptcy Act merely by a change in the position of the consistency clause, unaccompanied by any explanatory comment. It would be a gross disregard of the meaning of legislation to be controlled by the bare words of the present merger provision detached from, and in defiance of, the whole history of the section. In this connection it is interesting to note that in the course of a proposed comprehensive revision of 77 in 1939, the question here in issue would have been made absolutely clear by the addition of the following proviso to the merger subsection: "Provided, That nothing in this section shall authorize compulsory merger or consolidation . . . ." S. 1869, 76th Cong., 1st Sess., March 20, 1939, p. 19. After extensive hearings before the Senate Committee on Interstate Commerce, the bill was reported out and subsequently passed by the Senate, 84 Cong. Rec. 6257. Even more extensive hearings were then held by the House Committee, but the bill was never reported out, probably because of the controversial provision in the bill establishing a special reorganization court for 77 cases. In the course of the House hearings, the Commission was requested to submit its views on the bill. After commenting in detail on various sections of the bill, not including the proviso above referred to, the Commission simply added that it deemed it "unnecessary" to comment on the other "minor amendments" included in [347 U.S. 298, 308] the bill. Hearings before Special Subcommittee on Bankruptcy and Reorganization of the House Committee on the Judiciary on S. 1869, 76th Cong., 1st Sess., Serial No. 11, pt. 1, p. 571. Cassius M. Clay, Assistant General Counsel of the RFC and intimately acquainted with problems of railroad reorganization, questioned the need for the proviso on the ground that the consistency clause in subsection (f) already covered the matter and that the proviso might be construed to prevent the merger of a parent and its subsidiaries. Hearings before Senate Committee on Interstate Commerce on S. 1869, 76th Cong., 1st Sess. 329. </s> [Footnote 9 See, e. g., Report of the Federal Coordinator of Transportation, H. R. Doc. No. 89, 74th Cong., 1st Sess. 41 (1935); 52 I. C. C. Ann. Rep. 22 (1938). </s> [Footnote 10 During the years 1933-1940 the percentage of railroad mileage representing roads in 77 proceedings or receivership was as follows: Year Percent Year Percent 1933 .............. 16 1937 .............. 28 1934 .............. 16 1938 .............. 31 1935 .............. 27 1939 .............. 31 1936 .............. 28 1940 .............. 31 (Figures computed from Table 1 of the ICC's Annual Reports on the Statistics of Railways in the United States for 1933-1940, and the cumulative Table 151 in the 1940 volume.) </s> [Footnote 11 See Appendix, post, p. 315. </s> [Footnote 12 We are not aware of any case other than the present where this requirement was not observed. In all the reported cases of reorganizations involving mergers, the merger was either proposed by the debtor in conjunction with the other party, or the merger involved a parent and its subsidiaries, and was treated essentially as an internal reorganization. In any event, we are not now called upon to pass on the validity of the latter type of merger. In this connection it is important to remember that a railroad in 77 proceedings is not a defunct organism but remains a live and going concern. See the references throughout 77 to "the debtor" as an active entity; also Van Schaick v. McCarthy, 116 F.2d 987, 992-993. During the entire period that the Florida East Coast has been in receivership or trusteeship there have been annual stockholders' meetings at which a Board of Directors was elected. See the Florida East Coast's Annual Reports on file with the Interstate Commerce Commission. Indeed the desire to provide a ready remedy for the overhauling of a railroad's financial structure without impairing its primary responsibilities as a regularly functioning carrier was one of the principal reasons for the enactment of 77. See 5 Collier, Bankruptcy, 77.02. Thus it follows from the consistency clause, when viewed in the light of this corporate continuity of a railroad in reorganization, that those who in the absence of 77 would wield the corporate merger powers must initiate and work out the merger now. Cf. 77 (d), which not only permits but requires the debtor railroad itself to file a plan of reorganization ("the debtor . . . shall file a plan"; certain other interested parties "may" also file a plan). </s> [Footnote 13 S. Rep. No. 1170, 79th Cong., 2d Sess. 80-85. </s> [Footnote 14 There is nothing in the legislative history of this provision to indicate that it was intended to have any effect on the law governing mergers in reorganization plans. </s> [Footnote 1a [347 U.S. 298, 315] 24 Stat. 379, 380. </s> [Footnote 2a [347 U.S. 298, 315] 26 Stat. 209, United States v. Trans-Missouri Freight Assn., 166 U.S. 290 ; United States v. Joint Traffic Assn., 171 U.S. 505 ; 38 Stat. 730. </s> [Footnote 3a [347 U.S. 298, 315] See S. Rep. No. 1182, pt. 2, 76th Cong., 3d Sess. 518-520; also Van Metre, Transportation in the United States, 80. </s> [Footnote 4a [347 U.S. 298, 316] H. R. Rep. No. 456, 66th Cong., 1st Sess. 6: "In our opinion, the interests of the public will be better served where the consolidations are voluntarily entered into, upon approval by the Interstate Commerce Commission, and where such consolidation or merger is in the interest of better service to the public, or economy in operation, or otherwise of advantage to the convenience or commerce of the people." </s> [Footnote 5a [347 U.S. 298, 316] S. Rep. No. 304, 66th Cong., 1st Sess. 15. </s> [Footnote 6a [347 U.S. 298, 316] See statement of Senator Cummins at 59 Cong. Rec. 226; see also Leonard, Railroad Consolidation Under the Transportation Act of 1920, 50, 61. </s> [Footnote 7a [347 U.S. 298, 316] H. R. Rep. No. 650, 66th Cong., 2d Sess. 64; see also S. Rep. No. 1182, pt. 2, 76th Cong., 3d Sess. 524: "It will be noted that the whole program of consolidation . . . was voluntary. Although the Commission could promulgate a plan, it was given no affirmative power to put the plan into effect. It was entitled merely to insist that any consolidations submitted to it for approval should conform to the plan. Thus the whole problem of initiating and developing actual consolidations was left in the hands of the carriers themselves. . . ." </s> [Footnote 8a [347 U.S. 298, 316] 63 I. C. C. 455. </s> [Footnote 9a [347 U.S. 298, 317] For the Commission's letter to the Chairman of the Committee on Interstate Commerce, see Exhibit C-1814, S. Rep. No. 1182, pt. 3, 76th Cong., 3d Sess. 1578; see also 39 I. C. C. Ann. Rep. 13 (1925). </s> [Footnote 10a [347 U.S. 298, 317] 159 I. C. C. 522. </s> [Footnote 11a [347 U.S. 298, 317] S. 2224, 68th Cong., 1st Sess. </s> [Footnote 12a [347 U.S. 298, 317] See Leonard, supra, note 6, at 135, 175-179. </s> [Footnote 13a [347 U.S. 298, 317] S. 1870, 69th Cong., 1st Sess.; S. 3840, 69th Cong., 1st Sess. </s> [Footnote 14a [347 U.S. 298, 317] Report of the National Transportation Committee, February 13, 1933, p. 11. </s> [Footnote 15a [347 U.S. 298, 317] See, e. g., 77 Cong. Rec. 4873 et seq.; Leonard, Railroad Consolidation under the Transportation Act of 1920, 221-222. </s> [Footnote 16a [347 U.S. 298, 317] 48 Stat. 211, 214. </s> [Footnote 17a [347 U.S. 298, 318] S. Doc. No. 119, 73d Cong., 2d Sess. 30-33, 36-37, 86-88. </s> [Footnote 18a [347 U.S. 298, 318] H. R. Doc. No. 89, 74th Cong., 1st Sess. 41; H. R. Doc. No. 394, 74th Cong., 2d Sess. 45-47. </s> [Footnote 19a [347 U.S. 298, 318] Shortly before the termination of his office in 1936, the Federal Coordinator, disturbed by the lack of initiative among the carriers, attempted to order the unification of 11 terminal properties. The orders met with considerable objection from railway labor and were ignored by the carriers. See Leonard, supra, note 15, at 233. </s> [Footnote 20a [347 U.S. 298, 318] H. R. Doc. No. 583, 75th Cong., 3d Sess. 36, 39. For the adverse reaction of the Railroad Brotherhoods to these proposals, see id., at 67, 70. </s> [Footnote 21a [347 U.S. 298, 318] Report of Committee appointed Sept. 20, 1938, by the President of the United States to Submit Recommendations upon the General Transportation Situation, Dec. 23, 1938, p. 31. </s> [Footnote 22a [347 U.S. 298, 319] 54 Stat. 898, 905. </s> [Footnote 23a [347 U.S. 298, 319] Hearings before the Senate Committee on Interstate Commerce on S. 1310, S. 2016, S. 1869 and S. 2009, 76th Cong., 1st Sess. 391-395. </s> [Footnote 24a [347 U.S. 298, 321] Leonard, Railroad Consolidation Under the Transportation Act of 1920, 267-269; Van Metre, Transportation in the United States, 86; Moulton, The American Transportation Problem, 857-858; Dearing and Owen, National Transportation Policy, 322, 342-343, 376. </s> MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BURTON and MR. JUSTICE MINTON concur, dissenting. </s> The Court misstates the issue in these cases. The sole question, the Court says, is whether the Interstate Commerce Commission has the statutory power to submit a plan of reorganization under 77 of the Bankruptcy Act "whereby a debtor railroad would be compelled to merge with another railroad." That is not the issue. Neither the Interstate Commerce Commission nor the reorganization court has attempted to force a merger of these railroads. If at some future time any such attempt is made, it will be time enough to deal with it. Hence it is misleading for the Court to say that the issue is whether a merger may be "foisted upon one of the parties by the [347 U.S. 298, 322] Commission." The one and only issue before us at the present time is whether the Commission may include in a plan of reorganization a provision that the debtor or bankrupt railroad should be merged with another road and submit that plan for approval or disapproval to the security holders who are entitled to vote on a plan. To understand the issue in these cases it is necessary to have an understanding of the respective functions of the Commission and the reorganization court under 77. </s> First. Under 77 the Commission is the chief architect of any plan of reorganization. The plan must originate with the Commission. 77 (d). Second. Once a plan is certified by the Commission it goes to the Court for a hearing. 77 (e). Third. After that hearing the judge either approves or disapproves the plan. 77 (e). Fourth. If the judge disapproves the plan, he either dismisses the proceedings or refers the matter back to the Commission. 77 (e). Fifth. If the judge approves the plan, he sends a certified copy of his opinion and order to the Commission. 77 (e). Sixth. In that case the Commission submits the plan to the security holders for a vote. 77 (e). Seventh. The Commission certifies the results of the submission to the court. 77 (e). Eighth. The judge then confirms the plan, if the creditors and stockholders of each class entitled to vote and holding "more than two-thirds" of the claims in each class have accepted the plan. 77 (e). Ninth. If that percentage of creditors and stockholders does not approve the plan, the judge, by terms of 77 (e), may nevertheless approve the plan. This is the so-called "cram down" provision and it reads as follows: </s> "if the plan has not been so accepted by the creditors and stockholders, the judge may nevertheless confirm the plan if he is satisfied and finds, after hearing, that it makes adequate provision for fair and equitable [347 U.S. 298, 323] treatment for the interests or claims of those rejecting it; that such rejection is not reasonably justified in the light of the respective rights and interests of those rejecting it and all the relevant facts; and that the plan conforms to the requirements of clauses (1) to (3), inclusive, of the first paragraph of this subsection (e)." 1 </s> The case has been discussed as if we are at the Ninth stage of the reorganization. Rather, only the Fifth stage has been completed and the Sixth stage is about to start. </s> The case has been discussed as if the creditors will vote the plan down and the judge, in the face of that, will force the plan on the creditors through the "cram down" provision. </s> But as yet no vote has been taken. Perhaps the powerful interests represented by the petitioners will vote solidly and overwhelmingly against the plan. Perhaps not. Election campaigns sometimes change votes. Perhaps the creditors will eventually approve the plan. </s> Our present problem must be weighed in light of both of those contingencies. </s> If the creditors approve the plan by "more than two-thirds" vote but less than 100 percent, would it be lawful [347 U.S. 298, 324] to confirm it? I think it plainly would be for the following reasons: </s> Section 77 contemplates the use of reorganizations to consummate mergers. Section 77 (b) (5) says that a plan "may include the transfer of any interest in or control of all or any part of the property of the debtor to another corporation or corporations, the merger or consolidation of the debtor with another corporation or corporations," etc. (Italics supplied.) So it is clear that Congress contemplated that mergers of railroads could be effected by a 77 plan of reorganization. 2 Since mergers could be accomplished that way, Congress felt - as the legislative history abundantly shows - that the Commission must apply in this class of mergers the same standards it must apply in other mergers. Accordingly Congress wrote into 77 (f) the "consistency clause" - that on confirmation of a plan the Commission shall grant authority for the "transfer of any property, sale, consolidation or merger of the debtor's property . . . to the extent contemplated by the plan and not inconsistent with the provisions and purposes" of the Interstate Commerce [347 U.S. 298, 325] Act. (Italics supplied.) Section 5 of the Interstate Commerce Act prescribes both a procedure for the Commission to follow in those cases and the standards which the Commission must apply. </s> The procedure includes among other things (a) notification to the Governors of each State in which the properties of the carriers are situated; and (b) a reasonable opportunity for the "interested parties" to be heard. No objection is made in these cases (and no showing is attempted) that that procedure was not followed. </s> The standards for the Commission's action on mergers are different from those prescribed in case of reorganizations. In reorganizations the Commission is concerned with matters of valuation, the amount of fixed charges, the ratio of bonds to stock, and like financial problems. See Ecker v. Western Pacific R. Corp., 318 U.S. 448 . Congress by 5 of the Interstate Commerce Act has prescribed special standards for mergers. Section 5 (2) (c) states: </s> "In passing upon any proposed transaction under the provisions of this paragraph (2), the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected." </s> There is no objection made nor showing attempted that in these cases the Commission failed to make findings on those issues nor that the findings as made were inadequate. The Commission indeed was most explicit. It said that control of Florida East Coast by the petitioner in No. 24, St. Joe Paper Co., would be "contrary to the [347 U.S. 298, 326] public interest" since that company, "particularly because of its large banking interests," would be in a position to influence the routing of shipments. 282 I. C. C., p. 187. It found that the merger of the Florida East Coast with Atlantic Coast Line </s> - would be in the public interest. 3 Id., pp. 187, 188. </s> - would adequately protect the interests of employees. 4 Id., p. 187. </s> - would result in savings as a result of unification. 5 Id., p. 187. [347 U.S. 298, 327] </s> - would result in a betterment of service to the public. 6 Id., p. 187. </s> - would not adversely affect the citizens and communities of the east coast of Florida. 7 Id., pp. 187-188. </s> - would give the debtor greater financial stability. 8 Id., p. 188. </s> - would give a better service than service under an operation by St. Joe Paper Co., 9 petitioner in No. 24. Id., p. 188. </s> We are not asked to set aside those findings. They are indeed not challenged. On their face they plainly meet the standards of 5 of the Interstate Commerce Act. We cannot say on this record that they are not consistent with 5 within the meaning of the consistency clause of 77 (f). So far as this record shows, the Commission has faithfully, painstakingly, and conscientiously performed the obligations which 5 of the Interstate Commerce Act [347 U.S. 298, 328] imposes on it. It would seem obvious, therefore, that the Commission should be allowed to submit the plan, including the provision for a merger, to the security holders for their approval or disapproval. </s> The Court, however, disallows the submission and rests its action on a curious reason. It says that consent of the railroads has not been obtained and without that consent no merger can be consummated in 77 proceedings. But that reason is wholly at war with the statutory scheme of railroad reorganizations. </s> Once a petition for reorganization is approved, the court appoints trustees who have full management of the business under the court's supervision. 77 (c). The trustees take over the functions of the officers and board of directors. But apparently the Court, when it refers to "the debtor," does not mean the trustees, for it speaks of "those who in the absence of 77 would wield the corporate merger powers." That must mean either the old management or the stockholders. Yet such a reading cannot square with 77. One can look through 77 in vain for any status granted the old management to approve or disapprove a plan. "The debtor" commonly is identified with the stockholders, i. e., the equitable owners of the road. But the method of getting their consent to any plan of reorganization is prescribed in 77. They may or may not be entitled to vote, depending on whether their stock represents a value in the railroad. If the stock has no value, they are not entitled to vote. If it has value, they are entitled to vote. 77 (e). If the security holders who have a vote approve the plan, the consent necessary to effect both the recapitalization and the merger has been given. To allow the old management or the stockholders a veto power where Congress has provided they shall not vote is to indulge in as bold a piece of judicial legislation as one can find in the books. [347 U.S. 298, 329] </s> It is said that the consistency clause of 77 incorporates by reference 5 of the Interstate Commerce Act. And so it does. But that does not mean that because the initiation of merger plans rested with the management prior to bankruptcy, it rests with the old management after bankruptcy. The conclusion that it does reveals a basic misunderstanding of the system of bankruptcy reorganization contained in 77. When Congress designed that legislation, it prescribed precisely how the consent necessary for each step in the reorganization should be obtained. Section 77 gives the old management no vote on any measure. If the equity votes, the stockholders cast the ballot. And a procedure is designed to deprive them of a vote if their securities no longer represent any value, as is the case here. </s> No comfort can be found in 77 (d), which gives the debtor, i. e., the old management, standing to propose a plan of reorganization. Plans of reorganization may be proposed by the debtor, by the trustees, by 10 percent of any class of creditors or of stockholders "or with the consent of the Commission by any party in interest." 77 (d). The proposal of a plan expresses merely the wish. In logic and in history there is no reason why a plan containing a merger may not be proposed by the new management as well as the old, by creditors as well as stockholders. Standing to present a plan has no relevancy to the fairness or feasibility of the plan presented. To say that only "the debtor" may submit a plan that contains provisions for a merger is to give a whip hand to people who do not even have enough of an interest to vote on a plan. The debtor commonly represents the equity; and when, as here, the equity is so far under that it can have no possible interest in the reorganization (except possibly a nuisance value created by long-drawn-out litigation), it violates all sense of fairness [347 U.S. 298, 330] and disregards the mandate of Congress to let the equity have the preferred position the Court now creates. Congress has set the standards for the protection of the "equitable owners." Where, as here, they have no value in the enterprise, Congress said they should be disregarded. </s> Much emphasis is placed by the Court on S. Rep. No. 1170, 79th Cong., 2d Sess. 80-85, a report by the Senate Committee on Interstate Commerce headed by Chairman Wheeler. There are two reasons why that Report is irrelevant to the present issue. First, that Report condemned the use of 77 "to bypass" 5 of the Interstate Commerce Act. As I have shown, 5 was not "bypassed" in the present case. The procedures, safeguards, and standards it prescribes were fully satisfied by the Commission. Second, that Report covered a bill which endeavored to make changes in the existing law and practices. But that bill never was enacted. It is, however, now used as an authoritative interpretation of a law which it sought to change. </s> An unjaundiced reading of 5 of the Interstate Commerce Act and of 77 of the Bankruptcy Act results, I submit, in the following conclusions: </s> Any person with standing to submit a plan of reorganization may include in it provisions for a merger. </s> Section 5 of the Interstate Commerce Act provides the standards for the Commission to apply in passing on such a plan and those standards have been wholly satisfied here. </s> Section 77 prescribes the procedure for getting the consent to a plan, including a plan that provides for a merger. </s> What reason then can there be for not letting the security holders vote to adopt or reject this plan? </s> It is said that if the security holders reject the plan, the reorganization court may nonetheless force it on them. [347 U.S. 298, 331] There are several answers to that, as I have already suggested: </s> (1) The security holders may not reject the plan. </s> (2) Even if they do reject the plan, the reorganization court may decide not to force the plan on them. To force it on them the court must have a hearing and find, among other things, that the rejection "is not reasonably justified in the light of the respective rights and interests of those rejecting it and all the relevant facts . . . ." 77 (e). </s> (3) Even if the reorganization court undertook to force any plan on the security holders, we might well overrule that order. In the only case of the "cram down" provision on which we have passed, R. F. C. v. Denver & R. G. W. R. Co., 328 U.S. 495 - one involving issues different from those now tendered 10 - we reserved decision on the power of the reorganization court. We said, p. 535: </s> "this does not mean that if a plan is approved as fair and equitable by the Commission and the court, there cannot be a reasonable justification for its rejection by a class of claimants on submission. Reasons to make their rejection reasonable may arise . . . ." </s> I say we might well stop any attempt of the court to invoke the "cram down" provision because we cannot tell in advance what a particular situation might disclose. Under 77 (e), it will be remembered, "more than two-thirds" of each class entitled to vote can vote for a plan and force it on the minority. Unanimous consent is not necessary. </s> (1) Suppose the election returns bring approval by a bare two-thirds. Suppose the judge is satisfied that one [347 U.S. 298, 332] block of securities voting against the plan has a special ax to grind, as the Commission suggests is true in this case of the St. Joe Paper Co., petitioner in No. 24. Would it be unlawful for the court to invoke the "cram down" provision in that case? "Consent" has not been obtained since Congress provided that "more than two-thirds" should approve a plan. But the public interest might well justify use of the "cram down" provision in that case as the only effective method for dealing with a recalcitrant (or even blackmailing) minority. In light of what we said in the Denver & Rio Grande case ( 328 U.S., at 535 ) such rejection by the one-third minority might well be deemed to have no "reasonable justification" in light of all the facts and circumstances. </s> (2) Suppose the election returns bring approval from only 1 percent of the security holders. Could the "cram down" provision properly be invoked in that case? It is difficult even to imagine a case where it would be proper to do so. The "cram down" is a harsh remedy, the use of which would require special reasons. </s> But the fact that the occasions for its use should be closely guarded should not mean that it can never be used in connection with a 77 plan of reorganization involving a merger, unless "the debtor" (here representing security holders not even entitled to vote on a plan) proposes the merger. Under 77 and 5 of the Interstate Commerce Act, read together, it is plain that Congress subjected plans containing mergers to the same "consent" requirements as plans not containing mergers. There is not a word in the statute or in the legislative history to indicate that the old management or stockholders not entitled to vote on a plan nevertheless have a veto over it. </s> The question of the application of the "cram down" provision of 77 to plans involving mergers has never been [347 U.S. 298, 333] presented to us. 11 That question is premature here, for it may never be reached. It is a large question of great importance and one that should be decided, not in the abstract, but only on the specific facts of specific cases. In these cases we should specifically reserve decision on it until it is presented. We should affirm the judgment in these cases, allowing the plan to be submitted for approval or rejection, explicitly saving the rights of all parties in case the "cram down" provision is used against them. </s> [Footnote 1 Clauses (1) and (2) referred to read as follows: "the judge shall approve the plan if satisfied that: (1) It complies with the provisions of subsection (b) of this section, is fair and equitable, affords due recognition to the rights of each class of creditors and stockholders, does not discriminate unfairly in favor of any class of creditors or stockholders, and will conform to the requirements of the law of the land regarding the participation of the various classes of creditors and stockholders; (2) the approximate amounts to be paid by the debtor, or by any corporation or corporations acquiring the debtor's assets, for expenses and fees incident to the reorganization, have been fully disclosed so far as they can be ascertained at the date of such hearing, are reasonable, are within such maximum limits as are fixed by the Commission, and are within such maximum limits to be subject to the approval of the judge; . . . ." </s> [Footnote 2 The Commission has repeatedly proposed and approved reorganization plans requiring consolidations or mergers. See, e. g., Alton R. Co. Reorganization, 261 I. C. C. 343; New York, N. H. & H. R. Co. Reorganization, 254 I. C. C. 63, 405; Missouri Pac. R. Co. Reorganization, 239 I. C. C. 7; Denver & R. G. W. R. Co. Reorganization, 233 I. C. C. 515, 239 I. C. C. 583, 254 I. C. C. 349. As a result of some of these proceedings the Commission has been criticized for misapplying or disregarding the standards set up for mergers by 5 of the Interstate Commerce Act. S. Rep. No. 1170, 79th Cong., 2d Sess. 80-85. In the present case, however, no argument is made that the proper standards have not been applied. Indeed that question is not before us. Moreover, not even the Senate Report, supra, suggests that the Commission cannot ever approve reorganization mergers. That Report says only that the "procedure and safeguards of the Transportation Act must be preserved . . . ." And, as we shall see, the standards prescribed in 5 have been satisfied here, so far as this record reveals. </s> [Footnote 3 "The public interest in its broader concept will be better served by integration of the debtor into a large railroad system than by its continued operation as an independent railroad. . . . . . "The effect of a merger upon the Southern Railway system and Seaboard Air Line Railroad Company, if any, will not adversely affect the public interest. . . . . . "The record is sufficient in all respects for a determination of the issue of the public interests involved in an acquisition of the debtor's properties by the Coast Line. "It will be compatible with the public interest for the Coast Line to control the debtor's property. "While the plan proposed by the Coast Line is inequitable in that it does not provide for the full equitable equivalent of the rights to be surrendered by the debtor's creditors, the plan as hereinabove modified will comply with such requirements, will be fair and equitable, and otherwise in the public interest." </s> [Footnote 4 "The interests of the railroad employees affected by the merger will be adequately protected." </s> [Footnote 5 "There should eventually result savings through a unification of the two carriers of between $850,000 and $1,000,000 per annum, through (a) eventual unification of the executive and supervisory forces of the two carriers; (b) consolidation of interchange yards and shop facilities at Jacksonville; (c) unification of operations of the freight stations of the two carriers at Jacksonville; and (d) coordination and consolidation of off-line traffic offices of the two carriers." </s> [Footnote 6 "There would be betterment of service to the public resulting from a unification of the debtor's line with that of the Coast Line." </s> [Footnote 7 "The apprehensions of the citizens and communities of the east coast of Florida that a merger would adversely affect their interests are not justified since (a) it would be to the interest of the Coast Line to serve all its territory impartially, (b) existing through routes via Jacksonville will be maintained, and (c) while the Coast Line would attempt to retain its long haul, its appeal to the public would be based primarily on the quality of its service, and the traffic relationships between trunk-line carriers would prevent any abuse of power such as would be possible under control of the debtor's line by the St. Joe Company." </s> [Footnote 8 "The merger of the debtor with the Coast line will be of appreciable benefit in assuring greater financial stability for the debtor." </s> [Footnote 9 "In general, there is a substantial preponderance of evidence that a merger will insure a more adequate, economical, and efficient transportation service than will operation of the debtor by the St. Joe Company." </s> [Footnote 10 See note 11, infra. </s> [Footnote 11 We have considered the "cram down" provision of 77 (e) only once. See R. F. C. v. Denver & R. G. W. R. Co., 328 U.S. 495, 531 . A merger was involved in that reorganization but it was not at issue before this Court. The complaint there was by junior creditors on matters that were purely financial: that the valuation and allocation of securities proposed had left them too small a participation. We decided that the "cram down" provision could be and was in that case constitutionally and properly applied. On the facts we held that the objecting class was without "reasonable justification," since it complained only of financial aspects of the plan which were fair and equitable. We made no decision regarding mergers and laid down no rule of law. We left the reorganization courts free to confirm or reject future plans as the facts, the equities, and the votes required. </s> [347 U.S. 298, 334]

United States Supreme Court UNITED HOUSING FOUNDATION, INC. v. FORMAN(1975) No. 74-157 Argued: April 22, 1975Decided: June 16, 1975 </s> [Footnote * Together with No. 74-647, New York et al. v. Forman et al., also on certiorari to the same court. </s> Respondents are 57 residents of Co-op City, a massive cooperative housing project in New York City, organized, financed, and constructed under the New York Private Housing Finance Law (Mitchell-Lama Act). They brought this action on behalf of all the apartment owners and derivatively on behalf of the housing corporation, alleging, inter alia, violations of the antifraud provisions of the Securities Act of 1933 and of the Securities Exchange Act of 1934 (hereafter collectively Securities Acts), in connection with the sale to respondents of shares of the common stock of the cooperative housing corporation. Citing substantial increases in the tenants' monthly rental charges as a result of higher construction costs, respondents' claim centered on a Co-op City Information Bulletin issued in the project's initial stages, which allegedly misrepresented that the developers would absorb future cost increases due to such factors as inflation. Under the Mitchell-Lama Act, which was designed to encourage private developers to build low-cost cooperative housing, the State provides large, long-term low-interest mortgage loans and substantial tax exemptions, conditioned on step-by-step state supervision of the cooperative's development. Developers must agree to operate the facilities "on a nonprofit basis" and may lease apartments to only state-approved lessees whose incomes are below a certain level. The corporate petitioners in this case built, promoted, and presently control Co-op City: United Housing Foundation (UHF), a nonprofit membership corporation, initiated and sponsored the project; Riverbay, a nonprofit cooperative housing corporation, was organized by UHF to own and operate the land and buildings and issue the stock that is the subject of the instant action; and Community Securities, Inc. (CSI), UHF's wholly owned subsidiary, was the project's general [421 U.S. 837, 838] contractor and sales agent. To acquire a Co-op City apartment a prospective purchaser must buy 18 shares of Riverbay stock for each room desired at $25 per share. The shares cannot be transferred to a nontenant, pledged, encumbered, or bequeathed (except to a surviving spouse), and do not convey voting rights based on the number owned (each apartment having one vote). On termination of occupancy a tenant must offer his stock to Riverbay at $25 per share, and in the unlikely event that Riverbay does not repurchase, the tenant cannot sell his shares for more than their original price, plus a fraction of the mortgage amortization that he has paid during his tenancy, and then only to a prospective tenant satisfying the statutory income eligibility requirements. Under the Co-op City lease arrangement the resident is committed to make monthly rental payments in accordance with the size, nature, and location of the apartment. The Securities Acts define a "security" as "any . . . stock, . . . investment contract, . . . or, in general, any interest or instrument commonly known as a `security.'" Petitioners moved to dismiss the complaint for lack of federal jurisdiction, maintaining that the Riverbay stock did not constitute securities as thus defined. The District Court granted the motion to dismiss. The Court of Appeals reversed, holding that (1) since the shares purchased were called "stock" the definitional sections of the Securities Acts were literally applicable and (2) the transaction was an investment contract under the Securities Acts, there being a profit expectation from rental reductions resulting from (i) the income produced by commercial facilities established for the use of Co-op City tenants; (ii) tax deductions for the portion of monthly rental charges allocable to interest payments on the mortgage; and (iii) savings based on the fact that Co-op City apartments cost substantially less than comparable non-subsidized housing. Held: The shares of stock involved in this litigation do not constitute "securities" within the purview of the Securities Acts, and since respondents' claims are not cognizable in federal court, the District Court properly dismissed their complaint. Pp. 847-858. </s> (a) When viewed as they must be in terms of their substance (the economic realities of the transaction) rather than their form, the instruments involved here were not shares of stock in the ordinary sense of conferring the right to receive "dividends contingent upon an apportionment of profits," Tcherepnin v. Knight, 389 U.S. 332, 339 , with the traditional characteristics of being [421 U.S. 837, 839] negotiable, subject to pledge or hypothecation, conferring voting rights proportional to the number of shares owned, and possibility of appreciating in value. On the contrary, these instruments were purchased, not for making a profit, but for acquiring subsidized low-cost housing. Pp. 848-851. </s> (b) A share in Riverbay does not constitute an "investment contract" as defined by the Securities Acts, a term which, like the term "any . . . instrument commonly known as a `security,'" involves investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. Here neither of the kinds of profits traditionally associated with securities were offered to respondents; instead, as indicated in the Information Bulletin, which stressed the "non-profit" nature of the project, the focus was upon the acquisition of a place to live. Pp. 851-854. </s> (c) Although deductible for tax purposes, the portion of rental charges applied to interest on the mortgage (benefits generally available to home mortgagors) does not constitute "profits," and, in any event, does not derive from the efforts of third parties. Pp. 854-855. </s> (d) Low rent attributable to state financial subsidies no more embodies income or profit attributes than other types of government subsidies. P. 855. </s> (e) Such income as might derive from Co-op City's leasing of commercial facilities within the housing project to be used to reduce tenant rentals (the prospect of which was never mentioned in the Information Bulletin) is too speculative and insubstantial to bring the entire transaction within the Securities Acts. These facilities were established, not for profit purposes, but to make essential services available to residents of the huge complex. Pp. 855-857. </s> 500 F.2d 1246, reversed. </s> POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and WHITE, JJ., joined, post, p. 860. </s> Simon H. Rifkind argued the cause for petitioners in No. 74-157. With him on the briefs was Martin London. Daniel M. Cohen, Assistant Attorney General of New [421 U.S. 837, 840] York, argued the cause for petitioners in No. 74-647. With him on the briefs were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General. </s> Louis Nizer argued the cause for respondents in both cases. With him on the brief were George Berger, Jay F. Gordon, Ira B. Rose, and Janet P. Kane. </s> Paul Gonson argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General Bork, Lawrence E. Nerheim, and Richard E. Nathan.Fn </s> Fn [421 U.S. 837, 840] William J. Brown, Attorney General, William G. Compton, Assistant Attorney General, John M. Sebaly, Special Assistant Attorney General, and Michael R. Merz filed a brief for the State of Ohio as amicus curiae urging reversal. </s> MR. JUSTICE POWELL delivered the opinion of the Court. </s> The issue in these cases is whether shares of stock entitling a purchaser to lease an apartment in Co-op City, a state subsidized and supervised nonprofit housing cooperative, are "securities" within the purview of the Securities Act of 1933 and the Securities Exchange Act of 1934. </s> I </s> Co-op City is a massive housing cooperative in New York City. Built between 1965 and 1971, it presently houses approximately 50,000 people on a 200-acre site containing 35 high-rise buildings and 236 town houses. The project was organized, financed, and constructed under the New York State Private Housing Finance Law, commonly known as the Mitchell-Lama Act, enacted to ameliorate a perceived crisis in the availability of decent low-income urban housing. In order to encourage private [421 U.S. 837, 841] developers to build low-cost cooperative housing, New York provides them with large long-term, low-interest mortgage loans and substantial tax exemptions. Receipt of such benefits is conditioned on a willingness to have the State review virtually every step in the development of the cooperative. See N. Y. Priv. Hous. Fin. Law 11-37, as amended (1962 and Supp. 1974-1975). The developer also must agree to operate the facility "on a nonprofit basis," 11-a (2a), and he may lease apartments only to people whose incomes fall below a certain level and who have been approved by the State. 1 </s> The United Housing Foundation (UHF), a nonprofit membership corporation established for the purpose of "aiding and encouraging" the creation of "adequate, safe and sanitary housing accommodations for wage earners and other persons of low or moderate income," 2 Appendix in Court of Appeals 95a (hereafter App.), was responsible for initiating and sponsoring the development of Co-op City. Acting under the Mitchell-Lama Act, UHF organized the Riverbay Corporation (Riverbay) to own and operate the land and buildings constituting Co-op City. Riverbay, a nonprofit cooperative housing corporation, issued the stock that is the subject of this litigation. UHF also contracted with Community Services, Inc. (CSI), its wholly owned subsidiary, to serve as the general contractor and sales [421 U.S. 837, 842] agent for the project. 3 As required by the Mitchell-Lama Act, these decisions were approved by the State Housing Commissioner. </s> To acquire an apartment in Co-op City an eligible prospective purchaser 4 must buy 18 shares of stock in Riverbay for each room desired. The cost per share is $25, making the total cost $450 per room, or $1,800 for a four-room apartment. The sole purpose of acquiring these shares is to enable the purchaser to occupy an apartment in Co-op City; in effect, their purchase is a recoverable deposit on an apartment. The shares are explicitly tied to the apartment: they cannot be transferred to a nontenant; nor can they be pledged or encumbered; and they descend, along with the apartment, only to a surviving spouse. No voting rights attach to the shares as such: participation in the affairs of the cooperative appertains to the apartment, with the residents of each apartment being entitled to one vote irrespective of the number of shares owned. </s> Any tenant who wants to terminate his occupancy, or who is forced to move out, 5 must offer his stock to Riverbay at its initial selling price of $25 per share. In the extremely unlikely event that Riverbay declines to repurchase the stock, 6 the tenant cannot sell it for more than [421 U.S. 837, 843] the initial purchase price plus a fraction of the portion of the mortgage that he has paid off, and then only to a prospective tenant satisfying the statutory income eligibility requirements. See N. Y. Priv. Hous. Fin. Law 31-a (Supp. 1974-1975). </s> In May 1965, subsequent to the completion of the initial planning, Riverbay circulated an Information Bulletin seeking to attract tenants for what would someday be apartments in Co-op City. After describing the nature and advantages of cooperative housing generally and of Co-op City in particular, the Bulletin informed prospective tenants that the total estimated cost of the project, based largely on an anticipated construction contract with CSI, was $283,695,550. Only a fraction of this sum, $32,795,550, was to be raised by the sale of shares to tenants. The remaining $250,900,000 was to be financed by a 40-year low-interest mortgage loan from the New York Private Housing Finance Agency. After construction of the project the mortgage payments and current operating expenses would be met by monthly rental charges paid by the tenants. While these rental charges were to vary, depending on the size, nature, and location of an apartment, the 1965 Bulletin estimated that the "average" monthly cost would be $23.02 per room, or $92.08 for a four-room apartment. </s> Several times during the construction of Co-op City, Riverbay, with the approval of the State Housing Commissioner, revised its contract with CSI to allow for increased construction costs. In addition, Riverbay incurred other expenses that had not been reflected in the [421 U.S. 837, 844] 1965 Bulletin. To meet these increased expenditures, Riverbay, with the Commissioner's approval, repeatedly secured increased mortgage loans from the State Housing Agency. Ultimately the construction loan was $125 million more than the figure estimated in the 1965 Bulletin. As a result, while the initial purchasing price remained at $450 per room, the average monthly rental charges increased periodically, reaching a figure of $39.68 per room as of July 1974. 7 </s> These increases in the rental charges precipitated the present lawsuit. Respondents, 57 residents of Co-op City, sued in federal court on behalf of all 15,372 apartment owners, and derivatively on behalf of Riverbay, seeking upwards of $30 million in damages, forced rental reductions, and other "appropriate" relief. Named as defendants (petitioners herein) were UHF, CSI, Riverbay, several individual directors of these organizations, the State of New York, and the State Private Housing Finance Agency. The heart of respondents' claim was that the 1965 Co-op City Information Bulletin falsely represented that CSI would bear all subsequent cost increases due to factors such as inflation. Respondents further alleged that they were misled in their purchases of shares since the Information Bulletin failed to disclose several critical facts. 8 On these bases, [421 U.S. 837, 845] respondents asserted two claims under the fraud provisions of the federal Securities Act of 1933, as amended, 17 (a), 48 Stat. 84, 15 U.S.C. 77q (a); the Securities Exchange Act of 1934, as amended, 10 (b), 48 Stat. 891, 15 U.S.C. 78j (b); and 17 CFR 240.10b-5 (1975). They also presented a claim against the State Financing Agency under the Civil Rights Act of 1871, 42 U.S.C. 1983, and 10 pendent state-law claims. </s> Petitioners, while denying the substance of these allegations, 9 moved to dismiss the complaint on the ground that federal jurisdiction was lacking. They maintained that shares of stock in Riverbay were not "securities" within the definitional sections of the federal Securities Acts. In addition, the state parties moved to dismiss on sovereign immunity grounds. </s> The District Court granted the motion to dismiss. Forman v. Community Services, Inc., 366 F. Supp. 1117 (SDNY 1973). It held that the denomination of the shares in Riverbay as "stock" did not, by itself, make them securities under the federal Acts. The court further ruled, relying primarily on this Court's decisions in SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344 (1943), and SEC v. W. J. Howey Co., 328 U.S. 293 (1946), that the purchase in issue was not a security transaction since it was not induced by an offer of tangible material profits, nor could such profits realistically be expected. In the District Court's words, it was [421 U.S. 837, 846] "the fundamental nonprofit nature of this transaction" which presented "the insurmountable barrier to [respondents'] claims in th[e] federal court." 366 F. Supp., at 1128. 10 </s> The Court of Appeals for the Second Circuit reversed. Forman v. Community Services, Inc., 500 F.2d 1246 (1974). It rested its decision on two alternative grounds. First, the court held that since the shares purchased were called "stock" the Securities Acts, which explicitly include "stock" in their definitional sections, were literally applicable. Second, the Court of Appeals concluded that the transaction was an investment contract within the meaning of the Acts and as defined by Howey, since there was an expectation of profits from three sources: (i) rental reductions resulting from the income produced by the commercial facilities established for the use of tenants at Co-op City; (ii) tax deductions for the portion of the monthly rental charges allocable to interest payments on the mortgage; and (iii) savings based on the fact that apartments at Co-op City cost substantially less than comparable nonsubsidized housing. The court further ruled that the immunity claims by the state parties were unavailing. 11 Accordingly, the [421 U.S. 837, 847] case was remanded to the District Court for consideration of respondents' claims on the merits. </s> In view of the importance of the issues presented we granted certiorari. 419 U.S. 1120 (1975). As we conclude that the disputed transactions are not purchases of securities within the contemplation of the federal statutes, we reverse. </s> II </s> Section 2 (1) of the Securities Act of 1933, 15 U.S.C. 77b (1), defines a "security" as </s> "any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a `security,' or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing." 12 </s> In providing this definition Congress did not attempt to articulate the relevant economic criteria for distinguishing "securities" from "non-securities." Rather, it sought to define "the term `security' in sufficiently broad and general terms so as to include within that definition the many types of instruments that in our commercial world [421 U.S. 837, 848] fall within the ordinary concept of a security." H. R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933). The task has fallen to the Securities and Exchange Commission (SEC), the body charged with administering the Securities Acts, and ultimately to the federal courts to decide which of the myriad financial transactions in our society come within the coverage of these statutes. </s> In making this determination in the present case we do not write on a clean slate. Well-settled principles enunciated by this Court establish that the shares purchased by respondents do not represent any of the "countless and variable schemes devised by those who seek the use of the money of others on the promise of profits," Howey, 328 U.S., at 299 , and therefore do not fall within "the ordinary concept of a security." </s> A </s> We reject at the outset any suggestion that the present transaction, evidenced by the sale of shares called "stock," 13 must be considered a security transaction simply because the statutory definition of a security includes the words "any . . . stock." Rather we adhere to the basic principle that has guided all of the Court's decisions in this area: </s> "[I]n searching for the meaning and scope of the word `security' in the Act[s], form should be disregarded for substance and the emphasis should be on economic reality." Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). </s> See also Howey, supra, at 298. [421 U.S. 837, 849] </s> The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Because securities transactions are economic in character Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto. Thus, in construing these Acts against the background of their purpose, we are guided by a traditional canon of statutory construction: </s> "[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892). </s> See also United States v. American Trucking Assns., 310 U.S. 534, 543 (1940). 14 </s> Respondents' reliance on Joiner as support for a "literal approach" to defining a security is misplaced. The issue in Joiner was whether assignments of interests in oil leases, coupled with the promoters' offer to drill an exploratory well, were securities. Looking to the economic [421 U.S. 837, 850] inducement provided by the proposed exploratory well, the Court concluded that these leases were securities even though "leases" as such were not included in the list of instruments mentioned in the statutory definition. In dictum the Court noted that "[i]nstruments may be included within [the definition of a security], as [a] matter of law, if on their face they answer to the name or description." 320 U.S., at 351 (emphasis supplied). And later, again in dictum, the Court stated that a security "might" be shown "by proving the document itself, which on its face would be a note, a bond, or a share of stock." Id., at 355 (emphasis supplied). By using the conditional words "may" and "might" in these dicta the Court made clear that it was not establishing an inflexible rule barring inquiry into the economic realities underlying a transaction. On the contrary, the Court intended only to make the rather obvious point that, in contrast to the instrument before it which was not included within the explicit statutory terms, most instruments bearing these traditional titles are likely to be covered by the statutes. 15 </s> In holding that the name given to an instrument is not dispositive, we do not suggest that the name is wholly irrelevant to the decision whether it is a security. There may be occasions when the use of a traditional name such as "stocks" or "bonds" will lead a purchaser justifiably to assume that the federal securities laws apply. [421 U.S. 837, 851] This would clearly be the case when the underlying transaction embodies some of the significant characteristics typically associated with the named instrument. </s> In the present case respondents do not contend, nor could they, that they were misled by use of the word "stock" into believing that the federal securities laws governed their purchase. Common sense suggests that people who intend to acquire only a residential apartment in a state-subsidized cooperative, for their personal use, are not likely to believe that in reality they are purchasing investment securities simply because the transaction is evidenced by something called a share of stock. These shares have none of the characteristics "that in our commercial world fall within the ordinary concept of a security." H. R. Rep. No. 85, supra, at 11. Despite their name, they lack what the Court in Tcherepnin deemed the most common feature of stock: the right to receive "dividends contingent upon an apportionment of profits." 389 U.S., at 339 . Nor do they possess the other characteristics traditionally associated with stock: they are not negotiable; they cannot be pledged or hypothecated; they confer no voting rights in proportion to the number of shares owned; and they cannot appreciate in value. In short, the inducement to purchase was solely to acquire subsidized low-cost living space; it was not to invest for profit. </s> B </s> The Court of Appeals, as an alternative ground for its decision, concluded that a share in Riverbay was also an "investment contract" as defined by the Securities Acts. Respondents further argue that in any event what they agreed to purchase is "commonly known as a `security'" within the meaning of these laws. In considering these claims we again must examine the substance - the economic realities of the transaction - rather than the [421 U.S. 837, 852] names that may have been employed by the parties. We perceive no distinction, for present purposes, between an "investment contract" and an "instrument commonly known as a `security.'" In either case, the basic test for distinguishing the transaction from other commercial dealings is </s> "whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." Howey, 328 U.S., at 301 . 16 </s> This test, in shorthand form, embodies the essential attributes that run through all of the Court's decisions defining a security. The touchstone is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. By profits, the Court has meant either capital appreciation resulting from the development of the initial investment, as in Joiner, supra (sale of oil leases conditioned on promoters' agreement to drill exploratory well), or a participation in earnings resulting from the use of investors' funds, as in Tcherepnin v. Knight, supra (dividends on the investment based on savings and loan association's profits). In such cases the investor is "attracted solely by the prospects of a return" on his investment. Howey, supra, at 300. By contrast, when a purchaser is motivated by a [421 U.S. 837, 853] desire to use or consume the item purchased - "to occupy the land or to develop it themselves," as the Howey Court put it, ibid. - the securities laws do not apply. 17 See also Joiner, supra. 18 </s> In the present case there can be no doubt that investors were attracted solely by the prospect of acquiring a place to live, and not by financial returns on their investments. The information Bulletin distributed to prospective residents emphasized the fundamental nature and purpose of the undertaking: </s> "A cooperative is a non-profit enterprise owned and controlled democratically by its members - the people who are using its services. . . . </s> . . . . . </s> "People find living in a cooperative community enjoyable for more than one reason. Most people join, however, for the simple reason that it is a way to obtain decent housing at a reasonable price. [421 U.S. 837, 854] However, there are other advantages. The purpose of a cooperative is to provide home ownership, not just apartments to rent. The community is designed to provide a favorable environment for family and community living. . . . </s> "The common bond of collective ownership which you share makes living in a cooperative different. It is a community of neighbors. Home ownership, common interests and the community atmosphere make living in a cooperative like living in a small town. As a rule there is very little turnover in a cooperative." App. 162a, 166a. </s> Nowhere does the Bulletin seek to attract investors by the prospect of profits resulting from the efforts of the promoters or third parties. On the contrary, the Bulletin repeatedly emphasizes the "nonprofit" nature of the endeavor. It explains that if rental charges exceed expenses the difference will be returned as a rebate, not invested for profit. It also informs purchasers that they will be unable to resell their apartments at a profit since the apartment must first be offered back to Riverbay "at the price . . . paid for it." 19 Id., at 163a. In short, neither of the kinds of profits traditionally associated with securities was offered to respondents. </s> The Court of Appeals recognized that there must be an expectation of profits for these shares to be securities, and conceded that there is "no possible profit on a resale of [this] stock." 500 F.2d, at 1254. The court correctly [421 U.S. 837, 855] noted, however, that profit may be derived from the income yielded by an investment as well as from capital appreciation, and then proceeded to find "an expectation of `income' in at least three ways." Ibid. Two of these supposed sources of income or profits may be disposed of summarily. We turn first to the Court of Appeals' reliance on the deductibility for tax purposes of the portion of the monthly rental charge applied to interest on the mortgage. We know of no basis in law for the view that the payment of interest, with its consequent deductibility for tax purposes, constitutes income or profits. 20 These tax benefits are nothing more than that which is available to any homeowner who pays interest on his mortgage. See 216 of Internal Revenue Code, 26 U.S.C. 216; Eckstein v. United States, 196 Ct. Cl. 644, 452 F.2d 1036 (1971). </s> The Court of Appeals also found support for its concept of profits in the fact that Co-op City offered space at a cost substantially below the going rental charges for comparable housing. Again, this is an inappropriate theory of "profits" that we cannot accept. The low rent derives from the substantial financial subsidies provided by the State of New York. This benefit cannot be liquidated into cash; nor does it result from the managerial efforts of others. In a real sense, it no more embodies the attributes of income or profits than do welfare benefits, food stamps, or other government subsidies. </s> The final source of profit relied on by the Court of Appeals was the possibility of net income derived from the leasing by Co-op City of commercial facilities, professional [421 U.S. 837, 856] offices and parking spaces, and its operation of community washing machines. The income, if any, from these conveniences, all located within the common areas of the housing project, is to be used to reduce tenant rental costs. Conceptually, one might readily agree that net income from the leasing of commercial and professional facilities is the kind of profit traditionally associated with a security investment. 21 See Tcherepnin v. Knight, supra. But in the present case this income - if indeed there is any - is far too speculative and insubstantial to bring the entire transaction within the Securities Acts. </s> Initially we note that the prospect of such income as a means of offsetting rental costs is never mentioned in the Information Bulletin. Thus it is clear that investors were not attracted to Co-op City by the offer of these potential rental reductions. See Joiner, 320 U.S., at 353 . Moreover, nothing in the record suggests that the facilities in fact return a profit in the sense that the leasing fees are greater than the actual cost to Co-op City of the space rented. 22 The short of the matter is [421 U.S. 837, 857] that the stores and services in question were established not as a means of returning profits to tenants, but for the purpose of making essential services available for the residents of this enormous complex. 23 By statute these facilities can only be "incidental and appurtenant" to the housing project. N. Y. Priv. Hous. Fin. Law 12 (5) (Supp. 1974-1975). Undoubtedly they make Co-op City a more attractive housing opportunity, but the possibility of some rental reduction is not an "expectation of profit" in the sense found necessary in Howey. 24 </s> [421 U.S. 837, 858] </s> There is no doubt that purchasers in this housing cooperative sought to obtain a decent home at an attractive price. But that type of economic interest characterizes every form of commercial dealing. What distinguishes a security transaction - and what is absent here - is an investment where one parts with his money in the hope of receiving profits from the efforts of others, and not where he purchases a commodity for personal consumption or living quarters for personal use. 25 </s> [421 U.S. 837, 859] </s> III </s> In holding that there is no federal jurisdiction, we do not address the merits of respondents' allegations of fraud. Nor do we indicate any view as to whether the type of claims here involved should be protected by federal regulation. 26 We decide only that the type of [421 U.S. 837, 860] transaction before us, in which the purchasers were interested in acquiring housing rather than making an investment for profit, is not within the scope of the federal securities laws. </s> Since respondents' claims are not cognizable in federal court, the District Court properly dismissed their complaint. 27 The judgment below is therefore </s> Reversed. </s> Footnotes [Footnote 1 Eligibility is limited to families whose monthly income does not exceed six times the monthly rental charge (or for families of four or more, seven times the rental charge). N. Y. Priv. Hous. Fin. Law 31 (2) (a) (Supp. 1974-1975). Preference in admission must be given to veterans, the handicapped, and the elderly. 31 (7)-(9). </s> [Footnote 2 UHF is composed of labor unions, housing cooperatives, and civic groups. It has sponsored the construction of several major housing cooperatives in New York City. </s> [Footnote 3 CSI is a business corporation that has acted as the contractor on several UHF-sponsored housing cooperatives. </s> [Footnote 4 Respondents are referred to herein variously as "purchasers," "owners," or "tenants." Respondents do not hold legal title to their respective apartments, but they are purchasers and owners of the shares of Riverbay which entitles them to occupy the apartments. By virtue of their right of occupancy, respondents are usually described as tenants. </s> [Footnote 5 A tenant can be forced to move out if he violates the provisions of his "occupancy agreement," which is essentially a lease for the apartment, or if his income grows to exceed the eligibility standards. </s> [Footnote 6 To date every family that has withdrawn from Co-op City has received back its initial payment in full. Indeed, at the time this [421 U.S. 837, 843] suit was filed there were 7,000 families on the waiting list for apartments in this cooperative. In addition, a special fund of nearly $1 million had been established by small monthly contributions from all tenants to insure that those wanting to move out would receive full compensation for their shares. </s> [Footnote 7 As the rental charges increased, the income eligibility requirements for residents of Co-op City expanded accordingly. See n. 1, supra. </s> [Footnote 8 Respondents maintained that the following material facts were omitted: (i) the original estimated cost had never been adhered to in any of the previous Mitchell-Lama projects sponsored by UHF and built by CSI; (ii) petitioners knew that the initial estimate would not be followed in the present project; (iii) CSI was a wholly owned subsidiary of UHF; (iv) CSI's net worth was so small that it could not have been legally held to complete the contract within the original estimated costs; (v) the State Housing Commissioner [421 U.S. 837, 845] had waived his own rule regarding liquidity requirements in approving CSI as the contractor; and (vi) there was an additional undisclosed contract between CSI and Riverbay. </s> [Footnote 9 Petitioners asserted that the Information Bulletin warned purchasers of the possibility of rental increases, and denied that it omitted material facts. They also argued that prior to occupancy all tenants were informed that rental charges had increased. In any event, petitioners claimed that respondents have suffered no damages since they may move out and retrieve their initial investments in full. </s> [Footnote 10 The District Court also dismissed the 1983 claim finding that the "federal securities allegations represent the only well-pleaded underlying basis for jurisdiction under the Civil Rights Act." 366 F. Supp. 1117, 1132 (1973). In view of these rulings the court did not reach the sovereign immunity claims. </s> [Footnote 11 The Court of Appeals held that the state agency was independent and distinct from the State itself and therefore was a "person" for purposes of 1983, that both the agency and the State had waived immunity under 32 (5) of the Private Housing Finance Law, and that the State had also implicitly waived its immunity by voluntarily participating in the sale of securities, an area subject to plenary federal regulation. See Parden v. Terminal R. Co., 377 U.S. 184 (1964). In view of our disposition of these cases we do not reach these issues. </s> [Footnote 12 The definition of a security in 3 (a) (10) of the 1934 Act, 15 U.S.C. 78c (a) (10), is virtually identical and, for present purposes, the coverage of the two Acts may be considered the same. See Tcherepnin v. Knight, 389 U.S. 332, 336 , 342 (1967); S. Rep. No. 792, 73d Cong., 2d Sess., 14 (1934). </s> [Footnote 13 While the record does not indicate precisely why the term "stock" was used for the instant transaction, it appears that this form is generally used as a matter of tradition and convenience. See P. Rohan & M. Reskin, Cooperative Housing Law & Practice 2.01 (4) (1973). </s> [Footnote 14 With the exception of the Second Circuit, every Court of Appeals recently to consider the issue has rejected the literal approach urged by respondents. See C. N. S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (CA7 1975); McClure v. First National Bank of Lubbock, 497 F.2d 490 (CA5 1974), cert. denied, 420 U.S. 930 (1975); Lino v. City Investing Co., 487 F.2d 689 (CA3 1973). See also 1 L. Loss, Securities Regulation 493 (2d ed. 1961) ("substance governs rather than form: . . . just as some things which look like real estate are securities, some things which look like securities are real estate"). </s> [Footnote 15 Nor can respondents derive any support for a literal approach from Tcherepnin v. Knight, supra, which quoted the Joiner dictum. Indeed in Tcherepnin the Court explicitly stated that "form should be disregarded for substance," 389 U.S., at 336 , and only after analyzing the economic realities of the transaction at issue did it conclude that an instrument called a "withdrawable capital share" was, in substance, an "investment contract," a share of "stock," a "certificate of interest or participation in [a] profit-sharing agreement," and a "transferable share." </s> [Footnote 16 This test speaks in terms of "profits to come solely from the efforts of others." (Emphasis supplied.) Although the issue is not presented in this case, we note that the Court of Appeals for the Ninth Circuit has held that "the word `solely' should not be read as a strict or literal limitation on the definition of an investment contract, but rather must be construed realistically, so as to include within the definition those schemes which involve in substance, if not form, securities." SEC v. Glenn W. Turner Enterprises, 474 F.2d 476, 482. cert. denied, 414 U.S. 821 (1973). We express no view, however, as to the holding of this case. </s> [Footnote 17 In some transactions the investor is offered both a commodity or real estate for use and an expectation of profits. See SEC Release No. 33-5347, 38 Fed. Reg. 1735 (Jan. 18, 1973). See generally Rohan, The Securities Law Implications of Condominium Marketing Programs Which Feature a Rental Agency or Rental Pool, 2 Conn. L. Rev. 1 (1969). The application of the federal securities laws to these transactions may raise difficult questions that are not present in this case. </s> [Footnote 18 In Joiner, 320 U.S., at 348 , the Court stated: "Undisputed facts seem to us, however, to establish the conclusion that defendants were not, as a practical matter, offering naked leasehold rights. Had the offer mailed by defendants omitted the economic inducements of the proposed and promised exploration well, it would have been a quite different proposition." This distinction was critical because the exploratory drillings gave the investments "most of their value and all of their lure." Id., at 349. The land itself was purely an incidental consideration in the transaction. </s> [Footnote 19 This requirement effectively insures that no apartment will be sold for more than its original cost. Consonant with the purposes of the Mitchell-Lama Act, whenever there are prospective buyers willing to pay as much as the initial purchase price for an apartment in Co-op City, Riverbay will repurchase the apartment and resell it at its original cost. See App. 138a. If, for some reason, Riverbay does not purchase the apartment the tenant still cannot make a profit on his sale. See supra, at 842-843. </s> [Footnote 20 Even if these tax deductions were considered profits, they would not be the type associated with a security investment since they do not result from the managerial efforts of others. See Rosenbaum, The Resort Condominium and the Federal Securities Laws - A Case Study in Governmental Inflexibility, 60 Va. L. Rev. 785, 795-796 (1974); Note, 62 Geo. L. J. 1515, 1524-1526 (1974). </s> [Footnote 21 The "income" derived from the rental of parking spaces and the operation of washing machines clearly was not profit for respondents since these facilities were provided exclusively for the use of tenants. Thus, when the income collected from the use of these facilities exceeds the cost of their operation the tenants simply receive the return of the initial overcharge in the form of a rent rebate. Indeed, it could be argued that the "income" from the commercial and professional facilities is also, in effect, a rebate on the cost of goods and services purchased at these facilities since it appears likely that they are patronized almost exclusively by Co-op City residents. See Note, 53 Tex. L. Rev. 623, 630-631, n. 38 (1975). </s> [Footnote 22 The Court of Appeals quoted the gross rental income received from these facilities. But such figures by themselves are irrelevant since the record does not indicate the cost to Co-op City of providing and maintaining the rented space. </s> [Footnote 23 See generally Miller, Cooperative Apartments: Real Estate or Securities?, 45 B. U. L. Rev. 465, 500 (1965). </s> [Footnote 24 Respondents urge us to abandon the element of profits in the definition of securities and to adopt the "risk capital" approach articulated by the California Supreme Court in Silver Hills Country Club v. Sobieski, 55 Cal. 2d 811, 361 P.2d 906 (1961). Cf. El Khadem v. Equity Securities Corp., 494 F.2d 1224 (CA9), cert. denied, 419 U.S. 900 (1974). See generally Coffey, The Economic Realities of a "Security": Is There a More Meaningful Formula?, 18 W. Res. L. Rev. 367 (1967); Long, An Attempt to Return "Investment Contracts" to the Mainstream of Securities Regulation, 24 Okla. L. Rev. 135 (1971); Hannan & Thomas, The Importance of Economic Reality and Risk in Defining Federal Securities, 25 Hastings L. J. 219 (1974). Even if we were inclined to adopt such a "risk capital" approach we would not apply it in the present case. Purchasers of apartments in Co-op City take no risk in any significant sense. If dissatisfied with their apartments, they may recover their initial investment in full. See n. 5, supra. Respondents assert that if Co-op City becomes bankrupt they stand to lose their whole investment. But, in view of the fact that the State has financed over 92% of the cost of construction and carefully regulates the development and operation of the project, bankruptcy in the normal sense is an unrealistic possibility. In any event, the risk of insolvency of an ongoing housing cooperative "differ[s] vastly" from the kind of risk of "fluctuating" value associated with securities investments. SEC v. Variable Annuity Co., 359 U.S. 65, 90 -91 (1959) (BRENNAN, J., concurring). See Hannan & Thomas, supra, at 242-249; Long, Introduction to Symposium: Interpreting the Statutory Definition of a Security: Some Pragmatic Considerations, 6 St. Mary's L. J. 96, 126-128 (1974). </s> [Footnote 25 The SEC has filed an amicus curiae brief urging us to hold the federal securities laws applicable to this case. Traditionally the views of an agency charged with administering the governing statute would be entitled to considerable weight. See, e. g., Saxbe v. Bustos, 419 U.S. 65, 74 (1974); Investment Company Institute v. Camp, 401 U.S. 617, 626 -627 (1971). But in this case the SEC's position flatly contradicts what appears to be a rather careful statement of the Commission's views in a recent release. In Release No. 33-5347, 38 Fed. Reg. 1735 (Jan. 18, 1973), applicable to the "sale of condominium units, or other units in a real estate development," the SEC stated its view that only those real estate investments that are "offered and sold with emphasis on the economic benefits to the purchaser to be derived from the managerial efforts of the promoter, or a third party designated or arranged for by the promoter," are to be considered securities. Id., at 1736. In particular, the Commission explained that the Securities Acts do not apply when "commercial facilities are a part of the common elements of a residential project" if "(a) the income from such facilities is used only to offset common area expenses and (b) the operation of such facilities is incidental to the project as a whole and are not established as a primary income source for the individual owners of a condominium or cooperative unit." Ibid. See also SEC Real Estate Advisory Committee Report 74-91 (1972); Dickey & Thorpe, Federal Security Regulation of Condominium Offerings, 19 N. Y. L. F. 473 (1974). Several commentators have noted the inconsistency between the SEC's position in the above release and the decision by the Court of Appeals in this case, which the SEC now supports. See Berman & Stone, Federal Securities Law and the Sale of Condominiums, [421 U.S. 837, 859] Homes, and Homesites, 30 Bus. Law. 411, 420-425 (1975); Comment, Condominium Regulation: Beyond Disclosure, 123 U. Pa. L. Rev. 639, 654-655 (1975); Note, supra, n. 20, at 628. In view of this unexplained contradiction in the Commission's position we accord no special weight to its views. See Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 426 (1972); Blue Chip Stamps v. Manor Drug Stores, ante, at 746-747, n. 10. </s> [Footnote 26 It has been suggested that the sale of housing developments such as condominiums and cooperatives is in need of federal regulation and therefore the securities laws should be construed or amended to reach these transactions. See, e. g., Note, Federal Securities Regulation of Condominiums: A Purchaser's Perspective, 62 Geo. L. J. 1403 (1974); Note, Cooperative Housing Corporations and the Federal Securities Laws, 71 Col. L. Rev. 118 (1971). Others have disagreed, claiming that the extensive body of regulation developed over more than four decades under these Acts would be inappropriate and unduly costly to the sellers and buyers of residential housing. See Berman & Stone, supra, n. 24; Note, supra, n. 20. Moreover, extension of the securities laws to real estate transactions would involve important questions as to the appropriate balance between state and federal responsibility. The determination of whether and in what manner federal regulation may be required for housing transactions, where the characteristics of an investment in securities are not present, is better left to the Congress, which can assess both the costs and benefits of any such regulation. Indeed only recently Congress instructed the Secretary of Housing and Urban Development "to conduct a full and complete investigation and study . . . with respect to . . . the problems, difficulties, and abuses or potential abuses applicable to condominium and cooperative housing." 821, 88 Stat. 740, 42 U.S.C. 3532 (1970 ed., Supp. IV). See also Real Estate Settlement Procedures Act of 1974, 88 Stat. 1724, 12 U.S.C. 2601 et seq. (1970 ed., Supp. IV); Interstate Land Sales Full Disclosure Act, 82 Stat. 590, 15 U.S.C. 1701-1720. </s> [Footnote 27 Besides the Securities Acts claims, respondents also included a vague and conclusory allegation under 42 U.S.C. 1983 against petitioner New York State Housing Finance Agency. We agree with the District Court that this count must also be dismissed. See n. 9. supra. The remaining counts in the complaint were all predicated on alleged violations of state law not independently cognizable in federal court. </s> MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE WHITE join, dissenting. </s> I dissent. The property interests here are "securities," in my view, both because they are shares of "stock" and because they are "investment contracts." </s> I </s> Both the Securities Act of 1933, 15 U.S.C. 77b (1), and the Securities Exchange Act of 1934, 15 U.S.C. 78c (a) (10), define the term "security" as including, among other things, an "investment contract." The essential ingredients of an investment contract have been clear since SEC v. W. J. Howey Co., 328 U.S. 293, 301 (1946), held that "[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." See Tcherepnin v. Knight, 389 U.S. 332, 338 (1967). There is no doubt that Co-op City residents invested money in a common enterprise; the only questions involve [421 U.S. 837, 861] whether the investment was to be productive of "profits to come solely from the efforts of others." </s> The record discloses little of the activities of Riverbay Corporation, the owner and operator of Co-op City, as a lessor of commercial and office space. It does appear, however, that revenues well in excess of $1 million per year flow into the corporation from such activities, Appendix in Court of Appeals 361a (hereafter App.), a fact noted by the Court of Appeals. 500 F.2d 1246, 1254 (CA2 1974). Even after deduction of expenses - taxes alone take half of the gross - the residue could hardly be de minimis, even for an operation as large as Co-op City. Therein lies the patent fallacy of the Court's conclusion that this aspect of the corporation's activities is "speculative and insubstantial." Ante, at 856. The District Court rightly recognized that management by third parties is essential in a project so massive as Co-op City. 366 F. Supp. 1117, 1128 (SDNY 1973). Co-op City residents as stockholders were thus necessarily bound to rely on the management of Riverbay Corporation to produce income in the form of rents from the commercial and office space made an integral part of the project. </s> As stockholders, Co-op City residents also necessarily relied on corporate management to build and operate the facility efficiently to the end that monthly charges would be minimized. The Court of Appeals held that profits were involved partly because Co-op City offered housing at bargain prices. 500 F.2d, at 1254. The Court substitutes its own judgment in holding that "[t]he low rent derives from the substantial financial subsidies provided by the State of New York." Ante, at 855. It is simple common sense that management efficiency necessarily enters into the equation in the determination of the charges assessed against residents. But even to the extent that the resident-stockholders do benefit in reduced [421 U.S. 837, 862] charges from government subsidies, the benefit is not for this reason any the less a profit to them. The welfare benefits to which the Court refers, ante, at 855, may also be profits, but those profits lack the essential ingredient of profits present here that "come solely from the efforts of others." Here the resident investors utilize the efforts of others to obtain government subsidies. Investors in Wall Street who do this every day will be surprised to learn that the benefits so obtained are not considered profits. </s> The Court of Appeals also relied on the tax deductibility accorded to portions of the monthly carrying charges paid by Co-op City residents as a source of profit to them. 500 F.2d, at 1254. The Court rejects this argument with the statement that "[t]hese tax benefits are nothing more than that which is available to any homeowner . . . ." Ante, at 855. This is true but irrelevant to the question whether they constitute profits that "come solely from the efforts of others." The special federal tax provision for cooperative owners, 26 U.S.C. 216. was intended "to place the tenant stockholders of a cooperative apartment in the same position as the owner of a dwelling house so far as deductions for interest and taxes are concerned." S. Rep. No. 1631, 77th Cong., 2d Sess., 51 (1942). This tax benefit constitutes a profit both for the individual homeowners and for the "tenant stockholders of a cooperative apartment." The difference is that the profit of the individual homeowner does not "come solely from the efforts of others," whereas the profit from this source realized by a resident of Co-op City does. Setting up and operating a corporation so as to take advantage of special tax provisions is a project requiring specialized skills. If the arrangements go awry the residents can find themselves without the hoped-for tax advantages. [421 U.S. 837, 863] See, e. g., Eckstein v. United States, 196 Ct. Cl. 644, 452 F.2d 1036 (1971). Thus, the investors must depend upon the "efforts of others," here Co-op City's management, properly to organize and operate the project to realize the tax advantage for them. </s> In SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344 (1943), the investment was in oil leases. In Howey it involved citrus groves. Though taxation was not a factor in the Court's disposition of those cases, each of those investments was of a type offering tax advantages as a principal attraction to the investor. Cunnane, Tax Shelter Investments After the 1969 Tax Reform Act, 49 Taxes 450 (1971). It is no answer that the individual investor could have obtained the same tax advantages by purchasing an entire citrus business or by becoming an independent oil operator. He could, but if he did his profits from tax advantages would not then "come solely from the efforts of others." It is only when he relies on third parties to produce the profits for him that, as here, the question of investment contract analysis arises. </s> Besides its express rejection of each of the forms of profit found by the Court of Appeals, the Court must surprise knowledgeable economists with its proposition, ante, at 852, that profits cannot assume forms other than appreciation of capital or participation in earnings. 1 All of the varieties of profit involved here accrue to the resident-stockholders in the form of money saved rather than money earned. 2 Not only would simple common sense teach that the two are the same, but a more sophisticated economic analysis also compels the conclusion that in a practical world there is no difference between [421 U.S. 837, 864] the two forms of income. 3 The investor finds no reason to distinguish, for example, between tax savings and after-tax income. Under a statute having as one of its "central purposes" "to protect investors," Tcherepnin, 389 U.S., at 336 , it is obvious that the Court errs in distinguishing among types of economic inducements which have no bearing on the motives of investors. Construction of the statute in terms of economic reality is more faithful to its "central" purpose "to protect investors." </s> There can be no doubt that one of the inducements to the resident-stockholders to purchase a Co-op City apartment was the prospect of profits in one or more of the forms I have discussed. The fact that literature encouraging purchase mentioned some is important, although not conclusive, evidence. See Joiner, supra, at 353. The Information Bulletins, while not mentioning income from commercial and office space as an advantage of stock ownership, did emphasize the "reasonable price" of the housing, App. 166a, 187a, and they asserted that "every effort" would be made to keep monthly carrying charges low, id., at 174a, 194a. Tax benefits were also discussed as an advantage of ownership, though of course no guarantee of favorable federal and state tax treatment was made. Id., at 175a, 195a. </s> I do not deny that there are some limits to the broad statutory definition of a security, and the Court's distinction between securities and consumer goods is not frivolous. Ante, at 858. But the distinction is not useful in the resolution of the question before us. Of course, the purchase of the stock to get an apartment involves an element of consumption, but it also involves an element of investment. The variable annuity contract considered [421 U.S. 837, 865] in SEC v. Variable Annuity Co., 359 U.S. 65 (1959), presented a not irrelevant analogous situation. What was purchased, after all, was expressly labeled "stock." In any event, what was purchased constituted an "investment contract," within Howey, for resident-stockholders of Co-op City invested "in a common enterprise with profits to come solely from the efforts of others." They therefore were purchasing securities within the purview of the Securities Act of 1933 and the Securities Exchange Act of 1934. </s> II </s> Moreover, both statutes define the term "security" to include "stock." Therefore, coverage under the statutes is clear under the Court's holding in Joiner that "[i]nstruments may be included within any of these definitions, as matter of law if on their face they answer to the name or description." 320 U.S., at 351 ; see Tcherepnin, 389 U.S., at 339 . "Security" was broadly defined with the explicit object of including "the many types of instruments that in our commercial world fall within the ordinary concept of a security," H. R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933). Stock is therefore included because instruments "such as notes, bonds, and stocks, are pretty much standardized and the name alone carries well-settled meaning." Joiner, 320 U.S., at 351 . Even if this principle nevertheless allows room for exception of some instruments labeled "stock," the Court's justification for excepting the stock involved in this case is singularly unpersuasive. The Court states that "[c]ommon sense suggests that people who intend to acquire only a residential apartment in a state-subsidized cooperative, for their personal use, are not likely to believe that in reality they are purchasing investment securities simply because the transaction is [421 U.S. 837, 866] evidenced by something called a share of stock." Ante, at 851. But even informed commentators have expressed misgivings about this question. 4 Thus the Court's justification departs unacceptably from the principle of Joiner that "[i]n the enforcement of an act such as this it is not inappropriate that promoters' offerings be judged as being what they were represented to be." 320 U.S., at 353 . </s> While the absence in the case of Co-op City stock of some features normally associated with stock is a relevant consideration, the presence of the attributes that led me to conclude that this stock constitutes an "investment contract," leads me also to conclude that it is a "stock" for purposes of the two statutes. Cf. Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972). </s> In sum, I conclude that the interests purchased by the stockholders here were "securities" both because they were "stock" and because they were "investment contracts." 5 In my view therefore the Court of Appeals correctly held that the District Court erred in dismissing this suit. 6 </s> [421 U.S. 837, 867] </s> III </s> At oral argument, petitioner United Housing Foundation contended strenuously that comprehensive state participation and regulation of the construction and operation of Co-op City constituted Riverbay Corporation not a capitalistic enterprise but a beneficial public housing enterprise, created by a partnership of public and private groups for the benefit of people of modest incomes. I need not disagree with this characterization to conclude that nevertheless there is a role for the federal [421 U.S. 837, 868] statutes to play in avoiding the danger of fraud and other evils in the raising of the massive sums the project involved. See SEC v. Capital Gains Research Bureau, 375 U.S. 180, 195 (1963); H. R. Rep. No. 85, 73d Cong., 1st Sess., 2-3 (1933). No doubt New York's intensive regulation also helps avoid those evils. See N. Y. Priv. Hous. Fin. Law. But Congress contemplated concurrent state and federal regulation in enacting the securities laws. SEC v. Variable Annuity Co., 359 U.S., at 75 (concurring opinion), and therefore the existence of state regulation does not and cannot be a reason for excluding appropriate application of the federal statutes. Indeed, the resident-stockholder investors of Co-op City are particularly entitled to the federal protection. The District Court properly observed: </s> "[I]f ever there was a group of people who need and deserve full and careful disclosure in connection with proposals for the use of their funds, it is this type of group. . . . The housing selection decision is a critical one in their lives. The cost of housing demands a good percentage of their incomes. Their savings are most likely to be minimal, and they probably don't have lawyers or accountants to guide them. Further, they are people likely to put a great deal of credence in statements made with respect to an offering by reputable civic groups and labor unions, particularly when the proposal is stamped with the imprimatur of the state." 366 F. Supp., at 1125. </s> I part from the District Court in concluding however that investors not only should be protected but, under my reading of the statutes, are protected by the securities laws. A different, perhaps better, form of redress can and will be devised for this kind of investment, but until it is these investors are not to be denied what the [421 U.S. 837, 869] federal statutes plainly allow them. See Note, Cooperative Housing Corporations and the Federal Securities Laws, 71 Col. L. Rev. 118 (1971). The SEC, though perhaps tardily, has come to the view that these housing corporations fall within its regulatory authority because the kind of investment involved is a "security" under the statutes. I wholly agree. I would affirm the judgment of the Court of Appeals. </s> [Footnote 1 See P. Samuelson, Economics 618-626 (9th ed. 1973). </s> [Footnote 2 Apparently there is at least a possibility that dividends could be paid to shareholders, but these would really just be partial refunds of money already paid in which was not needed. </s> [Footnote 3 See, e. g., P. Samuelson, supra, n. 1, at 435; Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 (1960). </s> [Footnote 4 See, e. g., 1 L. Loss, Securities Regulation 492-493 (2d ed. 1961). </s> [Footnote 5 Accordingly, I have no occasion to examine the "risk capital" approach of Silver Hills Country Club v. Sobieski, 55 Cal. 2d 811, 361 P.2d 906 (1961), to determine whether that would lead to the same result. </s> [Footnote 6 Petitioners in No. 74-647, the State of New York and the New York State Housing Finance Agency, argue that respondents' suit against them is barred by the Eleventh Amendment. The Court finds it unnecessary to deal with this contention, but my conclusion requires that I answer the Eleventh Amendment defense. The Court of Appeals found no Eleventh Amendment bar here, and I am in agreement with this result. The Housing Finance Agency is a "public benefit corporation" under New York law, N. Y. Priv. Hous. Fin. Law 43 (1) (1962 and Supp. 1974-1975), empowered "[t]o sue and be sued," 44 (1). The agency is authorized to accept funds from the State, the Federal [421 U.S. 837, 867] Government, or "any other source," 44 (16), but it also is empowered to issue notes, bonds, or other obligations to obtain financing, 44 (7) and 46. Significantly, the State is not liable on the agency's notes or bonds, and such obligations do not constitute debts of the State. 46 (8). The agency is therefore not an "alter ego" of the State; rather it is an independent body not entitled to assert the Eleventh Amendment. See Cowles v. Mercer County, 7 Wall. 118 (1869); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 690 (2d ed. 1973). Compare Matherson v. Long Island State Park Comm'n, 442 F.2d 566 (CA2 1971), and Zeidner v. Wulforst, 197 F. Supp. 23, 25 (EDNY 1961), with Whitten v. State University Construction Fund, 493 F.2d 177 (CA1 1974), and Charles Simkin & Sons, Inc. v. State University Construction Fund, 352 F. Supp. 177 (SDNY), aff'd mem., 486 F.2d 1393 (CA2 1973). The State of New York, unlike the agency, may assert the Eleventh Amendment, but it has consented to suit. "With regard to duties and liabilities arising out of this article the state, the commissioner or the supervising agency may be sued in the same manner as a private person." N. Y. Priv. Hous. Fin. Law 32 (5) (emphasis added). To be sure, state waiver statutes are to be strictly construed, and they do not necessarily indicate consent to suit in federal court. See Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 (1946); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). Nevertheless, the language used in 32 (5) is in my view sufficiently broad to permit suit in both state and federal courts. </s> [421 U.S. 837, 1]

United States Supreme Court AKE v. OKLAHOMA(1985) No. 83-5424 Argued: November 7, 1984Decided: February 26, 1985 </s> Petitioner, an indigent, was charged with first-degree murder and shooting with intent to kill. At his arraignment in an Oklahoma trial court, his behavior was so bizarre that the trial judge, sua sponte, ordered him to be examined by a psychiatrist. Shortly thereafter, the examining psychiatrist found petitioner to be incompetent to stand trial and suggested that he be committed. But six weeks later, after being committed to the state mental hospital, petitioner was found to be competent on the condition that he continue to be sedated within an antipsychotic drug. The State then resumed proceedings, and at a pretrial conference petitioner's attorney informed the court that he would raise an insanity defense, and requested a psychiatric evaluation at state expense to determine petitioner's mental state at the time of the offense, claiming that he was entitled to such an evaluation by the Federal Constitution. On the basis of United States ex rel. Smith v. Baldi, 344 U.S. 561 , the trial court denied petitioner's motion for such an evaluation. At the guilt phase of the ensuing trial, the examining psychiatrists testified that petitioner was dangerous to society, but there was no testimony as to his sanity at the time of the offense. The jury rejected the insanity defense, and petitioner was convicted on all counts. At the sentencing proceeding, the State asked for the death penalty on the murder counts, relying on the examining psychiatrists' testimony to establish the likelihood of petitioner's future dangerous behavior. Petitioner had no expert witness to rebut this testimony or to give evidence in mitigation of his punishment, and he was sentenced to death. The Oklahoma Court of Criminal Appeals affirmed the convictions and sentences. After rejecting, on the merits, petitioner's federal constitutional claim that, as an indigent defendant, he should have been provided the services of a court-appointed psychiatrist, the court ruled that petitioner had waived such claim by not repeating his request for a psychiatrist in his motion for a new trial. </s> Held: </s> 1. This Court has jurisdiction to review this case. The Oklahoma Court of Criminal Appeals' holding that the federal constitutional claim to a court-appointed psychiatrist was waived depended on the court's [470 U.S. 68, 69] federal-law ruling and consequently does not present an independent state ground for its decision. Pp. 74-75. </s> 2. When a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one. Pp. 76-85. </s> (a) In determining whether, and under what conditions, a psychiatrist's participation is important enough to preparation of a defense to require the State to provide an indigent defendant with access to a psychiatrist, there are three relevant factors: (i) the private interest that will be affected by the State's actions; (ii) the State's interest that will be affected if the safeguard is to be provided; and (iii) the probable value of the additional or substitute safeguards that are sought and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. The private interest in the accuracy of a criminal proceeding is almost uniquely compelling. The State's interest in denying petitioner a psychiatrist's assistance is not substantial in light of the compelling interest of both the State and petitioner in accurate disposition. And without a psychiatrist's assistance to conduct a professional examination on issues relevant to the insanity defense, to help determine whether that defense is viable, to present testimony, and to assist in preparing the cross-examination of the State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. This is so particularly when the defendant is able to make an ex parte threshold showing that his sanity is likely to be a significant factor in his defense. Pp. 78-83. </s> (b) When the State at a capital sentencing proceeding presents psychiatric evidence of the defendant's future dangerousness, the defendant, without a psychiatrist's assistance, cannot offer an expert's opposing view, and thereby loses a significant opportunity to raise in the jurors' minds questions about the State's proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the State's burden so slim, due process requires access to a psychiatric examination on relevant issues, to a psychiatrist's testimony, and to assistance in preparation at the sentencing phase. Pp. 83-84. </s> (c) United States ex rel. Smith v. Baldi, supra, is not authority for absolving the trial court of its obligation to provide petitioner access to a psychiatrist. Pp. 84-85. </s> 3. On the record, petitioner was entitled to access to a psychiatrist's assistance at his trial, it being clear that his mental state at the time [470 U.S. 68, 70] of the offense was a substantial factor in his defense, and that the trial court was on notice of that fact when the request for a court-appointed psychiatrist was made. In addition, petitioner's future dangerousness was a significant factor at the sentencing phase, so as to entitle him to a psychiatrist's assistance on this issue, and the denial of that assistance deprived him of due process. Pp. 86-87. </s> 663 P.2d 1, reversed and remanded. </s> MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C. J., filed an opinion concurring in the judgment, post, p. 87. REHNQUIST, J., filed a dissenting opinion, post, p. 87. </s> Arthur B. Spitzer argued the cause for petitioner. With him on the briefs were Elizabeth Symonds, Charles S. Sims, Burt Neuborne, and William B. Rogers. </s> Michael C. Turpen, Attorney General of Oklahoma, argued the cause for respondent. With him on the brief was David W. Lee, Assistant Attorney General. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the New Jersey Department of the Public Advocate by Joseph H. Rodriguez and Michael L. Perlin; for the American Psychiatric Association by Joel I. Klein; and for the American Psychological Association et al. by Margaret Farrell Ewing, Donald N. Bersoff, and Bruce J. Ennis. Briefs of amici curiae also supporting petitioner were filed for the Public Defender of Oklahoma et al. by Robert A. Ravitz, Frank McCarthy, and Thomas J. Ray, Jr.; and for the National Legal Aid and Defender Association et al. by Richard J. Wilson and James M. Doyle. </s> JUSTICE MARSHALL delivered the opinion of the Court. </s> The issue in this case is whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question. </s> I </s> Late in 1979, Glen Burton Ake was arrested and charged with murdering a couple and wounding their two children. He was arraigned in the District Court for Canadian County, [470 U.S. 68, 71] Okla., in February 1980. His behavior at arraignment, and in other prearraignment incidents at the jail, was so bizarre that the trial judge, sua sponte, ordered him to be examined by a psychiatrist "for the purpose of advising with the Court as to his impressions of whether the Defendant may need an extended period of mental observation." App. 2. The examining psychiatrist reported: "At times [Ake] appears to be frankly delusional . . . . He claims to be the `sword of vengeance' of the Lord and that he will sit at the left hand of God in heaven." Id., at 8. He diagnosed Ake as a probable paranoid schizophrenic and recommended a prolonged psychiatric evaluation to determine whether Ake was competent to stand trial. </s> In March, Ake was committed to a state hospital to be examined with respect to his "present sanity," i. e., his competency to stand trial. On April 10, less than six months after the incidents for which Ake was indicated, the chief forensic psychiatrist at the state hospital informed the court that Ake was not competent to stand trial. The court then held a competency hearing, at which a psychiatrist testified: </s> "[Ake] is a psychotic . . . his psychiatric diagnosis was that of paranoid schizophrenia - chronic, with exacerbation, that is with current upset, and that in addition . . . he is dangerous. . . . [B]ecause of the severity of his mental illness and because of the intensities of his rage, his poor control, his delusions, he requires a maximum security facility within - I believe - the State Psychiatric Hospital system." Id., at 11-12. </s> The court found Ake to be a "mentally ill person in need of care and treatment" and incompetent to stand trial, and ordered him committed to the state mental hospital. </s> Six weeks later, the chief forensic psychiatrist informed the court that Ake had become competent to stand trial. At the time, Ake was receiving 200 milligrams of Thorazine, an antipsychotic drug, three times daily, and the psychiatrist indicated that, if Ake continued to receive that dosage, his [470 U.S. 68, 72] condition would remain stable. The State then resumed proceedings against Ake. </s> At a pretrial conference in June, Ake's attorney informed the court that his client would raise an insanity defense. To enable him to prepare and present such a defense adequately, the attorney stated, a psychiatrist would have to examine Ake with respect to his mental condition at the time of the offense. During Ake's 3-month stay at the state hospital, no inquiry had been made into his sanity at the time of the offense, and, as an indigent, Ake could not afford to pay for a psychiatrist. Counsel asked the court either to arrange to have a psychiatrist perform the examination, or to provide funds to allow the defense to arrange one. The trial judge rejected counsel's argument that the Federal Constitution requires that an indigent defendant receive the assistance of a psychiatrist when that assistance is necessary to the defense, and he denied the motion for a psychiatric evaluation at state expense on the basis of this Court's decision in United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953). </s> Ake was tried for two counts of murder in the first degree, a crime punishable by death in Oklahoma, and for two counts of shooting with intent to kill. At the guilt phase of trial, his sole defense was insanity. Although defense counsel called to the stand and questioned each of the psychiatrists who had examined Ake at the state hospital, none testified about his mental state at the time of the offense because none had examined him on that point. The prosecution, in turn, asked each of these psychiatrists whether he had performed or seen the results of any examination diagnosing Ake's mental state at the time of the offense, and each doctor replied that he had not. As a result, there was no expert testimony for either side on Ake's sanity at the time of the offense. The jurors were then instructed that Ake could be found not guilty by reason of insanity if he did not have the ability to distinguish right from wrong at the time of the alleged offense. They [470 U.S. 68, 73] were further told that Ake was to be presumed sane at the time of the crime unless he presented evidence sufficient to raise a reasonable doubt about his sanity at that time. If he raised such a doubt in their minds, the jurors were informed, the burden of proof shifted to the State to prove sanity beyond a reasonable doubt. 1 The jury rejected Ake's insanity defense and returned a verdict of guilty on all counts. </s> At the sentencing proceeding, the State asked for the death penalty. No new evidence was presented. The prosecutor relied significantly on the testimony of the state psychiatrists who had examined Ake, and who had testified at the guilt phase that Ake was dangerous to society, to establish the likelihood of his future dangerous behavior. Ake had no expert witness to rebut this testimony or to introduce on his behalf evidence in mitigation of his punishment. The jury sentenced Ake to death on each of the two murder counts, and to 500 years' imprisonment on each of the two counts of shooting with intent to kill. </s> On appeal to the Oklahoma Court of Criminal Appeals, Ake argued that, as an indigent defendant, he should have been provided the services of a court-appointed psychiatrist. The court rejected this argument, observing: "We have held numerous times that, the unique nature of capital cases notwithstanding, the State does not have the responsibility of [470 U.S. 68, 74] providing such services to indigents charged with capital crimes." 663 P.2d 1, 6 (1983). Finding no error in Ake's other claims, 2 the court affirmed the convictions and sentences. We granted certiorari. 465 U.S. 1099 (1984). </s> We hold that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one. Accordingly, we reverse. </s> II </s> Initially, we must address our jurisdiction to review this case. After ruling on the merits of Ake's claim, the Oklahoma court observed that in his motion for a new trial Ake had not repeated his request for a psychiatrist and that the claim was thereby waived. 663 P.2d, at 6. The court cited Hawkins v. State, 569 P.2d 490 (Okla. Crim. App. 1977), for this proposition. The State argued in its brief to this Court that the court's holding on this issue therefore rested on an adequate and independent state ground and ought not be reviewed. Despite the court's state-law ruling, we conclude that the state court's judgment does not rest on an independent state ground and that our jurisdiction is therefore properly exercised. </s> The Oklahoma waiver rule does not apply to fundamental trial error. See Hawkins v. State, supra, at 493; Gaddis [470 U.S. 68, 75] v. State, 447 P.2d 42, 45-46 (Okla. Crim. App. 1968). Under Oklahoma law, and as the State conceded at oral argument, federal constitutional errors are "fundamental." Tr. of Oral Arg. 51-52; see Buchanan v. State, 523 P.2d 1134, 1137 (Okla. Crim. App. 1974) (violation of constitutional right constitutes fundamental error); see also Williams v. State, 658 P.2d 499 (Okla. Crim. App. 1983). Thus, the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question. </s> As we have indicated in the past, when resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded. See Herb v. Pitcairn, 324 U.S. 117, 126 (1945) ("We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of Federal laws, our review could amount to nothing more than an advisory opinion"); Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U.S. 157, 164 (1917) ("But where the non-Federal ground is so interwoven with the other as not to be an independent matter, or is not of sufficient breadth to sustain the judgment without any decision of the other, our jurisdiction is plain"). In such a case, the federal-law holding is integral to the state court's disposition of the matter, and our ruling on the issue is in no respect advisory. In this case, the additional holding of the state court - that the constitutional challenge presented here was waived - depends on the court's federal-law ruling and consequently does not present an independent state ground for the decision rendered. We therefore turn to a consideration of the merits of Ake's claim. [470 U.S. 68, 76] </s> III </s> This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. In recognition of this right, this Court held almost 30 years ago that once a State offers to criminal defendants the opportunity to appeal their cases, it must provide a trial transcript to an indigent defendant if the transcript is necessary to a decision on the merits of the appeal. Griffin v. Illinois, 351 U.S. 12 (1956). Since then, this Court has held that an indigent defendant may not be required to pay a fee before filing a notice of appeal of his conviction, Burns v. Ohio, 360 U.S. 252 (1959), that an indigent defendant is entitled to the assistance of counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963), and on his first direct appeal as of right, Douglas v. California, 372 U.S. 353 (1963), and that such assistance must be effective. See Evitts v. Lucey, 469 U.S. 387 (1985); Strickland v. Washington, 466 U.S. 668 (1984); McMann v. Richardson, 397 U.S. 759, 771 , n. 14 (1970). 3 Indeed, in Little v. Streater, 452 U.S. 1 (1981), we extended this principle of meaningful participation to a "quasi-criminal" proceeding and held that, in a paternity action, the State cannot deny the putative father blood grouping tests, if he cannot otherwise afford them. [470 U.S. 68, 77] </s> Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S. 600 (1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system," id., at 612. To implement this principle, we have focused on identifying the "basic tools of an adequate defense or appeal," Britt v. North Carolina, 404 U.S. 226, 227 (1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them. </s> To say that these basic tools must be provided is, of course, merely to begin our inquiry. In this case we must decide whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense. Three factors are relevant to this determination. The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. See Little v. Streater, supra, at 6; Mathews v. Eldridge, 424 U.S. 319, 335 (1976). We turn, then, to apply this standard to the issue before us. [470 U.S. 68, 78] </s> A </s> The private interest in the accuracy of a criminal proceeding that places an individual's life or liberty at risk is almost uniquely compelling. Indeed, the host of safeguards fashioned by this Court over the years to diminish the risk of erroneous conviction stands as a testament to that concern. The interest of the individual in the outcome of the State's effort to overcome the presumption of innocence is obvious and weighs heavily in our analysis. </s> We consider, next, the interest of the State. Oklahoma asserts that to provide Ake with psychiatric assistance on the record before us would result in a staggering burden to the State. Brief for Respondent 46-47. We are unpersuaded by this assertion. Many States, as well as the Federal Government, currently make psychiatric assistance available to indigent defendants, and they have not found the financial burden so great as to preclude this assistance. 4 This is [470 U.S. 68, 79] especially so when the obligation of the State is limited to provision of one competent psychiatrist, as it is in many States, and as we limit the right we recognize today. At the same time, it is difficult to identify any interest of the State, other than that in its economy, that weighs against recognition of this right. The State's interest in prevailing at trial - unlike that of a private litigant - is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases. Thus, also unlike a private litigant, a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict obtained. We therefore conclude that the governmental interest in denying Ake the assistance of a psychiatrist is not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions. </s> Last, we inquire into the probable value of the psychiatric assistance sought, and the risk of error in the proceeding if such assistance is not offered. We begin by considering the pivotal role that psychiatry has come to play in criminal proceedings. More than 40 States, as well as the Federal Government, have decided either through legislation or judicial decision that indigent defendants are entitled, under certain circumstances, to the assistance of a psychiatrist's expertise. 5 For example, in subsection (e) of the Criminal Justice Act, 18 U.S.C. 3006A, Congress has provided that indigent [470 U.S. 68, 80] defendants shall receive the assistance of all experts "necessary for an adequate defense." Numerous state statutes guarantee reimbursement for expert services under a like standard. And in many States that have not assured access to psychiatrists through the legislative process, state courts have interpreted the State or Federal Constitution to require that psychiatric assistance be provided to indigent defendants when necessary for an adequate defense, or when insanity is at issue. 6 </s> These statutes and court decisions reflect a reality that we recognize today, namely, that when the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the "elusive and often deceptive" symptoms of insanity, Solesbee v. Balkcom, 339 U.S. 9, 12 (1950), and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists [470 U.S. 68, 81] ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense. </s> Psychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party. When jurors make this determination about issues that inevitably are complex and foreign, the testimony of psychiatrists can be crucial and "a virtual necessity if an insanity plea is to have any chance of success." 7 By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and witnesses, and that private individuals do as well, [470 U.S. 68, 82] when they can afford to do so. 8 In so saying, we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of the evolving practice. </s> The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination. </s> A defendant's mental condition is not necessarily at issue in every criminal proceeding, however, and it is unlikely that psychiatric assistance of the kind we have described would be of probable value in cases where it is not. The risk of error from denial of such assistance, as well as its probable value, is most predictably at its height when the defendant's mental condition is seriously in question. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in [470 U.S. 68, 83] his defense, the need for the assistance of a psychiatrist is readily apparent. It is in such cases that a defense may be devastated by the absence of a psychiatric examination and testimony; with such assistance, the defendant might have a reasonable chance of success. In such a circumstance, where the potential accuracy of the jury's determination is so dramatically enhanced, and where the interests of the individual and the State in an accurate proceeding are substantial, the State's interest in its fisc must yield. 9 </s> We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right. </s> B </s> Ake also was denied the means of presenting evidence to rebut the State's evidence of his future dangerousness. The foregoing discussion compels a similar conclusion in the context of a capital sentencing proceeding, when the State presents psychiatric evidence of the defendant's future dangerousness. We have repeatedly recognized the defendant's compelling interest in fair adjudication at the sentencing phase of a capital case. The State, too, has a profound interest [470 U.S. 68, 84] in assuring that its ultimate sanction is not erroneously imposed, and we do not see why monetary considerations should be more persuasive in this context than at trial. The variable on which we must focus is, therefore, the probable value that the assistance of a psychiatrist will have in this area, and the risk attendant on its absence. </s> This Court has upheld the practice in many States of placing before the jury psychiatric testimony on the question of future dangerousness, see Barefoot v. Estelle, 463 U.S. 880, 896 -905 (1983), at least where the defendant has had access to an expert of his own, id., at 899, n. 5. In so holding, the Court relied, in part, on the assumption that the factfinder would have before it both the views of the prosecutor's psychiatrists and the "opposing views of the defendant's doctors" and would therefore be competent to "uncover, recognize, and take due account of . . . shortcomings" in predictions on this point. Id., at 899. Without a psychiatrist's assistance, the defendant cannot offer a well-informed expert's opposing view, and thereby loses a significant opportunity to raise in the jurors' minds questions about the State's proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase. </s> C </s> The trial court in this case believed that our decision in United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953), absolved it completely of the obligation to provide access to a psychiatrist. For two reasons, we disagree. First, neither Smith, nor McGarty v. O'Brien, 188 F.2d 151, 155 (CA1 1951), to which the majority cited in Smith, even suggested that the Constitution does not require any psychiatric examination or assistance whatsoever. Quite to the contrary, the [470 U.S. 68, 85] record in Smith demonstrated that neutral psychiatrists in fact had examined the defendant as to his sanity and had testified on that subject at trial, and it was on that basis that the Court found no additional assistance was necessary. Smith, supra, at 568; see also United States ex rel. Smith v. Baldi, 192 F.2d 540, 547 (CA3 1951). Similarly, in McGarty, the defendant had been examined by two psychiatrists who were not beholden to the prosecution. We therefore reject the State's contention that Smith supports the broad proposition that "[t]here is presently no constitutional right to have a psychiatric examination of a defendant's sanity at the time of the offense." Brief in Opposition 8. At most it supports the proposition that there is no constitutional right to more psychiatric assistance than the defendant in Smith had received. </s> In any event, our disagreement with the State's reliance on Smith is more fundamental. That case was decided at a time when indigent defendants in state courts had no constitutional right to even the presence of counsel. Our recognition since then of elemental constitutional rights, each of which has enhanced the ability of an indigent defendant to attain a fair hearing, has signaled our increased commitment to assuring meaningful access to the judicial process. Also, neither trial practice nor legislative treatment of the role of insanity in the criminal process sits paralyzed simply because this Court has once addressed them, and we would surely be remiss to ignore the extraordinarily enhanced role of psychiatry in criminal law today. 10 Shifts in all these areas since the time of Smith convince us that the opinion in that case was addressed to altogether different variables, and that we are not limited by it in considering whether fundamental fairness today requires a different result. [470 U.S. 68, 86] </s> IV </s> We turn now to apply these standards to the facts of this case. On the record before us, it is clear that Ake's mental state at the time of the offense was a substantial factor in his defense, and that the trial court was on notice of that fact when the request for a court-appointed psychiatrist was made. For one, Ake's sole defense was that of insanity. Second, Ake's behavior at arraignment, just four months after the offense, was so bizarre as to prompt the trial judge, sua sponte, to have him examined for competency. Third, a state psychiatrist shortly thereafter found Ake to be incompetent to stand trial, and suggested that he be committed. Fourth, when he was found to be competent six weeks later, it was only on the condition that he be sedated with large doses of Thorazine three times a day, during trial. Fifth, the psychiatrists who examined Ake for competency described to the trial court the severity of Ake's mental illness less than six months after the offense in question, and suggested that this mental illness might have begun many years earlier. App. 35. Finally, Oklahoma recognizes a defense of insanity, under which the initial burden of producing evidence falls on the defendant. 11 Taken together, these factors make clear that the question of Ake's sanity was likely to be a significant factor in his defense. 12 </s> In addition, Ake's future dangerousness was a significant factor at the sentencing phase. The state psychiatrist who treated Ake at the state mental hospital testified at the guilt phase that, because of his mental illness, Ake posed a threat of continuing criminal violence. This testimony raised the issue of Ake's future dangerousness, which is an aggravating factor under Oklahoma's capital sentencing scheme, Okla. Stat., Tit. 21, 701.12(7) (1981), and on which the prosecutor relied at sentencing. We therefore conclude that Ake also [470 U.S. 68, 87] was entitled to the assistance of a psychiatrist on this issue and that the denial of that assistance deprived him of due process. 13 </s> Accordingly, we reverse and remand for a new trial. </s> It is so ordered. </s> CHIEF JUSTICE BURGER, concurring in the judgment. </s> This is a capital case in which the Court is asked to decide whether a State may refuse an indigent defendant "any opportunity whatsoever" to obtain psychiatric evidence for the preparation and presentation of a claim of insanity by way of defense when the defendant's legal sanity at the time of the offense was "seriously in issue." </s> The facts of the case and the question presented confine the actual holding of the Court. In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases. Nothing in the Court's opinion reaches noncapital cases. </s> Footnotes [Footnote 1 Oklahoma Stat., Tit. 21, 152 (1981), provides that "[a]ll persons are capable of committing crimes, except those belonging to the following classes . . . (4) Lunatics, insane persons and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness." The Oklahoma Court of Criminal Appeals has held that there is an initial presumption of sanity in every case, "which remains until the defendant raises, by sufficient evidence, a reasonable doubt as to his sanity at the time of the crime. If the issue is so raised, the burden of proving the defendant's sanity beyond a reasonable doubt falls upon the State." 663 P.2d 1, 10 (1983) (case below); see also Rogers v. State, 634 P.2d 743 (Okla. Crim. App. 1981). </s> [Footnote 2 The Oklahoma Court of Criminal Appeals also dismissed Ake's claim that the Thorazine he was given during trial rendered him unable to understand the proceedings against him or to assist counsel with his defense. The court acknowledged that Ake "stared vacantly ahead throughout the trial" but rejected Ake's challenge in reliance on a state psychiatrist's word that Ake was competent to stand trial while under the influence of the drug. 663 P.2d, at 7-8, and n. 5. Ake petitioned for a writ of certiorari on this issue as well. In light of our disposition of the other issues presented, we need not address this claim. </s> [Footnote 3 This Court has recently discussed the role that due process has played in such cases, and the separate but related inquiries that due process and equal protection must trigger. See Evitts v. Lucey; Bearden v. Georgia, 461 U.S. 660 (1983). </s> [Footnote 4 See Ala. Code 15-12-21 (Supp. 1984); Alaska Stat. Ann. 18.85.100 (1981); Ariz. Rev. Stat. Ann. 13-4013 (1978) (capital cases; extended to noncapital cases in State v. Peeler, 126 Ariz. 254, 614 P.2d 335 (App. 1980)); Ark. Stat. Ann. 17-456 (Supp. 1983); Cal. Penal Code Ann. 987.9 (West Supp. 1984) (capital cases; right recognized in all cases in People v. Worthy, 109 Cal. App. 3d 514, 167 Cal. Rptr. 402 (1980)); Colo. Rev. Stat. 18-1-403 (Supp. 1984); State v. Clemons, 168 Conn. 395, 363 A. 2d 33 (1975); Del. Code Ann., Tit. 29, 4603 (1983); Fla. Rule Crim. Proc. 3.216; Haw. Rev. Stat. 802-7 (Supp. 1983); State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982); People v. Watson, 36 Ill. 2d 228, 221 N. E. 2d 645 (1966); Owen v. State, 272 Ind. 122, 396 N. E. 2d 376 (1979) (trial judge may authorize or appoint experts where necessary); Iowa Rule Crim. Proc. 19; Kan. Stat. Ann. 22-4508 (Supp. 1983); Ky. Rev. Stat. 31.070, 31.110, 31.185 (1980); State v. Madison, 345 So.2d 485 (La. 1977); State v. Anaya, 456 A. 2d 1255 (Me. 1983); Mass. Gen. Laws Ann., ch. 261, 27C(4) (West Supp. 1984-1985); Mich. Comp. Laws Ann. 768.20a(3) (Supp. 1983); Minn. Stat. 611.21 (1982); Miss. Code Ann. 99-15-17 (Supp. 1983); Mo. Rev. Stat. 552.030.4 (Supp. 1984); Mont. Code Ann. 46-8-201 (1983); State v. Suggett, 200 Neb. 693, 264 N. W. 2d 876 (1978) (discretion to appoint psychiatrist rests with trial court); Nev. Rev. Stat. 7.135 (1983); N. H. Rev. Stat. Ann. 604-A:6 (Supp. 1983); N. M. Stat. Ann. 31-16-2, 31-16-8 (1984); N. Y. County Law 722-c (McKinney Supp. [470 U.S. 68, 79] 1984-1985); N.C. Gen. Stat. 7A-454 (1981); Ohio Rev. Code Ann. 2941.51 (Supp. 1983); Ore. Rev. Stat. 135.055(4) (1983); Commonwealth v. Gelormo, 327 Pa. Super. 219, 227, and n. 5, 475 A. 2d 765, 769, and n. 5 (1984); R. I. Gen. Laws 9-17-19 (Supp. 1984); S. C. Code 17-3-80 (Supp. 1983); S. D. Codified Laws 23A-40-8 (Supp. 1984); Tenn. Code Ann. 40-14-207 (Supp. 1984); Tex. Code Crim. Proc. Ann., Art. 26.05 (Vernon Supp. 1984); Utah Code Ann. 77-32-1 (1982); Wash. Rev. Code 10.77.020, 10.77.060 (1983) (see also State v. Cunningham, 18 Wash. App. 517, 569 P.2d 1211 (1977)); W. Va. Code 29-21-14(e)(3) (Supp. 1984); Wyo. Stat. 7-1-108; 7-1-110; 7-1-116 (1977). </s> [Footnote 5 See n. 4, supra. </s> [Footnote 6 Ibid. </s> [Footnote 7 Gardner, The Myth of the Impartial Psychiatric Expert - Some Comments Concerning Criminal Responsibility and the Decline of the Age of Therapy, 2 Law & Psychology Rev. 99, 113-114 (1976). In addition, "[t]estimony emanating from the depth and scope of specialized knowledge is very impressive to a jury. The same testimony from another source can have less effect." F. Bailey & H. Rothblatt, Investigation and Preparation of Criminal Cases 175 (1970); see also ABA Standards for Criminal Justice 5-1.4, Commentary, p. 5.20 (2d ed. 1980) ("The quality of representation at trial . . . may be excellent and yet valueless to the defendant if the defense requires the assistance of a psychiatrist . . . and no such services are available"). </s> [Footnote 8 See also Reilly v. Barry, 250 N. Y. 456, 461, 166 N. E. 165, 167 (1929) (Cardozo, C. J.) ("[U]pon the trial of certain issues, such as insanity or forgery, experts are often necessary both for prosecution and for defense. . . . [A] defendant may be at an unfair disadvantage, if he is unable because of poverty to parry by his own witnesses the thrusts of those against him"); 2 I. Goldstein & F. Lane, Goldstein Trial Techniques 14.01 (2d ed. 1969) ("Modern civilization, with its complexities of business, science, and the professions, has made expert and opinion evidence a necessity. This is true where the subject matters involved are beyond the general knowledge of the average juror"); Henning, The Psychiatrist in the Legal Process, in By Reason of Insanity: Essays on Psychiatry and the Law 217, 219-220 (L. Freedman ed., 1983) (discussing the growing role of psychiatric witnesses as a result of changing definitions of legal insanity and increased judicial and legislative acceptance of the practice). </s> [Footnote 9 In any event, before this Court the State concedes that such a right exists but argues only that it is not implicated here. Brief for Respondent 45; Tr. of Oral Arg. 52. It therefore recognizes that the financial burden is not always so great as to outweigh the individual interest. </s> [Footnote 10 See Henning, supra n. 8; Gardner, supra n. 7, at 99; H. Huckabee, Lawyers, Psychiatrists and Criminal Law: Cooperation or Chaos? 179-181 (1980) (discussing reasons for the shift toward reliance on psychiatrists); Huckabee, Resolving the Problem of Dominance of Psychiatrists in Criminal Responsibility Decisions: A Proposal, 27 Sw. L. J. 790 (1973). </s> [Footnote 11 See n. 1, supra. </s> [Footnote 12 We express no opinion as to whether any of these factors, alone or in combination, is necessary to make this finding. </s> [Footnote 13 Because we conclude that the Due Process Clause guaranteed to Ake the assistance he requested and was denied, we have no occasion to consider the applicability of the Equal Protection Clause, or the Sixth Amendment, in this context. </s> JUSTICE REHNQUIST, dissenting. </s> The Court holds that "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." Ante, at 74. I do not think that the facts of this case warrant the establishment of such a principle; and I think that even if the factual predicate of the Court's statement were established, the constitutional rule announced by the Court is far too broad. I would limit the rule to capital cases, and make clear that the entitlement is to an independent psychiatric evaluation, not to a defense consultant. [470 U.S. 68, 88] </s> Petitioner Ake and his codefendant Hatch quit their jobs on an oil field rig in October 1979, borrowed a car, and went looking for a location to burglarize. They drove to the rural home of Reverend and Mrs. Richard Douglass, and gained entrance to the home by a ruse. Holding Reverend and Mrs. Douglass and their children, Brooks and Leslie, at gunpoint, they ransacked the home; they then bound and gagged the mother, father, and son, and forced them to lie on the living room floor. Ake and Hatch then took turns attempting to rape 12-year-old Leslie Douglass in a nearby bedroom. Having failed in these efforts, they forced her to lie on the living room floor with the other members of her family. </s> Ake then shot Reverend Douglass and Leslie each twice, and Mrs. Douglass and Brooks once, with a .357 magnum pistol, and fled. Mrs. Douglass died almost immediately as a result of the gunshot wound; Reverend Douglass' death was caused by a combination of the gunshots he received, and strangulation from the manner in which he was bound. Leslie and Brooks managed to untie themselves and to drive to the home of a nearby doctor. Ake and his accomplice were apprehended in Colorado following a month-long crime spree that took them through Arkansas, Louisiana, Texas, and other States in the western half of the United States. </s> Ake was extradited from Colorado to Oklahoma on November 20, 1979, and placed in the city jail in El Reno, Oklahoma. Three days after his arrest, he asked to speak to the Sheriff. Ake gave the Sheriff a detailed statement concerning the above crimes, which was first taped, then reduced to 44 written pages, corrected, and signed by Ake. </s> Ake was arraigned on November 23, 1979, and again appeared in court with his codefendant Hatch on December 11th. Hatch's attorney requested and obtained an order transferring Hatch to the state mental hospital for a 60-day observation period to determine his competency to stand trial; although Ake was present in court with his attorney [470 U.S. 68, 89] during this proceeding, no such request was made on behalf of Ake. </s> On January 21, 1980, both Ake and Hatch were bound over for trial at the conclusion of a preliminary hearing. No suggestion of insanity at the time of the commission of the offense was made at this time. On February 14, 1980, Ake appeared for formal arraignment, and at this time became disruptive. The court ordered that Ake be examined by Dr. William Allen, a psychiatrist in private practice, in order to determine his competency to stand trial. On April 10, 1980, a competency hearing was held at the conclusion of which the trial court found that Ake was a mentally ill person in need of care and treatment, and he was transferred to a state institution. Six weeks later, the chief psychiatrist for the institution advised the court that Ake was now competent to stand trial, and the murder trial began on June 23, 1980. At this time Ake's attorney withdrew a pending motion for jury trial on present sanity. Outside the presence of the jury the State produced testimony of a cellmate of Ake, who testified that Ake had told him that he was going to try to "play crazy." </s> The State at trial produced evidence as to guilt, and the only evidence offered by Ake was the testimony of the doctors who had observed and treated him during his confinement pursuant to the previous order of the court. Each of these doctors testified as to Ake's mental condition at the time of his confinement in the institution, but none could express a view as to his mental condition at the time of the offense. Significantly, although all three testified that Ake suffered from some form of mental illness six months after he committed the murders, on cross-examination two of the psychiatrists specifically stated that they had "no opinion" concerning Ake's capacity to tell right from wrong at the time of the offense, and the third would only speculate that a psychosis might have been "apparent" at that time. The Court [470 U.S. 68, 90] makes a point of the fact that "there was no expert testimony for either side on Ake's sanity at the time of the offense." Ante, at 72 (emphasis deleted). In addition, Ake called no lay witnesses, although some apparently existed who could have testified concerning Ake's actions that might have had a bearing on his sanity at the time of the offense; and although two "friends" of Ake's who had been with him at times proximate to the murders testified at trial at the behest of the prosecution, defense counsel did not question them concerning any of Ake's actions that might have a bearing on his sanity. </s> The Court's opinion states that before an indigent defendant is entitled to a state-appointed psychiatrist the defendant must make "a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial." Ante, at 74. But nowhere in the opinion does the Court elucidate how that requirement is satisfied in this particular case. Under Oklahoma law, the burden is initially on the defendant to raise a reasonable doubt as to his sanity at the time of the offense. Once that burden is satisfied, the burden shifts to the State to prove sanity beyond a reasonable doubt. Ake v. State, 663 P.2d 1, 10 (1983). Since the State introduced no evidence concerning Ake's sanity at the time of the offense, it seems clear that as a matter of state law Ake failed to carry the initial burden. Indeed, that was the holding of the Oklahoma Court of Criminal Appeals. Ibid. </s> Nor is this a surprising conclusion on the facts here. The evidence of the brutal murders perpetrated on the victims, and of the month-long crime spree following the murders, would not seem to raise any question of sanity unless one were to adopt the dubious doctrine that no one in his right mind would commit a murder. The defendant's 44-page confession, given more than a month after the crimes, does not suggest insanity; nor does the failure of Ake's attorney to move for a competency hearing at the time the codefendant [470 U.S. 68, 91] moved for one. The first instance in this record is the disruptive behavior at the time of formal arraignment, to which the trial judge alertly and immediately responded by committing Ake for examination. The trial commenced some two months later, at which time Ake's attorney withdrew a pending motion for jury trial on present sanity, and the State offered the testimony of a cellmate of Ake who said that the latter had told him that he was going to try to "play crazy." The Court apparently would infer from the fact that Ake was diagnosed as mentally ill some six months after the offense that there was a reasonable doubt as to his ability to know right from wrong when he committed it. But even the experts were unwilling to draw this inference. </s> Before holding that the State is obligated to furnish the services of a psychiatric witness to an indigent defendant who reasonably contests his sanity at the time of the offense, I would require a considerably greater showing than this. And even then I do not think due process is violated merely because an indigent lacks sufficient funds to pursue a state-law defense as thoroughly as he would like. There may well be capital trials in which the State assumes the burden of proving sanity at the guilt phase, or "future dangerousness" at the sentencing phase, and makes significant use of psychiatric testimony in carrying its burden, where "fundamental fairness" would require that an indigent defendant have access to a court-appointed psychiatrist to evaluate him independently and - if the evaluation so warrants - contradict such testimony. But this is not such a case. It is highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant, but in any event if such a defense is afforded the burden of proving insanity can be placed on the defendant. See Patterson v. New York, 432 U.S. 197 (1977). That is essentially what happened here, and Ake failed to carry his burden under state law. I do not believe the Due Process Clause superimposes a federal [470 U.S. 68, 92] standard for determining how and when sanity can legitimately be placed in issue, and I would find no violation of due process under the circumstances. </s> With respect to the necessity of expert psychiatric testimony on the issue of "future dangerousness," as opposed to sanity at the time of the offense, there is even less support for the Court's holding. Initially I would note that, given the Court's holding that Ake is entitled to a new trial with respect to guilt, there was no need to reach issues raised by the sentencing proceedings, so the discussion of this issue may be treated as dicta. But in any event, the psychiatric testimony concerning future dangerousness was obtained from the psychiatrists when they were called as defense witnesses, not prosecution witnesses. Since the State did not initiate this line of testimony, I see no reason why it should be required to produce still more psychiatric witnesses for the benefit of the defendant. </s> Finally, even if I were to agree with the Court that some right to a state-appointed psychiatrist should be recognized here, I would not grant the broad right to "access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ante, at 83 (emphasis added). A psychiatrist is not an attorney, whose job it is to advocate. His opinion is sought on a question that the State of Oklahoma treats as a question of fact. Since any "unfairness" in these cases would arise from the fact that the only competent witnesses on the question are being hired by the State, all the defendant should be entitled to is one competent opinion - whatever the witness' conclusion - from a psychiatrist who acts independently of the prosecutor's office. Although the independent psychiatrist should be available to answer defense counsel's questions prior to trial, and to testify if called, I see no reason why the defendant should be entitled to an opposing view, or to a "defense" advocate. </s> For the foregoing reasons, I would affirm the judgment of the Court of Criminal Appeals of Oklahoma. </s> [470 U.S. 68, 93]

United States Supreme Court K MART CORP. v. CARTIER, INC.(1988) No. 86-495 Argued: October 6, 1987Decided: May 31, 1988 </s> A gray-market good is a foreign-manufactured good, bearing a valid United States trademark, that is imported without the consent of the United States trademark holder. The gray market arises in three general contexts. In case 1, despite a domestic firm's having purchased from an independent foreign firm the rights to register and use the latter's trademark as a United States trademark and to sell its foreign-manufactured products here, the foreign firm imports the trademarked goods and distributes them here, or sells them abroad to a third party who imports them here. In case 2, after the United States trademark for goods manufactured abroad is registered by a domestic firm that is a subsidiary of (case 2a), the parent of (case 2b), or the same as (case 2c), the foreign manufacturer, goods bearing a trademark that is identical to the United States trademark are imported. In case 3, the domestic holder of a United States trademark authorizes an independent foreign manufacturer to use that trademark in a particular foreign location. Again, the foreign manufacturer or a third party imports and distributes the foreign-made goods. Section 526 of the Tariff Act of 1930 prohibits the importation of "any merchandise of foreign manufacture" bearing a trademark "owned by" a citizen of, or by "a corporation . . . organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States," unless written consent of the trademark owner is produced at the time of entry. The Customs Service's implementing regulation permits the entry of goods manufactured abroad by the "same person" who holds the United States trademark or by a person who is "subject to common control" with the United States trademark holder, 19 CFR 133.21(c)(1), (2); and permits importation where the foreign manufacturer has received the United States trademark owner's authorization to use its trademark, 19 CFR 133.21(c)(3). Respondent Coalition to Preserve the Integrity of [486 U.S. 281, 282] American Trademarks and two of its members filed suit against the Government seeking injunctive and declaratory relief, asserting that the regulation is inconsistent with 526 and therefore invalid. The Federal District Court upheld the regulation, but the Court of Appeals reversed, ruling that the regulation was an unreasonable administrative interpretation of 526. </s> Held: </s> The judgment is affirmed in part and reversed in part. </s> 252 U.S. App. D.C. 342, 790 F.2d 903, affirmed in part and reversed in part. </s> JUSTICE KENNEDY delivered the opinion of the Court as to Parts I, II-A, and II-C, concluding that: </s> 1. In determining whether a challenged regulation is consistent with the statute it implements, courts must ascertain the statute's plain meaning by looking to the particular language at issue and the language and design of the statute as a whole. If the statute is clear and unambiguous, courts must give effect to Congress' unambiguously expressed intent, and cannot pay deference to a contrary agency interpretation. However, if the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, a reviewing court must give deference to the agency's interpretation if it does not conflict with the statute's plain meaning. Pp. 291-292. </s> 2. Allowing the importation of foreign made goods where the United States trademark owner has authorized the use of the mark, 19 CFR 133.21(c)(3), is in conflict with the unequivocal language of 526 and cannot stand. The regulation denies a domestic trademark holder statutory protection in the case 3 context. Under no reasonable construction of the statutory language can goods made in a foreign country by an independent foreign manufacturer be removed from the purview of the statute. However, the regulation subsection is severable, since its severance and invalidation will not impair the function of the statute as a whole and there is no indication that the regulation would not have been passed but for its inclusion. Pp. 293-294. </s> JUSTICE KENNEDY, joined by JUSTICE WHITE, concluded in Part II-B that the regulation's allowance of imports from companies under common control, 19 CFR 133.21(c)(1), (2), is consistent with 526 and is therefore valid because it is a permissible construction designed to resolve statutory ambiguities. The statutory phrase "owned by" is sufficiently ambiguous to permit parallel importation in the case 2a foreign-parent, domestic-subsidiary context, since the phrase does not reveal which of the affiliated entities can be said to "own" the United States trademark if the domestic subsidiary is wholly owned by its foreign parent. Similarly, the ambiguity contained in the statutory [486 U.S. 281, 283] phrase "merchandise of foreign manufacture" suffices to sustain the regulation as it applies to cases 2b and 2c. It is possible to interpret the phrase to mean goods manufactured (1) in a foreign country, (2) by a foreign company, or (3) in a foreign country by a foreign company. Thus, the agency is entitled to choose any reasonable definition and to say that goods manufactured by a foreign subsidiary or division of a domestic company are not goods "of foreign manufacture." Pp. 292-293. </s> JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE STEVENS, agreeing that the common-control exception is consistent with 526, concluded that: </s> 1. Section 526's language does not clearly cover affiliates of foreign manufacturers. Pp. 297-299. </s> (a) The section's protectionist language and structure bespeak a congressional intent to extend protection only to domestic interests and not to affiliates of foreign manufacturers. Much of the limiting language would be pointless if a foreign manufacturer could insulate itself by the simple device of incorporating a shell domestic subsidiary and transferring to it a single asset - the United States trademark. Pp. 297-298. </s> (b) The undefined statutory phrase "owned by" is ambiguous when applied in the case 2a context, because it cannot be confidently discerned which of the entities involved owns the trademark. Whereas the trademark must be "owned by" a domestic firm to fall within 526's ban, it is the foreign parent corporation - not the domestic subsidiary whose every decision it controls - that better fits the bill as the true owner of any property that the subsidiary nominally possesses. Similarly, 526 does not unambiguously cover cases 2b and 2c, because it is unclear whether merchandise manufactured abroad by a division or a subsidiary of a domestic firm is "merchandise of foreign manufacture." If that phrase is interpreted to mean "merchandise manufactured in a foreign country," 526's ban would apply. However, if the phrase is construed to mean "merchandise manufactured by a foreigner," 526's coverage is not as clear. A domestic firm that establishes a manufacturing division abroad (case 2c) cannot be said to be a foreigner, and it is at the very least reasonable to view as "American" the foreign subsidiary of a domestic firm (case 2b). Pp. 298-299. </s> 2. The common-control exception is consistent with 526's purpose and legislative history, which confirm that if Congress had any intent as to the section's application to affiliates of foreign manufacturers, it was that they ought not enjoy 526's protection. The major stimulus for the enactment of 526 was the congressionally perceived inequity of A. Bourjois & Co. v. Katzel, 275 F. 539, which declined to protect a case 1 trademark holder. However, the profound differences between the equities presented in the case 1 and case 2 contexts - which result [486 U.S. 281, 284] from the fact that the case 1 trademark holder has a much greater investment at stake, but much less control over parallel importation and foreign sales to third parties, than its case 2 counterpart - furnish perfectly rational reasons for Congress' distinguishing between the two situations. Pp. 300-309. </s> 3. The deference owed longstanding administrative interpretations further buttresses the conclusion that the common-control exception is consistent with 526. While the precise language of the importation bar has varied over the years, the Customs Service has for 50 years adhered to the exception's basic premise that 526 does not require exclusion of all gray-market goods in the context of affiliated entities. Such a longstanding administrative practice should not be lightly overturned, particularly where, as here, an immense domestic retail industry has developed in reliance upon it. Pp. 309-312. </s> KENNEDY, J., announced the judgment of the Court and delivered an opinion of the Court with respect to Parts I and II-A, in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, an opinion of the Court with respect to Part II-C, in which REHNQUIST, C. J., and BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Part II-B, in which WHITE, J., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, and in Part IV of which WHITE, J., joined, post, p. 295. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C. J., and BLACKMUN and O'CONNOR, JJ., joined, post, p. 318. </s> [Footnote * Together with No. 86-624, 47th Street Photo, Inc. v. Coalition to Preserve the Integrity of American Trademarks et al., and No. 86-625, United States et al. v. Coalition to Preserve the Integrity of American Trademarks et al., also on certiorari to the same court. </s> Deputy Solicitor General Cohen reargued the cause for petitioners in No. 86-625. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Assistant Attorney General Spears, Jeffrey P. Minear, David M. Cohen, Robert V. Zener, and Alfonso Robles. Nathan Lewin reargued the cause for petitioners in Nos. 86-495 and 86-624. With him on the briefs for petitioner in No. 86-624 was Jamie S. Gorelick. Robert W. Steele argued the cause for petitioners in Nos. 86-495 and 86-624 on the original argument. With him on the briefs for petitioner in No. 86-495 were Robert E. Hebda and James C. Tuttle. [486 U.S. 281, 285] </s> William H. Allen reargued the cause for respondents. With him on the briefs were Eugene A. Ludwig, Scott D. Gilbert, and Elizabeth V. Foote.Fn </s> Fn [486 U.S. 281, 285] Briefs of amici curiae urging reversal were filed for the State of Washington by Kenneth O. Eikenberry, Attorney General, and John G. Hennen, Senior Assistant Attorney General; for the American Free Trade Association by Stephen Kurzman, Robert Ullman, and Steven R. Trost; for the Consumers Union of U.S., Inc., by Alan Mark Silbergeld; for Darby Dental Supply Co. et al. by Robert V. Marrow; for the National Association of Catalog Showroom Merchandisers by Richard B. Kelly and Thomas P. Mohen; for the National Mass Retailing Institute by William D. Coston and Robert J. Verdisco; and for Progress Trading Co. by William F. Sondericker, Robert L. Hoegle, and Frank W. Gaines, Jr. Briefs of amici curiae urging affirmance were filed for American Cyanamid Co. et al. by David Ladd and Thomas W. Kirby; for the American Intellectual Property Law Association, Inc., by Neil A. Smith; for Duracell Inc. by James N. Bierman, Jay N. Varon, Sheila McDonald Gill, and Gregg A. Dwyer; for Lever Brothers Co. by Robert P. Devlin; for the Motor Vehicle Manufacturers Association of the United States, Inc., by William H. Crabtree; for the United States Trademark Association by Marie V. Driscoll; and for Yamaha International Corp. et al. by Robert E. Wagner and Robert E. Browne. Harold C. Wegner, Barry E. Bretschneider, Donald R. Dinan, Charles F. Schill, and Albert P. Halluin filed a brief for Cetus Corp. as amicus curiae. </s> JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and II-C, and an opinion with respect to Part II-B, in which WHITE, J., joined. </s> A gray-market good is a foreign-manufactured good, bearing a valid United States trademark, that is imported without the consent of the United States trademark holder. These cases present the issue whether the Secretary of the Treasury's regulation permitting the importation of certain gray-market goods, 19 CFR 133.21 (1987), is a reasonable agency interpretation of 526 of the Tariff Act of 1930 (1930 Tariff Act), 46 Stat. 741, as amended, 19 U.S.C. 1526. [486 U.S. 281, 286] </s> I </s> A </s> The gray market arises in any of three general contexts. The prototypical gray-market victim (case 1) is a domestic firm that purchases from an independent foreign firm the rights to register and use the latter's trademark as a United States trademark and to sell its foreign-manufactured products here. Especially where the foreign firm has already registered the trademark in the United States or where the product has already earned a reputation for quality, the right to use that trademark can be very valuable. If the foreign manufacturer could import the trademarked goods and distribute them here, despite having sold the trademark to a domestic firm, the domestic firm would be forced into sharp intrabrand competition involving the very trademark it purchased. Similar intrabrand competition could arise if the foreign manufacturer markets its wares outside the United States, as is often the case, and a third party who purchases them abroad could legally import them. In either event, the parallel importation, if permitted to proceed, would create a gray market that could jeopardize the trademark holder's investment. </s> The second context (case 2) is a situation in which a domestic firm registers the United States trademark for goods that are manufactured abroad by an affiliated manufacturer. In its most common variation (case 2a), a foreign firm wishes to control distribution of its wares in this country by incorporating a subsidiary here. The subsidiary then registers under its own name (or the manufacturer assigns to the subsidiary's name) a United States trademark that is identical to its parent's foreign trademark. The parallel importation by a third party who buys the goods abroad (or conceivably even by the affiliated foreign manufacturer itself) creates a gray market. Two other variations on this theme occur when an American-based firm establishes abroad a manufacturing subsidiary corporation (case 2b) or its own unincorporated manufacturing division (case 2c) to produce its United States trademarked [486 U.S. 281, 287] goods, and then imports them for domestic distribution. If the trademark holder or its foreign subsidiary sells the trademarked goods abroad, the parallel importation of the goods competes on the gray market with the holder's domestic sales. </s> In the third context (case 3), the domestic holder of a United States trademark authorizes an independent foreign manufacturer to use it. Usually the holder sells to the foreign manufacturer an exclusive right to use the trademark in a particular foreign location, but conditions the right on the foreign manufacturer's promise not to import its trademarked goods into the United States. Once again, if the foreign manufacturer or a third party imports into the United States, the foreign-manufactured goods will compete on the gray market with the holder's domestic goods. </s> B </s> Until 1922, the Federal Government did not regulate the importation of gray-market goods, not even to protect the investment of an independent purchaser of a foreign trademark, and not even in the extreme case where the independent foreign manufacturer breached its agreement to refrain from direct competition with the purchaser. That year, however, Congress was spurred to action by a Court of Appeals decision declining to enjoin the parallel importation of goods bearing a trademark that (as in case 1) a domestic company had purchased from an independent foreign manufacturer at a premium. See A. Bourjois & Co. v. Katzel, 275 F. 539 (CA2 1921), rev'd, 260 U.S. 689 (1923). </s> In an immediate response to Katzel, Congress enacted 526 of the Tariff Act of 1922, 42 Stat. 975. That provision, later reenacted in identical form as 526 of the 1930 Tariff Act, 19 U.S.C. 1526, prohibits importing </s> "into the United States any merchandise of foreign manufacture if such merchandise . . . bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered [486 U.S. 281, 288] in the Patent and Trademark Office by a person domiciled in the United States . . ., unless written consent of the owner of such trademark is produced at the time of making entry." 19 U.S.C. 1526(a). 1 </s> The regulations implementing 526 for the past 50 years have not applied the prohibition to all gray-market goods. The Customs Service regulation now in force provides generally that "[f]oreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations." 19 CFR 133.21(b) (1987). 2 </s> [486 U.S. 281, 289] But the regulation furnishes a "common-control" exception from the ban, permitting the entry of gray-market goods manufactured abroad by the trademark owner or its affiliate: </s> "(c) Restrictions not applicable. The restrictions . . . do not apply to imported articles when: </s> "(1) Both the foreign and the U.S. trademark or trade name are owned by the same person or business entity; [or] </s> "(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control. . . ." [486 U.S. 281, 290] </s> The Customs Service regulation further provides an "authorized-use" exception, which permits importation of gray-market goods where </s> "(3) [t]he articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U.S. owner . . . ." 19 CFR 133.21(c) (1987). </s> Respondents, an association of United States trademark holders and two of its members, brought suit in Federal District Court in February 1984, seeking both a declaration that the Customs Service regulation, 19 CFR 133.21(c)(1)-(3) (1987), is invalid and an injunction against its enforcement. Coalition to Preserve the Integrity of American Trademarks v. United States, 598 F. Supp. 844 (DC 1984). They asserted that the common-control and authorized-use exceptions are inconsistent with 526 of the 1930 Tariff Act. 3 Petitioners K mart and 47th Street Photo intervened as defendants. </s> The District Court upheld the Customs Service regulation, 598 F. Supp., at 853, but the Court of Appeals reversed, Coalition to Preserve the Integrity of American Trademarks v. United States, 252 U.S. App. D.C. 342, 790 F.2d 903 (1986) (hereinafter COPIAT), holding that the Customs Service regulation was an unreasonable administrative interpretation of 526. We granted certiorari, 479 U.S. 1005 (1986), to resolve a conflict among the Courts of Appeals. Compare Vivitar Corp. v. United States, 761 F.2d 1552, 1557-1560 (CA Fed. 1985), aff'g 593 F. Supp. 420 (Ct. Int'l Trade 1984), cert. denied, 474 U.S. 1055 (1986); and Olympus Corp. v. United States, 792 F.2d 315, 317-319 (CA2 1986), aff'g 627 F. [486 U.S. 281, 291] Supp. 911 (EDNY 1985), cert. pending, No. 86-757, with COPIAT, supra, at 346-355, 790 F.2d, at 907-916. In an earlier opinion, we affirmed the Court of Appeals' conclusion that the District Court had jurisdiction, and set the cases for reargument on the merits. 485 U.S. 176 (1988). </s> A majority of this Court now holds that the common-control exception of the Customs Service regulation, 19 CFR 133.21(c)(1)-(2) (1987), is consistent with 526. See post, at 309-310 (opinion of BRENNAN, J.). A different majority, however, holds that the authorized-use exception, 19 CFR 133.21(c)(3) (1987), is inconsistent with 526. See post, at 328-329 (opinion of SCALIA, J.). We therefore affirm the Court of Appeals in part and reverse in part. </s> II </s> A </s> In determining whether a challenged regulation is valid, a reviewing court must first determine if the regulation is consistent with the language of the statute. "If the statute is clear and unambiguous `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.' . . . The traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress." Board of Governors, FRS v. Dimension Financial Corp., 474 U.S. 361, 368 (1986), quoting Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 -843 (1984). See also Mills Music, Inc. v. Snyder, 469 U.S. 153, 164 (1985). In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole. Bethesda Hospital Assn. v. Bowen, 485 U.S. 399, 403 -405 (1988); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220 -221 (1986). If the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, the question becomes whether the agency [486 U.S. 281, 292] regulation is a permissible construction of the statute. See Chevron, supra, at 843; Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125 (1985). If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency's interpretation of the statute. United States v. Boyle, 469 U.S. 241, 246 , n. 4 (1985). </s> B </s> Following this analysis, I conclude that subsections (c)(1) and (c)(2) of the Customs Service regulation, 19 CFR 133.21 (c)(1) and (c)(2) (1987), are permissible constructions designed to resolve statutory ambiguities. All Members of the Court are in agreement that the agency may interpret the statute to bar importation of gray-market goods in what we have denoted case 1 and to permit the imports under case 2a. See post, at 296, 298-299 (opinion of BRENNAN, J.); post, at 318 (opinion of SCALIA, J.). As these writings state, "owned by" is sufficiently ambiguous, in the context of the statute, that it applies to situations involving a foreign parent, which is case 2a. This ambiguity arises from the inability to discern, from the statutory language, which of the two entities involved in case 2a can be said to "own" the United States trademark if, as in some instances, the domestic subsidiary is wholly owned by its foreign parent. </s> A further statutory ambiguity contained in the phrase "merchandise of foreign manufacture," suffices to sustain the regulations as they apply to cases 2b and 2c. This ambiguity parallels that of "owned by," which sustained case 2a, because it is possible to interpret "merchandise of foreign manufacture" to mean (1) goods manufactured in a foreign country, (2) goods manufactured by a foreign company, or (3) goods manufactured in a foreign country by a foreign company. Given the imprecision in the statute, the agency is entitled to choose any reasonable definition and to interpret the statute to say that goods manufactured by a foreign subsidiary [486 U.S. 281, 293] or division of a domestic company are not goods "of foreign manufacture." 4 </s> C </s> (1) </s> Subsection (c)(3), 19 CFR 133.21(c)(3) (1987), of the regulation, however, cannot stand. The ambiguous statutory phrases that we have already discussed, "owned by" and [486 U.S. 281, 294] "merchandise of foreign manufacture," are irrelevant to the proscription contained in subsection (3) of the regulation. This subsection of the regulation denies a domestic trademark holder the power to prohibit the importation of goods made by an independent foreign manufacturer where the domestic trademark holder has authorized the foreign manufacturer to use the trademark. Under no reasonable construction of the statutory language can goods made in a foreign country by an independent foreign manufacturer be removed from the purview of the statute. </s> (2) </s> The design of the regulation is such that the subsection of the regulation dealing with case 3, 133.21(c)(3), is severable. Cf. Board of Governors, FRS v. Dimension Financial Corp., 474 U.S., at 368 (invalidating a Federal Reserve Board definition of "bank" in 12 CFR 225.2(a)(1) (1985), but leaving intact the remaining parts of the regulation). The severance and invalidation of this subsection will not impair the function of the statute as a whole, and there is no indication that the regulation would not have been passed but for its inclusion. Accordingly, subsection (c)(3) of 133.21 must be invalidated for its conflict with the unequivocal language of the statute. </s> III </s> We hold that the Customs Service regulation is consistent with 526 insofar as it exempts from the importation ban goods that are manufactured abroad by the "same person" who holds the United States trademark, 19 CFR 133.21(c) (1) (1987), or by a person who is "subject to common . . . control" with the United States trademark holder, 133.21(c)(2). Because the authorized-use exception of the regulation, 133.21(c)(3), is in conflict with the plain language of the statute, that provision cannot stand. The judgment of the [486 U.S. 281, 295] Court of Appeals is therefore reversed insofar as it invalidated 133.21(c)(1) and (c)(2), but affirmed with respect to 133.21(c)(3). </s> It is so ordered. </s> Footnotes [Footnote 1 The full text of 526(a), as codified, 19 U.S.C. 1526(a), is as follows: "(a) Importation prohibited "Except as provided in subsection (d) of this section [an exception added in 1978 for the importation of articles for personal use], it shall be unlawful to import into the United States any merchandise of foreign manufacture if such merchandise, or the label, sign, print, package, wrapper, or receptacle, bears a trademark owned by a citizen of, or by a corporation or association created or organized within, the United States, and registered in the Patent and Trademark Office by a person domiciled in the United States, under the provisions of sections 81 to 109 of title 15, and if a copy of the certificate of registration of such trademark is filed with the Secretary of the Treasury, in the manner provided in section 106 of said title 15, unless written consent of the owner of such trademark is produced at the time of making entry." </s> [Footnote 2 The Customs Service regulation provides: " 133.21. Restrictions on importations of articles bearing recorded trademarks and trade names. "(a) Copying or simulating marks or names. Articles of foreign or domestic manufacture bearing a mark or name copying or simulating a recorded trademark or trade name shall be denied entry and are subject to forfeiture as prohibited importations. A `copying or simulating' mark or name is an actual counterfeit of the recorded mark or name or is one which so resembles it as to be likely to cause the public to associate the copying or simulating mark with the recorded mark or name. "(b) Identical trademark. Foreign-made articles bearing a trademark identical with one owned and recorded by a citizen of the United States or a [486 U.S. 281, 289] corporation or association created or organized within the United States are subject to seizure and forfeiture as prohibited importations. "(c) Restrictions not applicable. The restrictions set forth in paragraphs (a) and (b) of this section do not apply to imported articles when: "(1) Both the foreign and the U.S. trademark or trade name are owned by the same person or business entity; "(2) The foreign and domestic trademark or trade name owners are parent and subsidiary companies or are otherwise subject to common ownership or control (see 133.2(d) [defining "common ownership and common control"] and 133.12(d) [providing that application to record trademark must report identity of any affiliate that uses same trade name abroad]); "(3) The articles of foreign manufacture bear a recorded trademark or trade name applied under authorization of the U.S. owner; "(4) The objectionable mark is removed or obliterated prior to importation in such a manner as to be illegible and incapable of being reconstituted, for example by: "(i) Grinding off imprinted trademarks wherever they appear; "(ii) Removing and disposing of plates bearing a trademark or trade name; "(5) The merchandise is imported by the recordant of the trademark or trade name or his designate; "(6) The recordant gives written consent to an importation of articles otherwise subject to the restrictions set forth in paragraphs (a) and (b) of this section, and such consent is furnished to appropriate Customs officials; or "(7) The articles of foreign manufacture bear a recorded trademark and the personal exemption is claimed and allowed under 148.55 of this chapter." 19 CFR 133.21(a), (b), (c) (1987). </s> [Footnote 3 Respondents sued the United States, the Secretary of the Treasury, and the Commissioner of Customs. They also asserted that the Customs Service regulation was inconsistent with 42 of the Lanham Trade-Mark Act, 15 U.S.C. 1124, which prohibits the importation of goods bearing marks that "copy or simulate" United States trademarks. That issue is not before us. </s> [Footnote 4 I disagree with JUSTICE SCALIA's reasons for declining to recognize this ambiguity. See post, at 319-323. First, the threshold question in ascertaining the correct interpretation of a statute is whether the language of the statute is clear or arguably ambiguous. The purported gloss any party gives to the statute, or any reference to legislative history, is in the first instance irrelevant. Further, I decline to assign any binding or authoritative effect to the particular verbiage JUSTICE SCALIA highlights. The quoted phrases are simply the Government's explanation of the practical effect the current regulation has in applying the statute, and come from the statement-of-the-case portion of its petition for a writ of certiorari. Additionally, I believe that agency regulations may give a varying interpretation of the same phrase when that phrase appears in different statutes and different statutory contexts. There may well be variances in purpose or circumstance that have led the agency to adopt and apply dissimilar interpretations of the phrase "of foreign manufacture" in other regulations implementing different statutes. I also disagree that our disposition necessarily will engender either enforcement problems for the Customs Service or problems we are unaware of arising out of our commercial treaty commitments to foreign countries. Initially, it is reasonable to think that any such problems or objections would have arisen before now since it is the current interpretation of the regulations we are sustaining. Second, I believe that the regulation speaks to the hypothetical situation JUSTICE SCALIA poses, and that the firm with the United States trademark could keep out "gray-market imports manufactured abroad by the other American firms." post, at 320, because the regulation allows a company justifiably invoking the protection of the statute to bar the importation of goods of foreign or domestic manufacture. 19 CFR 133.21(a) (1987). In this instance, the domestic firm with the United States trademark could invoke the protection of the statute (case 1) and bar the importation of the other domestic firm's product manufactured abroad even though our interpretation of the phrase "of foreign manufacture" would characterize these latter goods to be of domestic manufacture. </s> JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, and with whom JUSTICE WHITE joins as to Part IV, concurring in part and dissenting in part. </s> Section 526 of the Tariff Act of 1930 (1930 Tariff Act), 46 Stat. 741, as amended, 19 U.S.C. 1526, provides extraordinary protection to certain holders of trademarks registered in the United States. A United States trademark holder covered by 526 can prohibit or condition all importation of merchandise bearing its trademark, thereby gaining a virtual monopoly, free from intrabrand competition, on domestic distribution of any merchandise bearing the trademark. For half a century the Secretary of the Treasury has consistently interpreted 526 to grant this exclusionary power not to all United States trademark holders, but only to certain ones with specifically defined relationships to the manufacturer. Specifically, Treasury has a longstanding practice, expressed currently in 19 CFR 133.21 (1987) (Customs Service regulation), of not extending 526's extraordinary protection to the very firm that manufactured the gray-market merchandise abroad, to affiliates of foreign manufacturers, or to firms that authorize the use of their trademarks abroad. Consequently, a multibillion dollar industry has emerged around the parallel importation of foreign-manufactured merchandise bearing United States trademarks. </s> In the face of this longstanding interpretation of 526's reach, respondent Coalition to Preserve the Integrity of American Trademarks and its members, most of whom are United States trademark holders or affiliates of United States trademark holders that compete against the gray market, have waged a full-scale battle in legislative, executive, [486 U.S. 281, 296] and administrative fora against the Customs Service regulation, and particularly the common-control exception, 19 CFR 133.21(c)(1) and (c)(2) (1987). See Eisler, Gray-Market Mayhem: It's Makers vs. Importers in Lobbying Onslaught, Legal Times, Nov. 17, 1986, p. 1, col. 1. Largely unsuccessful in the political branches, they have more recently brought the battle to the courts, asserting that Treasury is (and, since 1922, has been) statutorily required to extend to them the same exclusionary powers as it extends to what the Court refers to as the "prototypical gray-market victim." Ante, at 286. 1 This is such a suit. </s> There is no dispute that 526 protects the trademark holder in the first of the three gray-market contexts identified by the Court - the prototypical gray-market situation in which a domestic firm purchases from an independent foreign firm the rights to register and use in the United States a foreign trademark (case 1). See ante, at 292. The dispute in this litigation centers almost exclusively around the second context, involving a foreign manufacturer that is in some way affiliated with the United States trademark holder, whether the trademark holder is a subsidiary of (case 2a), the parent of (case 2b), or the same as (case 2c), the foreign manufacturer. The Customs Service's common-control exception denudes the trademark holder of 526's protection in each of the foregoing cases. I concur in the Court's judgment that the common-control exception is consistent with 526, but I reach that conclusion through an analysis that differs from JUSTICE KENNEDY'S. See ante, at 292-293. </s> Also at issue, although the parties and amici give it short shrift, is the third context (case 3), in which the domestic firm authorizes an independent foreign manufacturer to use its [486 U.S. 281, 297] trademark abroad. See ante, at 287, 293-294. The Customs Service's authorized-use exception, 19 CFR 133.21(c)(3) (1987), deprives the trademark holder of 526's protection in such a situation. For reasons set forth in Part IV of this opinion, I dissent from the Court's judgment that the authorized-use exception is inconsistent with 526. </s> I </s> A </s> An assessment of the reasonableness of the Customs Service's interpretation of 526 of the 1930 Tariff Act begins, as always, with an assessment of "the particular statutory language at issue, as well as the language and design of the statute as a whole." Ante, at 291 (citations omitted). Section 526 requires consent of the trademark owner to import a United States trademarked product if (1) the product is "of foreign manufacture"; (2) the trademark it bears is "owned by" either a United States citizen or "a corporation . . . created or organized within . . . the United States"; and (3) "a person domiciled in the United States" registered the trademark. </s> The most blatant hint that Congress did not intend to extend 526's protection to affiliates of foreign manufacturers (case 2) is the provision's protectionist, almost jingoist, flavor. Its structure bespeaks an intent, characteristic of the times, to protect only domestic interests. A foreign manufacturer that imports its trademarked products into the United States cannot invoke 526 to prevent third parties from competing in the domestic market by buying the trademarked goods abroad and importing them here: The trademark is not "registered in the Patent and Trademark Office." The same manufacturer cannot protect itself against parallel importation merely by registering its trademark in the United States: It is not "a person domiciled in the United States." Nor can the manufacturer insulate itself by hiring a United States domiciliary to register the trademark: The [486 U.S. 281, 298] owner is not "organized within . . . the United States." For the same reason, it will not even suffice for the foreign manufacturer to incorporate a subsidiary here to register the trademark on the parent's behalf, if the foreign parent still owns the trademark. </s> The barriers that Congress erected seem calculated to serve no purpose other than to reserve exclusively to domestic, not foreign, interests the extraordinary protection that 526 provides. But they are fragile barriers indeed if a foreign manufacturer might bypass them by the simple device of incorporating a shell domestic subsidiary and transferring to it a single asset - the United States trademark. Such a reading of 526 seems entirely at odds with the protectionist sentiment that inspired the provision. If a foreign manufacturer could insulate itself so easily from the competition of parallel imports, much of 526's limiting language would be pointless. </s> B </s> The language of 526 can reasonably be read, as the Customs Service has, to avoid such an anomaly. Section 526 defines neither "owned by" nor "of foreign manufacture," and both phrases admit of considerable ambiguity when applied to affiliates of foreign manufacturers. More specifically, in each of the disputed gray-market cases involving a domestic affiliate of a foreign manufacturer (case 2), it cannot be confidently discerned either which entity owns the trademark or whether the goods in question are "of foreign manufacture." </s> As every Member of this Court agrees, 526 does not unambiguously cover the situation in which a domestic subsidiary of a foreign manufacturer registers its parent's trademark in the United States (case 2a), because the trademark is not clearly "owned by" a domestic firm. See ante, at 292; post, at 318 (opinion of SCALIA, J.). "The term [`owner'] is . . . nomen generalissimum, and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied." Black's Law Dictionary [486 U.S. 281, 299] 996 (5th ed. 1979). But whether "ownership" is the "[c]ollection of rights to use and enjoy property, including [the] right to transmit it to others," or "[t]he complete dominion, title, or proprietary right in a thing," or "[t]he entirety of the powers of use and disposal allowed by law," id., at 997, the parent corporation - not the subsidiary whose every decision it controls - better fits the bill as the true owner of any property that the subsidiary nominally possesses. Cf. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771 (1984) (parent and wholly owned subsidiary cannot engage in "conspiracy" within meaning of 1 of the Sherman Act, 15 U.S.C. 1, because they "always have a `unity of purpose or a common design'") (citation omitted) (emphasis in original). Because of this ambiguity "[t]he Patent and Trademark Office takes the position that ownership of marks among parent-subsidiary corporations . . . is largely a matter to be decided between the parties themselves." 1 J. McCarthy, Trademarks and Unfair Competition 748 (2d ed., 1984) (footnote omitted). </s> The same ambiguity does not, of course, infect cases 2b and 2c. A domestic parent plainly owns the trademark registered in its name, whether or not it also owns a manufacturing subsidiary (case 2b) or division (case 2c) abroad. Nevertheless, 526 does not unambiguously cover cases 2b and 2c because it is unclear whether merchandise manufactured abroad by a division or a subsidiary of a domestic firm is "merchandise of foreign manufacture." That phrase could readily be interpreted to mean either "merchandise manufactured in a foreign country" or "merchandise manufactured by a foreigner." Under the former definition, the merchandise manufactured abroad in cases 2b and 2c would fall within 526's ban. Under the latter definition, however, the coverage is not as clear. Surely a domestic firm that establishes a manufacturing facility abroad (case 2c) is not in any sense a foreigner, and it is at the very least reasonable to view as "American" the foreign subsidiary of a domestic firm. [486 U.S. 281, 300] </s> II </s> Even if the language of 526 clearly covered all affiliates of foreign manufacturers, "[i]t is a `familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.' " 2 It is therefore appropriate to turn to our other "traditional tools of statutory construction" for clues of congressional intent. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987). The purpose and legislative history of 526 confirm that if Congress had any intent as to the application of 526 to affiliates of foreign manufacturers, it was that they ought not enjoy 526's protection. There is, admittedly, evidence suggesting that some legislators might have understood 526 otherwise. That evidence, however, is slim, ambiguous, and interspersed among more - and more convincing - evidence that Congress had a contrary intent. </s> A </s> Section 526 can be fully understood only in the context of the controversial judicial opinion that spawned it. In A. Bourjois & Co. v. Katzel, 275 F. 539 (CA2 1921), rev'd, 260 U.S. 689 (1923), a French producer of "Java" face powder sold to an independent United States company at a considerable premium all its United States business, along with its goodwill and full rights in its United States trademarks. The United States company, Bourjois & Co., registered the newly acquired trademarks under its own name and continued to import the powder from the French producer, selling it to domestic consumers under the French trademark and its own name. All the while, the United States company went to great expense to develop an identity independent from [486 U.S. 281, 301] that of the French producer of its product. But much of the expense went to waste, for a competitor began to buy Java directly from the French producer abroad and market it here under the French trademark in competition with Bourjois. In sum, Bourjois was a "prototypical gray-market victim" - a United States trademark holder that purchased its trademark rights, at arm's length and at substantial cost, from an unaffiliated foreign producer. Ante, at 286. </s> Despite the apparent unfairness of the competition, the Court of Appeals for the Second Circuit declined to enjoin the encroachment on the trademark holder's newly purchased market. The court could find no trademark violation so long as the competitor's French labels accurately identified the product's manufacturer. It adhered to the then-prevailing "universality" theory of trademark law, a view that it had espoused for several years. See, e. g., Fred Gretsch Mfg. Co. v. Schoening, 238 F. 780, 782 (1916). Under that view, trademarks do not confer on the owner property interests or monopoly power over intrabrand competition. Rather, they merely protect the public from deception by indicating "the origin of the goods they mark." Katzel, supra, at 543. </s> While Bourjois, the prototypical (case 1) gray-market victim, evoked little sympathy from the Court of Appeals, it would have been a far less sympathetic plaintiff had it not bargained and paid so dearly for the Java trademark and distribution rights. And the gray-market encroachment on the Java market would have been considerably less troubling had Bourjois had control over the foreign manufacturer's import conduct or over its sales abroad to third parties who might import; it would essentially have been seeking to protect itself from its own competition. </s> A comparison of Bourjois to the parties seeking 526's protection in this litigation aptly illustrates the profound difference between the equities presented by the prototypical gray-market victim and those implicated in case 2. First, [486 U.S. 281, 302] the United States trademark holder that, like Bourjois, has purchased trademark rights at arm's length from an independent manufacturer stands to lose the full benefit of its bargain because of gray-market interference. In contrast, a United States trademark holder that acquires identical rights from an affiliate (case 2a) or creates identical rights itself and permits them to be used abroad by an affiliate (cases 2b and 2c) does not have the same sort of investment at stake. </s> Second, without 526, the independent trademark purchaser has no direct control over the importation of competing goods, much less over the manufacturer's sale to third parties abroad. In contrast, if the gray market harms a United States trademark holder in case 2a, 2b, or 2c, that firm and its foreign affiliate (whether a parent, subsidiary, or division) can respond with a panoply of options that are unavailable to the independent purchaser of a foreign trademark. They could, for example, jointly decide in their mutual best interests that the manufacturer (1) should not import directly to any domestic purchaser other than its affiliate; (2) should, if legal, impose a restriction against resale (or against resale in the United States) as a condition on its sales abroad to potential parallel importers; or (3) should curtail sales abroad entirely. </s> These differences furnish perfectly rational reasons that Congress might have intended to distinguish between a domestic firm that purchases trademark rights from an independent foreign firm and one that either acquires identical rights from an affiliated foreign firm or develops identical rights and permits a manufacturing subsidiary or division to use them abroad. </s> B </s> There is no dispute that the perceived inequity in case 1, as exemplified by Katzel, was the "major stimulus" for the enactment of 526. Coalition to Preserve the Integrity of American Trademarks v. United States, 252 U.S. App. D.C. 342, 348, 790 F.2d 903, 909 (1986) (hereafter COPIAT); see also [486 U.S. 281, 303] Sturges v. Clark D. Pease, Inc., 48 F.2d 1035, 1037 (CA2 1931) (A. Hand, J.); Coty, Inc. v. Le Blume Import Co., 292 F. 264, 268-269 (SDNY 1923) (L. Hand, J.). United States trademark holders, many of which had purchased foreign trademarks from unrelated foreign corporations, demanded an immediate legislative response to Katzel. Congress responded with 526 of the 1922 Tariff Act, without even waiting for this Court to reverse the Second Circuit (which it ultimately did three months later). The hastily drafted provision was introduced as a "midnight amendmen[t]" on the floor of the Senate, 62 Cong. Rec. 11602 (1922) (remarks of Sen. Moses), and allotted a miserly 10 minutes of debate, in the context of a debate on a comprehensive revision of tariff (not trademark) law. The specific wording of the response was by no means carefully considered, which provides all the more reason to avoid a hypertechnical interpretation that would "make trouble rather than allay it." Fort Smith & Western R. Co. v. Mills, 253 U.S. 206, 208 (1920); see United States v. Bass, 404 U.S. 336, 344 (1971). </s> The language that was originally introduced prohibited in essence the importation, without the trademark owner's consent, of "any merchandise if such merchandise . . . bears a trade-mark registered in the Patent Office by a person domiciled in the United States." 62 Cong. Rec. 11602 (1922). As initially drafted, 526 lacked two of its three current limitations. See supra, at 297. First, it did not limit the import prohibition to goods that were "of foreign manufacture"; that limitation was added later by floor amendment when an opponent pointed out that the provision as written would preclude, for example, a United States citizen from importing a domestically manufactured product that had been exported to, and then purchased by him in, Canada. Second, the bill lacked the requirement that the trademark be "owned by a citizen of, or by a corporation or association created or organized within, the United States"; that limitation appeared for the first time, without explanation, in the Conference [486 U.S. 281, 304] Report. H. R. Conf. Rep. No. 1223, 67th Cong., 2d Sess. (1922). See infra, at 306-307. </s> The sparse legislative history confirms that Congress' sole goal was to overrule Katzel. Section 526's sponsors and proponents categorically rejected any suggestion that its effect might be broader than necessary to overrule Katzel on its facts. They emphasized repeatedly that 526 would serve at the very most to protect domestic companies who (like Bourjois) purchased trademark rights from unrelated foreign manufacturers. 3 In fact, the first Senator to object to 526 was troubled by the impropriety of enacting a provision designed to do no more than reverse Katzel while it was still pending before this Court, 62 Cong. Rec. 11603 (1922) ("[T]he whole subject matter involved in [ 526] . . . has been heard in the circuit court of appeals [in Katzel] and is now on its way to the Supreme Court of the United States for final determination") (remarks of Sen. Moses), a characterization with which no one took issue. </s> If anything, the most outspoken supporters of 526 characterized it as even more limited than Katzel for they seemed to have been operating under the mistaken impression that the French producer in Katzel was itself importing Java in competition with Bourjois and in violation of its agreement. Thus, several proponents, like Senator Sutherland, repeatedly described the "only aim" of 526 as the "prevent[ion] [of] a palpable fraud," 62 Cong. Rec. 11603 (1922), or the protection of domestic firms that purchase trademarks from foreign manufacturers, which then "deliberately violate the property rights of those to whom they have sold these trade-marks by [486 U.S. 281, 305] shipping over to this country goods under those identical trade-marks." Ibid. 4 </s> The Court of Appeals read an exchange between Senators Lenroot and McCumber to suggest that 526 could have been understood to go further than necessary merely to overrule Katzel on its facts. 5 The exchange began with Senator [486 U.S. 281, 306] Lenroot's inquiry whether 526 would protect from parallel imports a foreign manufacturer whose "American agents . . . register a trade-mark . . . here in the United States," 62 Cong. Rec. at 11605 (emphasis added), to which Senator McCumber gave the following opaque response: </s> "[I]f there has been no transfer of trade-mark, that presents an entirely different question. But suppose the trade-mark is owned exclusively by an American firm or corporation. The mere fact of a foreigner having a trade-mark and registering that trade-mark in the United States, and selling the goods in the United States through an agency, of course, would not be affected by this provision." Ibid. (emphasis added). </s> Dissatisfied with the response, Senator Lenroot rephrased the question: whether the foreign owner of "an international trade-mark . . ., registered by an American, with American domicile" could preclude parallel importation of the product "without the written consent of the [foreign firm], or their agent domiciled here in America." Ibid. (emphasis added). Time ran out before Senator McCumber could answer. </s> I disagree with both the inference that the Court of Appeals drew from Senator Lenroot's question and its reading of the answer. In the first place, the question, in either formulation, does not suggest that "Senator Lenroot . . . was concerned that foreign corporations could obtain the statutory monopoly simply by incorporating an American subsidiary." COPIAT, 252 U.S. App. D.C., at 350, 790 F.2d, at 911 (emphasis added). It refers only to the possibility of a foreign company "hav[ing] an agent" (not necessarily "incorporating a subsidiary") in the United States to "register" (not necessarily to "own") the foreign trademark. The question [486 U.S. 281, 307] seems to have been directed to the inadvertent omission, subsequently remedied by the Conference Committee, of the requirement that the trademark be "owned by a citizen of, or by a corporation . . . created . . . within the United States." </s> Secondly, even if I could accept the conclusion that Senator Lenroot initially read 526 as permitting a foreign firm to invoke 526 merely through the artifice of creating a subsidiary, Senator McCumber's response laid to rest any such fear. He reiterated what had been said repeatedly: Section 526 would apply only to a situation in which there has been a "transfer" - presumably at arm's length - of the trade-mark; and only where the trademark "is owned exclusively - by an American" - presumably an exclusively American - firm. Thus, even if both Senators meant "subsidiary" when they used the word "agent," Senator McCumber's answer squarely negated any suggestion that 526 would apply; such a situation, "of course, would not be affected by this provision." </s> C </s> The sliver of legislative history on which the Court of Appeals relied most heavily in support of its reading of 526 was the following statement in the Conference Report: </s> "A recent decision of the circuit court of appeals holds that existing law does not prevent the importation of merchandise bearing the same trade-mark as merchandise of the United States, if the imported merchandise is genuine and if there is no fraud upon the public. [Section 526] makes such importation unlawful without the consent of the owner of the American trade-mark, in order to protect the American manufacturer or producer. . . ." H. R. Conf. Rep. No. 1223, 67th Cong., 2d Sess., at 158. </s> The Court of Appeals read the statement that 526 "makes such importation unlawful" as meaning that 526 would prevent the importation of any merchandise bearing a United [486 U.S. 281, 308] States trademark, so long as the imported merchandise is genuine and there is no fraud on the public, even though the holder of the United States trademark is affiliated with the manufacturer. That is, concededly, a plausible reading of that brief passage. But cf. Atwood, Import Restrictions on Trademarked Merchandise - The Role of the United States Bureau of Customs, 59 Trademark Rep. 301, 304 (1969) (describing Conference Report as "evidence of the misunderstanding of the facts of the Katzel case"). More plausible, though, is that the first sentence quoted above merely described the well-established legal theory that compelled the result in Katzel, and the second sentence, declaring the unlawfulness of "such importation" referred to the type of importation at issue in Katzel - i. e., parallel importation of goods bearing a United States trademark purchased by an independent domestic company from a foreign manufacturer. Only if the second sentence were so limited would 526 "protect the American manufacturer or producer," as the Conference Report itself says it does, for (as this case aptly demonstrates) the alternative would constitute Government-enforced insulation of the United States markets of foreign corporations. </s> As the Court of Appeals had to concede, COPIAT, supra, at 349, 790 F.2d, at 910, its own reading imputed to Congress an intent to effect a sweeping transformation of the then-prevailing trademark doctrine. Congress, the argument goes, intended to reject squarely the Second Circuit's "universality theory" that a trademark was a device to protect the public against fraud by properly identifying the product's manufacturer, not a device to protect the trademark owner against competing sales of its own goods. See supra, at 301. When Congress intends to effect so radical a departure from prevailing legal doctrine, it ordinarily acknowledges as much and does so in more than a single cryptic comment in a conference report. Moreover, Congress typically would not sneak such a sweeping doctrinal change into a [486 U.S. 281, 309] massive legislative overhaul on an unrelated topic (here tariff revision). And it usually would (though did not here) refer the matter to the committee with expertise in the area. See 62 Cong. Rec. 11602 (1922) (remarks of Sen. Moses). Since Congress did not so much as hint that it was engaged in such an ambitious task, the more plausible reading of the cryptic Conference Report is that Congress intended merely to remedy a specific inequity that the prevailing doctrine produced, not to abolish the entire doctrine that produced it. 6 </s> In sum, the legislative history and purpose of 526 confirm, and JUSTICE SCALIA does not dispute, that if Congress had any particular intent with respect to the application of 526 to trademark owners affiliated with foreign manufacturers, it was to exclude them from its shield. At the very least, that interpretation - which forms the basis of the Customs Service regulation - is reasonable. See Cardoza-Fonseca, 480 U.S., at 445 -449. </s> III </s> The conclusion that the common-control exception is consistent with 526 is further buttressed by the deference owed to an agency interpretation that represents a longstanding agency position. See Zenith Radio Corp. v. United States, [486 U.S. 281, 310] 437 U.S. 443, 450 (1978); NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974). While the precise language of the importation bar has varied over the years, Treasury has for 50 years adhered to the basic premise of the common-control exception - that 526 does not require exclusion of all gray-market goods. </s> Until 1936, Treasury's regulations merely tracked the language of 526, see Cust. Reg. 1923, art. 476; Cust. Reg. 1931, arts. 517(a), 518, but respondents point to no evidence that the Customs Service had any practice of excluding goods bearing trademarks registered by affiliates of foreign corporations. That year Treasury explicitly adopted for the first time a "same-company" exception, which barred foreign manufactured goods bearing United States trademarks except if the foreign and domestic trademarks "are owned by the same person, partnership, association, or corporation." See T. D. 48537, 70 Treas. Dec. 336-337 (1936) (amending art. 518(b)). Contrary to the assertion of the Court of Appeals, COPIAT, 252 U.S. App. D.C., at 353, and n. 14, 790 F.2d, at 914, and n. 14, Treasury's preamble specifically invoked its authority under 526 and 624 of the 1930 Tariff Act (as well as 27 of the Trade-Mark Act of 1905) in introducing the same-company exception. Treasury adhered to an identical same-company formulation of the exception upon reissuing the regulation in 1937, see Cust. Reg. 1937, arts. 536(a), 537; in 1943, see 19 CFR 11.14(b) (1943); and in 1947, see 19 CFR 11.14(b) (1947), each time citing specifically 526 as partial authority for the interpretation. For 17 years thereafter, the regulation remained unchanged, and the Customs Service permitted parallel importation so long as the manufacturer and the United States trademark holder were affiliated, including situations where the holder was the manufacturer's subsidiary. See In re Georg Jensen Inc., T. D. 52711, 86 Treas. Dec. 92 (1951); Derenberg, The Impact of the Antitrust Laws on Trade-Marks in Foreign Commerce, 27 N. Y. U. L. Rev. 414, 429 (1952). [486 U.S. 281, 311] </s> In 1953, Treasury revised its regulations "[t]o eliminate obsolete material [and] correct discrepancies," T. D. 53399, 88 Treas. Dec. 376, that arose as international corporate relationships grew in complexity. It adhered to the same-company exception but enlarged it to encompass the situation in which the foreign manufacturer is a "related company as defined in section 45 of the [Lanham Trade-Mark] Act, [15 U.S.C. 1127 (1982 ed. and Supp. IV)]," one that "legitimately controls, or is controlled by" the domestic trademark owner "in respect to the nature and quality of the goods in connection with which the mark is used." T. D. 53399, 88 Treas. Dec., at 384. Although the new regulations, for the first time, omitted reference to 526, contemporaneous commentators uniformly recognized that the omission was inadvertent. See, e. g., Derenberg, The Seventh Year of Administration of the Lanham Trade-Mark Act of 1946, 44 Trade-Mark Rep. 991, 996-1000 (1954); Note, Trade-Mark Infringement: The Power of an American Trade-Mark Owner to Prevent the Importation of the Authentic Product Manufactured by a Foreign Company, 64 Yale L. J. 557, 559-562, 566-568 (1955). It would have been nonsensical in the extreme for Treasury to announce that goods excludable in any event under 526 are not barred by the Lanham Trade-Mark Act. </s> That exception remained in place until 1959, when (for reasons not relevant here) Treasury deleted the related-company formulation of the exception and returned to the same-company formulation. Significantly, however, Treasury and the Customs Service continued to apply the provision as if the related-company language had still been there, permitting importation of gray-market goods where "the foreign producer is the parent or subsidiary of the American [trademark] owner or the firms are under a common control." T. D. 69-12(2), 3 Cust. Bull. 17 (1969); see also Letter from Deputy Customs Commissioner Flinn to Felix Levitan (Mar. 15, 1963), App. 63 (articulating Customs Service's "position [486 U.S. 281, 312] for many years" that 526 is inapplicable where "merchandise [is] manufactured or sold by the foreign parent or subsidiary corporation of an American trademark owner"). </s> In 1972, Treasury promulgated the current Customs Service regulation, with its common-control exception once more codifying the practice that the Customs Service has adhered to for 50 years. In sum, the agency has (to quote the Customs Service's long-time attorney) "always denied complete exclusionary protection to an American trademark registrant when it knew the importer to be a subsidiary or parent of the foreign user of the trademark." Atwood, 59 Trademark Rep., at 305-307. We do not lightly overturn administrative practices as longstanding as the ones challenged in this action. This is particularly true where, as here, an immense domestic retail industry has developed in reliance on that consistent interpretation. Zenith Radio Corp. v. United States, 437 U.S., at 457 . </s> IV </s> I turn now to my small area of disagreement with the Court's judgment - the Court's conclusion that the authorized-use exception embodied in 19 CFR 133.21(c)(3) (1987) is inconsistent with the plain language of 526. In my view, 526 does not unambiguously protect from gray-market competition a United States trademark owner who authorizes the use of its trademark abroad by an independent manufacturer (case 3). </s> Unlike the variations of corporate affiliation in case 2, see supra, at 299, the ambiguity in 526, admittedly, is not immediately apparent in case 3. In that situation, the casual reader of the statute might suppose that the domestic firm still "own[s]" its trademark. Any such supposition as to the meaning of "owned by," however, bespeaks stolid anachronism not solid analysis. It follows only from an understanding of trademark law that established itself long after the 1922 enactment and 1930 reenactment of 526. Cf. Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 280 </s> [486 U.S. 281, 313] (1980) (in interpreting a "statute enacted over 50 years ago, the view that once `dominate[d] the field' is more enlightening than a recent state-law trend that has not motivated subsequent Congresses to amend the federal statute") (footnote omitted). </s> When 526 was before Congress, the prevailing law held that a trademark's sole purpose was to identify for consumers the product's physical source or origin. See, e. g., Macmahan Pharmacal Co. v. Denver Chemical Mfg. Co., 113 F. 468, 475 (CA8 1901). "Under this early `source theory' of protection, trademark licensing was viewed as philosophically impossible, since licensing meant that the mark was being used by persons not associated with the real manufacturing `source' in a strict, physical sense of the word." 1 McCarthy, Trademarks and Unfair Competition, at 826; see Macmahan Pharmacal Co., supra, at 475 ("An assignment or license without [a] transfer [of the business] is totally inconsistent with the theory upon which the value of a trade-mark depends"); H. Nims, The Law of Unfair Competition and Trade-Marks 46 (1917) (identifying Macmahan as "the usual rule"). Thus, any attempt by a trademark holder to authorize a third party to use its trademark worked an abandonment of the trademark, resulting in a relinquishment of ownership. See, e. g., Everett O. Fisk & Co. v. Fisk Teachers' Agency, Inc., 3 F.2d 7, 9 (CA8 1924). </s> Nor was it at all obvious then that a trademark owner could authorize the use of its trademark in one geographic area by selling it along with business and goodwill, while retaining ownership of the trademark in another geographic area. There were, as JUSTICE SCALIA points out, isolated suggestions that a foreign firm could validly assign to another the exclusive right to distribute the assignor's goods here under the foreign trademark. See post, at 326. The cases, however, were rife with suggestions to the contrary. 7 And [486 U.S. 281, 314] we have found no contemporaneous case even suggesting that a domestic firm could retain ownership of a trademark after attempting to assign to another the right to use the trademark on goods that the other manufactured abroad. Cf. Scandinavia Belting Co. v. Asbestos & Rubber Works of America, Inc., 257 F. 937, 956 (CA2 1919) (raising similar issue whether assignee of right to use trademark in the United States might use trademark on products not produced by the foreign manufacturer, but concluding "[t]hat question is not here and is not decided"). As one commentator writing as late as 1932 observed: "[T]here is much confusion in the books in regard to the transferability of trade marks and trade names. The law on the matter is neither clearly stated nor always uniformly applied." Grismore, The Assignment of Trade Marks and Trade Names, 30 Mich. L. Rev. 490, 491. 8 </s> Not until the 1930's did a trend develop approving of trademark licensing - so long as the licensor controlled the quality of the licensee's products - on the theory that a trademark might also serve the function of identifying product quality for consumers. 1 McCarthy, Trademarks and Unfair Competition, at 827-829; see Grismore, 30 Mich. L. Rev., at 499. [486 U.S. 281, 315] And not until the passage of the Lanham Trade-Mark Act in 1946 did that trend become the rule. See, e. g., Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358, 366-367 (CA2 1959). Similarly, it was not until well after 526's enactment that it became clear that a trademark owner could assign rights in a particular territory along with goodwill, while retaining ownership in another distinct territory. See, e. g., California Wine & Liquor Corp. v. William Zakon & Sons, Inc., 297 Mass. 373, 378, 8 N. E. 2d 812, 814 (1937). </s> Manifestly, the legislators who chose the term "owned by" viewed trademark ownership differently than we view it today. Any prescient legislator who could have contemplated that a trademark owner might license the use of its trademark would almost certainly have concluded that such a transaction would divest the licensor not only of the benefit of 526's importation prohibition, but of all trademark protection; and anyone who gave thought to the possibility that a trademark holder might assign rights to use its trademark, along with business and goodwill, to an unrelated manufacturer in another territory had good reason to expect the same result. At the very least, it seems to me plain that Congress did not address case 3 any more clearly than it addressed case 2a, 2b, or 2c. To hold otherwise is to wrench statutory words out of their legislative and historical context and treat legislation as no more than a "collection of English words" rather than "a working instrument of government . . . ." United States v. Dotterweich, 320 U.S. 277, 280 (1943). </s> JUSTICE SCALIA'S assertion that the foregoing analysis of case 3 is not based on the "resolution of textual `ambiguity,'" post, at 323, depends on the proposition that an ancient statute is not ambiguous - and judges can never inform their interpretation with reference to legislative purpose - merely because the scope of its language has, by some fortuitous development, expanded to embrace situations that its drafters never anticipated. The proposition is unexceptionable where the postenactment development does not implicate the [486 U.S. 281, 316] purpose of the statute. Thus, to use JUSTICE SCALIA'S illustration, no one would doubt that "[a] 19th-century statute criminalizing the theft of goods" applies unambiguously to "theft of microwave ovens," post, at 323, for the postenactment development (the invention of new "goods") in no way implicates the statute's purpose (to deter "theft of goods"). The proposition is fallacious, however, when the postenactment development does implicate the statute's purpose. For example, had the same 19th-century legislature passed a statute requiring a utility commission to "inspect all ovens installed in a home for propensity to spew flames," the statute would not unambiguously apply to microwave or electric ovens. Although it would not be absurd to read the statute to cover such developments, a court might decline to do so, depending upon the extent to which the statute's purpose would be furthered by inspection of ovens that spew fewer flames than do conventional ovens. So too, the drastic doctrinal change in the nature of trademark ownership that occurred after 526's enactment directly implicates the statute's purpose - to protect United States trademark owners from intrabrand competition arising from the manufacture abroad of trademarked goods by firms having certain relationships with the owner. </s> Since I believe that the application of 526 to case 3 is ambiguous, the sole remaining question is whether Treasury's decision to exclude case 3 from 526's prohibition is entitled to deference. The same considerations that lead me to uphold Treasury's treatment of the case 2 variations compel the same conclusion here. In the first place, the equities in case 3, as in case 2, differ significantly from the equities that motivated Congress to protect the prototypical gray-market victim (case 1) that purchases its trademark rights at arm's length from an independent manufacturer. While the prototypical gray-market victim stands to lose the full benefit of its bargain because of gray-market interference, the United States trademark holder that develops identical rights and [486 U.S. 281, 317] authorizes a third party to use them abroad does not have the same sort of investment at stake. Similarly, while a trademark purchaser has no direct control over the importation of competing goods or over the manufacturer's sale abroad to third parties, the holder of a United States trademark in case 3 can avoid competition simply by declining to license its use abroad or even (if contractually permitted) revoking an already-issued license. Thus, it would have been perfectly rational for Congress to treat case 3 like case 2, excluding both from the 526's prohibition. </s> The legislative history that I have already discussed at length confirms Congress' intent to do exactly that, and merely to overrule Katzel. There is no more indication that Congress intended to permit a United States trademark holder to prohibit importation of trademarked goods manufactured abroad under its authorization than that Congress intended to permit a United States trademark holder to exclude goods produced by its affiliates or divisions abroad. </s> Finally, Treasury has, at least since 1951, declined to protect trademark holders who authorize the use of their trademarks abroad. Almost as soon as the Lanham Trade-Mark Act codified the quality theory, enabling trademark holders to license the use of their trademarks without thereby relinquishing ownership, see supra, at 311, the Customs Service took the position that 526's protection would be unavailable to domestic firms that authorized independent foreign firms to use their trademarks. See Letter from Customs Commissioner Dow to Sen. Douglas (Mar. 23, 1951), App. 52, 53 ("[A] foreign subsidiary or licensee of the United States trademark is considered to stand in the same shoes as such trademark owner") (emphasis added). See also T. D. 69-12(2), 3 Cust. Bull., at 17. Particularly in light of that longstanding agency interpretation, I would uphold the authorized-use exception as reasonable. </s> [Footnote 1 See, e. g., Olympus Corp. v. United States, 792 F.2d 315 (CA2 1986), aff'g 627 F. Supp. 911 (EDNY 1985), cert. pending, No. 86-757; Vivitar Corp. v. United States, 761 F.2d 1552 (CA Fed. 1985), aff'g 593 F. Supp. 420 (Ct. Int'l Trade 1984), cert. denied, 474 U.S. 1055 (1986); Lever Brothers Co. v. United States, 652 F. Supp. 403 (DC 1987). </s> [Footnote 2 Steelworkers v. Weber, 443 U.S. 193, 201 (1979) (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892)). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 432 , n. 12 (1987) (citing cases); Kelly v. Robinson, 479 U.S. 36, 43 -44 (1986); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220 -221 (1986). </s> [Footnote 3 See 62 Cong. Rec. 11604 (1922) (bill's cosponsor, Sen. McCumber, complains that after Katzel, "the American purchasers of these [trademark] rights are entirely unprotected") (emphasis added); ibid. (purpose "is to give the opportunity to protect the American purchaser") (emphasis added) (remarks of Sen. McCumber); ibid. (Sen. Simmons describes case of domestic purchasers of Bayer Aspirin trademark from German company, whose investment 526 would protect by precluding importation of aspirin by third party under same trademark). </s> [Footnote 4 See also id., at 11604 (describing 526 as "a prohibition against the violation of . . . contract"; "In a thousand ways we have guarded against fraud, and this [is] one among the thousand") (remarks of Sen. McCumber). It is conceivable, as the Court of Appeals suggested, that the quoted statements were merely "efforts by proponents of a bill to understate its significance," COPIAT, 252 U.S. App. D.C. 342, 350, 790 F.2d 903, 911 (1986). But without firmer evidence tending to impugn a legislator's integrity, the presumption that legislators mean what they say would seem more appropriate than the opposite presumption that the Court of Appeals applied. At any rate, if a sponsor of legislation needs to understate the significance of a provision in order to secure its passage, it is reasonable to assume that other legislators relied on the sponsor's statements in casting their votes. </s> [Footnote 5 The Court of Appeals also made much of a question posed by Senator Lenroot, which prompted an amendment of 526 on the Senate floor. Senator Lenroot objected that under 526, as originally drafted, a United States citizen who purchased an American product while in Canada could not carry the product across the United States border. In recognition of the absurdity of that result, Senator McCumber offered, and the Senate adopted, an amendment limiting the prohibition to goods "of foreign manufacture." 62 Cong. Rec. 11603-11604 (1922). The Court of Appeals thought it significant that Senator McCumber felt compelled to amend the provision rather than "simply noting (as the Customs Service would under its regulations) that the owners of the American and Canadian trademarks were the same company, or that the American trademark owner had authorized the use of the trademark." COPIAT, supra, at 350, 790 F.2d, at 911. Senator McCumber's response is not as telling as the Court of Appeals suggests. In the first place, it is not at all clear that there was a Canadian trademark in Senator Lenroot's illustration. Second, even if such an assumption were implicit, a legislator's choice of one solution does not prove that he considered others nonviable. Third, the hypothetical demonstrated one respect in which the hastily drafted provision was not narrowly tailored to Katzel's facts. Senator McCumber's prompt floor amendment is just as consistent with a motive to tailor the provision more to Katzel's specific facts as it is with a suggestion that 526 was never [486 U.S. 281, 306] intended to be so limited in the first place. Indeed, the Senators' concern that domestic companies not be shielded from importation of their own goods suggests a desire not to extend 526's protection to domestic companies from the parallel imports disputed in this litigation over which they have control. </s> [Footnote 6 If the congressional debates surrounding the initial enactment of 526 were less than clear, the reenactment of 526 in the 1930 Tariff Act was utterly confused. One proposal, which Congress ultimately rejected, was to substitute for 526 a new and substantially different provision. See 71 Cong. Rec. 3871-3876, 3889-3906 (1929). The only two Senators who discussed 526's current meaning mischaracterized it as a provision designed to protect United States trademark owners from infringement of their trademarks, rather than from the competition of valid trademarks. See id., at 3837 (remarks of Sen. Reed); id., at 3872 (remarks of Sen. George). The debates certainly do not evince the level of understanding that one might expect of a Legislature that only eight years earlier is said to have effected through that provision a sweeping doctrinal revision. Significantly, in discussing the reenactment of 526, no one suggested that it was no longer limited to the facts of Katzel, as the Congress that originally enacted it intended. </s> [Footnote 7 See e. g., Independent Baking Powder Co. v. Boorman, 175 F. 448, 454 (CC NJ 1910) ("[T]he assignor cannot, after the assignment, continue [486 U.S. 281, 314] the same identical business and at the same places as before, under unassigned trade-marks, and at the same time authorize his assignee to conduct the same business elsewhere under an assigned trade-mark"); Eiseman v. Schiffer, 157 F. 473 (CC SDNY 1907) (trademark owner may not assign trademark and then continue to engage in same business under different trademark). </s> [Footnote 8 JUSTICE SCALIA cites United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 100 -101 (1918), and Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 415 (1916), in support of his contention that the law by 1920 clearly permitted a trademark owner to retain ownership and use a trademark in one territory after assigning the identical trademark along with goodwill in another. Post, at 326. Those cases held only that a firm can develop a trademark that is identical to a trademark already in use in a geographically distinct and remote area if the firm is unaware of the identity. Thus, those cases bore on the territorial extent of trademark protection, not on the transferability of a trademark by territory once developed. [486 U.S. 281, 318] </s> JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE O'CONNOR join, concurring in part and dissenting in part. </s> I agree with the Court's analytic approach to this matter, and with its conclusion that subsection (c)(3) of the regulation, 19 CFR 133.21(c)(3) (1987), is not a permissible construction of 526(a) of the Tariff Act of 1930, 19 U.S.C. 1526(a). I therefore join Parts I, II-A, and II-C of the Court's opinion. In my view, however, subsections (c)(1) and (c)(2) of the regulation are also in conflict with the clear language of 526(a). I therefore decline to join Parts II-B and III of JUSTICE KENNEDY's opinion and dissent from that part of the judgment upholding subsections (c)(1) and (c)(2). </s> I </s> The Court observes that the statutory phrase "owned by" is ambiguous when applied to domestic subsidiaries of foreign corporations (case 2a). With this much I agree. It may be reasonable for some purposes to say that a trademark nominally owned by a domestic subsidiary is "owned by" its foreign parent corporation. This lawsuit would be different if the Customs Service regulation at issue here did no more than resolve this arguable ambiguity, by providing that a domestic subsidiary of a foreign parent could not claim the protection of 526(a). In fact, however, that has never been asserted to be the theory of the regulation, and is assuredly not its only, or even its principal, effect. The authority to clarify an ambiguity in a statute is not the authority to alter even its unambiguous applications, and 526(a) unambiguously encompasses most of the situations that the regulation purports to exclude. </s> Thus, the regulation excludes from 526(a)'s import prohibition products bearing a domestic trademark that have been manufactured abroad by the trademark owner (case 2c), or by the trademark owner's subsidiary (case 2b). But the statutory requirement that the trademark be "owned by" a [486 U.S. 281, 319] United States citizen or corporation is unambiguous with respect to these two cases. A parent corporation may or may not be said to "own" the assets owned by its subsidiary, but no matter how that ambiguity is resolved it is impossible to conclude that a trademark owned by a United States corporation and applied abroad either by the corporation or its foreign subsidiary is "owned by" anyone other than a United States corporation. </s> Five Members of the Court (hereinafter referred to as "the majority") assert, however, that the regulation's treatment of situations 2b and 2c is attributable to the resolution of yet another ambiguity in 526(a). See ante, at 292-293 (opinion of KENNEDY, J.); ante, at 299 (opinion of BRENNAN, J.). The statute excludes only merchandise "of foreign manufacture," which the majority says might mean "manufactured by a foreigner" rather than "manufactured in a foreign country." I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word "foreign" in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase "I have a foreign object in my eye" as referring, perhaps, to something from Italy. The phrase "of foreign manufacture" is a common usage, well understood to mean "manufactured abroad." Hence, when statutes and regulations intend to describe the universe of manufactured goods, they do not refer to goods "of foreign or citizen manufacture," but to goods "of foreign or domestic manufacture." See, e. g., 19 CFR 133.21(a) (1987). I know of no instance in which anyone, anywhere, has used the phrase with the meaning the majority suggests - and the majority provides no example. </s> In the particular context of the present statute, however, the majority's suggested interpretation is not merely unusual but inconceivable, since it would have the effect of eliminating 526(a)'s protection for some trademark holders in case 1 - which contains what the Court describes as the "prototypical" [486 U.S. 281, 320] gray-market victims. Not uncommonly a foreign trademark owner licenses an American firm to use its trademark in the United States and also licenses one or more other American firms to use the trademark in other countries. In this situation, the firm with the United States license could not keep out gray-market imports manufactured abroad by the other American firms, since, under the majority's interpretation, the goods would not be "of foreign manufacture." Thus, to save the regulation, the majority proposes an interpretation that undermines even the core of the statute. 1 </s> The majority does not insist that this queer reading is the best interpretation of "of foreign manufacture," but only that the Customs Service has adopted this construction of the statute as the basis for its regulation. That will come as a surprise to the Customs Service. The Government's petition for writ of certiorari in this very case states that 526(a) deals not with goods manufactured by foreigners, but rather with "goods manufactured abroad," "genuine foreign-made goods," "[g]enuine goods manufactured abroad," "goods produced abroad." Pet. for Cert. in No. 86-625, p. 3. As far as I can discern, that accords with the absolutely uniform Customs Service interpretation. For example, the Customs [486 U.S. 281, 321] Service cites (Brief for Federal Petitioners 38, n. 46) the 1951 correspondence from the Commissioner of Customs to Senator Douglas describing 526(a): </s> "As interpreted by the [Customs] Bureau, section 526 prohibits the importation of genuine articles of foreign origin bearing a genuine trade-mark. . . . For example: if the foreign owner of a trade-mark applied to articles manufactured in a foreign country assigns the United States rights [to a United States citizen] no articles of foreign origin bearing such mark . . . may be imported." App. 53 (emphasis added). </s> Perhaps most telling of all is the Commissioner's description, in this letter, of the common-ownership exception: </s> "However, if the United States trade-mark owner and the owner of the foreign rights to the same mark are one and the same person, articles produced and sold abroad by the foreign owner may be imported by anyone. . . ." Ibid. (emphasis added). </s> The Commissioner's reference to articles produced and sold abroad was not original, but paraphrased the language of the earliest regulation articulating the common-ownership exception to 526(a) ("merchandise manufactured or sold in a foreign country") which was reiterated in regulations promulgated in 1937, 1943, 1947, and 1969. See Cust. Reg. 1931, art. 518(b), as amended, T. D. 48537, 70 Treas. Dec. 336-337 (1936); Cust. Reg. 1937, art. 537(b); Cust. Reg. 1943, 19 CFR 11.14(b) (1943); Cust. Reg. 1947, 19 CFR 11.14(b) (1947); 19 CFR 11.14(b) (1969). It is a strange sort of deference to agency interpretation which adopts a view of the statute that the agency clearly rejects. </s> If it were, as JUSTICE KENNEDY believes, "the current interpretation of the regulations we are sustaining," ante, at 293, n. 4, one would expect there to be in place some mechanism that enables the Customs Service to identify goods that are not only manufactured abroad but also (as the majority's [486 U.S. 281, 322] interpretation requires) manufactured by foreigners. Acquiring this knowledge cannot be easy, since the importer of merchandise will often not know the manufacturer's identity, much less its corporate pedigree. International corporate ownership, not a matter of public record, is often a closely guarded secret. Yet although there is in place a regulation requiring the country of origin (i. e., whether "manufactured abroad") to be plainly indicated on all imports, see 19 CFR 134.0-134.55 (1987), there is none requiring the nationality of the manufacturer to be stated. After today's decision, of course, the Customs Service, if it would not rather amend its regulations, will presumably have to devise means to enforce what we say it has been enforcing. </s> Which suggests one of the most important reasons we defer to an agency's construction of a statute: its expert knowledge of the interpretation's practical consequences. Since the Government has never advocated the interpretation proposed by the majority (although these cases have been argued twice), and since we did not so much as ask for additional briefing after conceiving of the novel interpretation, we cannot be sure what other difficulties it will create. It might, for example, conflict with mutually accepted understandings of our commercial treaty commitments to foreign countries, such as the provision in our Treaty of Friendship, Commerce and Navigation with the Federal Republic of Germany, October 29, 1954, that "[n]ationals and companies of either Party shall be accorded national treatment and most-favored-nation treatment by the other Party with respect to all matters relating to importation and exportation." 1956. 7 U.S. T. 1839, T. I. A. S. No. 3593, art. XIV, § 4. I doubt, in any case, that our trade partners will look favorably upon a regulation which, as now interpreted, treats goods manufactured by American companies on their soil more favorably than goods manufactured there by their own nationals. </s> I find it extraordinary for this Court, on the theory of deferring to an agency's judgment, to burden that agency with [486 U.S. 281, 323] an interpretation that it not only has never suggested, but that is contrary to ordinary usage, to the purposes of the statute, and to the interpretation the agency appears to have applied consistently for half a century. </s> II </s> Section 526(a) also unambiguously embraces a third situation that the regulation excludes - namely, the situation (case 3) in which a domestic trademark owner and registrant authorizes a foreign firm to use its United States trademark abroad. There, the United States trademark is unambiguously "owned by" a United States firm, and registered by a firm "domiciled in the United States," and the goods sought to be imported are "of foreign manufacture." According to JUSTICE BRENNAN, however, thus reading the words to mean what they say "bespeaks stolid anachronism not solid analysis," because "[a]ny prescient legislator who could have contemplated that a trademark owner might license the use of its trademark would almost certainly have concluded that such a transaction would divest the licensor not only of the benefit of 526's importation prohibition, but of all trademark protection." Ante, at 312, 315. </s> There may be an anachronism here, but if so it is the statute itself - which Congress has chosen not to update - and not the faithful reading of it to cover what it covers. JUSTICE BRENNAN characterizes his view as the resolution of textual "ambiguity," but it has nothing to do with that. A 19th-century statute criminalizing the theft of goods is not ambiguous in its application to the theft of microwave ovens simply because the legislators enacting it "were unlikely to have contemplated" those appliances; and a 1922 (or 1930) statute covering a "corporation . . . organized within, the United States" unambiguously includes a United States corporation that has licensed its trademark abroad, whether or not a United States corporation with that characteristic existed [486 U.S. 281, 324] at the time. 2 JUSTICE BRENNAN is asserting that we have the power - indeed, the obligation, lest we commit a "stolid anachronism" - to decline to apply a statute to a situation that its language concededly covers, not on the ground that the enacting Congress actually intended but failed to express such an exception, nor even on the ground that failure to infer such an exception produces an absurd result, but on the ground that, if the enacting Congress had foreseen modern circumstances, it would have adopted such an exception, since otherwise the effect of the law would extend beyond its originally contemplated purpose. I confess never to have [486 U.S. 281, 325] heard of such a theory of statutory construction. The principle of our democratic system is not that each legislature enacts a purpose, independent of the language in a statute, which the courts must then perpetuate, assuring that it is fully achieved but never overshot by expanding or ignoring the statutory language as changing circumstances require. To the contrary, it seems to me the prerogative of each currently elected Congress to allow those laws which change has rendered nugatory to die an unobserved death if it no longer thinks their purposes worthwhile; and to allow those laws whose effects have been expanded by change to remain alive if it favors the new effects. In the last analysis it is JUSTICE BRENNAN's approach that "bespeaks stolid anachronism," because in theory it requires judges to rewrite the United States Code to accord with the unenacted purposes of Congresses long since called home. (The reality, I fear, may be even worse than the theory. In practice, the rewriting is less likely to accord with the legislative purposes of yesteryear than the judicial predelictions of today.) </s> But it is not really necessary to conduct the discourse at such a philosophical level in order to reject what JUSTICE BRENNAN proposes. For even those who would support the power of a court to disregard the plain application of a statute when changed circumstances cause its effects to exceed the original legislative purpose would concede, I must believe, that such power should be exercised only when (1) it is clear that the alleged changed circumstances were unknown to, and unenvisioned by, the enacting legislature, and (2) it is clear that they cause the challenged application of the statute to exceed its original purpose. Here both of those conditions, far from being clearly satisfied, are almost certainly not met. </s> JUSTICE BRENNAN asserts that legislators in 1922 or 1930 were unlikely to have contemplated that a trademark owner could assign his trademark unless he simultaneously conveyed the goodwill and business associated with the mark. [486 U.S. 281, 326] Ante, at 313-314. But the prohibition on assigning a trademark apart from its associated goodwill has not been eliminated. See 15 U.S.C. 1060. And no more in 1922 than today did it preclude assignment of the trademark and goodwill on a region-by-region basis. By 1920, it was firmly established that unrelated businesses could own and use an identical trademark so long as the uses were confined to different and distinct regions. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 100 -101 (1918); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 415 (1916). As a consequence, a trademark holder doing business in two distinct territories was free to assign the business, goodwill, and rights to the trademark in one of the regions. See, e. g., Scandinavia Belting Co. v. Asbestos & Rubber Works of America, Inc., 257 F. 937, 953-956 (CA2 1919); Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co., 54 Ont. L. Rep. 537, 546, 550 (1923); see also Apollinaris Co. v. Scherer, 27 F. 18, 19-20 (CC SDNY 1886) (dicta); cf. Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19 (1900) (a trademark owner does not abandon his trademark if he continues to use it domestically while granting another party the exclusive right to sell the product in certain foreign countries). 3 Similarly, a firm that used its trademark in one [486 U.S. 281, 327] business, say manufacturing cola syrup, could transfer rights to use the trademark in another business, such as bottling cola-flavored soda. See Coca-Cola Bottling Co. v. Coca-Cola Co., 269 F. 796, 806-808 (DC Del. 1920). It was also well established that different parties using an identical trademark in different regions, or for different purposes, could enter into a consent agreement authorizing each party to continue the nonconflicting uses. See Waukesha Hygeia Mineral Springs Co. v. Hygeia Sparkling Distilled Water Co., 63 F. 438, 441 (CA7 1894). JUSTICE BRENNAN correctly notes that trademark law now recognizes, as it had only begun to recognize in 1930, that a trademark may be licensed for use by different firms in the same or overlapping regions, ante, at 314-315. That change in the law, however, plays almost no part in the application of 526(a). Since international trademark licensing is interregional, a statute that applies only to imported goods is hardly affected by a change in trademark law concerning intraregional licensing. Finally, there is direct proof that Congress appreciated the possibility of territorial assignment of trademarks. JUSTICE BRENNAN acknowledges that the 1922 Congress was well aware of, and indeed was motivated by, the case of A. Bourjois & Co. v. Katzel, 275 F. 539 (CA2 1921), which presented a textbook example of an assignment of the right to use a trademark in a distinct market. Although Congress understood that a United States trademark owner could authorize the use of its mark abroad, Congress nonetheless chose not to create an exception to 526(a) for that situation. </s> Nor does it seem to me that the second condition for disregarding the words of the statute is met: that the original legislative purpose is not served by its text. I cannot agree that "the equities in case 3 . . . differ significantly from the [486 U.S. 281, 328] equities that motivated Congress to protect the prototypical gray-market victim (case 1)," the United States assignee of a foreign trademark. Ante, at 316. The United States assignee's innocent vulnerability to gray-market imports is no greater than that of the United States trademark owner who assigns the right to use his trademark abroad - and whom JUSTICE BRENNAN would deprive of 526(a)'s protection. I cannot understand why the latter victim "does not have the same sort of investment at stake," ante, at 317. If anything, his investment may be even greater, consisting of the entire goodwill associated with his trademark in this country. Nor do I understand why he has more "direct control" over the harm, ibid. The means of control available to the United States assignor are precisely those available to the United States assignee: he can either decline to participate in the assignment from the beginning, or contractually preclude the other party to the assignment from parallel importation. The latter is as unlikely to be effective in the one case as in the other since the bulk of the gray market is attributable to third parties that are unaffiliated with either the manufacturer or the trademark holder. That same phenomenon renders inexplicable JUSTICE BRENNAN'S perception that all affiliated trademark holders are less in need of, or less deserving of, 526(a) protection against the products of their foreign affiliates. It is not the affiliates who are doing the damage but third parties. </s> In sum, while congressional attention to the problem addressed by 526(a) may have been prompted by the gray-marketeering represented by A. Bourjois & Co. v. Katzel, supra, the language of the statute goes well beyond that narrow case to cover the same inequity in other contexts. Even if Congress could not have envisioned those other contexts I would find no reasonable basis to disregard what the statute plainly says; but to make the case complete, it surely must have envisioned them. [486 U.S. 281, 329] </s> * * * </s> I of course agree that to the extent 526(a) is ambiguous we need only determine whether the Customs Service's interpretation of the statute is reasonable, see Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 -843 (1984). But we owe no deference to a construction that is contrary to the interpretation of the agency. I would therefore hold invalid, in addition to subsection (c)(3) of the regulation, subsections (c)(1) and (c)(2). </s> [Footnote 1 JUSTICE KENNEDY suggests that "the regulation speaks to [this] hypothetical situation," since it "allows a company justifiably invoking the protection of the statute to bar the importation of goods of foreign or domestic manufacture. 19 CFR 133.21(a) (1987)." Ante, at 293, n. 4. This suggestion is puzzling. If, as the majority believes (or as it believes the Customs Service believes), the statute does not exclude the goods in this situation, it is hard to understand how the regulation could do so. The reality, in any case, is that subsection (a) of 133.21 has nothing to do with 526(a), but rather implements 42 of the Lanham Trade-Mark Act, 1 U.S.C. 1124, which prohibits importation of goods of foreign or domestic manufacture bearing not genuine trademarks identical to a United States trademark, but trademarks that "copy or simulate" a recorded trademark. It is subsection (b) of 133.21 that implements 526(a), and which, consistent with that statute, only prohibits importation of "[f]oreign-made [but not domestic-made] articles bearing a trademark identical with one owned" by a United States trademark holder. </s> [Footnote 2 JUSTICE BRENNAN responds with the example of an old statute requiring agency inspection of "all ovens" for their propensity to spew flames. This statute is asserted to be ambiguous with respect to modern microwave or electric ovens because its purpose would not be served. Ante, at 315-316. With respect to microwave ovens there may indeed be an ambiguity - not because the purpose would not be served but because the term "oven" connotes "a heated enclosure," Webster's Third New International Dictionary 1605 (1981), and may or may not embrace microwave ovens. With respect to electric ovens, there seems to me no ambiguity at all. Perhaps the statute should not be interpreted to cover electric ovens, but if so it would not be because of ambiguity but because (1) electric ovens are incapable of spewing flames, (2) it is therefore absurd to inspect electric ovens for that propensity, and (3) it is a venerable principle that a law will not be interpreted to produce absurd results. "The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted `that whoever drew blood in the streets should be punished with the utmost severity,' did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire - `for he is not to be hanged because he would not stay to be burnt.'" United States v. Kirby, 7 Wall. 482, 487 (1869) (citations omitted). Nothing in JUSTICE BRENNAN'S example suggests that we can simply disregard a phrase, such as "corporation . . . organized within . . . the United States," whose unambiguous application produces a result that is not at all absurd but merely (in JUSTICE BRENNAN'S estimation) beyond the contemplation of the enacting Congress. </s> [Footnote 3 JUSTICE BRENNAN'S only attempt to provide case-law support for the proposition that regional trademark licensing was impermissible consists of a reference to dicta in Independent Baking Powder Co. v. Boorman, 175 F. 448 (CC NJ 1910), and Eiseman v. Schiffer, 157 F. 473 (CC SDNY 1907), see ante, at 313-314, n. 7. The latter case contains nothing more than statements of the principle that a trademark cannot be assigned separately from the business to which it pertains - which says nothing about whether business and trademark can be conveyed on a regional basis. The former case does contain the seemingly pertinent remark, quoted by JUSTICE BRENNAN, that "the assignor cannot, after the assignment, continue the same identical business and at the same places as before, under unassigned trade-marks, and at the same time authorize his assignee to conduct the same business elsewhere under an assigned trade-mark." 175 F., at 454 (emphasis added). On the facts of the case, however, "elsewhere" was elsewhere in the same market in which the licensor continued to do business. [486 U.S. 281, 327] The basis of the holding and of the dictum was, once again, that a trademark is not assignable separately from the business to which it pertains. There is no reason to believe that the court, even in dictum, was addressing the question of regional licensing. </s> [486 U.S. 281, 330]

United States Supreme Court UNITED STATES v. BERGH(1956) No. 17 Argued: October 15, 1956Decided: November 19, 1956 </s> In the absence of a valid employment agreement to the contrary, per diem employees of the Navy are not entitled, under the Joint Resolution of June 29, 1938, 5 U.S.C. 86a, or the Joint Resolution of January 6, 1885, 23 Stat. 516, to an extra day's compensation for each holiday worked during the year 1945. Pp. 40-48. </s> (a) This conclusion, and the conclusion that the 1885 Resolution was repealed in toto by the 1938 Resolution, are supported by the legislative history, by the contemporary administrative interpretation of the 1938 Resolution, and by the treatment accorded these Resolutions by the House Committee on the Revision of the Laws. Pp. 42-47. </s> (b) United States v. Kelly, 342 U.S. 193 , distinguished. Pp. 47-48. </s> 132 Ct. Cl. 564, 132 F. Supp. 462, reversed. </s> Alan S. Rosenthal argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub and Samuel D. Slade. </s> Herbert S. Thatcher argued the cause for respondents. With him on the brief were J. Albert Woll and James A. Glenn. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> This action was instituted in the United States Court of Claims by government per diem employees to recover holiday pay consisting of an extra day's compensation for each holiday worked during the year 1945. </s> Each of the respondents was employed by the Navy under a Schedule of Wages which provided that "whenever an employee is relieved or prevented from working solely because of the occurrence of any day declared a [352 U.S. 40, 41] holiday" he was to receive the same pay for such days as for other days. This language was taken from a Joint Resolution of Congress of June 29, 1938, 52 Stat. 1246, 1 having to do with holiday pay. In 1945 the respondents were not relieved from working on certain holidays named in this Resolution and were paid only the regular scheduled pay for the work performed on those days. They contend that under a Joint Resolution of January 6, 1885, 23 Stat. 516, 2 they have a vested right to an additional full day's wage as "gratuity pay" for each holiday worked. The Government urges that the 1885 Resolution was repealed in toto by the Joint Resolution of June 29, 1938, [352 U.S. 40, 42] or in the alternative that the latter is inconsistent and in conflict with the provisions of the earlier Resolution upon which respondents rely. </s> The Court of Claims entered judgment for respondents, believing that the issue "was considered and disposed of by [its] majority opinion . . . in Kelly v. United States, 119 C. Cls. 197," holding that the employees concerned were entitled to gratuity pay under a Joint Resolution of 1895, not here involved, as well as under their wage agreement negotiated through collective bargaining in 1924. 132 Ct. Cl. 564, 132 F. Supp. 462. While we affirmed the Kelly case, 342 U.S. 193 , it was on the basis of the wage agreement present there. We left open the issue involved here. Subsequently, thousands of claims based on the 1885 Resolution, including those of respondents, were filed against the Government, necessitating a decision on the question now presented. We granted certiorari, 350 U.S. 953 . </s> The legislative history of the 1938 Resolution is clear. Executive Order No. 7763 of December 6, 1937, 2 Fed. Reg. 2685, excused all government employees from work on December 24, 1937. Under the 1885 Resolution per diem employees received no compensation for that day since the holidays enumerated therein did not include December 24. A Joint Resolution was introduced in the House by Representative Ramspeck to allow holiday pay to per diem employees for that day. On referral to the House Committee on Civil Service, advice was sought from the Civil Service Commission, the Bureau of the Budget, and the Comptroller General. The Civil Service Commission advised by letter dated February 15, 1938, that the "accounting authorities, however, have held that in the absence of specific legislation the regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis lose pay for that day. This has resulted in discrimination [352 U.S. 40, 43] against these groups of Federal employees." The Commission advised, further, that "there is the broader question involved of securing statutory authority for such payments as a general practice . . . ." H. R. Rep. No. 2683, 75th Cong., 3d Sess. 2. The Commission suggested the language that might be inserted in a Resolution that "would give permanent statutory authority" for holiday pay. In addition, the Commission's reference to the "accounting authorities" revealed that the Comptroller General had advised the Secretary of the Navy on December 20, 1937, that under existing law (a) per annum employees suffered no loss of income as the result of holidays, whether declared by statute or executive order, whereas per diem employees received pay only for those holidays enumerated in the 1885 Resolution; (b) per diem employees received statutory holiday pay whether the holiday happened to fall on a nonwork day (Saturday or Sunday) or not, while per annum workers were allowed neither additional pay nor holiday time when the holiday happened to fall on a nonwork day; and (c) if a per diem employee worked on a statutory holiday falling on such a nonwork day, he received double pay. 3 </s> In its report, supra, to the House, the Committee incorporated the letter from the Commission, the advisory opinion of the Comptroller General, and a letter dated February 14, 1938, from the Bureau of the Budget advising that the proposed legislation would not be "in conflict with the program of the President." The Committee drafted an entirely new Resolution, incorporating the language suggested by the Commission, intending for it to cover the "general practice" of the Government in regard to holiday pay. The only legislation then covering [352 U.S. 40, 44] the general practice of the Government as to holiday pay was the 1885 Resolution and as to it the Committee categorically declared in its Report: </s> "Section 2 [of the Resolution] proposes to repeal the joint resolution of January 6, 1885 (U.S.C., title 5, sec. 86), which is as follows: . . ." [It then sets out in full the 1885 Resolution.] </s> Furthermore, there is no indication anywhere in its Report that any portion of the 1885 Resolution - much less any administrative practice thereunder - was to survive. In addition to this unequivocal statement that the purpose of the 1938 Resolution was to repeal the 1885 one, the Committee further revealed by its action under the Rules of the 75th Congress that it so intended. The Rules required a Committee reporting out a bill repealing an act or part thereof to include in its report the text of the act or part thereof proposed to be repealed. The Report here included the text of the 1885 Resolution in toto. On the other hand, if it was intended only that the 1885 Resolution be amended, the Rules required the Committee to insert in its report a comparative print of the part of the act which it proposed to be amended. Here no such comparative print was inserted. </s> Moreover, the few brief statements on the floor of the House show nothing to the contrary. Representative Ramspeck declared that the Resolution "gives the same right to per diem employees as to the regular monthly employees." Representative Rogers stated. "This simply prevents an unintentional discrimination." Nothing was said as to the 1885 Resolution, nor did anyone contend, contrary to the Committee Report, that it was not the intention to repeal it in toto. See 83 Cong. Rec. 9466-9467. </s> It is contended that the purpose of the 1938 Resolution was to increase the number of holidays for per diem [352 U.S. 40, 45] employees to include those allowed by executive order, but to leave intact the allowance of double pay for per diem employees who worked on the holidays specified in the 1885 Resolution. This cannot be correct, for no one contends that the 1938 Resolution did not repeal the 1885 Resolution, as interpreted, with reference to holiday pay on nonwork days. That being so, we cannot see why the 1885 Resolution should be regarded as having been left unrepealed with reference to holiday pay on work days. 4 Moreover, respondents' contention is entirely untenable in light of the Committee Report. Confusion would be created rather than eliminated if the contention were accepted. The purpose, as shown by the letters, the advisory opinion, the Report, and the statements on the floor of the House, was to alleviate discriminations as to holiday pay and to treat employees alike insofar as possible. This the 1938 Resolution accomplished. Should the respondents' interpretation prevail, it would result in a double standard of pay for per diem employees working on holidays. On those holidays included in the 1885 Resolution, the employees would receive double pay, while on holidays included in or created pursuant to the authority provided by the 1938 Resolution alone they would receive only single pay. This result is required because the 1938 Resolution permits no holiday pay when the employee is required to work. We cannot attribute such anomalous results to the Congress. It is urged that our interpretation would result in a per diem employee receiving the same pay for working on a holiday as is [352 U.S. 40, 46] received by his fellow employee who is excused from so working. But this is no discrimination as it likewise is visited upon the per annum employee. 5 </s> We now turn to other indications supporting the position that the 1885 Resolution was repealed. As we indicated earlier, the double payment for holiday work recognized prior to the 1938 Resolution came about in 1906 through an interpretation of the 1885 Resolution by the Assistant Comptroller of the Treasury. This ruling was recognized by all departments and agencies of the Government until August 1938, when the Comptroller General held that the 1885 Resolution had been repealed by the 1938 Resolution and gratuity pay for holidays was no longer a right of per diem employees. 6 This opinion was followed consistently by all of the departments and agencies of the Government. In this regard it is of importance to note that several efforts were made to repeal this interpretation by specific Act of Congress, but in each instance the bill failed to pass. 7 This contemporaneous interpretation of the 1938 Resolution by the agency charged with its supervision - an interpretation followed by all agencies of the Government - together [352 U.S. 40, 47] with acquiescence of the Congress, must be given great weight. </s> Likewise it is noted that the House Committee on the Revision of Laws has similarly treated the 1938 Resolution. In the 1940 and 1946 recodifications of the United States Code the 1885 Resolution is listed as being repealed by the later Resolution of 1938. Again in the 1952 edition of the Code the 1885 Resolution is not only listed as repealed but its entire text is omitted from the Code. An explanatory notation states that this Resolution was repealed and is now covered by 86a which is the 1938 Resolution. </s> As we noted earlier, this case is not disposed of by United States v. Kelly, 342 U.S. 193 , and nothing in Kelly lends support to the employees' argument here. Kelly was a printer employed at the Government Printing Office. The wages of employees in Kelly's office were fixed by a collective-bargaining agreement pursuant to the Act of June 7, 1924, 43 Stat. 658. This Act, though amended, remained in effect as to the provisions involved here at the time of Kelly's claim. The contract Kelly sued on was entered into by the Government under this Act. We said the problem was "whether the 1938. Resolution somehow precludes the awarding of the gratuity pay which the agreement [so made] seems to grant." 342 U.S., at 194 . We held that "since the agreement provided for gratuity pay for holidays worked. [Kelly] was entitled to such pay." 8 The award to Kelly, [352 U.S. 40, 48] then, was solely on the basis of the collective-bargaining agreement. Here there is no such agreement. There is nothing on which the employees can rely which affirmatively grants the double pay they claim. </s> The judgment of the Court of Claims is, therefore, </s> Reversed. </s> MR. JUSTICE BRENNAN took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Joint Resolution of June 29, 1938, c. 818, 52 Stat. 1246, 5 U.S.C. 86a: </s> ". . . [W]henever regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis are relieved or prevented from working solely because of the occurrence of a holiday such as New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, or any other day declared a holiday by Federal statute or Executive order, or any day on which the departments and establishments of the Government are closed by Executive order, they shall receive the same pay for such days as for other days on which an ordinary day's work is performed. </s> "SEC. 2. The joint resolution of January 6, 1885 (U.S.C., title 5, sec. 86), and all other laws inconsistent or in conflict with the provisions of this Act are hereby repealed to the extent of such inconsistency or conflict." </s> [Footnote 2 23 Stat. 516 (1885), as amended, 24 Stat. 644 (1887), 5 U.S.C. (1934 ed.) 86, which provides: </s> ". . . The employees of the Navy Yard, Government Printing Office, Bureau of Printing and Engraving, and all other per diem employees of the Government on duty at Washington, or elsewhere in the United States shall be allowed the following holidays, to wit: The 1st day of January, the 22d day of February, the day of each year which is celebrated as `Memorial' or `Decoration Day', the 4th day of July, the 25th day of December, and such days as may be designated by the President as days for national thanksgiving, and shall receive the same pay as on other days." </s> [Footnote 3 This double pay resulted from interpretation of the 1885 Resolution by the office of the Comptroller of the Treasury. 13 Comp. Dec. 40. See also, 13 Comp. Gen. 295, 297. </s> [Footnote 4 It is true that the Comptroller General's 1937 letter pointed up the discrimination between per annum and per diem employees on nonwork days. But, even though not specifically adverted to, it would seem that a similar discrimination was also apparent as to work days in that per annum employees would receive no extra pay, while per diem employees would receive not only their regular wage but an equal amount as holiday pay. </s> [Footnote 5 Moreover, the Schedule of Wages here provided for 50% additional pay for work required on holidays not included in the regular tour of duty and 125% additional for work in excess of eight hours on such days. </s> [Footnote 6 18 Comp. Gen. 10, 13; 18 Comp. Gen. 186. </s> [Footnote 7 H. J. Res. 303, 76th Cong., 1st Sess.; H. R. 1386, 77th Cong., 1st Sess.; S. 1930, 77th Cong., 1st Sess.; H. R. 6222, 77th Cong., 1st Sess.; S. 1679, 79th Cong., 2d Sess. </s> The policy of allowing gratuity pay for holidays worked in peace-time and of prohibiting it in wartime is reflected in a section of the Federal Employees Pay Act of 1945, 59 Stat. 298, 5 U.S.C. 922. This section provided for gratuity pay for holidays worked but was not to go into effect until the cessation of hostilities in World War II. By implication then, there was no gratuity pay allowed by statute for holidays worked during wartime. </s> [Footnote 8 Kelly also claimed under a Joint Resolution. The Resolution of 1885 provided for "gratuity pay" for holidays for all government per diem employees. A Joint Resolution of 1895 referring specifically to Government Printing Office employees is substantially identical in regard to holiday pay with the 1885 Resolution. The Kelly case was considered on the basis of the 1895 Resolution, but the Court was not required to determine whether Kelly was entitled to any pay under that Resolution. </s> MR. JUSTICE BURTON, with whom MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER concur, dissenting. </s> The issue before us is purely one of statutory construction. For the reasons hereafter stated, we believe that the Court has misconstrued the Resolution of 1938 by treating it as completely repealing the Resolution of 1885 and all other prior holiday pay statutes. Our conclusion is based upon (1) the long-established practice under the Resolution of 1885, as amended, of allowing a full day's gratuity pay to per diem employees on holidays, whether or not those employees also received pay for services actually rendered on those days; (2) the language of the 1938 Resolution; (3) the circumstances which led to the presentation of the 1938 Resolution; and (4) the legislative history of its consideration by Congress. </s> The Joint Resolution of January 6, 1885, 23 Stat. 516, 5 U.S.C. (1934 ed.) 86, provided - </s> "That the employees of the Navy Yard, Government Printing Office, Bureau of Printing and Engraving, and all other per diem employees of the Government on duty at Washington, or elsewhere in the United States, shall be allowed the following holidays, to wit: The first day of January, the twenty-second day of February, the fourth day of July, the twenty-fifth [352 U.S. 40, 49] day of December, and such days as may be designated by the President as days for national thanksgiving, and shall receive the same pay as on other days." 1 </s> This Resolution was interpreted repeatedly by the Comptroller of the Treasury, the Comptroller General of the United States, and later the Court of Claims, as allowing the designated per diem employees, on the specified holidays, their regular rate of pay as a gratuity, whether or not they worked on those days. Those who worked on such holidays received their scheduled pay for such work in addition to the holiday gratuity. 2 The administrative practice conformed to this interpretation. </s> This interpretation and the reason for it is made clear in the following quotation from the Comptroller of the Treasury: </s> "I can not reconcile with any ideas of equity and justice the proposition that Congress ever intended by this or any other statute to allow the employees (and we are now speaking of per diem employees who are paid from a lump sum and not a stated, fixed annual salary) a legal holiday with pay, and place it in the power of yourself or any other person to cause any such employee to work on such day, such employee [352 U.S. 40, 50] so working receiving just the same amount of pay for said day as those who are not compelled to work, and no more. </s> . . . . . </s> "The laborer is worthy of his hire and should have it when compelled to work on a holiday. The giving him pay for such a day when he does not work is the free gift of Congress, and I will not stultify such gift by taking away from him his pay on a day for which he worked because Congress saw fit to give him pay for legal holidays when he did not work. </s> "You are therefore authorized to pay to the employees named their wages for work done on Thanksgiving Day in addition to their pay as provided by said act of 1895." 8 Comp. Dec. 322, 325 (1901). </s> Thus, until 1938, it was the Government's settled practice to allow gratuity pay to per diem employees on the specified holidays, whether or not the employees performed work on those holidays. It was in that significant context, late in 1937, that the incident occurred which led to the House Joint Resolution of June 29, 1938, 52 Stat. 1246, 5 U.S.C. (1952 ed.) 86a. </s> On December 6, 1937, the President, by Executive Order No. 7763, 2 Fed. Reg. 2685, closed the government offices and excused all government employees from work on Friday, December 24, the day before Christmas. As December 24 was not a holiday specified by the Resolution of 1885, as amended, the Acting Comptroller General by letter of December 20, 1937, advised the Secretary of the Navy that per diem employees of the Navy Department would not be entitled either to gratuity or scheduled pay for that day unless, of course, they earned the latter by working. The difficulty was that the government offices had been closed by an Executive Order whereas [352 U.S. 40, 51] the Resolutions limited the allowance of holiday gratuities to a list of statutory holidays. 3 The above-mentioned letter gave unquestioning recognition to the existing statutory authorization of gratuity pay for specified holidays, whether or not additionally compensated labor was performed on those days. It contained no suggestion that such payments were invalid or even unwise, except to point out that the existing law allowed such gratuities even when a holiday occurred on a nonworkday. On this point, the letter commented that "even when any of such holidays falls on a nonworkday (such as a Saturday), such employees receive pay for the holiday when no work is performed thereon, in addition to the full week's pay otherwise earned, and double compensation for the day if work is performed thereon." H. R. Rep. No. 2683, 75th Cong., 3d Sess. 5. </s> With this situation before him, Representative Ramspeck of the House Committee on Civil Service introduced House Joint Resolution 551 providing that the "employees . . . who were excused from duty on December 24, 1937, by the Executive order of December 6, 1937, shall receive compensation for December 24, 1937, any law or regulation to the contrary notwithstanding." See 83 Cong. Rec. 9466. </s> This was referred to the Civil Service Commission which returned it with the suggested substitute which later became the Resolution of 1938. The Commission explained the need for the substitute as follows: </s> "It is believed that the President had in view that the benefits of the holiday be accorded to all classes of employees to the greatest extent possible. The accounting authorities, however, have held that in [352 U.S. 40, 52] the absence of specific legislation the regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis lose pay for that day. This has resulted in discrimination against these groups of Federal employees. </s> "The proposed joint legislation provides for the payment of compensation to these employees to cover the single day, December 24, 1937; but there is the broader question involved of securing statutory authority for such payments as a general practice and thus obviate the necessity for special resolutions by Congress. Such a resolution, for example, was required last year to provide payment for these same classes of employees in Washington, D.C., who were excused from duty on January 20, 1937, the date of the inauguration of the President. </s> "It is believed that general legislation in the following phraseology would give permanent statutory authority for payments under the circumstances indicated: </s> "`Hereafter, whenever regular employees of the Federal Government, whose compensation is fixed at a rate per day, per hour, or on a piece work basis, are relieved or prevented from working solely because of the occurrence of a holiday, such as New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, or any other day declared a holiday by Federal statute or Executive order, or any day on which the Departments and establishments of the Government are closed by Executive order, they shall receive the same pay for such days as for other days on which an ordinary day's work is performed. </s> "`SEC. 2. The joint resolution of January 6, 1885 (U.S.C., title 5, sec. 86), and all other laws inconsistent [352 U.S. 40, 53] or in conflict with the provisions of this Act are hereby repealed to the extent of such inconsistency or conflict.'" H. R. Rep. No. 2683, 75th Cong., 3d Sess. 2. 4 </s> The letters, constituting the Committee Report, thus pointed to the following changes to be accomplished by the new Resolution: </s> 1. Extend the gratuity to include not only statutory holidays but also any holidays and other nonworkdays prescribed by Executive Order. </s> 2. Extend the gratuity to cover all "regular employees of the Federal Government, whose compensation is fixed at a rate per day, per hour, or on a piece work basis . . . ." Ibid. </s> The above extensions followed the suggestion of the Civil Service Commission that the new Resolution should answer "the broader question involved of securing statutory authority for such payments [as that of December 24, 1937] as a general practice and thus obviate the necessity for special resolutions by Congress." Ibid. </s> The new Resolution also met the implied criticism relating to the allowance of gratuities for holidays occurring on other than workdays. It did this by expressly limiting gratuity allowances to those days on which the employees "are relieved or prevented from working solely because of the occurrence of a holiday such as New Year's Day . . . ." (Emphasis supplied.) 52 Stat. 1246. It thus excluded holidays when the relief from work was due in part to the day not being a workday without regard to its designation as a holiday. </s> The few brief statements made by the sponsor of the Resolution, Representative Ramspeck, at the time of its adoption, confirm the view that the Resolution was merely [352 U.S. 40, 54] a corrective measure intended to aid "the lowest-paid group of employees in the Government service," rather than a measure designed to abolish substantial benefits enjoyed by per diem laborers under a 50-year-old governmental practice. 5 </s> It is hardly conceivable that, if either the sponsor of this Resolution or the Committee recommending its adoption had seen in it the deprivation of pay now contended for by the Government, the sponsor or the Committee would not have mentioned that effect in the presentation of the measure. The absence of any such mention is eloquent testimony that the Resolution had no such meaning. It is equally inconceivable that Congress would unanimously reduce the pay of the Government's [352 U.S. 40, 55] lowest paid employees sub silentio. Read in its context, and in the light of the explanation, made on the floor, that this Resolution sought "simply to correct" such a situation as that which occurred on Christmas Eve, and to prevent an unintentional discrimination against per diem employees, it is difficult to read into the Resolution the meaning, contrary to their interests, for which the Government now contends. </s> The fact that, at the time the 1938 Resolution was enacted, it was the general practice of private industry to pay some type of premium pay for holidays worked emphasizes the unlikelihood of the interpretation contended for by the Government. In Kelly v. United States, 119 Ct. Cl. 197, 209, 96 F. Supp. 611, 614, the Court of Claims, in interpreting the 1938 Resolution, described the circumstances in that year as follows: </s> "With regard to its per diem and per hour employees, the so-called wage board employees, the Government is in competition with private employers, and attempts to keep its wages and working conditions in step with those in private enterprise. It is completely unthinkable that the owner of a printing shop could, by practice, or by contract, maintain the policy as to holiday pay which the Government here seeks to attribute to Congress. Such an employer might, and many employers did, in 1938, have a policy of not paying for holidays not worked. If the holiday was worked, it was paid for. Some such employers then, and most of them now 1951. have contracts with their employees providing for paid holidays, but in all such contracts there is a provision that if the holiday is in fact worked, it will be paid for again, usually at premium pay, and in addition to the holiday pay. But in no case which we have heard of, or can imagine, could an employer maintain a [352 U.S. 40, 56] practice whereby an employee who worked on a holiday received merely the same pay as one who did not work." 6 </s> The foregoing changes in the existing law retained its general pattern. They clarified both the classes of per diem employees entitled to a holiday gratuity, and the occasions when that gratuity was to be payable. Nowhere in the Resolution or in its legislative history is there any express statement of the Government's present contention that an employee who comes within the statutory classification of eligibility for the holiday gratuity is deprived of it if he performs some compensated labor for the Government on the holiday in question. </s> The Government emphasizes the phrase, added in 1938, which states that its regular per diem employees shall receive holiday pay "whenever [they] are relieved or prevented from working solely because of the occurrence of a holiday . . . ." This is interpreted by the Court of Claims as eliminating gratuity pay for those holidays which occur on nonworkdays. It does this aptly because the occurrence of a holiday on a nonworkday obviously is not the sole cause preventing per diem employment on those days. The Government, however, suggests that this clause also means that if a per diem employee, who becomes entitled to gratuity pay solely because of the occurrence of a holiday on a workday, nevertheless responds to a call to work on that day, he loses the [352 U.S. 40, 57] gratuity. Such an interpretation discriminates against the loyal holiday worker. </s> Moreover, such an interpretation produces the inequitable result that an employee who works on a holiday receives no more pay than an employee who is not required to work on the same holiday. </s> Concededly, this was not so before 1938. At least until then the 1885 Resolution was recognized as authorizing gratuity pay for holidays, whether or not work was performed on those days. Accordingly, in 1938, it would have been a simple thing to repeal the 1885 Resolution outright if that result were intended. Instead of doing so, the repealing section in the 1938 Resolution expressly limited itself to the inconsistencies and conflicts between, on the one hand, the new Resolution and, on the other, the 1885 Resolution and "all other laws inconsistent or in conflict with the provisions" of the new Resolution. Such a limited repeal well reflects the above-recited legislative history. It shows the character of the new Resolution to be that of corrective legislation in the interests of the laborers. To be sure, the House Committee Report in its treatment of 2 of the new Resolution did set forth the text of the 1885 Resolution as that of the Resolution cited in that repealing section. That recital is not sufficient to change the specifically restricted repealing clause into an outright repeal in the face of its express limitation to inconsistencies and conflicts. </s> The Resolutions of 1885 and 1938 are in pari materia and should be read together. When so read, there is no basis for treating differently the several holidays specified in the Resolutions. No "double standard" results. The 1938 Resolution expands the statutory list of holidays to include various other days that might be designated by Executive Orders. None of the original list are excluded. [352 U.S. 40, 58] </s> Petitioner cites no judicial decision upholding its interpretation. The Court of Claims has twice rejected it and taken the opposite view. 7 </s> Petitioner cites as authority for its position the brief rulings of the Comptroller General under the 1938 Resolution. Without reviewing the material which has influenced the Court of Claims, those rulings assume, without discussion or judicial support, that the Resolution of 1938 completely repealed the Resolution of 1885. See 18 Comp. Gen. 10, 16, 186, 191 (1938). The treatment of the amendment in the publication of the United States Code is not controlling and cites no judicial authority. </s> In United States v. Kelly, 342 U.S. 193 , we held that per diem employees of the Government Printing Office were entitled to the gratuity pay guaranteed by their collective-bargaining agreement. We also said expressly that the 1938 Resolution "was silent on the subject of gratuity pay for holidays on which work was performed." Id., at 195. The Kelly case thus shows that, at the very least, the gratuity policy of the 1885 Resolution is not prohibited after 1938. Accordingly, it would be consistent with that case to uphold the Court of Claims in the instant case. The collective-bargaining contract in the Kelly case was declaratory of, not contrary to, the policy of the 1885 Resolution. </s> For the foregoing reasons, the judgment of the Court of Claims should be affirmed. </s> [Footnote 1 In 1887 a fifth holiday was added - Memorial Day. Joint Resolution of February 23, 1887, 24 Stat. 644. For an earlier similar provision, applicable only to employees of the Government Printing Office, see 21 Stat. 304. A subsequent like provision for such employees, the Act of January 12, 1895, 28 Stat. 601, 607, was "consistently administered as providing for gratuity pay in addition to regular compensation if the employee worked on a holiday." United States v. Kelly, 342 U.S. 193, 195 . </s> [Footnote 2 See 8 Comp. Dec. 322 (1901); 13 Comp. Dec. 40 (1906); 21 Comp. Dec. 566 (1915); 22 Comp. Dec. 404 (1916); 24 Comp. Dec. 218 (1917); 24 Comp. Dec. 529 (1918); 3 Comp. Gen. 411 (1924); and 15 Comp. Gen. 809 (1936). See also, Kelly v. United States, 119 Ct. Cl. 197, 206-207, 96 F. Supp. 611, 612-613. </s> [Footnote 3 The letter of December 20, 1937, appears in full in H. R. Rep. No. 2683, 75th Cong., 3d Sess. 3-5, relating to House Joint Resolution 551, later approved June 29, 1938, and now before us. </s> [Footnote 4 For the official text of the Resolution as approved June 29, 1938, see 52 Stat. 1246, 5 U.S.C. (1952 ed.) 86a. </s> [Footnote 5 The following comprises nearly all that was said about the Resolution on the floor of the House: </s> "Mr. O'MALLEY. . . . What does this cover? </s> "Mr. RAMSPECK. This covers the lowest-paid group of employees in the Government service. It is those who work on a per diem basis. For instance, last Christmas Eve the President excused all Government employees from rendering any service. His Executive order, of course, applied to every employee in the Government service. Those who are working on a monthly salary got their pay for Christmas Eve, but those who work on a per diem were forced to take the day off, and they lost the day's pay. This is simply to correct that situation. </s> . . . . . </s> "Mr. COLLINS. What does it have to do with? </s> "Mr. RAMSPECK. It covers only those cases where the President by Executive order excuses employees from a day's work. It gives the same right to per diem employees as to the regular monthly employees. </s> . . . . . </s> "Mrs. ROGERS of Massachusetts. This simply prevents an unintentional discrimination. </s> "Mr. RAMSPECK. That is correct. The per diem employees are unintentionally discriminated against." (Emphasis supplied.) 83 Cong. Rec. 9466. </s> [Footnote 6 See also, a study entitled "Personnel Practices Governing Factory and Office Administration," prepared in 1937 by F. Beatrice Brower for the National Industrial Conference Board, Inc., New York City. This covered about 450 industrial concerns employing wage earners totaling about 370,000. (P. 2.) Over 60% of such companies paid some type of premium or gratuity to their wage earners for work performed on Sundays or holidays, the extra pay ranging from 25% to 100%, in addition to the regular rate of pay. (Pp. 36-37.) </s> [Footnote 7 Kelly v. United States (two judges dissenting), 119 Ct. Cl. 197, 96 F. Supp. 611, aff'd on other grounds, United States v. Kelly, 342 U.S. 193 ; and the instant case, Bergh v. United States (one judge dissenting), 132 Ct. Cl. 564, 132 F. Supp. 462. See also, Adams v. United States, 42 Ct. Cl. 191, 212-213. </s> [352 U.S. 40, 59]

United States Supreme Court BUCK v. CALIFORNIA(1952) No. 165 Argued: Decided: March 10, 1952 </s> 1. Appellants are taxicab drivers who transported passengers from Mexico across an unincorporated area of San Diego County, California, to points not in the unincorporated area. They were convicted of driving taxicabs in an unincorporated area of the county without a permit from the sheriff required by a county ordinance. The ordinance required a written application for a permit, payment of a $1 fee, and compliance with certain standards relating to the public safety. Held: The ordinance as here applied was not invalid under the Commerce Clause of the Federal Constitution. Pp. 100-104. </s> (a) The ordinance was not inconsistent with the Motor Carrier Act of 1935 or Interstate Commerce Commission regulations. Pp. 101-102. </s> (b) Nor was the ordinance an unreasonable burden on foreign commerce. Pp. 102-103. </s> 2. The question of the constitutional validity of a provision of the ordinance requiring a taxicab operator's license and payment of a $50 fee therefor is not here presented. Pp. 103-104. </s> 101 Cal. App. 2d 907, 226 P.2d 87, affirmed. </s> Appellants' conviction of violating a county ordinance was affirmed by the Superior Court of California. 101 Cal. App. 2d 907, 226 P.2d 87. On appeal to this Court, affirmed, p. 104. </s> Manuel Ruiz, Jr. argued the cause for appellants. With him on the brief was Morris Lavine. </s> Duane J. Carnes argued the cause for appellee. With him on the brief were Edmund G. Brown, Attorney General of California, Clarence A. Linn, Assistant Attorney General, and Carroll H. Smith. [343 U.S. 99, 100] </s> MR. JUSTICE MINTON delivered the opinion of the Court. </s> Appellants, American citizens, are taxicab drivers. They were arrested by the Sheriff of San Diego County, California, and charged with driving taxicabs in the unincorporated area of San Diego County without a permit from the Sheriff as required by 9 of Ordinance 464, the pertinent provisions of which are set forth in the margin. * The facts were stipulated without the taking of any evidence. From the stipulation we learn that appellants had picked up passengers across the line in Mexico and were transporting them across the unincorporated area of San Diego County to points not in the unincorporated area when they were arrested. They had made oral requests for permits from the Sheriff, rather than application in writing on the forms provided therefor, as required by 9 of the ordinance. When these requests [343 U.S. 99, 101] were denied, they continued to transport passengers, although upon advice of counsel they did not pick up or discharge any passengers in the unincorporated area. We take their action to mean that they claimed that because they were engaged in foreign commerce, they had either the right to a permit without complying with the other provisions of the ordinance or the right to operate without a permit. Appellants contend that the County had no right to burden that foreign commerce by regulation. </s> They were found guilty of violating 9 of the ordinance by the Justice's Court of National Township, San Diego County. The Superior Court of California, in and for the County of San Diego, Appellate Department, affirmed the conviction and allowed an appeal to this Court. 101 Cal. App. 2d Supp. 912, 226 P.2d 87. We noted probable jurisdiction under 28 U.S.C. 1257 (2). </s> The Motor Carrier Act of 1935 gave broad power of regulation over motor vehicles to the Interstate Commerce Commission; but Congress partially excluded taxicabs from such regulation in the following words: </s> "Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include . . . (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini . . . ." 49 Stat. 545, 49 U.S.C. 303 (b). </s> The Interstate Commerce Commission, acting under authorization of Congress, has promulgated regulations establishing minimum qualifications for drivers of motor vehicles for carriers, including taxicabs, engaged in interstate and foreign commerce, 49 CFR 192.2. This does [343 U.S. 99, 102] not prevent the state or a subdivision thereof, in the exercise of its police power, from providing additional specifications as to qualifications, not inconsistent or in conflict with the regulations of the Interstate Commerce Commission. Especially is this true since the regulations of the Commission are only minimum. </s> As the ordinance is not in conflict with and may be construed consistently with the federal regulations and in keeping with the latter's purpose, they may stand together. Kelly v. Washington, 302 U.S. 1, 10 ; Missouri, K. & T. R. Co. v. Harris, 234 U.S. 412, 419 ; Savage v. Jones, 225 U.S. 501, 539 ; Reid v. Colorado, 187 U.S. 137, 148 . </s> California has a legitimate interest in the kind and character of persons who engage in the taxicab business in the State. The authority to issue permits has been granted by the State to the Board of Supervisors of each county. In re Martinez, 22 Cal. 2d 259, 262, 138 P.2d 10. Such delegation by the State to the county has been approved by this Court. Sprout v. South Bend, 277 U.S. 163, 171 , 172. </s> The operation of taxicabs is a local business. For that reason, Congress has left the field largely to the states. Operation of taxicabs across state lines or international boundaries is so closely related to the local situation that the regulation of all taxicabs operating in the community only indirectly affects those in commerce, and so long as there is no attempt to discriminatorily regulate or directly burden or charge for the privilege of doing business in interstate or foreign commerce, the regulation is valid. The operation is "essentially local," and in the absence of federal regulation, state regulation is required in the public interest. Panhandle Pipe Line Co. v. Michigan Pub. Serv. Comm'n, 341 U.S. 329, 333 . Even if appellants were engaged in foreign commerce at the time of their arrest and did not intend to engage in intrastate [343 U.S. 99, 103] commerce, the permit was not required because they were engaged in foreign commerce. Under the permit they were free to engage in both intrastate and foreign commerce. The ordinance requires a written application for a permit, a small fee, and compliance with certain standards relating to the service and to the public safety. Our prior cases would not justify us in holding that the ordinance is an unreasonable burden on foreign commerce in its application to the stipulated facts here. Aero Transit Co. v. Georgia Comm'n, 295 U.S. 285 ; Hicklin v. Coney, 290 U.S. 169 ; cf. Railway Express Agency v. New York, 336 U.S. 106, 111 . </s> Thus far we have dealt only with 9 of the ordinance, which exacts the $1 fee for a driver's permit. That is all the court we are reviewing passed upon. That is all appellants were tried and convicted for. But it is suggested that the permit may have been denied them because they had violated 4 of the ordinance by not getting a taxicab operator's license and paying the $50 fee therefor. But appellants may also have been denied permits under 9 for the reason that oral requests only were made and not written applications to the Sheriff, as required by the ordinance, or the Sheriff may have found them without knowledge as to the geography of the county and traffic regulations, or that they were persons of bad moral character or had been convicted of a crime involving moral turpitude, all adequate state grounds. In that event, this Court would not take jurisdiction to pass upon the question. Chief Justice Hughes, speaking for the Court in Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54 -55, said: </s> "[I]f it does not appear upon which of two grounds the judgment was based, and the ground independent of a federal question is sufficient in itself to sustain it, this Court will not take jurisdiction." (Citing numerous cases.) [343 U.S. 99, 104] </s> This Court should not be reaching for constitutional questions to cast doubt upon state legislation not before the Court. The constitutional validity of the $50 requirement is not now before the Court and was not before the lower court. </s> The judgment of the Superior Court of California is </s> Affirmed. </s> [Footnote * "Applicants for such permits shall file applications therefor with the sheriff of the County of San Diego on a form furnished by the sheriff which, when completed, will contain full personal information concerning the applicant. </s> "Upon obtaining a permit as herein required the holder of such permit shall be entitled to an identification card of such design, and bearing such number as the sheriff may prescribe, upon payment of a fee of $1.00 annually, therefore, which shall be paid by the applicant to the tax collector and shall be due on the 1st day of June of each year. Such card shall be carried by the permittee during all business hours and shall not be transferable. </s> "Each applicant for a permit shall be examined by the sheriff as to his knowledge of the provisions of this ordinance, the Vehicle Code, traffic regulations and the geography of the county, and if the result of the examination is unsatisfactory he shall be refused a permit. The sheriff may deny the application or having issued the permit may revoke the same if the sheriff shall determine that the applicant or taxicab driver is of bad moral character or is guilty of violation of any of the provisions of this ordinance or of any lawful regulation promulgated pursuant thereto or has been convicted of any offense involving moral turpitude." </s> MR. JUSTICE REED, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE JACKSON and MR. JUSTICE BURTON join, dissenting. </s> The appellants are American citizens who were prosecuted in the Justice's Court of National Township, County of San Diego, California, for violating San Diego County Ordinance No. 958 (New Series), amending 9 of Ordinance 464 (New Series), as amended by Ordinance 609 (New Series). The complaint specified that appellants violated 9 of the ordinance by wilfully driving their taxicabs in the unincorporated area of the County of San Diego without first having obtained a written permit from the Sheriff authorizing them to do so. </s> Under the terms of 9, every driver of a taxicab in the unincorporated area of the County, hereinafter called simply the County, is required to obtain a written permit from the Sheriff. 1 After the permit is issued, the County exacts a $1 fee for an identification card. The Sheriff has authority to deny an application for the permit if [343 U.S. 99, 105] he determines that the applicant (1) is of bad moral character; or (2) has failed to comply with any of the other provisions of the ordinance; or (3) has been convicted of an offense involving moral turpitude. Section 13 provides that a violation of 9 is a misdemeanor, punishable by a fine of not more than $500, or imprisonment for not more than six months, or both. </s> Appellants were convicted of violating 9, and each was fined $250. They appealed to the Superior Court of California, in and for the County of San Diego, Appellate Department, where the judgments were affirmed. 101 Cal. App. 2d Supp. 912, 226 P.2d 87. That court, by allowing an appeal to this Court, confirms our understanding that no further review was available in the California courts. 2 Accordingly, we noted probable jurisdiction. 28 U.S.C. 1257 (2). [343 U.S. 99, 106] </s> Of the multiple errors assigned, only one need be considered, for it disposes of the case: That the California courts erred in holding that 9 of Ordinance No. 464, as construed and applied to this complaint, does not exceed the constitutional limits of the power of San Diego County to regulate foreign commerce. This question was raised in the trial court by motion for arrest of judgment, and was treated as properly in issue by both California courts. Clearly they rejected, as a matter of California law, appellee's contention that the constitutional questions were not properly presented because appellants had failed to exhaust the administrative or other judicial remedies allegedly available for review of the denial of the driver's permits, the Superior Court saying: ". . . we will have to decide whether the ordinance is valid as tested by the commerce clause . . . ." 3 We are, of course, bound by this determination of California law. It is therefore unnecessary to consider whether there was available to appellants any effective method to test in the California courts the constitutionality of the denial of their permits, or whether - if such remedies were available - the failure to exercise them would preclude the defense of unconstitutionality in this criminal prosecution. </s> The case was tried on a stipulation of facts. It is not disputed, therefore, that appellants applied for the driver's permits required by 9 of the ordinance. 4 These applications were denied, although the record does not show the reasons for the denials. The Superior Court stated: "Each of the defendants had applied for and been [343 U.S. 99, 107] denied the license [permit] required by the ordinance in question." No issue was made as to the sufficiency of the application, and the opinion makes no point of any irregularity in applying. Thereafter, appellants, on the advice of counsel, continued nonetheless to transport persons by taxicab to and from Mexico across the unincorporated territory of the County. It is this transportation, after denial of the driver's permits, for which appellants are being prosecuted in this case. </s> The stipulation further discloses that appellants neither picked up nor discharged passengers in San Diego County. Their only operations in the County consisted of driving passengers through the County, to and from Mexico. So far as the record shows, appellants are engaged solely in foreign commerce. Thus it is clear that San Diego County, by refusing to issue the driver's permits, is attempting by regulation to exclude appellants from transporting persons in foreign commerce across San Diego County unless they meet the qualifications for drivers established by the ordinance. The issue is whether this exclusion can be reconciled with the constitutional delegation to Congress of the power to regulate foreign commerce. </s> Generally, it is well settled that the power to regulate foreign commerce is lodged in the Federal Government. U.S. Const., Art. I, 8. Of course, this does not mean that the states are powerless in all cases to take reasonable measures to protect their legitimate interests. 5 For example, in the absence of conflicting congressional [343 U.S. 99, 108] legislation, 6 we assume that San Diego County might require that loads should not exceed a reasonable minimum weight and that, if appellants violated such regulation, the County could properly prohibit them from driving their taxicabs across the County. 7 </s> The burden, of course, is upon appellants as challengers of the validity of the ordinance to establish its unconstitutionality. That burden is met prima facie when they show that the ordinance exacts payment from foreign commerce of fifty dollars ($50) for an operator's license, note 10, infra, plus the driver's permit. The stipulated facts show the foreign commerce; the opinion of the trial court shows that appellants relied upon the $50 license fee as an unconstitutional burden. 8 Thereupon the government body, seeking to regulate, must make it affirmatively appear in some way that the regulation is directed toward an incident subject to state control. Cf. Interstate Transit, Inc. v. Lindsey, 283 U.S. 183, 186 ; Ingels v. Morf, 300 U.S. 290, 294 ; Clark v. Paul Gray, Inc., 306 U.S. 583, 599 . A taxing municipality must show, for example, that the tax on interstate commerce is intended [343 U.S. 99, 109] to compensate for facilities provided by the state. Aero Mayflower Transit Co. v. Commissioners, 332 U.S. 495, 505 ; Capitol Greyhound Lines v. Brice, 339 U.S. 542 ; see Elgin v. Capitol Greyhound Lines, 192 Md. 303, 310, 318, 64 A. 2d 284, 288, 291-292. This does "not remotely imply that the burden is on the taxing authorities to sustain the constitutionality of a tax. But where the power to tax is not unlimited, validity is not established by the mere imposition of a tax." Mullaney v. Anderson, 342 U.S. 415, 418 . </s> While this permit might have been properly denied for an adequate state reason and not for lack of the $50 operator's license, it is incumbent on the State (or, in this case, the County) to state that reason at the trial. Appellants need not, and as a practical matter could not, explain why the Sheriff of San Diego County denied their permits. The alternative to requiring explanation by the County of the reason for refusing a license would be to compel the applicants to prove their compliance with all valid requirements. Thus, assuming that the remainder of the ordinance is valid, they would be compelled under the terms of the ordinance to show, for example, that the Sheriff believes that they are of good moral character, and that they have never been convicted of an offense involving moral turpitude. In view of the fact that only the County through its officers can know the reasons for denial of the permits, and can, by placing these reasons on the record, narrow the issues to manageable proportions and give appellants a fair opportunity to present their objections, the burden of going forward with this evidence must rest on the County. </s> In this case, San Diego County has offered no explanation for its action. The record shows no basis for any conclusion by us. Cf. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 658 . We cannot determine, on this record, whether the Sheriff denied the permits because he had [343 U.S. 99, 110] formed a low opinion of appellants' moral character, 9 or because the Sheriff was dissatisfied with their knowledge of the geography of the County, or for lack of the $50 operator's license. Without some explanation, it is impossible for this Court to decide that the County is justified in excluding appellants from engaging in foreign commerce in the County. Cf. Smith v. Cahoon, 283 U.S. 553, 565 . In comparable situations this Court has felt the need of greater particularity for adjudication. Rescue Army v. Municipal Court, 331 U.S. 549, 575 . </s> Of course, it might be unnecessary for the County to explain the precise reason why the permits were denied, if the ordinance itself limited the Sheriff to constitutionally valid reasons. But this ordinance does not so limit the Sheriff's decisions. For example, 9 of the ordinance in question here contemplates that the Sheriff will deny a driver's permit to any person who has failed to comply with the other provisions of the ordinance. While we cannot be sure, on this record, why the Sheriff refused to issue the permits to appellants, it is likely that his refusal was based on the fact that appellants had not previously acquired a license to operate their taxicabs in San Diego County, as required by 4 of the ordinance. 10 </s> [343 U.S. 99, 111] That section imposes an annual flat fee of $50 (plus $1 for each taxicab) on the privilege of operating taxicabs in San Diego County. There is no suggestion that the $50 fee is levied only as compensation for the use of the roads of the County, or to defray the expense of regulating motor traffic. Clearly such a tax for the privilege of engaging in foreign commerce could not constitutionally be imposed by San Diego County. Cf. Sprout v. South Bend, 277 U.S. 163 ; Interstate Transit, Inc. v. Lindsey, 283 U.S. 183 ; Ingels v. Morf, 300 U.S. 290 ; Spector Motor Service, Inc. v. O'Connor, 340 U.S. 602 . See Crutcher v. Kentucky, 141 U.S. 47, 57 ; International Textbook Co. v. Pigg, 217 U.S. 91 ; Aero Mayflower Transit Co. v. Commissioners, 332 U.S. 495 . Nor can the County indirectly enforce the unconstitutional privilege tax of 4 by denying the driver's permit without explanation. Thus it is clear that this ordinance purports to impose an unconstitutional burden on foreign commerce. While it is possible that appellants' permits were denied for some other, and valid, reason, only the County (not appellants) could show that this is true. Since the County has offered no explanation for prohibiting appellants from engaging in foreign commerce within the County, the judgment should be reversed and the cause remanded for such action as might be deemed desirable and not inconsistent with this opinion. </s> Footnotes [Footnote 1 "Section 9. (Amended by Ord. No. 609 (New Series) adopted 5-12-47; and again amended by Ord. 958 (New Series) adopted 4-10-50, to read as follows:) It shall be unlawful for any person to drive or to be in actual physical control of any taxicab in the unincorporated area of the County of San Diego without first obtaining a permit in writing so to do from the sheriff of the County of San Diego. </s> "Applicants for such permits shall file applications therefor with the [343 U.S. 99, 105] sheriff of the County of San Diego on a form furnished by the sheriff which, when completed, will contain full personal information concerning the applicant. </s> "Upon obtaining a permit as herein required the holder of such permit shall be entitled to an identification card of such design, and bearing such number as the sheriff may prescribe, upon payment of a fee of $1.00 annually, therefor, which shall be paid by the applicant to the tax collector and shall be due on the 1st day of June of each year. Such card shall be carried by the permittee during all business hours and shall not be transferable. </s> "Each applicant for a permit shall be examined by the sheriff as to his knowledge of the provisions of this ordinance, the Vehicle Code, traffic regulations and the geography of the county, and if the result of the examination is unsatisfactory he shall be refused a permit. The sheriff may deny the application or having issued the permit may revoke the same if the sheriff shall determine that the applicant or taxicab driver is of bad moral character or is guilty of violation of any of the provisions of this ordinance or of any lawful regulation promulgated pursuant thereto or has been convicted of any offense involving moral turpitude. . . ." </s> [Footnote 2 See Cal. Penal Code, 1466; Cal. Const., Art. VI, 4; People v. McKamy, 168 Cal. 531, 143 P. 752; People v. Reed, 13 Cal. App. 2d 39, 56 P.2d 240. </s> [Footnote 3 Opinion of the Superior Court, Appellate Department, 101 Cal. App. 2d Supp. at 914, 226 P.2d at 89. </s> [Footnote 4 Since appellants are complaining of the denial of the permits, not of exaction of the $1 fee, we assume, without deciding, that San Diego County can constitutionally require a $1 fee for the identification card, on the theory that the $1 is reasonably calculated to reimburse the County for the costs of administering its valid traffic regulations. </s> [Footnote 5 Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 -212: </s> "In the absence of applicable federal regulation, a State may impose non-discriminatory regulations on those engaged in foreign commerce `for the purpose of insuring the public safety and convenience; . . . a license fee no larger in amount than is reasonably required to defray the expense of administering the regulations may be demanded.' Sprout v. South Bend, 277 U.S. 163, 169 ." </s> [Footnote 6 Because the regulation here attacked should fall in any event, it is not necessary to consider what, if any, effect the existing federal legislation might have on the validity of this ordinance. See 49 U.S.C. (1946 ed.) 303 (b) (2). See also 49 CFR (1949 ed.) 192.2 </s> [Footnote 7 South Carolina State Highway Department v. Barnwell Bros., Inc., 303 U.S. 177 . Cf. Morf v. Bingaman, 298 U.S. 407 ; Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 . </s> [Footnote 8 The opinion reads in part: "The defendants . . . advance the following contentions: . . . That the fifty dollar license fee is an unreasonable burden on foreign commerce. . . . The defendants contend that the fifty dollar annual license fee is an unreasonable burden on foreign commerce. There is no evidence in the stipulated facts as to the cost of enforcing the Ordinance, and, in the absence of such evidence, the Court will assume that the fee was reasonable." This objection was pressed throughout the appeal in the Superior Court and in this Court. </s> [Footnote 9 The Superior Court opinion refers to bad moral character as a proper ground for denial of permits. Without a record showing as to the facts upon which that conclusion is based, we cannot appraise the significance of the comment. </s> [Footnote 10 "Section 4. (Amended by Ord. No. 958 adopted 4-10-50, and amended again by Ord. No. 964 (New Series) adopted 5-22-50 to read as follows:) Within 10 days from the effective date of this ordinance every taxicab operator shall apply to the sheriff and procure from the Tax Collector a license and pay an annual license fee of $50.00 (plus $1.00 per year per taxicab), which shall be paid by the applicant to the Tax Collector and shall be due on the first day of June of each year. Licenses issued subsequent to the first day of September, the first day of December, and the first day of March shall be issued at a quarterly reduction of $12.50 per quarter. . . ." </s> [343 U.S. 99, 112]

United States Supreme Court YATES v. EVATT(1991) No. 89-7691 Argued: January 8, 1991Decided: May 28, 1991 </s> Petitioner Yates and Henry Davis robbed a South Carolina grocery store owned by Willie Wood. After Yates wounded Wood, he fled the store, but Davis remained, struggling with Wood. When Wood's mother entered the store and grabbed Davis, he stabbed her once, killing her. Wood then killed Davis. Subsequently, Yates was arrested and charged, inter alia, with accomplice murder. At his trial, the State argued that Yates and Davis had planned to rob the store and kill any witnesses, thus making Yates as guilty of the murder as Davis under South Carolina law because it was a probable or natural consequence of the robbery. As to the element of malice, the judge instructed the jury, among other things, that "malice is implied or presumed" from either the "willful, deliberate, and intentional doing of an unlawful act" or from the "use of a deadly weapon." Yates was convicted, and his conviction was upheld by the State Supreme Court. He then sought a writ of habeas corpus from that court, asserting that the presumption on the use of a deadly weapon was an unconstitutional burden-shifting instruction under, inter alia, this Court's decisions in Sandstrom v. Montana, 442 U.S. 510 , and Francs v. Franklin, 71 U.S. 307 , which found that similar jury instructions violated the Due Process Clause. Twice the court denied relief, and twice this Court remanded the case for further consideration in light of Francis. On the second remand, the state court again denied relief, holding that, although unconstitutional, both instructions allowing the jury to presume malice were harmless error. It found that its enquiry was to determine "whether it is beyond a reasonable doubt that the jury would have found it unnecessary to rely on the erroneous mandatory presumption regarding the element of malice." Concluding that the State relied on Davis' malice to prove murder, the court found that the jury did not have to rely on the malice presumptions, because the facts showed that Davis had acted with malice when he "lunged" at Mrs. Wood and stabbed her multiple times. </s> Held: </s> 1. The State Supreme Court failed to apply the proper harmless-error standard, as stated in Chapman v. California, 386 U.S. 18, 24 , which held that an error is harmless if it appears "beyond a reasonable doubt [500 U.S. 391, 392] that the error complained of did not contribute to the verdict obtained." Pp. 400-407. </s> (a) An error does "not contribute to a verdict" only if it is unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. In applying Chapman, a court must first ask what evidence the jury actually considered in reaching its verdict, and it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. It is not enough that the jury considered evidence from which it could have reached the verdict without reliance on the presumption. The issue is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Before looking to the entire trial record to assess the significance of the erroneous presumption, however, it is crucial to ascertain from the jury instructions that the jurors, as reasonable persons, would have considered that entire trial record. Pp. 402-406. </s> (b) The State Supreme Court employed a deficient standard of review. Its stated enquiry can determine that the verdict could have been the same without the presumptions, when there was evidence sufficient to support the verdict independently of the presumptions' effect. However, it does not satisfy Chapman's concerns, because it fails to determine whether the jury's verdict did rest on that evidence as well as on the presumptions, or whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumptions must have made no difference in reaching the verdict. Pp. 406-407. </s> 2. The jury instructions may not be excused as harmless error. Pp. 407-411. </s> (a) Judicial economy is best served if this Court makes its own assessment of the errors' harmlessness in the first instance, because this case has already been remanded twice, once for such an analysis. See Rose v. Clark, 478 U.S. 570, 584 . P. 407. </s> (b) The trial judge instructed the jury that malice is the equivalent of an intent to kill. While it can be inferred from the instructions and the record that the jury considered all of the evidence regarding Davis' intent to kill, it cannot be inferred beyond a reasonable doubt that the unlawful presumptions did not contribute to the finding on the necessary element of malice that Davis intended to kill Mrs. Wood, since the evidentiary record is simply not clear on that issue. While an examination of the entire record reveals clear evidence of Davis' intent to kill Willie Wood, the jury was not instructed on a transferred intent theory and, thus, this Court is barred from treating such evidence as underlying the necessary finding of intent to kill Mrs. Wood. The specific circumstances of Mrs. Wood's death do not indicate Davis' malice in killing her [500 U.S. 391, 393] so convincingly that it can be said beyond a reasonable doubt that the jurors rested a finding of his malice on that evidence exclusive of the presumptions. The record does not support the state court's description of Davis as having "lunged" at her and stabbed her multiple times. The record reveals only that she joined in a struggle and died from a single stab wound, which Davis could have inflicted inadvertently. Pp. 407-411. </s> 301 S.C. 214, 391 S.E.2d 530, reversed and remanded. </s> SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, in all but Part III of which BLACKMUN, J., joined, and in all but n. 6 and Part III of which SCALIA, J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in Part B of which BLACKMUN, J., joined. </s> David I. Bruck, by appointment of the Court, 498 U.S. 936 , argued the cause for petitioner. With him on the briefs were John H. Blume and Christopher D. Cerf. </s> Miller W. Shealy, Jr., Assistant Attorney General of South Carolina, argued the cause for respondents. With him on the brief were T. Travis Medlock, Attorney General, pro se, and Donald J. Zelenka, Chief Deputy Attorney General. * </s> [Footnote * Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. </s> John K. Van de Kamp, Attorney General of California, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, Martin S. Kaye, Supervising Deputy Attorney General, and David D. Salmon, Deputy Attorney General, filed a brief for the State of California as amicus curiae. </s> JUSTICE SOUTER delivered the opinion of the Court.Fn </s> This murder case comes before us for the third time, to review a determination by the Supreme Court of South Carolina that instructions allowing the jury to apply unconstitutional presumptions were harmless error. We hold that the State Supreme Court employed a deficient standard of review, find that the errors were not harmless, and reverse. [500 U.S. 391, 394] </s> I </s> A </s> Petitioner, Dale Robert Yates, and an accomplice, Henry Davis, robbed a country store in Greenville County, South Carolina. After shooting and wounding the proprietor, petitioner fled. Davis then killed a woman before he was shot to death by the proprietor. Petitioner was arrested soon after the robbery and charged with multiple felonies. 1 Although he killed no one, the State prosecuted him for murder as an accomplice. 2 </s> The trial record shows that for some time petitioner and Davis had planned to commit a robbery and selected T. P. Wood's Store in Greenville as an easy target. After parking Davis' car outside, they entered the store, petitioner armed with a handgun and Davis with a knife. They found no one inside except the proprietor, Willie Wood, who was standing behind the counter. Petitioner and Davis brandished their weapons, and petitioner ordered Wood to give them all the money in the cash register. When Wood hesitated, Davis repeated the demand. Wood gave Davis approximately $3,000 in cash. Davis handed the money to petitioner and ordered Wood to lie across the counter. Wood, who had a pistol beneath his jacket, refused and stepped back from the counter with his hands down at his side. Petitioner meanwhile was backing away from the counter toward the entrance to the store, with his gun pointed at Wood. Davis told him to shoot. Wood raised his hands as if to protect himself, whereupon petitioner fired twice. One bullet pierced Wood's left hand and tore a flesh wound in his chest, but the other shot missed. Petitioner then screamed, "Let's go," and ran out with the money. App. 57. He jumped into Davis' car on the passenger side and waited. When Davis [500 U.S. 391, 395] failed to emerge, petitioner moved across the seat and drove off. </s> Inside the store, Wood, though wounded, ran around the counter pursued by Davis, who jumped on his back. As the two struggled, Wood's mother, Helen Wood, emerged from an adjacent office. She screamed when she saw the scuffle and ran toward the two men to help her son. Wood testified that his mother "reached her left arm around and grabbed [Davis]. So, all three of us stumbled around the counter, out in the aisle." Id., at 19. During the struggle, Mrs. Wood was stabbed once in the chest and died at the scene within minutes. 3 Wood managed to remove the pistol from under his jacket and fire five shots at Davis, killing him instantly. </s> The police arrested petitioner a short while later and charged him as an accomplice to the murder of Mrs. Wood. Under South Carolina law, "where two persons combine to commit an unlawful act, and in execution of the criminal act, a homicide is committed by one of the actors as a probable or natural consequence of those acts [sic], all present participating in the unlawful act are as guilty as the one who committed the fatal act." State v. Johnson, 291 S.C. 127, 129, 352 S.E.2d 480, 482 (1987). Petitioner's primary defense to the murder charge was that Mrs. Wood's death was not the probable or natural consequence of the robbery he had planned with Davis. Petitioner testified that he had brought a weapon with him only to induce the store owner to empty the cash register, and that neither he nor Davis intended to kill anyone during the robbery. 4 App. 37, 42-44, 49, 77-78. [500 U.S. 391, 396] </s> The prosecution's case for murder rested on petitioner's agreement with Davis to commit an armed robbery. From this the State argued they had planned to kill any witnesses at the scene, and had thereby rendered homicide a probable or natural result of the robbery, in satisfaction of the requirement for accomplice liability. In his closing argument to the jury, the prosecutor asserted that petitioner and Davis had planned to rob without leaving "any witnesses in the store." They entered the store "with the idea of stabbing the proprietor to death; a quiet killing, with the [petitioner's] pistol as a backup." As a result of this agreement, the prosecutor concluded, "[i]t makes no difference who actually struck the fatal blow, the hand of one is the hand of all." Id., at 89. The prosecutor also addressed the required element of malice. "Mr. Yates," he argued, "is equally guilty. The malice required was in his heart," making him guilty of murder even though he did not actually kill the victim. Id., at 83. </s> The trial judge charged the jury that murder under South Carolina law "is the unlawful killing of any human being with malice aforethought either express or implied." Id., at 95. The judge continued: </s> "In order to convict one of murder, the State must not only prove the killing of the deceased by the Defendant, but that it was done with malice aforethought, and such proof must be beyond any reasonable doubt. Malice is defined in the law of homicide as a technical term, which imports wickedness and excludes any just cause or excuse for your action. It is something which springs from wickedness, from depravity, from a depraved spirit, from a heart devoid of social duty, and fatally bent on creating mischief. The words `express' or `implied' do not mean different kinds of malice, but they mean different [500 U.S. 391, 397] ways in which the only kind of malice known to the law may be shown. </s> "Malice may be expressed as where previous threats of vengeance have been made or is where someone lies in wait for someone else to come by so that they might attack them, or any other circumstances which show directly that an intent to kill was really and actually entertained. </s> "Malice may also be implied as where, although no expressed intention to kill was proved by direct evidence, it is indirectly and necessarily inferred from facts and circumstances which are, themselves, proved. Malice is implied or presumed by the law from the willful, deliberate, and intentional doing of an unlawful act without any just cause or excuse. In its general signification, malice means the doing of a wrongful act, intentionally, without justification or excuse. </s> "I tell you, however, that, if the facts proven are sufficient to raise a presumption of malice, that presumption is rebuttable, that is, it is not conclusive on you, but it is rebuttable by the rest of the evidence. I tell you, also, that malice is implied or presumed from the use of a deadly weapon. I further tell you that, when the circumstances surrounding the use of that deadly weapon have been put in evidence and testified to, the presumption is removed. And it ultimately remains the responsibility for you, ladies and gentlemen, under all the evidence to make a determination as to whether malice existed in the mind and heart of the killer at the time the fatal blow was struck." Id., at 96-97. </s> The judge went on to instruct the jury on the theory of accomplice liability. The jury returned guilty verdicts on the murder charge and on all the other counts in the indictment. 5 </s> [500 U.S. 391, 398] The Supreme Court of South Carolina affirmed the conviction, and we denied certiorari. State v. Yates, 280 S.C. 29, 310 S.E.2d 805 (1982), cert. denied, 462 U.S. 1124 (1983). </s> B </s> Petitioner thereafter sought a writ of habeas corpus from the State Supreme Court, asserting that the jury charge "that malice is implied or presumed from the use of a deadly weapon" was an unconstitutional burden-shifting instruction both under state precedent, State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983), and under our decision in Sandstrom v. Montana, 442 U.S. 510 (1979). While the state habeas petition was pending, we delivered another opinion on unconstitutional burden-shifting jury instructions, Francis v. Franklin, 471 U.S. 307 (1985). Although petitioner brought this decision to the attention of the state court, it denied relief without opinion, and petitioner sought certiorari here. We granted the writ, vacated the judgment of the Supreme Court of South Carolina, and remanded the case for further consideration in light of Francis. Yates v. Aiken, 474 U.S. 896 (1985). </s> On remand, the State Supreme Court found the jury instruction unconstitutional, but denied relief on the ground that its decision in State v. Elmore, supra, was not to be applied retroactively. Petitioner again sought review here, and again we granted certiorari, Yates v. Aiken, 480 U.S. 945 (1987), out of concern that the State Supreme Court had not complied with the mandate to reconsider its earlier decision in light of Francis v. Franklin, supra. Yates v. Aiken, 484 U.S. 211, 214 (1988). In an opinion by JUSTICE STEVENS, we unanimously held the state court had erred in failing to consider the retroactive application of Francis. We then addressed that question and held that Francis was merely an application of the principle settled by our prior decision in Sandstrom v. Montana, supra, and should, for that reason, be applied retroactively in petitioner's habeas proceeding. [500 U.S. 391, 399] We accordingly reversed the judgment of the State Supreme Court and remanded for further proceedings not inconsistent with our opinion. Yates v. Aiken, 484 U.S., at 218 . </s> On the second remand, the Supreme Court of South Carolina stated that it was "[a]cquiescing in the conclusion that the trial judge's charge on implied malice constituted an improper mandatory presumption." State v. Aikens, 301 S.C. 214, 216-217, 391 S.E.2d 530, 531 (1989). On reviewing the record, the court found "two erroneous charges regarding implied malice. First, the trial judge charged the `willful, deliberate, and intentional doing of an unlawful act without any just cause or excuse' [implied malice]. Second, he charged: `malice is implied or presumed from the use of a deadly weapon.' . . ." Id., at 218, 391 S.E.2d at 532. </s> Despite this determination that two jury instructions were unconstitutional, the State Supreme Court again denied relief after a majority of three justices found the instructions to have been harmless error. The court described its enquiry as one to determine "whether it is beyond a reasonable doubt that the jury would have found it unnecessary to rely on the erroneous mandatory presumption regarding the element of malice." Ibid. The court then stated that on "the facts of this case, as charged by the trial judge, the element of malice relied on by the State is that of the killer, Henry Davis." Id., at 219, 391 S.E.2d, at 532. Reviewing the facts, the court stated that "Davis lunged at Mrs. Wood with his knife [and] Mrs. Wood fell to the floor from knife wounds in her chest and died within moments." Id., at 219, 391 S.E.2d, at 531 (emphasis supplied). The court described the crime as "Henry Davis' brutal multiple stabbing of Mrs. Wood," and held "beyond a reasonable doubt [that] the jury would have found it unnecessary to rely on either erroneous mandatory presumption in concluding that Davis acted with malice in killing Mrs. Wood." Id., at 219, 391 S.E.2d at 532 (emphasis supplied). The state court gave no citation to the record [500 U.S. 391, 400] for its description of Mrs. Wood's death as resulting from a multiple stabbing and multiple wounds. </s> The remaining two justices on the State Supreme Court dissented. After first expressing doubt that this Court's mandate authorized them to review for harmless error, id., at 222, 391 S.E.2d at 534, the dissenters disagreed that the erroneous jury instructions were harmless. They found that the trial judge "failed to articulate that the jury must find the killer acted with malicious intent." Following this error, "the jury could have mistakenly inferred from the confusing instructions that the intent required in order to prove murder was that of Yates because he carried a gun. The unconstitutional instruction which allowed the jury to presume intent . . . would have eclipsed Yates' defense of withdrawal, and prejudiced his right to a fair trial." Id., at 222-223, 391 S.E.2d at 534-535. </s> Because the Supreme Court of South Carolina appeared to have applied the wrong standard for determining whether the challenged instructions were harmless error, and to have misread the record to which the standard was applied, we granted certiorari to review this case a third time. 498 U.S. 809 (1990). </s> II </s> A </s> This Court held in Sandstrom v. Montana, supra, 442 U.S., at 513 , 524, that a jury instruction stating that "`the law presumes that a person intends the ordinary consequences of his voluntary acts'" violated the requirement of the Due Process Clause that the prosecution prove each element of a crime beyond a reasonable doubt. See In re Winship, 397 U.S. 358 (1970). We applied this principle in Francis v. Franklin, 471 U.S. 307 (1985), to instructions that the "`acts of a person of sound mind and discretion are presumed to be the product of the person's will' and that a person `is presumed to intend the natural and probable consequences of his acts.'" Id., at 316 (emphasis omitted). Although the jury had been [500 U.S. 391, 401] told that these presumptions were rebuttable, we held them to be as pernicious in this context as conclusive presumptions because they shifted the burden of proof on intent to the defendant. Ibid., at 316-318. </s> In charging the jurors on the issue of malice in this case, the trial judge instructed them on two mandatory presumptions, each of which the Supreme Court of South Carolina has since held to be unconstitutional under Sandstrom and Francis. The jury was told that "malice is implied or presumed" from the "willful, deliberate, and intentional doing of an unlawful act" and from the "use of a deadly weapon." App. 96. With respect to the unlawful act presumption, the jury was told that the "presumption is rebuttable, that is, it is not conclusive on you, but it is rebuttable by the rest of the evidence." Ibid. Following the description of the deadly weapon presumption, the jurors were told that it was their responsibility "under all the evidence to make a determination as to whether malice existed in the mind and heart of the killer." 6 Ibid. </s> We think a reasonable juror would have understood the unlawful act presumption to mean that upon introduction of evidence tending to rebut malice, the jury should consider all evidence bearing on the issue of malice, together with the [500 U.S. 391, 402] presumption, which would still retain some probative significance. A reasonable juror would have understood the deadly weapon presumption to mean that its probative force should be considered along with all other evidence tending to prove or disprove malice. Although the presumptions were rebuttable in these ways, the mandate to apply them remained, 7 as did their tendency to shift the burden of proof on malice from the prosecution to petitioner. Respondents do not challenge the conclusion of the Supreme Court of South Carolina that each presumption violated Sandstrom and Francis, and the constitutionality of neither one is in issue. </s> B </s> Having concluded that the instructions were constitutionally erroneous, the Supreme Court of South Carolina correctly treated them as subject to further review for harmless error, consistently with Rose v. Clark, 478 U.S. 570, 582 (1986), in which we held that the taint of an unconstitutional burden-shifting jury instruction may be harmless, citing Chapman v. California, 386 U.S. 18 (1967). 8 The [500 U.S. 391, 403] Chapman test is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id., at 24; see ibid. (requirement that harmlessness of federal constitutional error be clear beyond reasonable doubt embodies standard requiring reversal if "`there is a reasonable possibility that the evidence complained of might have contributed to the conviction'") (quoting Fahy v. Connecticut, 375 U.S. 85, 86 -87 (1963)); Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (confession is harmless error if it "did not contribute to [the defendant's] conviction"); Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (Chapman excuses errors that were "`harmless' in terms of their effect on the factfinding process at trial"). </s> To say that an error did not "contribute" to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous. When, for example, a trial court has instructed a jury to apply an unconstitutional presumption, a reviewing court can hardly infer that the jurors failed to consider it, a conclusion that would be factually untenable in most cases, and would run counter to a sound presumption of appellate practice, that jurors are reasonable and generally follow the instructions they are given. See Richardson v. Marsh, 481 U.S. 200, 211 (1987) ("The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant"). </s> To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Thus, to say that an instruction to [500 U.S. 391, 404] apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption. </s> Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict. If, for example, the fact presumed is necessary to support the verdict, a reviewing court must ask what evidence the jury considered as tending to prove or disprove that fact. 9 Did the jury look at only the predicate facts, or did it consider other evidence bearing on the fact subject to the presumption? In answering this question, a court does not conduct a subjective enquiry into the jurors' minds. The answer must come, instead, from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so. </s> Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman's reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors' [500 U.S. 391, 405] minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption. It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapman's words, that the presumption did not contribute to the verdict rendered. </s> Because application of the harmless-error test to an erroneous presumption thus requires an identification and evaluation of the evidence considered by the jury in addition to the presumption itself, we need to say a word about an assumption made in many opinions applying the Chapman rule, which state that the harmlessness of an error is to be judged after a review of the entire record. See, e.g., Delaware v. Van Arsdall, supra,, at 681 ("[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt"); United States v. Hasting, 461 U.S. 499, 509 , n. 7 (1983) ("Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless"). That assumption is simply that the jury considered all the evidence bearing on the issue in question before it made the findings on which the verdict rested. If, on the contrary, that assumption were incorrect, an examination of the entire record would not permit any sound conclusion to be drawn about the significance of the error to the jury in reaching the verdict. This point must always be kept in mind when reviewing erroneous presumptions for harmless error, because the terms of some presumptions so narrow the jury's focus so as to leave it questionable that a reasonable juror would look to anything but the evidence establishing the predicate fact in order to [500 U.S. 391, 406] infer the fact presumed. 10 When applying a harmless-error analysis in presumption cases, therefore, it is crucial to ascertain from the trial court's instructions that the jurors, as reasonable persons, would have considered the entire trial record, before looking to that record to assess the significance of the erroneous presumption. </s> C </s> The Supreme Court of South Carolina failed to apply the proper harmless-error standard to the rebuttable presumptions at issue in this case. As a threshold matter, the State Supreme Court did not undertake any explicit analysis to support its view of the scope of the record to be considered in applying Chapman. It is even more significant, however, that the state court did not apply the test that Chapman formulated. Instead, the court employed language taken out of context from Rose v. Clark, 478 U.S. 570 (1986), and sought merely to determine whether it was beyond a reasonable doubt that the jury "would have found it unnecessary to rely" on the unconstitutional presumptions. 11 </s> [500 U.S. 391, 407] </s> Enquiry about the necessity for reliance, however, does not satisfy all of Chapman's concerns. It can tell us that the verdict could have been the same without the presumptions, when there was evidence sufficient to support the verdict independently of the presumptions' effect. But the enquiry will not tell us whether the jury's verdict did rest on that evidence as well as on the presumptions, or whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumptions must have made no difference in reaching the verdict obtained. Because the State Supreme Court's standard of review apparently did not take these latter two issues into consideration, reversal is required. </s> III </s> Although our usual practice in cases like this is to reverse and remand for a new determination under the correct standard, we have the authority to make our own assessment of the harmlessness of a constitutional error in the first instance. See Rose v. Clark, supra, at 584. Because this case has already been remanded twice, once for harmless error analysis, we think we would serve judicial economy best by proceeding now to determine whether the burden-shifting jury instructions were harmless. </s> We begin by turning to the State's domestic law of accomplice murder and the elements it entails. The State Supreme Court in this case decided that the trial judge "correctly and precisely" charged the jury on "the common law rule of murder," which required proof of malice. 12 State v. Yates, 280 S.C., at 38, 310 S.E.2d at 810. Petitioner was charged as an accomplice to the alleged murder of Mrs. Wood by Davis, [500 U.S. 391, 408] and the state court determined that on "the facts of this case, as charged by the trial judge, the element of malice relied on by the State is that of the killer, Henry Davis." 301 S.C. at 219, 391 S.E.2d at 532. </s> In light of the fact that the Supreme Court of South Carolina has approved the trial judge's jury instructions, we will accept his charge on malice as the proper statement of South Carolina law on the subject. The trial judge told the jury that malice is the equivalent of an "intention to kill," without legal justification or excuse. 13 There is no question that either presumption on malice could have been employed by the jury in reaching its verdict. The evidence showed clearly that Davis used a deadly weapon, a knife, and intended to commit, and did commit, an unlawful act without legal justification, not only armed robbery, but the killing itself. </s> The first step in determining whether these instructions contributed to the jury's verdict is to determine what evidence the jury considered on the issue of intent, independently of the presumptions themselves. The record reveals some evidence rebutting malice, including petitioner's testimony that neither he nor Davis intended to kill anyone. This left the jury free to look beyond the unlawful act presumption and to consider all the evidence on malice. The [500 U.S. 391, 409] jury can reasonably be expected to have done so. Likewise, under the deadly weapon presumption, as we have construed it, the jury was instructed to consider all the evidence, not just the presumption itself. Since we can thus infer with confidence that the jury considered all the evidence tending to prove or disprove Davis' intent to kill, it is correct simply to follow the general rule of the post-Chapman cases that the whole record be reviewed in assessing the significance of the errors. </s> An examination of the entire record reveals that, as to Willie Wood, there was clear evidence of Davis' intent to kill: instead of leaving the store when he could have, Davis pursued Wood with a deadly weapon in his hand and attacked Wood by jumping on his back. This evidence was enhanced by the fact that Davis had at least two reasons to kill Wood. He could have thought it necessary to avoid being himself killed or injured by Wood, and he also could have thought it necessary to avoid being identified by Wood to the police. </s> As probative as this was of Davis' intent to kill Wood, however, there was nothing in the instructions that allowed the jurors to consider this evidence in assessing Davis' intent to kill Wood's mother. Application of a theory of transferred intent would, of course, have allowed the jury to equate Davis' malice in accosting Willie Wood with malice in the killing of Mrs. Wood. See 2 C. Torcia, Wharton's Criminal Law 144 (14th ed. 1979) ("Under the common-law doctrine of transferred intent, a defendant who intends to kill one person but instead kills a bystander, is deemed the author of whatever kind of homicide would have been committed had he killed the intended victim"); American Law Institute, Model Penal Code 2.03(2) (1985). But the jury was not charged on a theory of transferred intent, and we are therefore barred from treating evidence of intent to kill Wood as underlying the necessary finding of intent to kill Wood's mother. [500 U.S. 391, 410] </s> The evidence of Davis' intent to kill Mrs. Wood is far less clear. The prosecution argued that petitioner and Davis entered the store with the intention of killing any witnesses they found inside, and while this inference from the evidence was undoubtedly permissible, it was not compelled as a rational necessity. Petitioner testified that neither he nor Davis had planned to kill anyone, and the record shows that petitioner left the store not knowing whether he had, in fact, killed Willie Wood. Petitioner further testified that he heard a woman scream as he left the store, yet the evidence is clear that he made no effort to return and kill her. App. 57, 61. Hence, the jury could have taken petitioner's behavior as confirming his claim that he and Davis had not originally planned to kill anyone whom they might find inside the store. </s> Nor do the specific circumstances of Mrs. Wood's death reveal anything clear about Davis' intent toward her. The Supreme Court of South Carolina, to be sure, viewed the record as showing that Davis directed his attention specifically to Mrs. Wood, and attacked her with a repetitiveness ruling out the possibility of inadvertence. The state court's majority described Davis as having "lunged at Mrs. Wood with his knife" and inflicted "wounds" to her chest during a "brutal multiple stabbing." 301 S.C., 217-219, 391 S.E.2d, at 531-532. </s> The state court's description of the evidence as tending to prove Davis' malice is not, however, supported by the record. The only eyewitness to the homicide, Willie Wood, testified that it was Mrs. Wood who ran into the store and "reached her left arm around and grabbed" Davis, after which "the three of [them] stumbled around the counter, out in the aisle." There was no other testimony on how Mrs. Wood encountered Davis. The pathologist who performed an autopsy on Mrs. Wood testified that she died of a single wound to the chest and that "[t]here were no other wounds that I noted on the external surface of the body." App. 32. [500 U.S. 391, 411] There was no other testimony or physical evidence that Mrs. Wood suffered any wounds beyond the fatal one to her chest. The record thus does not support the state court's assertion that Davis "lunged" at Mrs. Wood, or its description of Mrs. Wood's "wounds" as resulting from a "multiple stabbing." The prosecutor in his summation even conceded that "it appeared [Mrs. Wood] tried to grab Mr. Davis." Id., at 88. The most that can be said with certainty is that Mrs. Wood joined the struggle between Davis and Wood, and was stabbed during the course of it. She could have been killed inadvertently by Davis, and we cannot rule out that possibility beyond a reasonable doubt. </s> In sum, the evidentiary record simply is not clear on Davis' intent to kill the victim. Without more, we could not infer beyond a reasonable doubt that the presumptions did not contribute to the jury's finding of Davis' intent to kill Mrs. Wood and to the ensuing verdict of petitioner's guilt as Davis' accomplice. </s> IV </s> The burden-shifting jury instructions found to have been erroneous in this case may not be excused as harmless error. The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. </s> It is so ordered. </s> Fn [500 U.S. 391, 393] JUSTICE BLACKMUN joins all but Part III of this opinion. </s> Footnotes [Footnote 1 Petitioner was indicted for murder, armed robbery, assault and battery with intent to kill, and conspiracy. </s> [Footnote 2 The State relied on a theory of accomplice liability because South Carolina does not have a felony murder statute. </s> [Footnote 3 The pathologist who performed an autopsy on Mrs. Wood testified that the cause of her death was "a penetrating wound of the chest that was narrow and penetrated the full thickness of the chest by probe examination. There were no other wounds that I noted on the external surface of the body." App. 32. </s> [Footnote 4 Petitioner's second defense was that he had withdrawn from his agreement to commit the robbery when he shouted to Davis, "Let's go," and ran out of the store. Having allegedly withdrawn from the robbery scheme, [500 U.S. 391, 396] petitioner contended that he was not liable for the subsequent homicide by his former accomplice. </s> [Footnote 5 In this case, petitioner challenges only his murder conviction. Brief for Petitioner 10, n. 5. </s> [Footnote 6 The presumption on the use of a deadly weapon in this case was qualified with the instruction that "when the circumstances surrounding the use of that deadly weapon have been put in evidence and testified to, the presumption is removed." App. 96. This instruction confuses more than it clarifies. The jury could not presume malice under this rule without evidence that a deadly weapon was used. That evidence included a description of the melee in which the stabbing occurred. Yet the jury was told that, once such evidence was introduced, the presumption vanished. As a reasonable juror would have understood the instruction, it was inherently contradictory. We think such a juror would have felt obliged to give the presumption some application, and accordingly find its "bursting bubble" clause insufficient to correct the error of presuming malice from the use of a deadly weapon. See Francis v. Franklin, 471 U.S. 307, 322 (1985) ("Language that merely contradicts, and does not explain a constitutionally infirm instruction, will not suffice to absolve the infirmity"). </s> [Footnote 7 A mandatory presumption, even though rebuttable, is different from a permissive presumption, which "does not require . . . the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one, and . . . places no burden of any kind on the defendant." Ulster County Court v. Allen, 442 U.S. 140, 157 (1979). A permissive presumption merely allows an inference to be drawn, and is constitutional so long as the inference would not be irrational. See Francis v. Franklin, supra, at 314-315. </s> [Footnote 8 In his opinion concurring in the judgment in Carella v. California, 491 U.S. 263, 267 (1989), JUSTICE SCALIA noted that the majority opinion in Rose v. Clark, 478 U.S. 570 (1986), is not entirely consistent in its articulation of the harmless-error standard to be applied to rebuttable presumptions. In fact, the opinion in Rose does contain language that, when taken out of context, suggests standards that are both more restrictive and less restrictive than the standard for reviewing rebuttable presumptions that we apply today. Compare id., at 580-581 ("In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury") (emphasis in original) with id., at 579 (rebuttable presumption is harmless error "[w]here a reviewing court can find that the record [500 U.S. 391, 403] developed at trial establishes guilt beyond a reasonable doubt"). The first statement, by its own terms, would not reflect the appropriate enquiry in every rebuttable presumption case; the second, in isolation, would not be correct, as our opinion today explains. </s> [Footnote 9 If the presumed fact is not itself necessary for the verdict, but only one of a variety of facts sufficient to prove a necessary element, the reviewing court should identify not only the evidence considered for the fact subject to the presumption, but also the evidence for alternative facts sufficient to prove the element. </s> [Footnote 10 For reviewing the effect of a conclusive presumption, a restrictive analysis has been proposed that would focus only on the predicate facts to be relied on under the presumption and would require a court to determine whether they "are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact." Carella v. California, 491 U.S., at 271 (SCALIA, J., concurring in judgment). The error is harmless in this situation because it is beyond a reasonable doubt that the jury found the facts necessary to support the conviction. Ibid. Application of this narrow focus is urged, because the terms of a conclusive presumption tend to deter a jury from considering any evidence for the presumed fact beyond the predicate evidence; indeed, to do so would be a waste of the jury's time and contrary to its instructions. See Sandstrom v. Montana, 442 U.S. 510, 526 , n. 13 (1979). The same may be true when a mandatory rebuttable presumption is applied in a case with no rebutting evidence, rendering the presumption conclusive in its operation. </s> [Footnote 11 The Court's opinion in Rose v. Clark, 478 U.S., at 583 , quotes from the dissent in Connecticut v. Johnson, 460 U.S. 73, 97 , n. 5 (1983) (opinion of Powell, J.), in such a way as to suggest that a reviewing court must [500 U.S. 391, 407] determine only whether "the jury would have found it unnecessary to rely on the presumption," a test less rigorous than the standard imposed by Chapman. </s> [Footnote 12 "We are of the opinion that the trial judge correctly and precisely determined the applicable law and charged it." State v. Yates, 280 S.C., at 38, 310 S.E.2d, at 810. </s> [Footnote 13 The trial judge told the jury that malice is proved by "circumstances which show directly that an intent to kill was really and actually entertained." Where such direct evidence does not exist, the judge told the jury that an "intention to kill" may be implied "from facts and circumstances which are, themselves, proved." In summing up his definition of murder, the judge stated that there "must be a combination of a previous evil intent and the act which produces the fatal result." App. 96-97. Our reading of the trial judge's charge on malice as requiring an intent to kill is reflected in the prosecutor's argument to the jury that petitioner and Davis entered the store with the intention of killing the proprietor and anyone else inside, so as to leave no witnesses. Id., at 85-86. See also State v. Yates, 301 S.C. 214, 223, 391 S.E.2d 530, 535 (1989) (Toal, J., dissenting) ("[T]he jury must find the killer acted with malicious intent"). </s> JUSTICE SCALIA, with whom JUSTICE BLACKMUN joins as to Part B, concurring in part and concurring in the judgment. </s> I agree with the Court's carefully constructed methodology for determining harmless error with respect to unlawful presumptions, but I disagree concerning its application to the facts of the present case. Unlike the Court, I find the "deadly weapon" presumption harmless; I find the "unlawful act" presumption not harmless, but for reasons other than the Court assigns. I therefore concur in the judgment of [500 U.S. 391, 412] reversal, and join all except footnote 6 and Part III of the Court's opinion. </s> A </s> In my view, the "deadly weapon" presumption was harmless for the simple reason that it had no application to the facts of the case. It disappeared ("burst") "`when the circumstances surrounding the use of [the] deadly weapon [were] put into evidence and testified to.'" Ante, at 397 (quoting App. 96). </s> The Court apparently does not disagree with that, if the jury can be presumed to have taken the "presumption is removed" portion of the instruction seriously. The Court believes, however, that "a [reasonable] juror would have felt obliged to give the presumption some application" because the instructions creating and qualifying it were "inherently contradictory." If they were taken literally, the Court reasons, the very evidence establishing the presumption would cause it to vanish. Ante, at 401, n. 6. I find no such contradiction. It seems to me quite possible to prove that a deadly weapon was used without proving the circumstances surrounding that use. The victim, for example, is found dead of a gunshot wound and the defendant is shown to have been the only person with access to the victim, and to have been in possession of the gun that fired the fatal shot. Or even more simply (and as was the case here), both sides concede that a deadly weapon was used. To be sure, a jury would often confront practical difficulty in applying the presumption (as opposed to theoretical difficulty in understanding it, because of its "inherent contradiction"), in that it would frequently be a nice question whether a particular factual showing is only enough to establish use or also enough to establish "circumstances" as well. But I hardly think that is a problem here. Any reasonable juror must have thought that "circumstances surrounding the use" were placed in evidence when the multiple details described in Part I of the Court's opinion were introduced, including the fact that Davis stabbed Mrs. Wood [500 U.S. 391, 413] while engaged in a struggle with her and her son, during which "`all three . . . stumbled around the counter, out in the aisle.'" Ante, at 395 (quoting App. 19) (emphasis added). If we take the assumption that juries follow their instructions seriously, Richardson v. Marsh, 481 U.S. 200, 211 (1987), I think we must conclude that this presumption disappeared and was therefore harmless beyond a reasonable doubt. </s> B </s> The "unlawful act" presumption is a different matter. That did not utterly disappear upon the introduction of certain evidence, but was merely, in the words of the instruction, "not conclusive," and was "rebuttable by the rest of the evidence." App. 96. The Court concludes that this was not harmless only after looking to the entire record and determining that it "simply is not clear on Davis' intent to kill the victim," ante, at 411. I agree with the Court's conclusion that this presumption was not harmless; but I think that conclusion should have followed no matter what the record contained. </s> The Court feels empowered to decide this case on the basis of an examination of the record because the jury was "free to look beyond the unlawful act presumption and to consider all the evidence on malice." Ante, at 408. I agree that they were free to do so. Indeed, I believe that they had to do so. (Surely the instruction that something is "rebuttable" conveys to the reasonable jury that they not merely may but must determine whether it has been rebutted.) But what is the problem - what makes it in my view utterly impossible to say beyond a reasonable doubt, from an examination of the record, that the jury in fact found guilt on a proper basis - is that the jury would have been examining the evidence with the wrong question in mind. Not whether it established malice beyond a reasonable doubt, but whether it was sufficient to overcome (rebut) the improper presumption. Or, to put the point differently, even if a reviewing court can properly [500 U.S. 391, 414] assume that the jury made the ultimate factual determination, it cannot assume that it did so using the appropriate burden of proof. See Carella v. California, 491 U.S. 263, 273 (1989) (SCALIA, J., concurring in judgment). </s> Given the nature of the instruction here, then, to determine from the "entire record" that the error is "harmless" would be to answer a purely hypothetical question, viz., whether, if the jury had been instructed correctly, it would have found that the State proved the existence of malice beyond a reasonable doubt. Such a hypothetical inquiry is inconsistent with the harmless-error standard announced in Chapman v. California, 386 U.S. 18, 24 (1967) and reiterated by the Court today. "[T]he issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption." Ante, at 404 (emphasis added). See also Bollenbach v. United States, 326 U.S. 607, 614 (1946) ("[T]he question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials"). While such a hypothetical inquiry ensures that the State has, in fact, proved malice beyond a reasonable doubt, it does not ensure that it has proved that element beyond a reasonable doubt to the satisfaction of a jury. </s> * * * </s> For the foregoing reasons, I join all except footnote 6 and Part III of the Court's opinion, and concur in the judgment of the Court. </s> [500 U.S. 391, 415]

United States Supreme Court RAILWAY CLERKS v. EMPLOYEES ASSN.(1965) No. 138 Argued: March 4, 1965Decided: April 28, 1965 </s> [Footnote * Together with No. 139, United Air Lines, Inc. v. National Mediation Board et al. and No. 369, National Mediation Board et al. v. Association for the Benefit of Non-Contract Employees, also on certiorari to the same court. </s> The Brotherhood of Railway and Steamship Clerks (Brotherhood) filed with the National Mediation Board (Board) an application under 2, Ninth of the Railway Labor Act which as later amended requested investigation of a representation dispute among the "clerical, office, stores, fleet and passenger service" employees of United Air Lines (United). The Board had determined that grouping to be appropriate for collective bargaining in a case (R-1706) decided in 1947 after an extensive hearing in which United and other airlines by invitation gave their views. The Board found that a representation dispute existed and scheduled a secret election, proposing to use its standard ballot providing for the printing of the names of the two labor organizations in the dispute, with a third space for a "write in" designation but no space for a specific "no union" vote. Seeking to enjoin the Board from conducting an election unless it held a hearing on the craft or class issue and unless the ballot allowed an employee to vote against representation, United, after extensive correspondence with the Board, filed suit. The District Court dismissed the case, the Court of Appeals affirmed, and the case is here on certiorari as No. 139. The Association for the Benefit of Non-Contract Employees of United (the Association), which had been formed only to be heard by the Board in a craft or class proceeding and to have the ballot amended, brought a similar suit after United's case was dismissed, and the Brotherhood intervened. The District Court enjoined the Board from conducting an election which did not permit an employee to [380 U.S. 650, 651] vote against collective bargaining representation. The Board and the Brotherhood filed separate appeals. The Court of Appeals affirmed both cases, which are here on certiorari as Nos. 138 and 369. The Board later amended the ballot form to state that no employee is required to vote and that if less than a majority of employees casts valid ballots no representative will be certified. Held: </s> 1. The Railway Labor Act precludes judicial review of the Board's certification of a collective bargaining representative Switchmen's Union v. National Mediation Board, 320 U.S. 297 , followed. Pp. 658-660. </s> 2. The Board's action here is reviewable only to the extent of the question of the Board's performance of its statutory duty to "investigate" the representation dispute. P. 661. </s> 3. The Board performed its statutory duty to conduct an investigation and designate the craft or class in which the election should be held. P. 661. </s> (a) The Board's duty to investigate is to make such informal, non-adversary investigation as the nature of the case may require. P. 662. </s> (b) The Board has not failed to make sufficient investigation and has not blindly followed its R-1706 ruling. Pp. 662-665. </s> (c) The Board did not adhere solely to the craft or class chosen by the unions, having consistently held hearings (though not required to do so) to determine the propriety of units requested by unions which were untested by actual collective bargaining, but dispensing with such hearings where, as here, experience has shown the grouping to be satisfactory. P. 665. </s> (d) The Act does not require that a carrier be made a party to whatever procedure the Board uses to determine the propriety of a craft or class, that status being given only to those who seek to represent employees; and whether and to what extent the carrier's views may be presented is solely within the Board's discretion. Pp. 666-667. </s> (e) The Board does not select the bargaining representative; it only investigates, defines the scope of the electorate, holds the election, and certifies the winner. P. 667. </s> 4. The Board's decision as to the form of ballot or whether selection shall be by ballot is not subject to judicial review, and, in view of the Board's long-established election procedures, the District [380 U.S. 650, 652] Court erred in enjoining the Board from holding an election with a ballot not providing opportunity on its face for an employee to vote against collective representation. Pp. 668-669. </s> 5. The Board's rule of election procedure that "no vote" is a vote for no representation is within the Board's statutory authority under 2, Fourth and was favorable to the Association's employees. Pp. 670-671. </s> 117 U.S. App. D.C. 387, 330 F.2d 853, judgments in Nos. 138 and 369 reversed, judgment in No. 139 affirmed. </s> James L. Highsaw, Jr., argued the cause for petitioner in No. 138. With him on the brief were Milton Kramer and William J. Donlon. </s> Stuart Bernstein argued the cause for petitioner in No. 139. With him on the brief were H. Templeton Brown and Robert L. Stern. </s> Solicitor General Cox argued the cause for petitioners in No. 369 and respondents in No. 139. With him on the briefs were Assistant Attorney General Douglas, Daniel M. Friedman, Morton Hollander and John C. Eldridge. </s> Alex L. Arguello argued the cause for respondent in Nos. 138 and 369. With him on the brief was Jerome C. Muys. </s> Clarence M. Mulholland and Edward J. Hickey, Jr., filed a brief for the Railway Labor Executives' Association, as amicus curiae, urging reversal in Nos. 138 and 369 and affirmance in No. 139. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> These consolidated cases involve claims of United Air Lines (United) and the Association for the Benefit of Non-Contract Employees of United (the Association), attacking the form of ballot that the Board intends to use in a representation election among United's employees under 2, Ninth of the Railway Labor Act, 44 Stat. 577, [380 U.S. 650, 653] as amended, 45 U.S.C. 152, Ninth (1958 ed.). 1 United also contends that the National Mediation Board (Board) should hold a hearing under the same section, with its participation, to determine the appropriate craft or class in which the election should be held. Before the Board the conflicting unions - Brotherhood of Railway and Steamship Clerks (Brotherhood) and International Association of Machinists (Machinists) - agreed that the appropriate craft or class in which the election should be held was "clerical, office, stores, fleet and passenger service employees"; over the objection of United the Board ordered an election in this unit to determine which union, if either, would be its bargaining representative. United then filed suit against the Board raising the questions it presses here. This case was dismissed and is here, after affirmance by [380 U.S. 650, 654] the Court of Appeals, as No. 139. After this dismissal the Association filed suit against the Board, the Brotherhood being permitted to intervene, and raised substantially the same claims. The District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective bargaining representation; the other issues were remanded to the Board for further consideration. 218 F. Supp. 114. The Court of Appeals affirmed these cases by a divided court and they are here as Nos. 138 and 369. 117 U.S. App. D.C. 387, 330 F.2d 853. Judge Wright, dissenting, thought the District Court was without jurisdiction to enjoin the Board from conducting a representation election, citing Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943). We granted certiorari in all three of the cases. 379 U.S. 814 . </s> We hold that the Board satisfied its statutory duty to investigate the dispute; that United is not entitled to be a party to proceedings by which the Board determines the scope of the appropriate craft or class; and that the Board's choice of ballot for its future elections does not exceed its statutory authority and is therefore not open to judicial review. </s> 1. THE FACTS. </s> In January 1947, after lengthy hearings in which United and other airlines participated at the request of the Board, it was determined that the "clerical, office, stores, fleet and passenger service" grouping of employees constituted an appropriate craft or class, within the meaning of the Act, for collective bargaining purposes. Case No. R-1706, N. M. B. Determinations of Craft or Class 423 (1948). All of the parties here, save the Association, participated in this public hearing. Since that time they have participated in other cases involving the same questions decided in R-1706, but, with some exceptions, the [380 U.S. 650, 655] Board has continued through the years to hold elections in that craft or class. </s> In August 1962 the Brotherhood filed with the Board an application under 2, Ninth to investigate a representation dispute among employees of United. In its original application the Brotherhood proposed to exclude those stores and fleet service personnel then represented by the Machinists. After the Board had advised United and the Machinists of the Brotherhood's application each informed the Board that in its opinion the application should be dismissed because it did not conform to what the Board had found to constitute a craft or class in Case No. R-1706, supra. Alternatively, United requested that if dismissal was not in order the Board should hold hearings to determine the proper craft or class in which the election should be held. Upon receiving notice of this opposition the Brotherhood amended its application to include the full craft or class approved in R-1706. The Machinists then agreed that this was the appropriate unit in which to conduct the election. </s> The Board concluded that a dispute existed requiring an election and scheduled one for January 1963. It proposed to use its standard form of ballot which provided for the printing of the names of the labor organizations - in this case, the Brotherhood and the Machinists - with a box below each name for the employee to check the representative preferred. A third space was provided in which the employee could write in the name of any other organization or individual he wished to represent him. There was not a place on the ballot in which the employee could vote specifically for "no union." </s> The Board, on December 19, 1962, directed that a list of the employees involved be supplied by United not later than January 14, 1963. On January 11 United advised that the request was premature and requested a hearing as to the scope of the unit involved in the Brotherhood's [380 U.S. 650, 656] amended application. It outlined in some detail the past practices of the Board in dealing with such requests and attacked the continued suitability of the R-1706 determination, asking that the case be re-opened and that the group be divided into three separate crafts or classes. On January 17 the Board denied this request. It pointed out that United on September 7, 1962, had objected to the craft proposed in the Brotherhood's original application on the sole ground that it did not conform to R-1706; that the Brotherhood had then amended its request to conform with R-1706; that United had been notified of this change on October 8, 1962; that on October 24 the Board had requested United to furnish the number of employees in the craft or class as amended and that it had furnished this information on November 2, stating that there were 12,451 as of a given date; and that it had failed to furnish the names of the employees. The Board then commented that "the carrier is not a party to this representation dispute"; that "no request for a review of . . . Case No. R-1706, et al. has been received from either organization party to NMB Case No. 3590" (the pending application of the Brotherhood); and that United's request was "not timely made, since the Board, on December 19, 1962, found that a representation dispute existed among the employees in this craft or class, and has authorized an election." United requested reconsideration of this decision, but without success. </s> Meanwhile, on January 18, 1963, when United advised the Board that it was "willing to allow a ballot box election on Company property provided the ballot follows the form used by the National Labor Relations Board," i. e., the ballot "would have a space for the employee to vote against representation as well as space for the employee to vote for representation" by the Brotherhood or the Machinists. (Emphasis in the original.) The Board replied that its form of ballot had been used since 1934 [380 U.S. 650, 657] and that it saw no reason to depart from it. Thereafter United advised that it would furnish the list of employees by February 11, but on that date the list was refused and action was begun the next day against the Board in the District Court for the District of Columbia. This case was later dismissed, as we have noted. </s> It appears that while the election was being delayed the Association was being organized among United's employees. By March 1963 it claimed 6,400 members, about 50% of the total number of United's employees. It sought, like United, to be heard in a craft or class proceeding and to have the ballot amended. It stated, however, that it did not seek recognition as a bargaining representative, and it did not want its name on the ballot. It intended to dissolve after the election. The Board denied the applications. </s> After United's case was dismissed, the Association filed a similar suit in the same court, seeking substantially the same relief. The Brotherhood was permitted to intervene, and it filed a separate appeal from that of the Board after the court had disposed of the case as we have already stated. </s> After we granted certiorari, the Board adopted an amended form of ballot on which there appears the following directly above the names of the unions seeking election as representative: </s> "INSTRUCTIONS FOR VOTING </s> "No employee is required to vote. If less than a majority of the employees cast valid ballots, no representative will be certified." </s> In effect, this amended ballot stated on its face what has been the practice of the Board in these elections since its inception. The Board has announced its intention to use this form of ballot in future representation elections, including any that may be held in this particular matter. [380 U.S. 650, 658] </s> 2. THE PURPOSES OF THE ACT AND THE BOARD'S </s> FUNCTION. </s> The major objective of the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. 151-188 (1958 ed.), was "the avoidance of industrial strife, by conference between the authorized representatives of employer and employee." Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 547 (1937). Section 2 Ninth set up the machinery for the selection of the representatives of employees. It authorized the National Mediation Board, upon request, to investigate disputes over representation; to "designate" those who were affected; to use a secret ballot or any other appropriate means of ascertaining the choice of employees; to establish rules governing elections and to certify the representatives so chosen to represent the employees in negotiations. Upon the issuance of this certificate the employer, under the Act, is required to "treat" with the representative certified to it by the Board. As we said in Virginian R. Co.: "The statute does not undertake to compel agreement between the employer and employees, but it does command those preliminary steps without which no agreement can be reached. It at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences - in short, to enter into a negotiation for the settlement of labor disputes such as is contemplated by 2, First." Id., at 548. </s> In Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943), the petitioner sued for the cancellation of a Board representation certificate. The Court held that the Act precluded review of the Board's certification of a collective bargaining representative under 2, Ninth. The case involved a question of statutory construction, [380 U.S. 650, 659] i. e., whether the Act permitted the division of crafts or classes of a single carrier into smaller units for collective bargaining purposes. The Court refused to consider the merits of the claim, holding that it was for the Board, not the courts, finally to resolve such questions. "The Act in 2, Fourth," the Court said, "writes into law the `right' of the `majority of any craft or class of employees to `determine who shall be the representative of the craft or class for the purposes of this Act.' That `right' is protected by 2, Ninth which gives the Mediation Board the power to resolve controversies concerning it and as an incident thereto to determine what is the appropriate craft or class in which the election should be held." Id., at 300-301. The Court goes on to note that Congress decided on the method which might be employed to protect this "right"; and that where Congress "has not expressly authorized judicial review," id., at 301, "this Court has often refused to furnish one even where questions of law might be involved," id., at 303. The Court's conclusion was that "the intent seems plain - the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law." Id., at 305. Thus, the Court held there could be no judicial review. </s> It is sometimes said that in Leedom v. Kyne, 358 U.S. 184 (1958), the Court created an "exception" to the doctrine of Switchmen's Union. In Kyne, it was held that the law afforded a remedy in the courts when unlawful action by the National Labor Relations Board inflicted injury on one of the parties to a bargaining dispute. But this was no exception to Switchmen's Union. Rather the Court was careful to note that "[t]his suit is not one to `review.' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board [380 U.S. 650, 660] made in excess of its delegated powers and contrary to a specific prohibition in the Act." Leedom v. Kyne, 358 U.S. 184, 188 . (Emphasis supplied.) The limited nature of this holding was re-emphasized only last Term where we referred to the "narrow limits" and "painstakingly delineated procedural boundaries of Kyne." Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964). It is with these principles in mind that we turn to the questions in the instant cases. </s> 3. THE CRAFT OR CLASS DETERMINATION. </s> The order of the District Court in Nos. 138 and 369 enjoins the Board from conducting an election "in which the form of the ballot does not permit a voting employee to cast a vote against collective bargaining representation . . . ." The Association concedes that the order does not enjoin the holding of the election until the Board reconsiders its craft or class determination; nor has it petitioned here for a review of that portion of the decision. Thus, we need not reach the question of the Association's right to demand or participate in proceedings leading to such a determination. </s> The same is not true of United, however, for it specifically sought and was denied such relief, and it comes here contending that this denial constituted error. United argues that since the Act compels it to treat with the representative chosen by the majority of its employees in the craft or class in which the election is held, it has a direct and substantial interest in the scope of that unit: and that since the Act provides for no administrative or judicial review, due process requires that it be accorded an opportunity to participate in the proceedings by which the Board determines which employees may participate. </s> It also contends that the Board, in designating the employees who could participate in the election, did not do so as a result of the statutorily required investigation - [380 U.S. 650, 661] which, United contends, requires that the Board take evidence and make findings - but made an arbitrary determination, relying solely on the agreement of the unions. </s> United's position is that Switchmen's Union does not control a claim that the Board has ignored an express command of the Act. This particular question was reserved in the 1943 cases. In General Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. 323 (1943), a companion case to Switchmen's Union, the Court stated: "Whether judicial power may ever be exerted to require the Mediation Board to exercise the `duty' imposed upon it under 2, Ninth and, if so, the type or types of situations in which it may be invoked present questions not involved here." Id., at 336, n. 12. We think that the Board's action here is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to "investigate" the dispute. 2 Reviewing that action, however, we conclude that the contention is completely devoid of merit. </s> Section 2, Ninth makes it the duty of the Board to "investigate" a representation dispute and "to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names [380 U.S. 650, 662] of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier." This command is broad and sweeping. We should note at the outset that the Board's duty to investigate is a duty to make such investigation as the nature of the case requires. 3 An investigation is "essentially informal, not adversary"; it is "not required to take any particular form." Inland Empire District Council v. Millis, 325 U.S. 697, 706 (1945). These principles are particularly apt here where Congress has simply told the Board to investigate and has left to it the task of selecting the methods and procedures which it should employ in each case. </s> In dealing with the sufficiency of the investigation it is necessary to examine the experience of the Board through the years in resolving questions of craft or class appropriateness. That experience, insofar as it concerns the unit involved here, dates back to 1946 in Case No. R-1706, supra, when it was called upon for the first time to apply the craft or class principle of representation to the airline industry. At that time it had before it a fledgling industry, a relatively new statutory command and a huge group of employees for whom there were no recognized crafts or classes within the meaning of the Act. At least five unions were involved, all urging different employee groupings, and all of the major airlines were invited to participate in an extended public hearing. United was among those participating and in fact supported the very craft or class unit which the Board eventually decided upon and to which it has adhered here. Because it was the first time the Board had recognized such a craft or class, it cautiously provided in denying reconsideration of its determination that it was subject [380 U.S. 650, 663] to future re-examination where to do so would further the purposes of the Act. </s> Thereafter began a period in which the workability of the R-1706 determination was tested in practice, and it did not go completely unchallenged. In 1948 United voluntarily recognized the Machinists as the collective bargaining representative for its ramp and stores employees. It supplied the Board with evidence upon which this recognition was based and its reasons for departing from its usual policy. It is noteworthy that the Board replied that voluntary recognition would not preclude future determination by the Board of the proper craft or class to which those employees would belong. In 1951 the determination of R-1706 withstood challenge in Matter of Representation of Employees of Northwest Airlines, Inc., Case No. R-2357, 2 N. M. B. Determinations of Craft or Class 60 (1955). United submitted a statement in this proceeding, emphasizing its disagreement with the R-1706 decision and requesting that it be disregarded. The Board refused to do so, but it did reiterate what it had implied in 1947 - that it was "of the opinion that upon proper application . . . it will be advisable to reexamine the determination in case R-1706 et al., with the view of making such modifications as may be found to be justified at that time." Id., at 67. We note that in both cases - R-1706 and R-2357 - the unions competing for representative status were in disagreement as to the appropriate unit in which elections should be held. Again in 1952, in Case No. R-2482, 2 N. M. B. Determinations of Craft or Class 72 (1955), United participated when the Air Line Dispatch Clerks Association sought to represent its general dispatch clerks, dispatch clerks A, B, and C and crew schedulers; the Brotherhood there disputed the grouping, contending that R-1706 established the scope of the election. The Board sustained this position, which was also that of [380 U.S. 650, 664] United, and held that R-1706 should be adhered to. United had argued that the dispatch clerks and schedulers were not a separate craft or class but merely components of the R-1706 unit, and that representation could be had only through investigation and election in that group. The Board ultimately discussed the application in these terms: </s> "The precedents heretofore established by the Board, however, cannot be disregarded. Moreover, the record of stable industrial relations which has followed in the years since the Determination in R-1706 must be given due and careful consideration. </s> ". . . In an industry which is still expanding, the agency charged with the duty of certifying designated representatives for collective bargaining must of necessity hesitate before acquiescing in the desires of certain employees to establish small segregated groups, because by that very course it may retard, or even destroy job opportunities. Flexibility in the use of employee talent carries just as many advantages for the employees as it does for the carrier. The Board is fully aware that the action taken herein will have, as an end result, the withholding of an immediate opportunity to select a collective-bargaining agent by this group of employees, but nevertheless, it is convinced that the basic purposes of the Railway Labor Act will be better served by adherence to the policy of preserving established crafts or classes." Id., at 76. </s> Nor do the subsequent cases brought to our attention strip the R-1706 decision of its continuing validity. In both these matters - Cases No. C-2252 and C-2389, 3 N. M. B. Determinations of Craft or Class 16 (1961) - the Board determined that stock and storeroom employees were separate crafts or classes of employees at North Central and Trans-Texas Air Lines. Neither of these airlines [380 U.S. 650, 665] had participated in the 1946 proceedings. Both were feeder lines, and in both cases the contending unions disagreed as to the appropriate unit in which the election should be held. In any event, the Board was simply pursuing the policy it had announced when it decided R-1706 - that it would re-examine craft or class determinations when it thought the purpose of the Act would be furthered thereby. This in itself belies the notion that the Board has blindly followed the R-1706 ruling. 4 </s> It is in light of this background that we must decide whether the Board's reaffirmation of the R-1706 determination in these cases was made after a sufficient investigation, within the meaning of the Act. We reject the contention that it adhered solely to the craft or class chosen by the unions. Time and again it has acknowledged that it has the task of determining the appropriateness of a craft or class, and nothing in this case suggests that it abdicated that responsibility here. Where units untested by actual collective bargaining have been proposed by the unions involved the Board has consistently held hearings to determine the propriety of holding elections in those crafts or classes. But where the unions have agreed and the unit they have agreed upon has been one well-established in industry bargaining circles, it has usually held elections without full-scale hearings, not simply because the unions agree but because the unit upon which they agree is one that is well-recognized under prior determinations of the Board and has proven satisfactory in actual experience. This is what it did here. [380 U.S. 650, 666] </s> The Board received the Brotherhood's application; it requested, received and considered statements from the carrier and the Machinists. On the basis of these preliminary actions, it scheduled an election. But it continued to correspond with United, accepting and studying its detailed application for reconsideration of the Board's decision to proceed to election in the R-1706 craft or class. Viewed alongside prior experience with the R-1706 grouping in the air transport industry this procedure clearly complied with the statutory command that the Board "investigate" the dispute. The only missing element of the required investigation is the election and that can now be held promptly. </s> United sought to have the District Court require the Board to hold a hearing on the craft or class issue in which it would participate as a "party in interest." But the Act does not require a hearing when the Board itself designates those who may participate in the election. It provides that "the Board shall designate who may participate in the election . . ., or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election." (Emphasis supplied.) Indeed, United seems aware of this, for it stated in its brief that if "the Railway Labor Act does not specifically require a hearing, it does require an `investigation,'" and that United must be heard in the course of that proceeding. Clearly, then, the Board cannot be required to hold a hearing. </s> Nor does the Act require that United be made a party to whatever procedure the Board uses to define the scope of the electorate. This status is accorded only to those organizations and individuals who seek to represent the employees, for it is the employees' representative that is to be chosen, not the carriers'. Whether and to what extent carriers will be permitted to present their views on [380 U.S. 650, 667] craft or class questions is a matter that the Act leaves solely in the discretion of the Board. </s> The gist of United's claim, therefore, is that it should be accorded a greater role in the Board's investigation. This argument must be rejected. Here United participated in the proceeding establishing the craft or class in question as a cognizable grouping of employees, and it has had opportunities since that time to present further evidence. It must be remembered that United is under no compulsion to reach an agreement with the certified representative. As Chief Justice Stone said in Virginian R. Co. v. System Federation No. 40, supra, "The quality of the action compelled, its reasonableness, and therefore the lawfulness of the compulsion, must be judged in the light of the conditions which have occasioned the exercise of governmental power." Id., at 558-559. Likewise, as the Court observed in Hannah v. Larche, 363 U.S. 420, 442 (1960), the procedural requirements in a particular proceeding depend on "[t]he nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding . . . ." The Board, as we noted in Switchmen's Union, performs the "function of a referee." It does not select one organization or another; it simply investigates, defines the scope of the electorate, holds the election and certifies the winner. Thus, while the Board's investigation and resolution of a dispute in one craft or class rather than another might impose some additional burden upon the carrier, we cannot say that the latter's interest rises to a status which requires the full panoply of procedural protections. We find support for this conclusion when we consider the burden that acceptance of United's contentions would visit upon the administration of the Act. To require full-dress hearings on craft or class in each representation dispute would fly in the face of Congress' instruction that [380 U.S. 650, 668] representatives should be certified within 30 days of invocation of the Board's services. It places beyond reach the speed which the Act's framers thought an objective of the first order. </s> In view of these considerations, we hold that the Board performed its statutory duty to conduct an investigation and designate the craft or class in which the election should be held and that it did so in a manner satisfying any possible constitutional requirements that might exist. Its determination, therefore, is not subject to judicial review. Switchmen's Union v. National Mediation Board, supra. As was pointed out there, the "highly selective manner in which Congress has provided for judicial review of administrative orders or determinations under the Act," id., at 305, indicates the confidence that it reposed in the Board. In turn the fair and equitable manner in which the Board has discharged its difficult function is attested by the admirable results it has attained. </s> 4. THE FORM OF THE BALLOT. </s> As we have noted the District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective representation. We believe this was error. Section 2, Ninth empowers the Board to establish the rules governing elections. Moreover, it provides that in resolving representation disputes the Board is authorized "to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier." Thus, not only does the statute fail to spell out the form of any ballot that might be used but it does not even require selection by ballot. It leaves the details to the broad discretion [380 U.S. 650, 669] of the Board with only the caveat that it "insure" freedom from carrier interference. That the details of selecting representatives were to be left for the final determination of the Board is buttressed by legislative history clearly indicating as much. 5 See Hearings on H. R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 34-35. </s> In summary, then, the selection of a ballot is a necessary incident of the Board's duty to resolve disputes. The Act expressly says as much, instructing the Board alone to establish the rules governing elections. Thus, it is clear that its decision on the matter is not subject to judicial review where there is no showing that it has acted in excess of its statutory authority. </s> United and the Association, however, apparently relying on Leedom v. Kyne, supra, contend that the Board has exceeded its statutory authority in selecting the proposed ballot. The argument is that 2, Fourth, which provides that "[t]he majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class" requires a ballot with [380 U.S. 650, 670] a "no union" box. They urge that in Virginian R. Co. v. System Federation No. 40, supra, at 560, certification on the basis of a majority of the votes cast, rather than a majority of the eligible voters, was upheld on the ground that nonvoters "are presumed to assent to the expressed will of the majority of those voting." And they say that the Board's ballot is inconsistent with this rationale. But the Board has not followed the presumption of Virginian R. Co. Indeed the caveat on the face of the proposed ballot expressly refutes such an assumption. The Board's rule of election procedure is that no vote is a vote for no representation, and this is now made plain to the voting employees. It is, as we have said, an assumption more favorable to the employees that the Association represents. Thus, under the Board's practice a majority of the craft or class, as required by 2, Fourth, does have the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation at all. </s> It is also claimed that since 9 (a) of the National Labor Relations Act, 49 Stat. 453, as amended, 61 Stat. 143, 29 U.S.C. 159 (a) (1958 ed.) and 2, Ninth of the Railway Labor Act are both designed to encourage collective bargaining and the National Labor Relations Board uses a ballot with a "no union" box, the Mediation Board must use one also. Even assuming that the "no union" ballot would implement the purpose of the Act. this is a far cry from saying that it is the only form of ballot that would do so. Given broad discretion as it is the Mediation Board has followed a presumption contrary to that adhered to by the Labor Relations Board. The latter has tailored its ballot to conform to the presumption of Virginian R. Co. If in a Labor Board election, an employee does not vote, he can safely be presumed to have acquiesced in the will of the majority of the voters. In a Mediation Board election, if the employee [380 U.S. 650, 671] refuses to vote he is treated as having voted for no representation. </s> We venture no opinion as to whether the Board's proposed ballot will best effectuate the purposes of the Act. We do say that there is nothing to suggest that in framing it the Board has exceeded its statutory authority. </s> Unable to point to any specific requirement of a "no union" ballot in the Act, United and the Association are left to arguing in terms of policy and broad generalities as to what the Railway Labor Act should provide. The very nature of the arguments indicates that the Board's choice of its proposed ballot is not subject to judicial review, for it was to avoid the haggling and delays of litigation that such questions were left to the Board. These are matters for Congress and the Board rather than the courts. Here the Board - a creature of Congress - has been, as we have said, careful to provide fair, yet effective procedures and we feel certain that it will continue to do so. If its decision on the ballot is not acceptable, the place to go is to Congress, not to us. </s> Accordingly, we reverse the judgments in Nos. 138 and 369 and affirm the judgment in No. 139. </s> It is so ordered. </s> MR. JUSTICE BLACK concurs in the result. </s> Footnotes [Footnote 1 Section 2, Ninth provides: "If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. . . ." 45 U.S.C. 152, Ninth. </s> [Footnote 2 Indeed in the keystone case dealing with the Railway Labor Act, Virginian R. Co. v. System Federation No. 40, supra, the validity of the Board's certificate was attacked because it failed to recite the number of eligible voters in the craft or class in which the election was held. The Court found it unnecessary to decide whether the certificate would be conclusive absent such a finding, but it commented: "But we think it plain that if the Board omits to certify any of them [the facts concerning the number of eligible voters, the number participating and the choice of the majority], the omitted fact is open to inquiry by the court asked to enforce the command of the statute. . . . Such inquiry was made by the trial court, which found the number of eligible voters and thus established the correctness of the Board's ultimate conclusion." Id., at 562. </s> [Footnote 3 Ruby v. American Airlines, Inc., 323 F.2d 248, 255; WES Chapter, Flight Engineers' Int'l Assn. v. National Mediation Board, 114 U.S. App. D.C. 229, 232, 314 F.2d 234, 237. </s> [Footnote 4 It should be noted, however, that in nearly all cases subsequent to Nos. C-2252 and C-2389, the Board has held elections among clerical, office, stores, fleet and passenger service employees without re-examining that grouping and without noticeable protest. Mr. Thompson, Executive Secretary of the Board, lists 19 such cases in his affidavit in the District Court supporting the Board's motion to dismiss. This hardly supports United's contention that the Board is clinging in this case to a determination it has found obsolete. </s> [Footnote 5 The legislative history supports the view that the employees are to have the option of rejecting collective representation. The ballot that the Board proposes to use in future elections fully comports with this conception of the Act. Using the Board's ballot an employee may refrain from joining a union and refuse to bargain collectively. All he need do is not vote and this is considered a vote against representation under the Board's practice of requiring that a majority of the eligible voters in a craft or class actually vote for some representative before the election is valid. The practicalities of voting - the fact that many who favor some representation will not vote - are in favor of the employee who wants "no union." Indeed, the method proposed by the Board might well be more effective than providing a "no union" box, since, if one were added, a failure to vote would then be taken as a vote approving the choice of the majority of those voting. This is the practice of the National Labor Relations Board. </s> MR. JUSTICE STEWART, dissenting. </s> My dissent stems from the Court's approval of the form of ballot used by the National Mediation Board in representation elections. As I understand its opinion, the Court holds that the form of ballot devised by the Board is subject to judicial review, at least for the purpose of determining whether the Board "acted in excess of its statutory authority." With that I agree. But the Court goes on to hold that the ballot devised by the Board does conform with the statute. With that I cannot agree. [380 U.S. 650, 672] </s> I. </s> Nothing decided in Switchmen's Union v. National Mediation Board, 320 U.S. 297 , forecloses a determination by this Court of the validity of the ballot form used by the Board. On the contrary, that case, which insulated from judicial review the Board's ultimate craft or class determinations, makes it all the more imperative that the Board be required to operate by fair and lawful procedures. Compare Silver v. New York Stock Exchange, 373 U.S. 341, 361 . To say that Switchmen's Union, by interpreting the Railway Labor Act (44 Stat. 577, as amended) to deprive courts of jurisdiction to review class or craft determinations, also deprived courts of jurisdiction to review the fundamental procedures used by the Board in arriving at those determinations "would indeed be to `turn the blade inward.'" Graham v. Brotherhood of Firemen, 338 U.S. 232, 237 . </s> The ballot lies at the heart of the Board's certification mechanism. It is used day in and day out and will be used on thousands of occasions in the future. What happened in this very case illustrates the vital and salutary effect of judicial scrutiny of the Board's procedures. The ballot form which the Court of Appeals held illegal in this litigation had been used by the Board for many years. Yet the Solicitor General, as a consequence of the grant of certiorari in this case, persuaded the Board to modify the ballot to reduce its ambiguities. 1 If the Court were understood as holding today that there can be no review [380 U.S. 650, 673] of the ballot's structure, the Board would, of course, be free to return to the older historic form which the Solicitor General has virtually conceded is unfair and unlawful. 2 </s> II. </s> Even as revised in response to our grant of certiorari in this case, however, the form of ballot to be used by the Board continues to list spaces only for the organizations actually competing for representation, with a blank space left for writing in an unlisted organization. No space is provided for voting for "no union." Employees are still confronted with a ballot upon which they can mark a choice only among representatives, without an opportunity to mark a choice for no representative at all. This ballot form is directly attributable to the Board's view of what the bargaining pattern should be in the airline industry. The Board has stated that "the act does not contemplate that its purposes shall be achieved, nor is it clear that they can be achieved, without employee representatives . . . ." 3 As a result, the Board has designed its ballot to encourage employees to choose a labor organization to represent them collectively. I believe both the language of the Act and its legislative history belie this view and, for that reason, I would order the Board to reconsider the form of its ballot. </s> Section 2, Fourth provides that "Employees shall have the right to organize and bargain collectively through [380 U.S. 650, 674] representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class . . . ." The Act performs the function, familiar to the rest of our labor legislation, of furnishing the opportunity for majority determination within each employee group of what the nature of bargaining shall be. But the Act is not compulsory. Employees are not required to organize, nor are they required to select labor unions or anyone else as their representatives. It has always been recognized that under the law the employees have the option of rejecting collective representation. </s> The House Report on the bill, stated: </s> "2. It [H. R. 9861] provides that the employees shall be free to join any labor union of their choice and likewise be free to refrain from joining any union if that be their desire and forbids interference by the carriers' officers with the exercise of said rights." (Emphasis supplied.) (H. R. Rep. No. 1944 to accompany H. R. 9861, Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 2.) </s> Much of the testimony on the bill was given by Commissioner Joseph B. Eastman, Federal Coordinator of Transportation and the principal draftsman of the legislation. His reply to a question by Congressman Huddleston reflects the contemporary understanding of the Act: </s> "Commissioner EASTMAN. No; it does not require collective bargaining on the part of the employees. If the employees do not wish to organize, prefer to deal individually with the management with regard to these matters, why, that course is left open to them, or it should be." (Hearings on H. R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 1934, p. 57.) [380 U.S. 650, 675] And in the Senate, Senator Wagner insisted that this was the burden of the bill: </s> "Senator WAGNER. . . . I didn't understand these provisions compelled an employee to join any particular union. I thought the purpose of it was just the opposite, to see that the men have absolute liberty to join or not to join any union or to remain unorganized. </s> "Mr. CLEMENT. That is the way we hope they will read when they are finally amended." (Hearings on S. 3266, Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., 1934, p. 76.) </s> See also Hearings, id., p. 12. That legislative history is directly counter to the conception of the Act reflected by the ballot form used by the Board, and spelled out in the particularized record of the present case. 4 </s> The form of the ballot is markedly different from that evolved by the National Labor Relations Board under a statute which contained almost identical wording at the time the ballot was designed. 5 Originally the Labor [380 U.S. 650, 676] Board, like the Mediation Board, did not include a space for a "no union" vote. Since July 1937, however, it has consistently placed such a slot on the ballot to insure that an employee's vote for a particular representative does not spring from a feeling that the vying organizations present the only alternatives available. "The policy adopted by the Board is designed merely to make sure that the votes recorded for a particular representative express a free choice rather than a choice in default of the possibility of expressing disapproval of both or all proposed representatives." In re Interlake Iron Corp., 4 N. L. R. B. 55, 61. "The Act . . . does not require an unwilling majority of employees to bargain through representatives. It merely guarantees and protects that [380 U.S. 650, 677] right of a majority if it chooses to exercise it." Ibid. (Emphasis supplied.) </s> Certainly the Board may use alternate devices for divining the desires of the employees. But each device must be tested within its own framework. Where the Board purports to gain its information through the traditional system of balloting the employees, all parties rely on that election to yield a meaningful result. Here the Board decided to employ the secret ballot and rely on its results exclusively. At the least then, the ballot must unambiguously convey to each employee the choices available to him under the law. 6 </s> Because the National Mediation Board has hewn to the mistaken belief that its duty is to encourage collective representation in the airline industry, I would remand this case to the Board for further consideration in the light of the views here expressed. I would not attempt to dictate to the Board precisely what form the ballot should ultimately take. Within a broad range, that question surely lies within the Board's discretion. But it is a question the Board should confront with a correct understanding of the law. </s> [Footnote 1 The Solicitor General's changes would leave the slots on the ballot intact (not supplying a "no union" box) but would append the following caption: "INSTRUCTIONS FOR VOTING "No employee is required to vote. If less than a majority of the employees cast valid ballots, no representative will be certified." It is this revised form of ballot which the Court today approves, rather than the old form which was before the Court of Appeals. </s> [Footnote 2 Before Switchmen's Union there were several decisions which furnished the National Mediation Board with clarifying interpretations of the Act. The Board found these "decisions are very helpful . . . in that they serve to settle issues which, in the past, have frequently arisen to trouble the orderly and prompt adjustment of disputes over representation between different factions among employees." Annual Report of the National Mediation Board, 1938, pp. 5-6. </s> [Footnote 3 Administration of the Railway Labor Act by the National Mediation Board, 1934-1957, p. 15. </s> [Footnote 4 In a letter to United Air Lines, rejecting its objections to the form of the ballot, the Executive Secretary of the Board stated: "Introduction of a `yes' or `no' ballot would contribute to, if it did not actually encourage, an attempt to circumvent the mandate of Congress that representatives be designated by carriers and their employees for the purposes described in Section 2, First and Second of the Railway Labor Act . . . ." Letter to Charles Mason from Executive Secretary of the National Mediation Board, January 24, 1963. </s> [Footnote 5 The original 9 (c) of the Wagner Act, 49 Stat. 453, stated the Labor Board's powers in the following language: "Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under [380 U.S. 650, 676] section 10 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." Compare 2, Ninth of the Railway Labor Act: "If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. . . . In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. . . ." 45 U.S.C. 152, Ninth (1958 ed.). The similarity in the purposes of the Wagner Act and the Railway Labor Act was pointed out in the report of the House Committee on Labor which stated that "the bill is merely an amplification and further clarification of the principles enacted into law by the Railway Labor Act . . . ." H. R. Rep. No. 1147, 74th Cong., 1st Sess., p. 3. See 40 Op. Atty. Gen. 541 (Attorney General Clark). </s> [Footnote 6 Prior to this litigation, the only court to consider the ballot employed by the National Mediation Board found that failure to include a "no union" slot deprived the employees of a "free choice." "It is manifest that this ballot did not present the issue to the eligible voters." McNulty v. National Mediation Board, 18 F. Supp. 494, 501 (D.C. N. D. N. Y.). </s> [380 U.S. 650, 678]

United States Supreme Court HAUPT v. U.S.(1947) No. 49 Argued: Decided: March 31, 1947 </s> Rehearing Denied April 28, 1947 </s> See 331 U.S. 864 , 67 S.Ct. 1195. [330 U.S. 631, 632] Mr. Paul A. F. Warnholtz, of Chicago, Ill. (Frederick J. Bertram, of Chicago, of counsel), for petitioner. Mr. Frederick Bernays Wiener, of Providence, R.I., for respondent. </s> Mr. Justice JACKSON delivered the opinion of the Court. Petitioner, Hans Max Haupt was indicted for treason, convicted and sentenced to life imprisonment and to pay a fine of $10,000. From this judgment of the District Court for the Northern District of Illinois he appealed to the United States Circuit Court of Appeals for the Seventh Circuit, which by a divided court affirmed. 152 F.2d 771. A previous conviction of the same offense predicated on the same acts had been reversed. United States v. Haupt, 7 Cir., 136 F.2d 661. Petitioner is the father of Herber Haupt, one of the eight saboteurs convicted by a military tribunal. See Ex [330 U.S. 631, 633] parte Quirin, 317 U.S. 1 , 63 S.Ct. 1, 2. Sheltering his son, assisting him in getting a job, and in acquiring an automobile, all alleged to be with knowledge of the son's mission, involved defendant in the treason charge. The background facts are not in dispute. The defendant is a naturalized citizen, born in Germany. He came to this country in 1923 and lived in or near Chicago. In 1939 the son, Herbert, who had also been born in Germany, worked for the Simpson Optical Company in Chicago which manufactured lenses for instruments, including parts for the Norden bomb sight. In the spring of 1941 Herbert went to Mexico and, with the aid of the German Consul, from there to Japan and thence to Germany where he entered the employ of the German Government and was trained in sabotage work. On the 17th of June 1942, Herbert returned to the United States by submarine. His mission was to act as a secret agent, spy and saboteur for the German Reich. He was instructed to proceed to Chicago, to procure an automobile for the use of himself and his confederates in their work of sabotage and espionage, to obtain reemployment with the Simpson Optical Company where he was to gather information, particularly as to the vital parts and bottlenecks of the plant, to be communicated to his coconspirators to guide their attack. He came with various other instructions, equipped with large sums of money, and went to Chicago. After some six days there, Herbert was arrested on June 27, 1942, having been under surveillance by Government agents during his entire stay in Chicago. This petitioner was thereafter taken into custody and was arraigned on July 21, 1942. He later asked to talk to an F.B.I. agent, two of whom were summoned, and he appears to have volunteered considerable information and to have given more in answer to their questions. He blamed certain others for the predicament of his son and wanted to testify against [330 U.S. 631, 634] them. For this purpose, he disclosed that he had been present when Herbert had told the complete story of his trip to Mexico, Japan, his return to the United States by submarine, and his bringing large sums of money with him. During his confinement in the Cook County jail he also talked with two fellow prisoners concerning his case and they testified as to damaging admissions made to them. The indictment alleged twenty-nine overt acts of treason. Its sufficiency ws challenged by demurrer which was overruled and by a motion to quash which was denied. The defendant, at the close of the Government's case and again at the close of all the evidence, made motions for a directed verdict generally and also specifically as to each overt act charged, all of which were denied. Seventeen of the overt acts were withdrawn before submission and twelve were submitted to the jury. Generally stated, the overt acts submitted fall into three groups of charges: First, the charge that this defendant accompanied his son to assist him in obtaining employment in a plant engaged in manufacturing the Norden bomb sight; second, the charge of harboring and sheltering Herbert Haupt; and third, the charge of accompanying Herbert to an automobile sales agency, arranging, making payment for and purchasing an automobile for Herbert. Each of these was alleged to be in aid of Herbert's known purpose of sabotage. The defendant argues here that the overt acts submitted do not constitute acts of treason, but that each is commonplace, insignificant and colorless, and not sufficient even if properly proved to support a conviction. We have held that the minimum function of the overt act in a treason prosecution is that it show action by the accused which really was aid and comfort to the enemy. Cramer v. United States, 325 U.S. 1, 34 , 65 S.Ct. 918, 934. This is a separate inquiry from that as to whether the acts were done because of [330 U.S. 631, 635] adherence to the enemy, for cts helpful to the enemy may nevertheless be innocent of treasonable character. Cramer's case held that what must be proved by the testimony of two witnesses is a 'sufficient' overt act. There the only proof by two witnesses of two of the three overt acts submitted to the jury was that the defendant had met and talked with enemy agents. We did not set aside Cramer's conviction because two witnesses did not testify to the treasonable character of his meeting with the enemy agents. It was reversed because the Court found that the act which two witnesses saw could not on their testimony be said to have given assistance or comfort to anyone, whether it was done treacherously or not. To make a sufficient overt act, the Court thought it would have been necessary to assume that the meeting or talk was of assistance to the enemy, or to rely on other than two-witness proof. Here, on the contrary, such assumption or reliance is unnecessary-there can be no question that sheltering, or helping to buy a car, or helping to get employment is helpful to an enemy agent, that they were of aid and comfort to Herbert Haupt in his mission of sabotage. They have the unmistakable quality which was found lacking in the Cramer case of forwarding the saboteur in his mission. We pointed out that Cramer furnished no shelter, sustenance or supplies. 325 U.S. 1, 37 , 65 S.Ct. 918, 936. The overt acts charged here, on the contrary, may be generalized as furnishing harbor and shelter for a period of six days, assisting in obtaining employment in the lens plant and helping to buy an automobile. No matter whether young Haupt's mission was benign or traitorous, known or unknown to defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son's instructions, preparation [330 U.S. 631, 636] and plans, the purpose to aid and comfort the enemy becomes clear. All of this, of course, assumes that the prosecution's evidence properly in the case is credited, as the jury had a right to do. We hold, therefore, that the overt acts laid in the indictment and submitted to the jury do perform the functions assigned to overt acts in treason cases and are sufficient to support the indictment and to sustain the convictions if they were proved with the exactitude required by the Constitution. The most difficult issue in this case is whether the overt acts have been proved as the Constitution requires, and several grounds of attack on the conviction disappear if there has been compliance with the constitutional standard of proof. The Constitution requires that 'No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act ....' Art. III, 3. We considered the application of this provision to the problems of proof in the Cramer case. Defendant claims this case in two respects falls short of the requirements there laid down as to all the overt acts which comprise harboring and sheltering the saboteur: First, that there was no direct proof that the saboteur was actually in the defendant's apartment, and second, that there is no direct proof that the defendant was in the apartment at any time when the saboteur was there. Both of these we find to be without merit. The act to be proved is harboring and sheltering in the house at No. 2234 North Fremont Street. The defendant and his wife lived there in a third floor front apartment, which had but one bedroom. Federal Bureau of Investigation agents, never less than two, had the place under continuous surveillance from 10:30 a.m., June 22 to the arrest of the saboteur on June 27, and at least two testified in minute detail to each of repeated arrivals and departures of the saboteur, in some occasions accompanied by [330 U.S. 631, 637] the defendant, on others by the defendant's wife, and on some by both. He entered each night and left each day. On so e occasions he came out wearing different clothes from those he wore when he went in. When he went in at night the lights in the defendant's apartment were turned on and after a time extinguished. Two witnesses who were callers at the apartment testified that on one occasion defendant and Herbert were there together at supper time, the three Haupts being together in the kitchen, Herbert later coming into the parlor and one of the guests going into the kitchen. The defendant contends that this does not constitute the required two witnesses' direct proof that the saboteur was harbored and sheltered in the defendant's apartment. It is true that the front entrance, where all of this testimony shows the saboteur to have entered, connected with two other apartments. The occupants of each of the other apartments, two witnesses as to each, testified that the saboteur did not at any time occupy their respective apartments. It is sufficiently proved by direct testimony of two witnesses that the saboteur stayed in the house where the father lived and with the latter's knowledge. But it is said that this is not enough, that it fails because the two witnesses did not see him enter his parents' apartment therein. But the hospitality and harboring did not begin only at the apartment door. It began when he entered the building itself where he would have no business except as a guest or member of the family of one of the tenants. It is not necessary to show that he slept in the defendant's bed. Herbert was neither trespasser nor loiterer. He entered as the licensee of his father, and was under the privileges of the latter's tenancy even in parts of the building used in common with other tenants. His entrance to and sojourn in the building were made possible by the defendant, and the saboteur slept and stayed in [330 U.S. 631, 638] some part of it with the father's knowledge and by his leave. We think the proof is sufficient to comply with the constitutional requirement that two witnesses testify to the overt acts in that group which charges harboring and sheltering of the saboteur. The other group of submitted overt acts as to which it is claimed there is a deficiency of testimony relates to assistance which the defendant rendered to the saboteur in purchasing an automobile as alleged in Acts Nos. 15 and 16 of the indictment. According to the testimony of an automobile salesman, Farrell, the defendant came to his salesroom and said he wanted to buy a good used car of late model. Defendant selected a 1941 model Pontiac and asked about installment payments. After considerable discussion of terms, defendant paid $10 deposit on the price of $1045 and said he would come in next day to make a further payment. He signed an order for the car and gave financial references. On the next day, defendant came to the salesroom and paid an additional $405, executing notes and finance contract. The son took the car and drove it away. A second witness, Vinson, sales manager, corroborated the earlier parts of this transaction, but defendant claims his testimony is not sufficiently comprehensive to comply with the two-witness rule, especially as to overt acts 15 and 16, relating to events of the second day. Vinson at first said he did not see defendant and his son on that day. The trial court allowed counsel to refresh Vinson's recollection from his testimony given at the former trial of defendant. Vinson then testified that he did see the defendant and his son come in together and be together in the salesroom that evening but did not talk with them; that he received 'the money that had been put down' on that evening and the note signed by the defendant. By approval of his answers at the former trial he affirmed that [330 U.S. 631, 639] he receipted for the money. He also saw the invoice made that evening for the purchase and identified a copy of the bill of sale of the car to the defendant. He testified Farrell was there when the Haupts were. It is said that Vinson's testimony falls short because it is not explici as to who paid the money. Taking the testimony as a whole, Vinson his corroborated Farrell's testimony that the defendant came that night to the automobile salesroom, that he was accompanied by the saboteur, that a purchase of the automobile had been started and was pending. The partially completed transaction was one in which defendant himself became purchaser, signed his own name to the purchase note and furnished his own, not his son's, financial references. Vinson's testimony shows that this pending transaction was consummated on the latter night. It involved 'a further payment in cash toward the purchase' and completing 'arrangements for the purchase' which are alleged as the sixteenth act. Vinson said that he received the money. Whoever actually handed over the money, it was apparently in defendant's presence and was paid on account of his obligation incurred the previous evening in signing the purchase contract. The testimony of Vinson in its interpretation most favorable to the jury's verdict seems clearly to have been testimony to the same overt act as that by Farrell. Defendant's counsel made no effort to correct any ambiguity in it by cross-examination. The defense of course is under no duty to do so; it may rely upon weakness in the prosecution's case. But it takes the risk, when it relies on an ambiguity rather than on a complete lack of legal proof, that the jury will resolve the meaning in favor of the prosecution. When enough has been shown to make a case for the jury we may not impeach the verdict by differing from them on equally reasonable views of a wit- [330 U.S. 631, 640] ness' meaning. We think the court was justified in submitting this overt act and the jury was justified in finding it proved. The Constitution requires testimony to the alleged overt act and is not satisfied by testimony to some separate act from which it can be inferred that the charged act took place. And while two witnesses must testify to the same act, it is not required that their testimony be identical. Most overt acts are not single, separable acts, but are combinations of acts or courses of conduct made up of several elements. It is not easy to set by metes and bounds the permissible latitude between the testimony of the two required witnesses. It is perhaps easier to say on which side of the line a given case belongs than to draw a line that will separate all permisible disparities from forbidden ones. Concrete even if hypothetical cases may illustrate this. One witness might hear a report, see a smoking gun in the hand of defendant and see the victim fall. Another might be deaf, but see the defendant raise and point the gun, and see a puff of smoke from it. The testimony of both would certainly be 'to the same overt act,' although to different aspects. And each would be to the overt act of shooting, although neither saw the movement of a bullet from the gun to the victim. It would still be a remote possibility that the gun contained only a blank cartridge and the victim fell of heart failure. But it is not required that testimony be so minute as to exclude every fantastic hypothesis that can be suggested. We think two witnesses testified to these overt acts and petitioner cannot seriously contend that two did not testify to each of the overt acts comprising the group of charges on obtaining a job. Since this was the constitutional measure of evidence as to each overt act submitted to the jury we do not reach the question whether [330 U.S. 631, 641] the conviction could stand on some sufficiently proven acts, if others failed in proof. 1 </s> It is urged that the conviction cannot be sustained because there is no sufficient proof of adherence to the enemy, the acts of aid and comfort being natural acts of aid for defendant's own son. Certainly that relationship is a fact for the jury to weigh along with others, and they were correctly instructed that if they found that defendants' intention was not to injure the United States but merely to aid his son 'as an individual, as distinguished from assisting him in his purpose, if such existed, of aiding the German Reich, or of injuring the United States, the defendant must be found not guilty.' The defendant can complain of no error in such a submission. It was for the jury to weigh the evidence that the acts proceeded from parental solicitude against the evidence of adherence to the German cause. It is argued that Haupt merely had [330 U.S. 631, 642] the misfortune to sire a traitor and all he did was to act as an indulgent father toward a disloyal son. In view however of the evidence of defendant's own statements that after the war he intended to return to Germany, that the United States was going to be defeated, that he would never permit his boy to join the American Army, that he would kill his son before he would send him to fight Germany, and others to the same effect, the jury apparently concluded that the son had the misfortune of being a chip off the old block-a tree inclined as the twig had been bent-metaphors which express the common sense observation that parents are as likely to influence the character of their children as are children to shape that of their parents. Such arguments are for the jury to decide. It is also urged that errors were made in admission of evidence. Some of this concerned conversations and occurrences long prior to the indictment which were admitted to prove intent. They consisted of statements showing sympathy with Germany and with Hitler and hostility to the United States. Such testimony is to be scrutinized with care to be certain the statements are not expressions of mere lawful and permissible difference of opinion with our own government or quite proper appreciation of the land of birth. But these statements were explicit and clearly were admissible on the question of intent and adherence to the enemy. Their weight was for the jury. Evidence of F.B.I. agents and of defendant's fellow prisoners as to conversations is also said to be inadmissible. The Constitution requires that 'No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' It is claimed that the statements of defendant were confessions, and as they were not made in open court were inadmissible as evidence. If there were not [330 U.S. 631, 643] the required two-witness testimony and it was sought to supply that defect by confession, we would have a different question. But having found the legal basis for the conviction laid by the testimony of two witnesses, we find nothing in the text or policy of the Constitution to preclude using out-of-court admissions or confessions. It may be doubted whether the Constitutional reference to confession in open court has application to any admission of a fact other than a complete confession to guilt of the crime. The statements of defendant did not go so far. They were admissions of specific acts and knowledge as to which, insofar as they were overt acts charged, the required two witnesses also testified. There has been no attempt to convict here on such admissions alone, or to use the admissions to supply defects in the Constitutional measure of proof. If such an attempt were made we would be faced with a novel question. But here the admissions are merely corroborative of a legal basis laid by testimony and the Constitution does not preclude using out-of-court admissions or confessions in this way. Cf. Respublica v. Roberts, 1 Dall. 39; Case of Fries, 9 Fed.Cas. pages 826, 909, No. 5,126. There are many other complaints about the conduct of the trial, such as permitting the indictment to go to the jury room, allowing the jury to have a typewritten copy of the court's charge, holding the jury together for a long time, reading the testimony of certain witnesses to the jury at its request and failing to order a special verdict. We find nothing in any of them to warrant the inference of unfairness or irregularity in the trial. It is also claimed that the prosecution made improper appeals to passion. Unfortunately it is the nature of the charge of betrayal that it easily stirs feelings, and that is one of the reasons such safeguards have been thrown around its trial. But we find no such conduct as would invalidate the conviction. [330 U.S. 631, 644] Haupt has been twice tried and twice found guilty. The law of treason makes and properly makes conviction difficult but not impossible. His acts aided an enemy of the United States toward accomplishing his mission of sabotage. The mission was frustrated but defendant did his best to make it succeed. His overt acts were proved in compliance with the hard test of the Constitution, are hardly denied, and the proof leaves no reasonable doubt of the guilt. The judgment is affirmed. AFFIRMED. Mr. Justice DOUGLAS. There is a close parallel between this case and Cramer v. United States, 325 U.S. 1 , 65 S.Ct. 918. Two witnesses saw Cramer talking with an enemy agent. So far as they knew the conversation may have been wholly innocent, as they did not overhear it. But Cramer, by his own testimony at the trial, explained what took place: he knew or had reason to believe that the agent was here on a mission for the enemy and arranged, among other things, to conceal the funds brought here to promote the project. Thus there was the most credible evidence that Cramer was guilty of 'adhering' to the enemy, giving him 'aid and comfort'. Article III, 3 of the Constitution. And the overt act which joined him with the enemy agent was proved by two witnesses. Cramer's conviction, however, was set aside because two witnesses did not testify to the treasonable character of Cramer's meeting with the enemy agent. Two witnesses saw the son enter Haupt's apartment house at night and leave in the morning. That act, without more, was an innocent as Cramer's conversation with the agent. For nothing would be more natural and normal, or more 'commonplace' (325 U.S. at page 34, 65 S.Ct. at page 934), or less suspicious, or less 'incriminating' (325 U.S. at page 35, 65 S.Ct. at page 935), than [330 U.S. 631, 645] the act of a father opening the family door to a son. That act raised, therefore, no more implication that the father was giving his son aid and comfort in a treasonable project than did the meeting of the defendant with the enemy agent in the Cramer case. But that act, wholly innocent on its face, was shown to be of a treasonable character, not by the two witnesses, but by other evidence: that Haupt was mpathetic with the Nazi cause, that he knew the nature of his son's mission to this country. Haupt's conviction is sustained, though the conversion of an innocent appearing act into a treasonable act is not made by two witnesses. The Constitution provides: 'Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.' Article III, 3. </s> As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character. The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer. The Cramer case departed from those rules when it held that 'The two- witness principle is to interdict impu- [330 U.S. 631, 646] tation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness.' 325 U.S. at page 35, 65 S.Ct. at page 935. The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into an incriminating one. </s> Mr. Justice MURPHY, dissenting. This case grows out of a singular set of circumstances that, when combined with the serious nature of the alleged crime, warrants extraordinary scrutiny. Petitioner's son was tried as a saboteur before a military tribunal, convicted and executed. See Ex parte Quirin, 317 U.S. 1 , 63 S.Ct. 1, 2. Petitioner, his wife and four others were then jointly tried for treason. All were convicted, petitioner being sentenced to death and his wife to 20 years' imprisonment. United States v. Haupt, D. C., 47 F.Supp. 832; Id., D.C., 47 F.Supp. 836. These convictions, however, were reversed upon appeal. United States v. Haupt, 7 Cir., 136 F.2d 661. Petitioner has now been retried separately for treason; again he has been found guilty, with the sentence being reduced to life imprisonment and a $ 10,000 fine. 7 Cir., 152 F.2d 771. Petitioner was charged with having committed three general types of overt acts of treason: (1) Harboring and sheltering his son; (2) assisting his son in obtaining reemployment; (3) accompanying and assisting his son in the purchase of an automobile. All of these alleged overt acts were contained in a single count of the indictment and the jury's verdict was a general one. The Court indicates that a fatal deficiency as to any of the alleged overt acts under such circumstances invalidates the conviction. Since the acts relating to the harboring and sheltering of petitioner's son did not, in my opinion, amount to overt acts of treason, I would accordingly reverse the judgment below, regardless of the sufficiency of the other acts. [330 U.S. 631, 647] The high crime of treason, as I understand it, consists of an act rendering aid and comfort to the enemy by one who adheres to the enemy's cause. Cramer v. United States, 325 U.S. 1 , 65 S.Ct. 918. The act may be one which extends material aid; or it may be one which merely lens comfort and encouragement. The act may appear to be innocent on its face, yet prove to be treasonable in nature when examined in light of its purpose and context. It does not follow, howeve , that every act that gives aid and comfort to an enemy agent constitutes an overt act of treason, even though the agent's status is known. The touch of one who aids is not Midaslike, giving a treasonable hue to every move. An act of assistance may be of the type which springs from the well of human kindness, from the natural devotion to family and friends, or from a practical application of religious tenets. Such acts are not treasonous, however else they may be described. They are not treasonous even though, in a sense, they help in the effectuation of the unlawful purpose. To rise to the status of an overt act of treason, an act of assistance must be utterly incompatible with any of the foregoing sources of action. It must be an act which is consistent only with a treasonable intention and with the accomplishment of the treasonable plan, giving due consideration to all the relevant surrounding circumstances. Thus an act of supplying a military map to a saboteur for use in the execution of his nefarious plot is an overt act of treason since it excludes all possibility of having been motivated by non- treasonable considerations. But an act of providing a meal to an enemy agent who is also one's son retains the possibility of having a non- treasonable basis even when performed in a treasonable setting; accordingly, it cannot qualify as an overt act of treason. It is true that reasonable doubts may be raised as to whether or not the prime motive for an act was treasonous. [330 U.S. 631, 648] Yet the nature of some acts is such that a non-treasonous motive cannot be completely dismissed as a possibility. An overt act of treason, however, should rest upon something more substantial than a reasonable doubt. Treason is different from ordinary crimes, possessing unique and difficult standards of proof which confine it within narrow spheres. It has such serious connotations that its substance cannot be left to conjecture. Only when the alleged overt act manifests treason beyond all reasonable doubt can we be certain that the traitor's stigma will be limited to those whose actions constitute a real threat to the safety of the nation. Tested by that standard, the conviction in the instant case cannot be sustained. Petitioner, it is said, had the misfortune to sire a traitor. That son lived with petitioner and his wife in their Chicago apartment. After a sojourn in Germany for training as a saboteur, the son returned to the Chicago apartment and began to make preparations to carry out his mission of sabotage. It is claimed that petitioner knew of his son's activities and desired to help him. For six days prior to his arrest, the son lived in petitioner's apartment; he was not secreted in any way, coming and going as he normally would have done. The indictment alleged that petitioner committed an overt act of treason by sheltering and harboring his son for those six days. Concededly, this was a natural act for a father to perform; it is consistent with parental devotion for a father to shelter his son, especially when the son ordinarily lives with the father. But the Court says that the jury might find, under appropriate instructions, that petitioner provided this shelter, not merely as an act of an indulgent father toward a disloyal son, but as an act designed to injure the United States. A saboteur must be lodged in a safe place if his mission is to be effected and the jury might well find that petitioner lodged his son for that purpose. [330 U.S. 631, 649] But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be. </s> Footnotes </s> [Footnote 1 When speaking of a general verdict of guilty in Cramer v. United States, 325 U.S. 1, 36 , 65 S.Ct. 918, 935, Note 45, we said 'Since it is not possible to identify the grounds on which Cramer was convicted, the verdict must be set aside if any of the separable acts submitted was insufficient' of course we did not hold that one overt act properly proved and submitted would not sustain a conviction if the proof of other overt acts was insufficient. One such act may prove treason, and on review the conviction would be sustained, provided the record makes clear that the jury convicted on that overt act. But where several acts are pleaded in a single count and submitted to the jury, under instructions which allow a verdict of guilty on any one or more of such acts, a reviewing court has no way of knowing that any wrongly submitted act was not the one convicted upon. If acts were pleaded in separate counts, or a special verdict were required as to each overt act of a single count, the conviction could be sustained on a single well-proved act. As the acts were here pleaded in a single count, and the jury were instructed that they could convict on any one, we would have no reverse if any act were insufficient or insufficiently proved. Cf. Stromberg v. People of State of California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A.L.R. 1484; Williams v. State of North Carolina, 317 U.S. 287, 292 , 63 S.Ct. 207, 210, 143 A.L.R. 1273 and Cramer v. United States, supra.

United States Supreme Court CHICAGO MERCANTILE EXCHANGE v. DEAKTOR(1973) No. 73-241 Argued: Decided: December 3, 1973 </s> Two suits were brought charging petitioner, the Chicago Mercantile Exchange, with, inter alia, violating the Commodity Exchange Act (CEA) and failure to enforce its own rules. The District Court refused petitioner's applications for stays of the suits to permit the Commodities Exchange Commission to determine initially whether the challenged actions comported with the CEA and petitioner's rules. The Court of Appeals affirmed. Held: The Commission, whose administrative functions appear to encompass adjudication of the charges against petitioner, should pass on those charges in the first instance. Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 . </s> Certiorari granted; 479 F.2d 529, reversed and remanded. </s> PER CURIAM. </s> The petitioner, Chicago Mercantile Exchange, was sued in two separate actions in the District Court. In one, the Phillips suit, it was alleged that the Exchange had forced sales of futures contracts in March 1970 fresh eggs at artificially depressed market prices and had thereby monopolized and restrained commerce in violation of 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1, 2, and had violated 9 (b) of the Commodity Exchange Act (CEA), as amended, 82 Stat. 33, 7 U.S.C. 13 (b), by manipulating prices of a commodity for future delivery on a contract market. The Exchange was also accused of violating 5a of the CEA, 7 U.S.C. 7a (8), for failure to enforce one of its own rules. In the second suit, the Deaktor case, the Exchange was charged with violating the CEA and its own rules as a designated contract market because it had failed [414 U.S. 113, 114] to exercise due care to halt the manipulative conduct of certain of its members who allegedly had cornered the July 1970 market in frozen pork bellies futures contracts. </s> The Exchange defended both actions on the ground that it was faithfully discharging its statutory duty of self-regulation. It asserted that its challenged acts in the Phillips case were measures taken to prevent speculation in futures contracts and as such were not in violation of the CEA. Rather, they were authorized and required by the statute and hence cannot be considered within the reach of the antitrust laws. Likewise, in the Deaktor suit, the Exchange claimed that it had taken all proper and reasonable steps to perform its statutory responsibility to prevent manipulation. </s> The Exchange further urged that because the Commodity Exchange Commission had jurisdiction to determine whether the Exchange was violating the CEA or its own rules and to impose sanctions for any such offense, both suits should be stayed to permit the Commission to determine in the first instance whether or not the actions of the Exchange under scrutiny were in discharge of its proper duties under the CEA and its regulations. The District Court refused the stay, and the Court of Appeals affirmed. Deaktor v. L. D. Schreiber & Co., 479 F.2d 529 (CA7 1973). Both courts were in error. </s> Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 (1973), held that an antitrust action against the Exchange should have been stayed to afford the Commodity Exchange Commission an opportunity to determine if the challenged conduct of the Exchange was in compliance with the statute and with Exchange rules. Because administrative adjudication of alleged violations of the CEA and the rules lay at the heart of the task assigned the Commission by Congress, we recognized that [414 U.S. 113, 115] the court, although retaining final authority to interpret the CEA and its relationship to the antitrust laws, should avail itself of the abilities of the Commission to unravel the intricate and technical facts of the commodity industry and to arrive at some judgment as to whether the Exchange had conducted itself in compliance with the law. An adjudication by the Commission that the actions of the Exchange were authorized or required by the CEA would not necessarily dispose of the question of immunity from antitrust liability. We nevertheless thought the considered view of the Commission would be of sufficient aid to the court that the action should not go forward without making reasonable efforts to invoke the jurisdiction of the Commission. Id., at 305-306. As we did in Ricci, </s> "we simply recognize that Congress has established a specialized agency that would determine either that a . . . rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regime . . . ." Id., at 307. </s> In our judgment, the Court of Appeals, as in Ricci, should have requested the District Court to stay the proceedings in the Phillips case to afford an opportunity to invoke the jurisdiction of the Commission. For very similar reasons, the Deaktor plaintiffs, who also alleged violations of the CEA and the rules of the Exchange, should be routed in the first instance to the agency whose administrative functions appear to encompass adjudication of the kind of substantive claims made against the Exchange in this case. [414 U.S. 113, 116] </s> The petition for writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion. </s> So ordered. </s> MR. JUSTICE STEWART dissents. He would affirm the judgment substantially upon the reasoning of Judge Castle's concurring opinion in the Court of Appeals. 479 F.2d 529, 535. </s> [414 U.S. 113, 117]

United States Supreme Court HOLDER v. HALL(1994) No. 91-2012 Argued: October 4, 1993Decided: June 30, 1994 </s> Bleckley County, Georgia, has always had a form of government whereby a single commissioner holds all legislative and executive authority. In 1985, the State Legislature authorized the county to adopt by referendum a multimember commission consisting of five members elected from single-member districts and a chair elected at large, but voters defeated the proposal, although they had previously approved a five-member district plan for the county school board. Respondents, black voters and the local chapter of the National Association for the Advancement of Colored People, filed this action. The District Court rejected their constitutional claim that the single-member commission was enacted or maintained with an intent to exclude or limit the political influence of the county's black community in violation of the Fourteenth and Fifteenth Amendments. The court also ruled against their claim that the commission's size violated 2 of the Voting Rights Act of 1965, finding that respondents satisfied only one of the three preconditions established in Thornburg v. Gingles, 478 U.S. 30 . The Court of Appeals reversed on the statutory claim, holding that the totality of the circumstances supported 2 liability and remanding for a formulation of a remedy, which it suggested could be modeled after the county's school board election system. </s> Held: </s> The judgment is reversed, and the case is remanded. </s> 955 F.2d 1563, reversed and remanded. </s> JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE O'CONNOR, concluded in Parts I, II-A, and III: Page II </s> 1. The size of a governing authority is not subject to a vote dilution challenge under 2. Along with determining whether the Gingles preconditions are met and whether the totality of the circumstances support a liability finding, a court in a 2 suit must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice. However, there is no objective and workable standard for choosing a reasonable benchmark where, as here, the challenge is brought to the government body's size. There is no reason why one size should be picked over another. Respondents have offered no convincing reasons why the benchmark should be a hypothetical five-member commission. That such a commission is the most common form of governing authority in the State does not bear on dilution, since a sole commissioner system has the same impact on voting strength whether it is shared by none, or by all, of Georgia's counties. That the county was authorized to expand its commission, and that it adopted a five-member school board, are likewise irrelevant considerations. At most, they indicate that the county could change the size of its governing body with minimal disruption, but the failure to do so says nothing about the effects the current system has on the county citizens' voting power. Pp. 4-7. </s> 2. The case is remanded for consideration of respondents' constitutional claim. P. 10. </s> JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, concluded in Part II-B that a voting practice subject to the preclearance requirement of 5 of the Act is not necessarily subject to a dilution challenge under 2. The sections differ in structure, purpose, and application; and, in contrast to 2 cases, a baseline for comparison under 5 exists by definition: a proposed voting practice is measured against the existing practice to determine whether retrogression would result from the proposed change. Pp. 7-10. </s> JUSTICE O'CONNOR concluded that precedent compels the conclusion that the size of a governing authority is both a "standard, practice, or procedure" under 2 and a "standard, practice, or procedure with respect to voting" under 5, but agreed that a 2 dilution challenge to a governing authority's size cannot be maintained, because there can never be an objective alternative benchmark for comparison. Pp. 1-2. </s> JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that the size of a governing body cannot be attacked under 2, because it is not a "standard, practice, or procedure" within the terms of 2. An examination of 2's text makes it clear that those terms refer only to practices that affect minority citizens' access to the ballot. Districting systems and electoral mechanisms that may affect the Page III "weight" given to a ballot duly cast and counted are simply beyond the purview of the Act. The decision in Thornburg v. Gingles, 478 U.S. 30 , which interprets 2 to reach claims of vote "dilution," should be overruled. Gingles was based upon a flawed method of statutory construction, and has produced an interpretation of 2 that is at odds with the text of the Act and that has proved unworkable in practice. Pp. 1-59. </s> KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., joined, and in all but Part II-B of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined. GINSBURG, J., filed a dissenting opinion. STEVENS, J., filed a separate opinion, in which BLACKMUN, SOUTER, and GINSBURG, JJ., joined. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE joined, and in all but Part II-B of which JUSTICE O'CONNOR joined. </s> This case presents the question whether the size of a governing authority is subject to a vote dilution challenge under 2 of the Voting Rights Act of 1965, 42 U.S.C. 1973. </s> I </s> The State of Georgia has 159 counties, one of which is Bleckley County, a rural county in central Georgia. Black persons make up nearly 20% of the eligible voting population in Bleckley County. Since its creation in 1912, the county has had a single commissioner form of government for the exercise of "county governing authority." See Ga.Code Ann. 1-3-3(7) (Supp. 1993). Under this system, the Bleckley County Commissioner performs all of the executive and legislative functions of the county government, including the levying of general and special taxes, the directing and controlling of all county property, and the settling of all claims. Ga.Code Ann. 36-5-22.1 (1993). In addition to Bleckley County, about 10 other Georgia counties use the single commissioner system; the rest have multimember </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 2] </s> commissions. </s> In 1985, the Georgia Legislature authorized Bleckley County to adopt a multimember commission consisting of five commissioners elected from single-member districts and a single chairman elected at large. 1985 Ga.Laws, p. 4406. In a referendum held in 1986, however, the electorate did not adopt the change to a multimember commission. (In a similar referendum four years earlier, county voters had approved a five-member district plan for the election of the county school board.) </s> In 1985, respondents (six black registered voters from Bleckley County and the Cochran/Bleckley County Chapter of the National Association for the Advancement of Colored People) challenged the single commissioner system in a suit filed against petitioners (Jackie Holder, the incumbent county commissioner, and Probate Judge Robert Johnson, the superintendent of elections). The complaint raised both a constitutional and a statutory claim. </s> In their constitutional claim, respondents alleged that the county's single-member commission was enacted or maintained with an intent to exclude or to limit the political influence of the county's black community in violation of the Fourteenth and Fifteenth Amendments. At the outset, the District Court made extensive findings of fact about the political history and dynamics of Bleckley County. The court found, for example, that, when the county was formed in 1912, few if any black citizens could vote. Indeed, until passage of federal civil rights laws, Bleckley County" enforced racial segregation in all aspects of local government - courthouse, jails, public housing, governmental services - and deprived its black citizens of the opportunity to participate in local government." 757 F.Supp. 1560, 1562 (MD Ga. 1991). And even today, though legal segregation no longer exists, "more black than white residents of Bleckley County continue to endure a depressed socio-economic </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 3] </s> status." Ibid. No black person has run for or been elected to the office of Bleckley County Commissioner, and the District Judge stated that, having run for public office himself, he "wouldn't run if [he] were black in Bleckley County." See 955 F.2d 1563, 1571 (CA11 1992). </s> The court rejected respondents' constitutional contention, however, concluding that respondents "ha[d] failed to provide any evidence that Bleckley County's single member county commission [wa]s the product of original or continued racial animus or discriminatory intent." 757 F.Supp., at 1571. Nor was there evidence that the system was maintained "for tenuous reasons" or that the commissioner himself was unresponsive to the "particularized needs" of the black community. Id., at 1564. There was no "slating process" to stand as a barrier to black candidates, and there was testimony from respondents that they were unaware of any racial appeals in recent elections. Id., at 1562, n. 2, 1583. </s> In their statutory claim, respondents asserted that the county's single-member commission violated 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. 1973. Under the statute, the suit contended, Bleckley County must have a county commission of sufficient size that, with single-member election districts, the county's black citizens would constitute a majority in one of the single-member districts. Applying the 2 framework established in Thornburg v. Gingles, 478 U.S. 30 (1986), the District Court found that respondents satisfied the first of the three Gingles preconditions because black voters were sufficiently numerous and compact that they could have constituted a majority in one district of a multimember commission. In particular, the District Court found that, "[i]f the county commission were increased in number to six commissioners to be elected from five single member districts, and if the districts were the same as the present school </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 4] </s> board election districts, a black majority "safe" district . . . would result. 757 F.Supp., at 1565. The court found, however, that respondents failed to satisfy the second and third Gingles preconditions - that whites vote as a bloc in a manner sufficient to defeat the black-preferred candidate, and that blacks were politically cohesive. </s> The Court of Appeals for the Eleventh Circuit reversed on the statutory claim. Relying on its decision in Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (CA11 1987), the court first held that a challenge to the single commissioner system was subject to the same analysis as that used in Gingles. Applying that analysis, the Court of Appeals agreed with the District Court that respondents had satisfied the first Gingles precondition by showing that blacks could constitute a majority of the electorate in one of five single-member districts. The court explained that it was "appropriate to consider the size and geographical compactness of the minority group within a restructured form of the challenged system when the existing structure is being challenged as dilutive." 955 F.2d, at 1569. The Court of Appeals further found that the District Court had erred in concluding that the second and third Gingles preconditions were not met. Turning to the totality of the circumstances, the court found that those circumstances supported a finding of liability under 2. The court therefore concluded that respondents had proved a violation of 2, and it remanded for formulation of a remedy, which, it suggested, "could well be modeled" after the system used to elect the Bleckley County school board. Id., at 1573-1574, and n. 20. Because of its statutory ruling, the Court of Appeals did not consider the District Court's ruling on respondents' constitutional claim. </s> We granted certiorari to review the statutory holding of the Court of Appeals. 507 U.S. ___ (1993). </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 5] </s> II </s> A </s> Section 2 of the Voting Rights Act of 1965 provides that "[n]o voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. 1973(a). In a 2 vote dilution suit, along with determining whether the Gingles preconditions are met 1 and whether the totality of the circumstances supports a finding of liability, a court must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice. See post, at 3 (O'CONNOR, J., concurring in part and concurring in judgment). As JUSTICE O'CONNOR explained in Gingles: "The phrase vote dilution itself suggests a norm with respect to which the fact of dilution may be ascertained. . . . [I]n order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it should be for minority voters to elect their preferred candidates under an acceptable system." 478 U.S., at 88 (opinion concurring in judgment) (internal quotation marks omitted). </s> In certain cases, the benchmark for comparison in a 2 dilution suit is obvious. The effect of an anti-single-shot voting rule, for instance, can be evaluated by </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 6] </s> comparing the system with that rule to the system without that rule. But where there is no objective and workable standard for choosing a reasonable benchmark by which to evaluate a challenged voting practice, it follows that the voting practice cannot be challenged as dilutive under 2. See post, at 3-7 (O'CONNOR, J., concurring in part and concurring in judgment). </s> As the facts of this case well illustrate, the search for a benchmark is quite problematic when a 2 dilution challenge is brought to the size of a government body. There is no principled reason why one size should be picked over another as the benchmark for comparison. Respondents here argue that we should compare Bleckley County's sole commissioner system to a hypothetical five-member commission in order to determine whether the current system is dilutive. Respondents and the United States as amicus curiae give three reasons why the single commissioner structure should be compared to a five-member commission (instead of, say, a 3-, 10-, or 15-member body): (1) because the five-member commission is a common form of governing authority in the State; (2) because the state legislature had authorized Bleckley County to adopt a five-member commission if it so chose (it did not); and (3) because the county had moved from a single superintendent of education to a school board with five members elected from single-member districts. See Brief for United States as Amicus Curiae 17-18. </s> These referents do not bear upon dilution. It does not matter, for instance, how popular the single-member commission system is in Georgia in determining whether it dilutes the vote of a minority racial group in Bleckley County. That the single-member commission is uncommon in the State of Georgia, or that a five-member commission is quite common, tells us nothing about its effects on a minority group's voting strength. The sole commissioner system has the same impact regardless of </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 7] </s> whether it is shared by none, or by all, of the other counties in Georgia. It makes little sense to say (as do respondents and the United States) that the sole commissioner system should be subject to a dilution challenge if it is rare - but immune if it is common. </s> That Bleckley County was authorized by the State to expand its commission, and that it adopted a five-member school board, are likewise irrelevant considerations in the dilution inquiry. At most, those facts indicate that Bleckley County could change the size of its commission with minimal disruption. But the county's failure to do so says nothing about the effects the sole commissioner system has on the voting power of Bleckley County's citizens. Surely a minority group's voting strength would be no more or less diluted had the State not authorized the county to alter the size of its commission, or had the county not enlarged its school board. One gets the sense that respondents and the United States have chosen a benchmark for the sake of having a benchmark. But it is one thing to say that a benchmark can be found, quite another to give a convincing reason for finding it in the first place. </s> B </s> To bolster their argument, respondents point out that our 5 cases may be interpreted to indicate that covered jurisdictions may not change the size of their government bodies without obtaining preclearance from the Attorney General or the federal courts. Brief for Respondents 29; see Presley v. Etowah County Comm'n, 502 U.S. ___, ___ - ___ (1992) (slip op., at 9-10); Lockhart v. United States, 460 U.S. 125, 131 -132 (1983); City of Rome v. United States, 446 U.S. 156, 161 (1980). Respondents contend that these 5 cases, together with the similarity in language between 2 and 5 of the Act, compel the conclusion that the size of a government body must be subject to a dilution challenge under 2. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 8] </s> It is true that, in Chisom v. Roemer, 501 U.S. 380, 401 -402 (1991), we said that the coverage of 2 and 5 is presumed to be the same (at least if differential coverage would be anomalous). We did not adopt a conclusive rule to that effect, however, and we do not think that the fact that a change in a voting practice must be precleared under 5 necessarily means that the voting practice is subject to challenge in a dilution suit under 2. </s> To be sure, if the structure and purpose of 2 mirrored that of 5, then the case for interpreting 2 and 5 to have the same application in all cases would be convincing. But the two sections differ in structure, purpose, and application. 2 Section 5 applies only in certain jurisdictions specified by Congress and "only to proposed changes in voting procedures." Beer v. United States, 425 U.S. 130, 138 (1976); see 42 U.S.C. 1973b(b) (specifying jurisdictions where 5 applies). In those covered jurisdictions, a proposed change in a voting practice must be approved in advance by the Attorney General or the federal courts. 1973c. The purpose of this requirement "has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 9] </s> minorities with respect to their effective exercise of the electoral franchise." 425 U.S., at 141 . Under 5, then, the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change. See id., at 141. The baseline for comparison is present by definition; it is the existing status. While there may be difficulty in determining whether a proposed change would cause retrogression, there is little difficulty in discerning the two voting practices to compare to determine whether retrogression would occur. See 28 CFR 51.54(b) (1993). </s> Retrogression is not the inquiry in 2 dilution cases. 42 U.S.C. 1973(a) (whether voting practice "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color"); S.Rep. No. 97-417, p. 68, n. 224 (1982) ("Plaintiffs could not establish a Section 2 violation merely by showing that a challenged reapportionment or annexation, for example, involved a retrogressive effect on the political strength of a minority group"). Unlike in 5 cases, therefore, a benchmark does not exist by definition in 2 dilution cases. And as explained above, with some voting practices, there in fact may be no appropriate benchmark to determine if an existing voting practice is dilutive under 2. For that reason, a voting practice that is subject to the preclearance requirements of 5 is not necessarily subject to a dilution challenge under 2. </s> This conclusion is quite unremarkable. For example, in Perkins v. Matthews, 400 U.S. 379, 388 (1971), we held that a town's annexation of land was covered under 5. Notwithstanding that holding, we think it quite improbable to suggest that a 2 dilution challenge could be brought to a town's existing political boundaries (in an attempt to force it to annex surrounding land) by arguing that the current boundaries dilute a racial group's voting strength in comparison to the proposed </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 10] </s> new boundaries. Likewise, in McCain v. Lybrand, 465 U.S. 236 (1984), we indicated that a change from an appointive to an elected office was covered under 5. Here, again, we doubt Congress contemplated that a racial group could bring a 2 dilution challenge to an appointive office (in an attempt to force a change to an elective office) by arguing that the appointive office diluted its voting strength in comparison to the proposed elective office. We think these examples serve to show that a voting practice is not necessarily subject to a dilution challenge under 2 even when a change in that voting practice would be subject to the preclearance requirements of 5. </s> III </s> With respect to challenges to the size of a governing authority, respondents fail to explain where the search for reasonable alternative benchmarks should begin and end, and they provide no acceptable principles for deciding future cases. The wide range of possibilities makes the choice "inherently standardless," post, at 5 (O'CONNOR, J., concurring in part and concurring in judgment), and we therefore conclude that a plaintiff cannot maintain a 2 challenge to the size of a government body, such as the Bleckley County Commission. The judgment of the Court of Appeals is reversed, and the case is remanded for consideration of respondents' constitutional claim. </s> It is so ordered. </s> Footnotes [Footnote 1 Gingles requires a showing that "the minority group . . . is sufficiently large and geographically compact to constitute a majority in a single-member district," 478 U.S., at 50 , that the minority group is politically cohesive, and that the majority group "votes sufficiently as a bloc to enable it - in the absence of special circumstances . . . - usually to defeat the minority's preferred candidate." Id., at 51. </s> [Footnote 2 Section 2 provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. 42 U.S.C. 1973(a). </s> Section 5 requires preclearance approval by a court or by the Attorney General "[w]henever a [covered] State or political subdivision . . . shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . different from that [previously] in force or effect," so as to ensure that it "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. . . ." 42 U.S.C. 1973c. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE O'CONNOR, concurring in part and concurring in the judgment. </s> I agree with JUSTICES KENNEDY and THOMAS that a plaintiff cannot maintain a 2 vote dilution challenge to the size of a governing authority, though I reach that conclusion by a somewhat different rationale. JUSTICE THOMAS rejects the notion that 2 covers any dilution challenges, and would hold that 2 is limited to "state enactments that regulate citizens' access to the ballot or the processes for counting a ballot." Post, at 59. As JUSTICE STEVENS points out, however, stare decisis concerns weigh heavily here. Post, at 7-10 (opinion of STEVENS, J.); see also Thornburg v. Gingles, 478 U.S. 30, 84 (1986) (O'CONNOR, J., concurring in judgment) ("We know that Congress intended to allow vote dilution claims to be brought under 2"); id., at 87 ("I agree with the Court that proof of vote dilution can establish a violation of 2"). These concerns require me to reject Justice THOMAS' suggestion that we overhaul our established reading of 2. </s> I also agree with JUSTICE BLACKMUN, see post, at 1-6, that our precedents compel the conclusion that the size of the Bleckley County Commission is both a "standard, practice, or procedure" under 2 and a "standard, practice, or procedure with respect to voting" under 5. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 2] </s> See, e.g., Presley v. Etowah County Comm'n, 502 U.S. ___, ___ (1992) (slip op., at 11) (change in size is a change in a "standard, practice, or procedure" because the change "increase[s] or diminish[es] the number of officials for whom the electorate may vote"); Lockhart v. United States, 460 U.S. 125, 131 -132 (1983) (change from three-member commission to five-member commission is subject to 5 preclearance); City of Rome v. United States, 446 U.S. 156, 160 -161 (1980) (it "is not disputed" that an expansion in the size of a Board of Education is subject to 5 preclearance); Bunton v. Patterson, decided with Allen v. State Board of Elections, 393 U.S. 544, 569 -571 (1969) (change from elected to appointed office is subject to 5 preclearance); Allen, supra, at 566-567 ( 2 should be given "the broadest possible scope"). </s> As JUSTICES KENNEDY and BLACKMUN both recognize, in these cases, we have consistently said that a change in size is a "standard, practice, or procedure with respect to voting" that is subject to 5 preclearance. See ante, at 7 (opinion of KENNEDY, J.); post, at 2-4 (BLACKMUN, J., dissenting). And though our cases involving size have concerned 5, I do not think it possible to read the terms of 2 more narrowly than the terms of 5. Section 2 covers any "standard, practice, or procedure," while 5 covers any "standard, practice, or procedure with respect to voting." As a textual matter, I cannot see how a practice can be a "standard, practice, or procedure with respect to voting," yet not be a "standard, practice, or procedure." Indeed, the similarity in language led to our conclusion in Chisom v. Roemer, 501 U.S. 380, 401 -402 (1991), that, at least for determining threshold coverage, 2 and 5 have parallel scope. </s> But determining the threshold scope of coverage does not end the inquiry, at least so far as 2 dilution challenges are concerned. As JUSTICES KENNEDY and BLACKMUN agree, the fact that the size of a governing </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 3] </s> authority is a "standard, practice, or procedure" does not answer the question whether respondents may maintain a 2 vote dilution challenge. See ante, at 5 (opinion of KENNEDY, J.); post, at 6 (BLACKMUN, J., dissenting). Section 2 vote dilution plaintiffs must establish that the challenged practice is dilutive. In order for an electoral system to dilute a minority group's voting power, there must be an alternative system that would provide greater electoral opportunity to minority voters. "Put simply, in order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it "should" be for minority voters to elect their preferred candidates under an acceptable system." Gingles, 478 U.S., at 88 (O'CONNOR, J., concurring in judgment). As we have said, "[u]nless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice." Id., at 50, n. 17 (emphasis in original); see also id., at 99 (O'CONNOR, J., concurring in judgment) ("the relative lack of minority electoral success under a challenged plan, when compared with the success that would be predicted under the measure of undiluted minority voting strength the court is employing, can constitute powerful evidence of vote dilution") (emphasis added). </s> Accordingly, to determine whether voters possess the potential to elect representatives of choice in the absence of the challenged structure, courts must choose an objectively reasonable alternative practice as a benchmark for the dilution comparison. On this, there is general agreement. See ante, at 5 (opinion of KENNEDY, J.) ("a court must find a reasonable alternative practice as a benchmark against which to measure the existing voting practice"); post, at 6 (BLACKMUN, J., dissenting) ("the allegedly dilutive mechanism must be measured </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 4] </s> against the benchmark of an alternative structure or practice that is reasonable and workable under the facts of the specific case"). We require preclearance of changes in size under 5, because, in a 5 case, the question of an alternative benchmark never arises - the benchmark is simply the former practice employed by the jurisdiction seeking approval of a change. See ante, at 8 (opinion of KENNEDY, J.). </s> But 2 dilution challenges raise more difficult questions. This case presents the question whether, in a 2 dilution challenge to size, there can ever be an objective alternative benchmark for comparison. And I agree with JUSTICE KENNEDY that there cannot be. As JUSTICE KENNEDY points out, ante, at 5, the alternative benchmark is often self-evident. In a challenge to a multimember at-large system, for example, a court may compare it to a system of multiple single-member districts. See Gingles, supra, at 38, 50; Davidson, Minority Vote Dilution: An Overview, in Minority Vote Dilution 5 (C. Davidson ed. 1984). Similarly, a court may assess the dilutive effect of majority vote requirements, numbered posts, staggered terms, residency requirements, or anti-single-shot rules by comparing the election results under a system with the challenged practice to the results under a system without the challenged practice. Cf. City of Rome, supra, at 183-185; U.S. Comm'n on Civil Rights, The Voting Rights Act: Ten Years After, pp. 206-208 (1975). Note, Application of Section 2 of the Voting Rights Act to Runoff Primary Election Laws, 91 Colum.L.Rev. 1127, 1148 (1991). Though there may be disagreements about the precise appropriate alternative practice in these cases, see Gingles, supra, at 88-89 (O'CONNOR, J., concurring in judgment), there are at least some objectively determinable constraints on the dilution inquiry. </s> This is not so with 2 dilution challenges to size, however. In a dilution challenge to the size of a </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 5] </s> governing authority, choosing the alternative for comparison - a hypothetical larger (or smaller) governing authority - is extremely problematic. See ante, at 6-7 (opinion of KENNEDY, J.). The wide range of possibilities makes the choice inherently standardless. Here, for example, respondents argued that the single-member commission structure was dilutive in comparison to a five-member structure, in which African-Americans would probably have been able to elect one representative of their choice. Some groups, however, will not be able to constitute a majority in one of five districts. Once a court accepts respondents' reasoning, it will have to allow a plaintiff group insufficiently large or geographically compact to form a majority in one of five districts to argue that the jurisdiction's failure to establish a 10-, 15-, or 25-commissioner structure is dilutive. See, e. g., Romero v. Pomona, 883 F.2d 1418, 1425, n. 10 (CA9 1989); Heath, Managing the Political Thicket: Developing Objective Standards in Voting Rights Litigation, 21 Stetson L.Rev. 819, 827 (1992) ("[O]nce one departs from the current number of districts or other objective standard, the test loses its validity as a threshold standard"). </s> Respondents argue that this concern with arbitrary and standardless intrusions into the size of local governing authority is overstated. Respondents' principal support for this conclusion is that a five-member commission is the most common size for Georgia. But a five-member commission is not the only common size in Georgia: 22 Georgia counties have three-member commissions (and one county has an 11-member commission). Moreover, there is no good reason why the search for benchmarks should be limited to Georgia. Expanding the search nationwide produces many 20-person county commissions in Tennessee, and 40-member commissions in Wisconsin. DeSantis, County Government: A Century of Change, in The </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 6] </s> Municipal Yearbook 1989, pp. 80, 83. In sum, respondents do not explain how common an alternative practice must be before it can be a reliable alternative benchmark for the dilution comparison, nor do they explain where the search for alternative benchmarks should begin and end. </s> Respondents' failure to provide any meaningful principles for deciding future cases demonstrates the difficulty with allowing dilution challenges to the size of a governing authority. Under respondents' open-ended test, a wide range of state governmental bodies may be subject to a dilution challenge. Within each State there are many forms of government, including county commissions that range dramatically in size. For example, the majority of county commissions in New Jersey have seven members, but three counties have smaller commissions and one has a larger commission. DeSantis, Municipal Yearbook 1989, at 76. Similarly, in South Carolina, the norm is a seven-member commission, but a number of counties deviate. Id., at 79. In Tennessee, the average size for a county commission is 19 members, but one county has as few as 9 and another has as many as 40. Id., at 80. And in Wisconsin, the average size is 27 members, but the commission sizes range from 7 to 46. Id., at 83. </s> Nor are deviations from the norm limited to counties. Statewide governing authorities also range dramatically in size, and often do not correlate to the size of the State. For example, Texas has only 31 members in its State Senate, while tiny Rhode Island has 50. Council of State Governments, State Elective Officials and the Legislatures 1993-94, p. vi. The Texas Senate is smaller than the national average, and the Rhode Island Senate is larger. Similarly, California has an unusually small 80-person Assembly, while New Hampshire has a 400-person House. Ibid. </s> The discrepancies in size among state and local </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 7] </s> governing authorities reinforce my concern that the limiting principle offered by respondents will in practice limit very little. Though respondents purport to present Bleckley County as unique, it is not. County commissions throughout New Jersey, South Carolina, Tennessee, and Wisconsin, and the State Legislatures of Texas, Rhode Island, California, and New Hampshire are ripe for a dilution challenge under respondents' theory, since they do not fit the norm for their State. Moreover, though my examples are some of the more extreme ones, they are not alone. In these cases, and perhaps in many more, the potential reach of allowing dilution challenges to size will not be meaningfully circumscribed by the open-ended requirement that the alternative benchmark be "reasonable and workable." Post, at 6 (BLACKMUN, J., dissenting). </s> For these reasons, I concur in the conclusion that respondents' dilution challenge to the size of the Bleckley County Commission cannot be maintained under 2 of the Voting Rights Act, and I join Parts I, II-A, and III of JUSTICE KENNEDY's opinion. Because the Court appropriately reverses the judgment below and remands for consideration of respondents' constitutional claim of intentional discrimination, I also concur in the judgment. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment. </s> We are asked in this case to determine whether the size of a local governing body is subject to challenge under 2 of the Voting Rights Act as a "dilutive" practice. While I agree with JUSTICES KENNEDY and O'CONNOR that the size of a governing body cannot be attacked under 2, I do not share their reasons for reaching that conclusion. JUSTICE KENNEDY persuasively demonstrates that there is no principled method for determining a benchmark against which the size of a governing body might be compared to determine whether it dilutes a group's voting power. Both he and JUSTICE O'CONNOR rely on that consideration to conclude that size cannot be challenged under 2 of the Act. See ante, at 5-7, 10 (opinion of KENNEDY, J.); ante, at 4-7 (O'CONNOR, J., concurring in part and concurring in judgment). </s> While the practical concerns JUSTICES KENNEDY and O'CONNOR point out can inform a proper construction of the Act, I would explicitly anchor analysis in this case in the statutory text. Only a "voting qualification or prerequisite to voting or standard, practice, or procedure" can be challenged under 2. I would hold that the size of a governing body is not a "standard, practice, or </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 2] </s> procedure" within the terms of the Act. In my view, however, the only principle limiting the scope of the terms "standard, practice, or procedure" that can be derived from the text of the Act would exclude not only the challenge to size advanced today, but also challenges to allegedly dilutive election methods that we have considered within the scope of the Act in the past. </s> I believe that a systematic reassessment of our interpretation of 2 is required in this case. The broad reach we have given the section might suggest that the size of a governing body, like an election method that has the potential for diluting the vote of a minority group, should come within the terms of the Act. But the gloss we have placed on the words "standard, practice, or procedure" in cases alleging dilution is at odds with the terms of the statute and has proved utterly unworkable in practice. A review of the current state of our cases shows that, by construing the Act to cover potentially dilutive electoral mechanisms, we have immersed the federal courts in a hopeless project of weighing questions of political theory - questions judges must confront to establish a benchmark concept of an "undiluted" vote. Worse, in pursuing the ideal measure of voting strength, we have devised a remedial mechanism that encourages federal courts to segregate voters into racially designated districts to ensure minority electoral success. In doing so, we have collaborated in what may aptly be termed the racial "balkaniz[ation]" of the Nation. Shaw v. Reno, 509 U.S. ___, ___ (1993) (slip op., at 26). </s> I can no longer adhere to a reading of the Act that does not comport with the terms of the statute and that has produced such a disastrous misadventure in judicial policymaking. I would hold that the size of a government body is not a "standard, practice, or procedure" because, properly understood, those terms reach only state enactments that limit citizens' access to the ballot. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 3] </s> I </s> If one surveys the history of the Voting Rights Act, 42 U.S.C. 1973 et seq., one can only be struck by the sea change that has occurred in the application and enforcement of the Act since it was passed in 1965. The statute was originally perceived as a remedial provision directed specifically at eradicating discriminatory practices that restricted blacks' ability to register and vote in the segregated South. Now, the Act has grown into something entirely different. In construing the Act to cover claims of vote dilution, we have converted the Act into a device for regulating, rationing, and apportioning political power among racial and ethnic groups. In the process, we have read the Act essentially as a grant of authority to the federal judiciary to develop theories on basic principles of representative government, for it is only a resort to political theory that can enable a court to determine which electoral systems provide the "fairest" levels of representation or the most "effective" or "undiluted" votes to minorities. </s> Before I turn to an analysis of the text of 2 to explain why, in my view, the terms of the statute do not authorize the project the we have undertaken in the name of the Act, I intend first simply to describe the development of the basic contours of vote dilution actions under the Voting Rights Act. 1 An examination of the current state of our decisions should make </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 4] </s> obvious a simple fact that for far too long has gone unmentioned: vote dilution cases have required the federal courts to make decisions based on highly political judgments - judgments that courts are inherently ill-equipped to make. A clear understanding of the destructive assumptions that have developed to guide vote dilution decisions and the role we have given the federal courts in redrawing the political landscape of the Nation should make clear the pressing need for us to reassess our interpretation of the Act. </s> A </s> As it was enforced in the years immediately following its enactment, the Voting Rights Act of 1965, Pub.L. 89-110, 79 Stat. 437, was perceived primarily as legislation directed at eliminating literacy tests and similar devices that had been used to prevent black voter registration in the segregated South. See A. Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights 17-27 (1987) (hereinafter Thernstrom). See also Guinier, The Representation of Minority Interests: The Question of Single-Member Districts, 14 Cardozo L.Rev. 1135, 1151 (1993) (referring to actions securing access to the ballot as the "first generation" of Voting Rights Act claims). 2 This focus in enforcement flowed, no doubt, from the emphasis on access to the ballot apparent in the central provision of the Act, 4, which used a mathematical formula based on voter registration and turnout in 1964 to define certain "covered" jurisdictions in which the use of literacy tests was immediately suspended. Pub.L. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 5] </s> 89-110, 4, 79 Stat. 438. Section 6 of the Act reflected the same concern for registration as it provided that federal examiners could be dispatched to covered jurisdictions whenever the Attorney General deemed it necessary to supervise the registration of black voters. 1973d. And to prevent evasion of the requirements of 4, 5 required that covered jurisdictions obtain "preclearance" from the Department of Justice before altering any "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." 1973c. </s> The Act was immediately and notably successful in removing barriers to registration and ensuring access to the ballot. For example, in Mississippi, black registration levels skyrocketed from 6.7% to 59.8% in a mere two years; in Alabama, the increase was from 19.3% to 51.6% in the same time period. See Thernstrom 18. By the end of 1967, black voter registration had reached at least 50% in every covered State. See B. Grofman, L. Handley, & R. Niemi, Minority Representation and the Quest for Voting Equality 22 (1992). </s> The Court's decision in Allen v. State Bd. of Elections, 393 U.S. 544 (1969), however, marked a fundamental shift in the focal point of the Act. In an opinion dealing with four companion cases, the Allen Court determined that the Act should be given "the broadest possible scope." Id., at 567. Thus, in Fairley v. Patterson, the Court decided that a covered jurisdiction's switch from a districting system to an at-large system for election of county supervisors was a "standard, practice, or procedure with respect to voting," subject to preclearance under 5. Id., at 569. Stating that the Act "was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race," id., at 565, the Court reasoned that 5's preclearance provisions should apply, not only to changes in electoral laws that pertain to </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 6] </s> registration and access to the ballot, but to provisions that might "dilute" the force of minority votes that were duly cast and counted. See id., at 569. The decision in Allen thus ensured that the terms "standard, practice, or procedure" would extend to encompass a wide array of electoral practices or voting systems that might be challenged for reducing the potential impact of minority votes. </s> As a consequence, Allen also ensured that courts would be required to confront a number of complex and essentially political questions in assessing claims of vote dilution under the Voting Rights Act. The central difficulty in any vote dilution case, of course, is determining a point of comparison against which dilution can be measured. As Justice Frankfurter observed several years before Allen, "[t]alk of "debasement" or "dilution" is circular talk. One cannot speak of "debasement" or "dilution" of the value of a vote until there is first defined a standard of reference as to what a vote should be worth." Baker v. Carr, 369 U.S. 186, 300 (1962) (Frankfurter, J., dissenting). See also Thornburg v. Gingles, 478 U.S. 30, 88 (1986) (O'CONNOR, J., concurring in judgment) ("[I]n order to decide whether an electoral system has made it harder for minority voters to elect the candidates they prefer, a court must have an idea in mind of how hard it `should' be for minority voters to elect their preferred candidates under an acceptable system"). But in setting the benchmark of what "undiluted" or fully "effective" voting strength should be, a court must necessarily make some judgments based purely on an assessment of principles of political theory. As Justice Harlan pointed out in his dissent in Allen, the Voting Rights Act supplies no rule for a court to rely upon in deciding, for example, whether a multimember at-large system of election is to be preferred to a single-member district system; that is, whether one provides a more "effective" vote than </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 7] </s> another. "Under one system, Negroes have some influence in the election of all officers; under the other, minority groups have more influence in the selection of fewer officers." Allen, supra, at 586 (opinion concurring in part and dissenting in part). The choice is inherently a political one, and depends upon the selection of a theory for defining the fully "effective" vote - at bottom, a theory for defining effective participation in representative government. In short, what a court is actually asked to do in a vote dilution case is "to choose among competing bases of representation - ultimately, really, among competing theories of political philosophy." Baker, supra, at 300 (Frankfurter, J., dissenting). </s> Perhaps the most prominent feature of the philosophy that has emerged in vote dilution decisions since Allen has been the Court's preference for single-member districting schemes, both as a benchmark for measuring undiluted minority voting strength and as a remedial mechanism for guaranteeing minorities undiluted voting power. See, e.g., Growe v. Emison, 507 U.S. ___, ___ (1993) (slip op., at 14); Gingles, supra, at 50, n. 17 (declaring that the "single-member district is generally the appropriate standard against which to measure minority group potential to elect"); Mobile v. Bolden, 446 U.S. 55, 66 , n. 12 (1980) (plurality opinion) (noting that single-member districts should be preferred in court-ordered remedial schemes); Connor v. Finch, 431 U.S. 407, 415 (1977) (same). Indeed, commentators surveying the history of voting rights litigation have concluded that it has been the objective of voting rights plaintiffs to use the Act to attack multimember districting schemes and to replace them with single-member districting systems drawn with majority-minority districts to ensure minority control of seats. See Guinier, 14 Cardozo L.Rev., at 1151; Guinier 49-54; Thernstrom 193. </s> It should be apparent, however, that there is no </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 8] </s> principle inherent in our constitutional system, or even in the history of the Nation's electoral practices, that makes single-member districts the "proper" mechanism for electing representatives to governmental bodies or for giving "undiluted" effect to the votes of a numerical minority. On the contrary, from the earliest days of the Republic, multimember districts were a common feature of our political systems. The Framers left unanswered in the Constitution the question whether congressional delegations from the several States should be elected on a general ticket from each State as a whole or under a districting scheme and left that matter to be resolved by the States or by Congress. See U.S. Const., Art. I, 4, cl. 1. It was not until 1842 that Congress determined that Representatives should be elected from single-member districts in the States. See Act of June 25, 1842, ch. 47, 5 Stat. 491. 3 Single-member districting was no more the rule in the States themselves, for the Constitutions of most of the 13 original States provided that representatives in the state legislatures were to be elected from multimember districts. 4 Today, although they have come under increasing attack under the Voting Rights Act, multimember district systems continue to be a feature on the American political landscape, especially in municipal governments. See The Municipal Yearbook 14 (table) (1988) (over 60% of American cities use at-large election systems for their governing bodies). </s> The obvious advantage the Court has perceived in single-member districts, of course, is their tendency to </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 9] </s> enhance the ability of any numerical minority in the electorate to gain control of seats in a representative body. See Gingles, 478 U.S., at 50 -51. But in choosing single-member districting as a benchmark electoral plan on that basis the Court has made a political decision and, indeed, a decision that itself depends on a prior political choice made in answer to Justice Harlan's question in Allen. Justice Harlan asked whether a group's votes should be considered to be more "effective" when they provide influence over a greater number of seats, or control over a lesser number of seats. See 393 U.S., at 586 . In answering that query, the Court has determined that the purpose of the vote - or of the fully "effective" vote - is controlling seats. In other words, in an effort to develop standards for assessing claims of dilution, the Court has adopted the view that members of any numerically significant minority are denied a fully effective use of the franchise unless they are able to control seats in an elected body. 5 Under this theory, votes that do not control a representative are essentially wasted; those who cast them go unrepresented and are just as surely disenfranchised as if they had been barred from registering. Cf. id., at 569 (equating denial of the ability to elect candidates with denial of the vote). Such conclusions, of course, depend upon a certain theory of the "effective" vote, a theory that is not inherent in the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 10] </s> concept of representative democracy itself. 6 </s> In fact, it should be clear that the assumptions that have guided the Court reflect only one possible understanding of effective exercise of the franchise, an understanding based on the view that voters are "represented" only when they choose a delegate who will mirror their views in the legislative halls. See generally H. Pitkin, The Concept of Representation 60-91 (1967). 7 But it is certainly possible to construct a theory of effective political participation that would accord greater importance to voters' ability to influence, rather than control, elections. And especially in a two-party system such as ours, the influence of a potential "swing" group of voters composing 10%-20% of the electorate in a given district can be considerable. 8 Even such a focus on </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 11] </s> practical influence, however, is not a necessary component of the definition of the "effective" vote. Some conceptions of representative government may primarily emphasize the formal value of the vote as a mechanism for participation in the electoral process, whether it results in control of a seat or not. Cf. id., at 14-59. 9 Under such a theory, minorities unable to control elected posts would not be considered essentially without a vote; rather, a vote duly cast and counted would be deemed just as "effective" as any other. If a minority group is unable to control seats, that result may plausibly be attributed to the inescapable fact that, in a majoritarian system, numerical minorities lose elections. 10 </s> In short, there are undoubtedly an infinite number of theories of effective suffrage, representation, and the proper apportionment of political power in a representative democracy that could be drawn upon to answer the questions posed in Allen. See generally Pitkin, supra. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 12] </s> I do not pretend to have provided the most sophisticated account of the various possibilities; but such matters of political theory are beyond the ordinary sphere of federal judges. And that is precisely the point. The matters the Court has set out to resolve in vote dilution cases are questions of political philosophy, not questions of law. 11 As such, they are not readily subjected to any judicially manageable standards that can guide courts in attempting to select between competing theories. </s> But the political choices the Court has had to make do not end with the determination that the primary purpose of the "effective" vote is controlling seats or with the selection of single-member districting as the mechanism for providing that control. In one sense, these were not even the most critical decisions to be made in devising standards for assessing claims of dilution, for, in itself, the selection of single-member districting as a benchmark election plan will tell a judge little about the number of minority districts to create. Single-member districting tells a court "how" members of a minority are to control seats, but not "how many" seats they should be allowed to control. </s> But "how many" is the critical issue. Once one accepts the proposition that the effectiveness of votes is measured in terms of the control of seats, the core of any vote dilution claim is an assertion that the group in question is unable to control the "proper" number of </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 13] </s> seats - that is, the number of seats that the minority's percentage of the population would enable it to control in the benchmark "fair" system. The claim is inherently based on ratios between the numbers of the minority in the population and the numbers of seats controlled. As JUSTICE O'CONNOR has noted, "any theory of vote dilution must necessarily rely to some extent on a measure of minority voting strength that makes some reference to the proportion between the minority group and the electorate at large." Gingles, 478 U.S., at 84 (opinion concurring in judgment). As a result, only a mathematical calculation can answer the fundamental question posed by a claim of vote dilution. And once again, in selecting the proportion that will be used to define the undiluted strength of a minority - the ratio that will provide the principle for decision in a vote dilution case - a court must make a political choice. </s> The ratio for which this Court has opted, and thus the mathematical principle driving the results in our cases, is undoubtedly direct proportionality. Indeed, four Members of the Court candidly recognized in Gingles that the Court had adopted a rule of roughly proportional representation at least to the extent proportionality was possible given the geographic dispersion of minority populations. See id., at 85, 91, 98-99 (O'CONNOR, J., concurring in judgment). While, in itself, that choice may strike us intuitively as the fairest or most just rule to apply, opting for proportionality is still a political choice, not a result required by any principle of law. </s> B </s> The dabbling in political theory that dilution cases have prompted, however, is hardly the worst aspect of our vote dilution jurisprudence. Far more pernicious has been the Court's willingness to accept the one underlying premise that must inform every minority vote dilution claim: the assumption that the group asserting </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 14] </s> dilution is not merely a racial or ethnic group, but a group having distinct political interests as well. Of necessity, in resolving vote dilution actions, we have given credence to the view that race defines political interest. We have acted on the implicit assumption that members of racial and ethnic groups must all think alike on important matters of public policy, and must have their own "minority preferred" representatives holding seats in elected bodies if they are to be considered represented at all. </s> It is true that, in Gingles, we stated that whether a racial group is "politically cohesive" may not be assumed, but rather must be proved in each case. See 478 U.S., at 51 , 56. See also Growe, 507 U.S., at ___ (slip op., at 14-15). But the standards we have employed for determining political cohesion have proved so insubstantial that this "precondition" does not present much of a barrier to the assertion of vote dilution claims on behalf of any racial group. 12 Moreover, it provides no test - indeed, it is not designed to provide a test - of whether race itself determines a distinctive political community of interest. According to the rule adopted in Gingles, plaintiffs must show simply that members of a racial group tend to prefer the same candidates. See 478 U.S., at 61 -67 (opinion of BRENNAN, J.). There is no set standard defining how strong the correlation must be, and an inquiry into the cause for the correlation (to determine, for example, whether it might be the product of similar socioeconomic interests rather than some other factor related to race) is unnecessary. Ibid. See also </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 15] </s> id., at 100 (O'CONNOR, J., concurring in judgment). 13 Thus, whenever similarities in political preferences along racial lines exist, we proclaim that the cause of the correlation is irrelevant, but we effectively rely on the fact of the correlation to assume that racial groups have unique political interests. </s> As a result, Gingles' requirement of proof of political cohesiveness, as practically applied, has proved little different from a working assumption that racial groups can be conceived of largely as political interest groups. And operating under that assumption, we have assigned federal courts the task of ensuring that minorities are assured their "just" share of seats in elected bodies throughout the Nation. </s> To achieve that result through the currently fashionable mechanism of drawing majority-minority single-member districts, we have embarked upon what has been aptly characterized as a process of "creating racially `safe boroughs.'" United States v. Dallas County Comm'n, 850 F.2d 1433, 1444 (CA11 1988) (Hill, J., concurring specially), cert. denied, 490 U.S. 1030 (1989). We have involved the federal courts, and indeed the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 16] </s> Nation, in the enterprise of systematically dividing the country into electoral districts along racial lines - an enterprise of segregating the races into political homelands that amounts, in truth, to nothing short of a system of "political apartheid." Shaw, 509 U.S., at ___ (slip op., at 16). See also id., at ___ (slip op., at 26) (noting that racial gerrymandering "may balkanize us into competing racial factions"). Blacks are drawn into "black districts" and given "black representatives"; Hispanics are drawn into Hispanic districts and given "Hispanic representatives"; and so on. Worse still, it is not only the courts that have taken up this project. In response to judicial decisions and the promptings of the Justice Department, the States themselves, in an attempt to avoid costly and disruptive Voting Rights Act litigation, have begun to gerrymander electoral districts according to race. That practice now promises to embroil the courts in a lengthy process of attempting to undo, or at least to minimize, the damage wrought by the system we created. See, e.g., Shaw, supra; Hays v. Louisiana, 839 F.Supp. 1188 (WD La. 1993), appeal pending, No. 93-1539. </s> The assumptions upon which our vote dilution decisions have been based should be repugnant to any nation that strives for the ideal of a color-blind Constitution. "The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on." Wright v. Rockefeller, 376 U.S. 52, 66 (1964) (Douglas, J., dissenting). Despite Justice Douglas' warning sounded 30 years ago, our voting rights decisions are rapidly progressing towards a system that is indistinguishable in principle from a scheme under which members of different racial groups are divided into separate electoral registers and allocated a proportion of political power on the basis of race. Cf. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 17] </s> id., at 63-66. Under our jurisprudence, rather than requiring registration on racial rolls and dividing power purely on a population basis, we have simply resorted to the somewhat less precise expedient of drawing geographic district lines to capture minority populations and to ensure the existence of the "appropriate" number of "safe minority seats." </s> That distinction in the practical implementation of the concept, of course, is immaterial. 14 The basic premises underlying our system of safe minority districts and those behind the racial register are the same: that members of the racial group must think alike, and that their interests are so distinct that the group must be provided a separate body of representatives in the legislature to voice its unique point of view. Such a "system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant." Id., at 66. Justice Douglas correctly predicted the results of state sponsorship of such a theory of representation: "When racial or religious lines are drawn by the State, . . . antagonisms that relate to race or to religion, rather than to political issues, are generated; communities seek not the best representative, but the best racial or religious partisan." Id., at 67. In short, few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act. </s> As a practical political matter, our drive to segregate </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 18] </s> political districts by race can only serve to deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions. "Black-preferred" candidates are assured election in "safe black districts"; white-preferred candidates are assured election in "safe white districts." Neither group needs to draw on support from the other's constituency to win on election day. As one judge described the current trend of voting rights cases: "We are bent upon polarizing political subdivisions by race. The arrangement we construct makes it unnecessary, and probably unwise, for an elected official from a white majority district to be responsive at all to the wishes of black citizens; similarly, it is politically unwise for a black official from a black majority district to be responsive at all to white citizens." Dallas County Comm'n, 850 F.2d, at 1444 (Hill, J., concurring specially). </s> As this description suggests, the system we have instituted affirmatively encourages a racially based understanding of the representative function. The clear premise of the system is that geographic districts are merely a device to be manipulated to establish "black representatives" whose real constituencies are defined not in terms of the voters who populate their districts, but in terms of race. The "black representative's" function, in other words, is to represent the "black interest." Cf. Shaw, supra, at ___ (slip op., at 18) (recognizing that systems that "classify and separate voters by race" threaten "to undermine our system of representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole"). </s> Perhaps not surprisingly, the United States has now adopted precisely this theory of racial group representation, as the arguments advanced in another case decided today, Johnson v. De Grandy, post, should show. The case involved a claim that an apportionment plan for the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 19] </s> Florida Legislature should have provided another Hispanic district in Dade County. Florida responded to the claim of vote dilution by arguing that the plan already provided Dade County Hispanics with seats in proportion to their numbers. According to the Solicitor General, this claim of proportionality should have been evaluated not merely on the basis of the population in the Dade County area where the racial gerrymandering was alleged to have occurred, but on a state-wide basis. It did not matter, in the Solicitor General's view, that Hispanic populations elsewhere in the State could not meet the Gingles geographic compactness test, see 478 U.S., at 50 , and thus could not possibly have controlled districts of their own. After all, the Solicitor General reasoned, the Hispanic legislators elected from Hispanic districts in Dade County would represent not just the interests of the Dade County Hispanics, but the interests of all the Hispanics in the State. Brief for United States in Johnson v. De Grandy, O. T. 1993, No. 92-519, p. 20. As the argument shows, at least some careful observers have recognized the racial gerrymandering in our vote dilution cases for what it is: a slightly less precise mechanism than the racial register for allocating representation on the basis of race. </s> C </s> While the results we have already achieved under the Voting Rights Act might seem bad enough, we should recognize that our approach to splintering the electorate into racially designated single-member districts does not, by any means, mark a limit on the authority federal judges may wield to rework electoral systems under our Voting Rights Act jurisprudence. On the contrary, in relying on single-member districting schemes as a touchstone, our cases so far have been somewhat arbitrarily limited to addressing the interests of minority voters who are sufficiently geographically compact to </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 20] </s> form a majority in a single-member district. See Gingles, supra, at 49-50. There is no reason a priori, however, that our focus should be so constrained. The decision to rely on single-member geographic districts as a mechanism for conducting elections is merely a political choice - and one that we might reconsider in the future. Indeed, it is a choice that has undoubtedly been influenced by the adversary process: in the cases that have come before us, plaintiffs have focused largely upon attacking multimember districts and have offered single-member schemes as the benchmark of an "undiluted" alternative. </s> But as the destructive effects of our current penchant for majority-minority districts become more apparent, cf. Shaw, supra, courts will undoubtedly be called upon to reconsider adherence to geographic districting as a method for ensuring minority voting power. Already some advocates have criticized the current strategy of creating majority-minority districts, and have urged the adoption of other voting mechanisms - for example, cumulative voting 15 or a system using transferable votes 16 - that can produce proportional results without </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 21] </s> requiring division of the electorate into racially segregated districts. Cf., e.g., Guinier 14-15, 94-101; Howard & Howard 1660; Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv.Civ. Rights-Civ.Lib.L.Rev. 173, 174-175, 231-236 (1989) (hereinafter Karlan); Taebel, Engstrom, & Cole, Alternative Electoral Systems As Remedies for Minority Vote Dilution, 11 Hamline J. of Public Law & Policy 19 (1990); Note, Reconciling the Right to Vote with the Voting Rights Act, 92 Colum.L.Rev. 1810, 1857-1865 (1992). </s> Such changes may seem radical departures from the electoral systems with which we are most familiar. Indeed, they may be unwanted by the people in the several States who purposely have adopted districting systems in their electoral laws. But nothing in our present understanding of the Voting Rights Act places a principled limit on the authority of federal courts that would prevent them from instituting a system of cumulative voting as a remedy under 2, or even from establishing a more elaborate mechanism for securing proportional representation based on transferable votes. 17 As some Members of the Court have already </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 22] </s> recognized, geographic districting is not a requirement inherent in our political system. See, e.g., Davis v. Bandemer, 478 U.S. 109, 159 (1986) (O'CONNOR, J., concurring in judgment) ("Districting itself represents a middle ground between winner-take-all state-wide elections and proportional representation for political parties"); id., at 160 (noting that our current practice of accepting district-based elections as a given is simply a "political judgment"). Rather, districting is merely another political choice made by the citizenry in the drafting of their state constitutions. Like other political choices concerning electoral systems and models of representation, it too is presumably subject to a judicial override if it comes into conflict with the theories of representation and effective voting that we may develop under the Voting Rights Act. </s> Indeed, the unvarnished truth is that all that is required for districting to fall out of favor is for Members of this Court to further develop their political thinking. We should not be surprised if voting rights advocates encourage us to "revive our political imagination," Guinier, 14 Cardozo L.Rev., at 1137, and to consider "innovative and nontraditional remedies" for vote dilution, Karlan 221, for under our Voting Rights Act jurisprudence, it is only the limits on our "political imagination" that place restraints on the standards we may select for defining undiluted voting systems. Once we candidly recognize that geographic districting and other aspects of electoral systems that we have so far placed beyond question are merely political choices, </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 23] </s> those practices, too, may fall under suspicion of having a dilutive effect on minority voting strength. And when the time comes to put the question to the test, it may be difficult indeed for a Court that, under Gingles, has been bent on creating roughly proportional representation for geographically compact minorities to find a principled reason for holding that a geographically dispersed minority cannot challenge districting itself as a dilutive electoral practice. In principle, cumulative voting and other non-district-based methods of effecting proportional representation are simply more efficient and straightforward mechanisms for achieving what has already become our tacit objective: roughly proportional allocation of political power according to race. </s> At least one court, in fact, has already abandoned districting, and has opted instead for cumulative voting on a county-wide basis as a remedy for a Voting Rights Act violation. The District Court for the District of Maryland recently reasoned that, compared to a system that divides voters into districts according to race, "[c]umulative voting is less likely to increase polarization between different interests," and that it "will allow the voters, by the way they exercise their votes, to `district' themselves," thereby avoiding government involvement in a process of segregating the electorate. Cane v. Worcester County, 847 F.Supp. 369, 373 (Md. 1994). Cf. Guinier, 14 Cardozo L.Rev., at 1135-1136 (proposing a similar analysis of the benefits of cumulative voting); Karlan 236 (same). If such a system can be ordered on a county-wide basis, we should recognize that there is no limiting principle under the Act that would prevent federal courts from requiring it for elections to state legislatures as well. </s> D </s> Such is the current state of our understanding of the Voting Rights Act. That our reading of the Act has </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 24] </s> assigned the federal judiciary the task of making the decisions I have described above should suggest to the Members of this Court that something in our jurisprudence has gone awry. 18 We would be mighty Platonic guardians indeed if Congress had granted us the authority to determine the best form of local government for every county, city, village, and town in America. But, under our constitutional system, this Court is not a centralized politburo appointed for life to dictate to the provinces the "correct" theories of democratic representation, the "best" electoral systems for securing truly "representative" government, the "fairest" proportions of minority political influence, or, as respondents would have us hold today, the "proper" sizes for local governing bodies. We should be cautious in interpreting any Act of Congress to grant us power to make such determinations. </s> JUSTICE BLACKMUN suggests that, if we were to interpret the Act to allow challenges to the size of governmental bodies under 2, the Court's power to determine the structure that local governing bodies must take would be bounded by the constraints that local customs provide in the form of benchmarks. Post, at 7. But, as JUSTICE O'CONNOR rightly points out, such benchmarks are themselves arbitrarily selected, and would provide no assured limits on judicial power. Ante, at 4-6. In my view, the local standards to which JUSTICE BLACKMUN points today are little different from the various standards </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 25] </s> to which the Court has resorted in the past as touchstones of undiluted voting systems. The appeal to such standards, which are necessarily arbitrarily chosen, should not serve to obscure the assumption in the Court's vote dilution jurisprudence of a sweeping authority to select the electoral systems to be used by every governing body in each of the 50 States, and to do so based upon little more than the passing preference of five Members of this Court for one political theory over another. </s> A full understanding of the authority that our current interpretation of the Voting Rights Act assigns to the federal courts, and of the destructive effects that our exercise of that authority is presently having upon our body politic, compels a single conclusion: a systematic reexamination of our interpretation of the Act is required. </s> II </s> Section 2(a) of the Voting Rights Act provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote" on account of race, color, or membership in one of the language minority groups defined in the Act. 42 U.S.C. 1973. Respondents contend that the terms "standard, practice, or procedure" should extend to cover the size of a governmental body. An examination of the text of 2 makes it clear, however, that the terms of the Act do not reach that far; indeed, the terms of the Act do not allow many of the challenges to electoral mechanisms that we have permitted in the past. Properly understood, the terms "standard, practice, or procedure" in 2(a) refer only to practices that affect minority citizens' access to the ballot. Districting systems and electoral </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 26] </s> mechanisms that may affect the "weight" given to a ballot duly cast and counted are simply beyond the purview of the Act. </s> A </s> In determining the scope of 2(a), as when interpreting any statute, we should begin with the statutory language. See Connecticut Nat. Bank v. Germain, 503 U.S. ___, ___ (1992) (slip op., at 5). Under the plain terms of the Act, 2(a) covers only a defined category of state actions. Only "voting qualification[s]," "prerequisite[s] to voting," or "standard[s], practice[s], or procedure[s]" are subject to challenge under the Act. The first two items in this list clearly refer to conditions or tests applied to regulate citizens' access to the ballot. They would cover, for example, any form of test or requirement imposed as a condition on registration or on the process of voting on election day. </s> Taken in isolation, the last grouping of terms - "standard, practice, or procedure" - may seem somewhat less precise. If we give the words their ordinary meanings, however - for they have no technical significance, and are not defined in the Act - they would not normally be understood to include the size of a local governing body. Common sense indicates that the size of a governing body and other aspects of government structure do not comfortably fit within the terms "standard, practice, or procedure." Moreover, we need not simply treat the terms in isolation; indeed, it would be a mistake to do so. Cf. United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988). Reading the words in context strongly suggests that 2(a) must be understood as referring to any standard, practice, or procedure with respect to voting. And thus understood, the terms of the section would not extend to the size of a governmental body; we would not usually describe the size or form of </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 27] </s> a governing authority as a "practice" or "procedure" concerning voting. </s> But, under our precedents, we have already stretched the terms "standard, practice, or procedure" beyond the limits of ordinary meaning. We have concluded, for example, that the choice of a certain set of district lines is a "procedure," or perhaps a "practice," concerning voting subject to challenge under the Act, see Growe, 507 U.S., at ___ (slip op., at 14), even though the drawing of a given set of district lines has nothing to do with the basic process of allowing a citizen to vote - that is, the process of registering, casting a ballot, and having it counted. Similarly, we have determined that the use of multimember districts, rather than single-member districts, can be challenged under the Act. See Gingles, 478 U.S., at 46 -51. Undoubtedly, one of the critical reasons we have read 2 to reach such districting decisions is that the choice of one districting system over another can affect a minority group's power to control seats in the elected body. See ibid. In that respect, however, the districting practices we have treated as subject to challenge under the Act are essentially similar to choices concerning the size of a governing authority. Just as drawing district lines one way rather than another, or using one type of districting system rather than another, can affect the ability of a minority group to control seats, so can restricting the number of seats that are available. And if how districts are drawn is a "practice" concerning voting, why not conclude that how many districts are drawn is a "practice" as well? </s> To be sure, a distinction can be made between the size of a local governing body and a districting mechanism. After all, we would ordinarily think that the size of a government has greater independent significance for the functioning of the governmental body than the choice of districting systems apportioning representation. Interfering with the form of government, therefore, might </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 28] </s> appear to involve a greater intrusion on state sovereignty. But such distinctions between the size of a governing body and other potential "voting practices" do not at bottom, depend upon how closely each is related to "voting," and thus they are not rooted in any way in the text of 2(a). On the contrary, while it may seem obvious that the size of a government is not within the reach of the Act, if we look to the text of the statute for the limiting principle that confines the terms "standard, practice or procedure" and excludes government size from their reach, we must conclude that the only line drawn in 2 excludes many "practices" that we have already decided are subject to challenge under the Act. </s> If we return to the Act to reexamine the terms setting out the actions regulated by 2, a careful reading of the statutory text will reveal a good deal more about the limitations on the scope of the section than suggested above. The terms "standard, practice, or procedure" appear to have been included in 2 as a sort of catch-all provision. They seem phrased with an eye to eliminating the possibility of evasion. 19 Nevertheless, they are catch-all terms that round out a list, and a sensible and long-established maxim of construction limits the way we should understand such general words appended to an enumeration of more specific items. The principle of ejusdem generis suggests that such general terms should be understood to refer to items belonging to the same class that is defined by the more specific terms in the list. See, e. g., Cleveland v. United States, 329 U.S. 14, 18 (1946). </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 29] </s> Here, the specific items described in 2(a) ("voting qualification[s]" and "prerequisite[s] to voting") indicate that Congress was concerned in this section with any procedure, however it might be denominated, that regulates citizens' access to the ballot - that is, any procedure that might erect a barrier to prevent the potential voter from casting his vote. In describing the laws that would be subject to 2, Congress focused attention upon provisions regulating the interaction between the individual voter and the voting process - on hurdles the citizen might have to cross in the form of "prerequisites" or "qualifications." The general terms in the section are most naturally understood, therefore, to refer to any methods for conducting a part of the voting process that might similarly be used to interfere with a citizen's ability to cast his vote, and they are undoubtedly intended to ensure that the entire voting process - a process that begins with registration and includes the casting of a ballot and having the ballot counted - is covered by the Act. Cf. infra, at 30. Simply by including general terms in 2(a) to ensure the efficacy of the restriction imposed, Congress should not be understood to have expanded the scope of the restriction beyond the logical limits implied in the specific terms of the statute. Cf. Cleveland, supra, at 18 ("Under the ejusdem generis rule of construction, the general words are confined to the class, and may not be used to enlarge it"). </s> Moreover, it is not only in the terms describing the practices regulated under the Act that 2(a) focuses on the individual voter. The section also speaks only in the singular of the right of "any citizen" to vote. Giving the terms "standard, practice, or procedure" an expansive interpretation to reach potentially dilutive practices, however, would distort that focus on the individual, for a vote dilution claim necessarily depends on the assertion of a group right. Cf. Bandemer, 478 U.S., at 150 -151 (O'CONNOR, J., concurring in judgment). At the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 30] </s> heart of the claim is the contention that the members of a group collectively have been unable to exert the influence that their numbers suggest they might under an alternative system. Such a group right, however, finds no grounding in the terms of 2(a). </s> Of course, the scope of the right that is protected under the Act can provide further guidance concerning the meaning of the terms "standard, practice, or procedure." Under the terms of the Act, only a "standard, practice, or procedure" that may result in the "denial or abridgement of the right . . . to vote" is within the reach of 2(a). But nothing in the language used in 2(a) to describe the protection provided by the Act suggests that in protecting the "right to vote," the section was meant to incorporate a concept of voting that encompasses a concern for the "weight" or "influence" of votes. On the contrary, the definition of the terms "vote" and "voting" in 14(c)(1) of Act focuses precisely on access to the ballot. Thus, 14(c)(1) provides that the terms "vote" and "voting" shall encompass any measures necessary to ensure "registration" and any "other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast." 42 U.S.C. 1973l(c)(1). </s> It is true that 14(c)(1) also states that the term "voting" "include[s] all action necessary to make a vote effective," ibid. (emphasis added), and the Court has seized on this language as an indication that Congress intended the Act to reach claims of vote dilution. See Allen, 393 U.S., at 566 . But if the word "effective" is not plucked out of context, the rest of 14(c)(1) makes clear that the actions Congress deemed necessary to make a vote "effective" were precisely the actions listed above: registering, satisfying other voting prerequisites, casting a ballot, and having it included in the final tally of votes cast. These actions are described in the section only as examples of the steps necessary to make a vote </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 31] </s> effective. See 42 U.S.C. 1973l(c)(1). And while the list of such actions is not exclusive, the nature of all the examples that are provided demonstrates that as far as the Act is concerned, an "effective" vote is merely one that has been cast and fairly counted. See id., at 590, n. 7 (Harlan, J., concurring in part and dissenting in part). </s> Reading the Act's prohibition of practices that may result in a "denial or abridgement of the right . . . to vote" as protecting only access to the ballot also yields an interpretation that is consistent with the Court's construction of virtually identical language in the Fifteenth Amendment. The use of language taken from the Amendment suggests that the section was intended to protect a "right to vote" with the same scope as the right secured by the Amendment itself; certainly, no reason appears from the text of the Act for giving the language a broader construction in the statute than we have given it in the Constitution. The Court has never decided, however, whether the Fifteenth Amendment should be understood to protect against vote "dilution." See Voinovich v. Quilter, 507 U.S. ___, ___ (1993) (slip op., at 11). See also Beer v. United States, 425 U.S. 130, 142 , n. 14 (1976) (noting that there is no decision of this Court holding a legislative apportionment plan violative of the Fifteenth Amendment). 20 </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 32] </s> While the terms of 2(a) thus indicate that the section focuses only on securing access to the ballot, it might be argued that reenactment of 2 in 1982 should be understood as an endorsement of the interpretation contained in cases such as Allen that the terms "standard, practice, or procedure" were meant to reach potentially dilutive practices. See Lorillard v. Pons, 434 U.S. 575, 580 -581 (1978). It is true that we generally will assume that reenactment of specific statutory language is intended to include a "settled judicial interpretation" of that language. Pierce v. Underwood, 487 U.S. 552, 567 (1988). And while 2 was amended in 1982, the amended section did retain the same language that had appeared in the original Act regulating "standard[s], practice[s], or procedure[s]." 21 But it was hardly well settled in 1982 that Allen's broad reading of the terms "standard, practice, or procedure" in 5 would set the scope of 2 as a provision reaching claims of vote dilution. </s> On the contrary, in 1980, in Mobile v. Bolden, 446 U.S. 55 , a plurality of the Court construed 2 in a manner flatly inconsistent with the understanding that those terms were meant to reach dilutive practices. Emphasizing that the section tracked the language of the Fifteenth Amendment by prohibiting the use of practices that might "deny or abridge the right . . . to </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 33] </s> vote," the Bolden plurality determined that 2 was "intended to have an effect no different from that of the Fifteenth Amendment itself." Id., at 61. In the plurality's view, however, the Fifteenth Amendment did not extend to reach dilution claims; its protections were satisfied as long as members of racial minorities could "`register and vote without hindrance.'" Id., at 65. Bolden remained the last word from this Court interpreting 2, at the time the section was amended in 1982. Cf. Rogers v. Lodge, 458 U.S. 613, 619 , n. 6 (1982). Thus, the reenactment in the amended section of the same language covering any "standard, practice, or procedure" and the retention of virtually identical language protecting against the "denial or abridgement of the right . . . to vote" can hardly be understood as an endorsement of a broad reading of the section as a provision reaching claims of vote dilution. 22 </s> Finally, as our cases have shown, reading 2(a) to reach beyond laws that regulate in some way citizens' access to the ballot turns the section into a command for </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 34] </s> courts to evaluate abstract principles of political theory in order to develop rules for deciding which votes are "diluted" and which are not. See generally supra, at 5-13. Common sense would suggest that we should not lightly interpret the Act to require courts to address such matters so far outside the normal bounds of judicial competence, and the mere use of three more general terms at the end of the list of regulated practices in 2(a) cannot properly be understood to incorporate such an expansive command into the Act. </s> Properly understood, therefore, 2(a) is a provision designed to protect access to the ballot, and in regulating "standard[s], practice[s], and procedure[s]," it reaches only "those state laws that [relate to] either voter qualifications or the manner in which elections are conducted." Allen, 393 U.S., at 591 (Harlan, J., concurring in part and dissenting in part). The section thus covers all manner of registration requirements, the practices surrounding registration (including the selection of times and places where registration takes place and the selection of registrars), the locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process that might be manipulated to deny any citizen the right to cast a ballot and have it properly counted. The section does not cover, however, the choice of a multimember over a single-member districting system or the selection of one set of districting lines over another, or any other such electoral mechanism or method of election that might reduce the weight or influence a ballot may have in controlling the outcome of an election. </s> Of course, this interpretation of the terms "standard, practice, or procedure" effectively means that 2(a) does not provide for any claims of what we have called vote "dilution." But that is precisely the result suggested by the text of the statute. Section 2(a) nowhere uses the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 35] </s> term "vote dilution" or suggests that its goal is to ensure that votes are given their proper "weight." And an examination of 2(b) does not suggest any different result. It is true that, in construing 2 to reach vote dilution claims in Thornburg v. Gingles, 478 U.S. 30 (1986), the Court relied largely on the gloss on 2(b) supplied in the legislative history of the 1982 amendments to the Act. See id., at 43-46. But the text of 2(b) supplies a weak foundation indeed for reading the Act to reach such claims. </s> As the Court concluded in Gingles, the 1982 amendments incorporated into the Act, and specifically into 2(b), a "results" test for measuring violations of 2(a). That test was intended to replace, for 2 purposes, the "intent" test the Court had announced in Bolden for voting rights claims under 2 of the Voting Rights Act and under the Fourteenth and Fifteenth Amendments. Section 2(a) thus prohibits certain state actions that may "resul[t] in a denial or abridgement" of the right to vote, and 2(b) incorporates virtually the exact language of the "results test" employed by the Court in White v. Regester, 412 U.S. 755 (1973), and applied in constitutional voting rights cases before our decision in Bolden. The section directs courts to consider whether "based on the totality of circumstances," a state practice results in members of a minority group "hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. 1973(b). Cf. White, supra, at 766; Whitcomb v. Chavis, 403 U.S. 124, 149 (1971). </s> But the mere adoption of a "results" test, rather than an "intent" test, says nothing about the type of state laws that may be challenged using that test. On the contrary, the type of state law that may be challenged under 2 is addressed explicitly in 2(a). As we noted in Chisom v. Roemer, 501 U.S. 380 (1991), 2(a) and 2(b) address distinct issues. While 2(a) defines and </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 36] </s> explicitly limits the type of voting practice that may be challenged under the Act, 2(b) provides only "the test for determining the legality of such a practice." Id., at 391. Thus, as an initial matter, there is no reason to think that 2(b) could serve to expand the scope of the prohibition in 2(a), which, as I described above, does not extend by its terms to electoral mechanisms that might have a dilutive effect on group voting power. </s> Even putting that concern aside for the moment, it should be apparent that the incorporation of a results test into the amended section does not necessarily suggest that Congress intended to allow claims of vote dilution under 2. A results test is useful to plaintiffs whether they are challenging laws that restrict access to the ballot or laws that accomplish some diminution in the "proper weight" of a group's vote. Nothing about the test itself suggests that it is inherently tied to vote dilution claims. A law, for example, limiting the times and places at which registration can occur might be adopted with the purpose of limiting black voter registration, but it could be extremely difficult to prove the discriminatory intent behind such a facially neutral law. The results test would allow plaintiffs to mount a successful challenge to the law under 2 without such proof. </s> Moreover, nothing in the language 2(b) uses to describe the results test particularly indicates that the test was intended to be used under the Act for assessing claims of dilution. Section 2(b) directs courts to consider whether, under the "totality of circumstances," members of a minority group "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. 1973(b). The most natural reading of that language would suggest that citizens have an equal "opportunity" to participate in the electoral process and an equal "opportunity" to elect representatives when they </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 37] </s> have been given the same free and open access to the ballot as other citizens and their votes have been properly counted. The section speaks in terms of an opportunity - a chance - to participate and to elect, not an assured ability to attain any particular result. And since the ballot provides the formal mechanism for obtaining access to the political process and for electing representatives, it would seem that one who has had the same chance as others to register and to cast his ballot has had an equal opportunity to participate and to elect, whether or not any of the candidates he chooses is ultimately successful. </s> To be sure, the test in 2(b) could be read to apply to claims of vote dilution as well. But to conclude, for example, that a multimember districting system had denied a group of voters an equal opportunity to participate in the political process and to elect representatives, a court would have to embark on the extended project in political theory that I described above in Part I of this opinion. In other words, a court would have to develop some theory of the benchmark undiluted voting system that provides minorities with the "fairest" or most "equitable" share of political influence. Undoubtedly, a dizzying array of concepts of political equality might be described to aid in that task, and each could be used to attribute different values to different systems of election. See, e.g., Still, Political Equality and Election Systems, 91 Ethics 375 (1981). 23 But the statutory command to determine whether members of a minority have had an equal "opportunity . . . to participate </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 38] </s> in the political process and to elect representatives" provides no guidance concerning which one of the possible standards setting undiluted voting strength should be chosen over the others. And it would be contrary to common sense to read 2(b)'s reference to equal opportunity as a charter for federal courts to embark on the ambitious project of developing a theory of political equality to be imposed on the Nation. 24 </s> It is true that one factor courts may consider under the results test might fit more comfortably with an interpretation of the Act that reaches vote dilution claims. Section 2(b) provides that "one circumstance" that may be considered in assessing the results test is the "extent to which members of a protected class have been elected to office." 42 U.S.C. 1973(b). Obviously, electoral outcomes would be relevant to claims of vote dilution (assuming, of course, that control of seats has been selected as the measure of effective voting). But in some circumstances, results in recent elections might </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 39] </s> also be relevant for demonstrating that a particular practice concerning registration or polling has served to suppress minority voting. Better factors to consider would be figures for voter registration or turnout at the last election, broken down according to race. But where such data is not readily available, election results may certainly be "one circumstance" to consider in determining whether a challenged practice has resulted in denying a minority group access to the political process. The Act merely directs courts not to ignore such evidence of electoral outcomes altogether. </s> Moreover, the language providing that electoral outcomes may be considered as "one circumstance" in the results test is explicitly qualified by the provision in 2(b) that most directly speaks to the question whether 2 was meant to reach claims of vote dilution - and which suggests that dilution claims are not covered by the section. The last clause in the subsection states in unmistakable terms that "nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." 42 U.S.C. 1973(b). As four Members of the Court observed in Gingles, there is "an inherent tension" between this disclaimer of proportional representation and an interpretation of 2 that encompasses vote dilution claims. 478 U.S., at 84 (O'CONNOR, J., concurring in judgment). As I explained above, dilution claims, by their very nature, depend upon a mathematical principle. The heart of the claim is an assertion that the plaintiff group does not hold the "proper" number of seats. As a result, the principle for deciding the case must be supplied by an arithmetic ratio. Either the group has attained the "proper" number of seats under the current election system or it has not. </s> By declaring that the section provides no right to proportional representation, 2(b) necessarily commands that the existence or absence of proportional electoral </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 40] </s> results should not become the deciding factor in assessing 2 claims. But in doing so, 2(b) removes from consideration the most logical ratio for assessing a claim of vote dilution. To resolve a dilution claim under 2, therefore, a court either must arbitrarily select a different ratio to represent the "undiluted" norm, a ratio that would have less intuitive appeal than direct proportionality, or it must effectively apply a proportionality test in direct contravention of the text of the Act 25 - hence the "inherent tension" between the text of the Act and vote dilution claims. Given that 2 nowhere speaks in terms of "dilution," an explicit disclaimer removing from the field of play the most natural deciding principle in dilution cases is surely a strong signal that such claims do not fall within the ambit of the Act. 26 </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 41] </s> It is true that the terms "standard, practice, or procedure" in 5 of the Act have been construed to reach districting systems and other potentially dilutive electoral mechanisms, see, e. g., Allen, 393 U.S., at 569 , and Congress has reenacted 5 subsequent to our decisions adopting that expansive interpretation. See, e. g., United States v. Board of Comm'rs of Sheffield, 435 U.S. 110, 134 -135 (1978); Georgia v. United States, 411 U.S. 526, 533 (1973). Nevertheless, the text of the section suggests precisely the same focus on measures that relate to access to the ballot that appears in 2. Section 5 requires covered jurisdictions to obtain preclearance for a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." 42 U.S.C. 1973c. As in 2, the specific terms in the list of regulated state actions describe only laws that would limit access to the ballot. Moreover, 5 makes the focus on the individual voter and access to the voting booth even more apparent as the section goes on to state that "no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure." </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 42] </s> 42 U.S.C. 1973c (emphasis added). This command makes it explicit that in regulating standards, practices, or procedures with respect to voting, "Congress was clearly concerned with changes in procedure with which voters could comply." Allen, 393 U.S., at 587 (Harlan, J., concurring in part and dissenting in part). But it should be obvious that a districting system, or any other potentially dilutive mechanism for that matter, is not something with which a voter can comply. As is the case with 2, 5's description of the terms "standard, practice, or procedure" thus suggests a focus on rules that regulate the individual voter's ability to register and cast a ballot, not a more abstract concern with the effect that various electoral systems might have on the "weight" of the votes cast by a group that constitutes a numerical minority in the electorate. </s> In my view, the tension between the terms of the Act and the construction we have placed on 5, at the very least suggests that our interpretation of 5 should not be adopted wholesale to supply the meaning of the terms "standard, practice, or procedure" under 2. An expansive construction of 5 was well established in 1980, yet a plurality of the Court in Bolden, after focusing on the terms of the Act, did not adopt a similarly expansive construction of 2. Rather, the Bolden plurality concluded that 2 should be strictly limited to have the same reach as the Fifteenth Amendment, which the plurality interpreted as addressing only matters relating to access to the ballot. See Bolden, 446 U.S., at 61 , 65. I would reach a similar result here. Where a careful reading of the language of 2 dictates a narrow interpretation of the section, there is no reason for transplanting our interpretation of the terms of 5 - an interpretation that I believe is in tension with </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 43] </s> the text of 5 itself - to another section of the Act. 27 </s> B </s> From the foregoing, it should clear that, as far as the text of the Voting Rights Act is concerned, " 2 does not speak in terms of `vote dilution.'" Gingles, 478 U.S., at 87 (O'CONNOR, J., concurring in judgment). One might wonder, then, why we have consistently concluded that "[w]e know that Congress intended to allow vote dilution claims to be brought under 2." Id., at 84. The juxtaposition of the two statements surely makes the result in our cases appear extraordinary, since it suggests a sort of statutory construction through divination that has allowed us to determine that Congress "really meant" to enact a statute about vote dilution even though Congress did not do so explicitly. In truth, our method of construing 2 has been only little better than that, for the only source we have relied upon for the expansive meaning we have given 2 has been the legislative history of the Act. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 44] </s> We first considered the amended 2 in Thornburg v. Gingles. Although the precise scope of the terms "standard, practice, or procedure" was not specifically addressed in that case, Gingles nevertheless established our current interpretation of the amended section as a provision that addresses vote dilution, and, in particular, it fixed our understanding that the results test in 2(b) is intended to measure vote dilution in terms of electoral outcomes. See id., at 93 (O'CONNOR, J., concurring in judgment) (stating that Gingles made electoral results the "linchpin" of vote dilution claims). In reaching its interpretation of 2, the Gingles Court rejected the argument advanced by the United States as amicus curiae that 2(b)'s test based on an equal "opportunity . . . to participate in the political process and to elect representatives" suggested a focus on nothing more than securing equal access to the political process, not a focus on measuring the influence of a minority group's votes in terms of electoral outcomes. See Brief for United States as amicus curiae in Thornburg v. Gingles, O. T. 1985, No. 83-1968, pp. 7-19. That understanding of 2 is, of course, compatible with the interpretation I have set out above. </s> In approaching 2, the Gingles Court, based on little more than a bald assertion that "the authoritative source for legislative intent lies in the Committee Reports on the bill," 478 U.S., at 43 , n. 7, bypassed a consideration of the text of the Act and proceeded to interpret the section based almost exclusively on its legislative history. 28 It was from the legislative history </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 45] </s> that the Court culled its understanding that 2 is a provision encompassing claims that an electoral system has diluted a minority group's vote and its understanding that claims of dilution are to be evaluated based upon how closely electoral outcomes under a given system approximate the outcomes that would obtain under an alternative, undiluted norm. See, e. g., id., at 43-51. </s> Contrary to the remarkable "legislative history first" method of statutory construction pursued in Gingles, however, I had thought it firmly established that the "authoritative source" for legislative intent was the text of the statute passed by both houses of Congress and presented to the President, not a series of partisan statements about purposes and objectives collected by congressional staffers and packaged into a Committee Report. "We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Germain, 503 U.S., at ___ (slip op., at 5). See also United States v. Ron Pair Enterprises, Inc., 489 U.S. 235 , </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 46] </s> 241-242 (1989); Oneale v. Thornton, 6 Cranch 53, 68 (1810). Nevertheless, our analysis in Gingles was marked conspicuously by the absence of any attempt to pursue a close reading of the text of the Act. As outlined above, had the Court addressed the text, it would have concluded that the terms of the Act do not address matters of vote "dilution." </s> Moreover, the legislative history of 2 itself, and the Court's use of it in Gingles, aptly illustrate that legislative history is often used by this Court as "a forensic, rather than an interpretive, device," Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 621 (1991) (SCALIA, J., concurring in judgment), and is read selectively to support the result the Court intends to achieve. It is well documented in the history of the 1982 amendments to the Act that 2 was passed only after a compromise was reached through the addition of the provision in 2(b) disclaiming any right to proportional representation. See S.Rep. No. 97-417, pp. 2-4 (1982); id., at 94-97 (additional views of Sen. Hatch). But the views of the author of that compromise, Senator Dole, hardly coincide with the gloss the Court has placed on 2. </s> According to Senator Dole, amended 2 would "[a]bsolutely not" provide any redress to a group of voters challenging electoral mechanisms in a jurisdiction "if the process is open, if there is equal access, if there are no barriers, direct or indirect, thrown up to keep someone from voting or having their vote counted, or registering, whatever the process may include." 128 Cong. Rec. 14133 (1982). Contrary to the Court's interpretation of the section in Gingles, Senator Dole viewed 2 as a provision more narrowly focused on access to the processes surrounding the casting of a ballot, not a provision concerned with ensuring electoral outcomes in accordance with some "undiluted" norm. See S.Rep. No. 97-417, supra, at 193-194 (additional views of Sen. Dole). The legislative history thus hardly </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 47] </s> provided unambiguous support for the Court's interpretation; indeed, it seems that the Court used what was helpful to its interpretation in the legislative history and ignored what was not. Cf. Mortier, supra, at 617 (SCALIA, J., concurring in judgment). </s> Of course, as mentioned above, Gingles did not directly address the meaning of the terms "standard, practice, or procedure" in 2(a). The understanding that those terms extend to a State's laws establishing various electoral mechanisms dates to our decision in Allen, in which we construed the identical terms in 5 of the Act. But the Court's method of statutory construction in Allen was little different from that pursued in Gingles, and, as the analysis of the text of 5 above demonstrates, it similarly yielded an interpretation in tension with the terms of the Act. </s> In Allen, after noting that 14(c)(1) defined "voting" to include "all action necessary to make a vote effective," 42 U.S.C. 1973l(c)(1), the Court abandoned any further attempt to construe the text of the Act and went on, instead, to conclude that the "legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way." Allen, 393 U.S., at 566 . Not surprisingly, the legislative history relied upon in Allen also displayed the typical flaws that one might expect - it was hardly unequivocal. See id., at 590-591, and n. 9 (Harlan, J., concurring in part and dissenting in part) (noting inconsistencies in the legislative history). Thus, to the extent that Allen implicitly has served as the basis for our subsequent interpretation of the terms of 2, it hardly can be thought to provide any surer rooting in the language of the Act than the method of statutory construction pursued in Gingles. </s> Remarkably, thanks to our reliance on legislative history, we have interpreted 2 in such a way that four Members of this Court at one time candidly admitted </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 48] </s> that "[t]here is an inherent tension [in 2] between what Congress wished to do and what it wished to avoid." Gingles, 478 U.S., at 84 (O'CONNOR, J., concurring in judgment). But our understanding of what Congress purportedly "wished to do" - that is, to allow claims of vote "dilution" - depends solely on a selective reading of legislative history, whereas Congress' statement of what it "wished to avoid" appears explicitly in 2(b)'s disclaimer of a right to proportional representation. I can see no logical reason to import the "inherent tension" between these two imperatives into the Act, when, on its face, the statute incorporates only one of two potentially contradictory commands. I would have thought the key to resolving any such conflict between the text and the legislative history obvious: the text of the statute must control, and the text of 2 does not extend the Act to claims of dilution. </s> Were it our function to interpret and apply Committee Reports or other pieces of legislative history, rather than Acts of Congress, I might conclude that we had made the best of a bad situation in interpreting 2 of the Voting Rights Act, and that the quagmire that is 2 was Congress' creation, not our own. It is apparent, however, that we have arrived at our current understanding of the Act, with all of its attendant pitfalls, only by abandoning proper methods of statutory construction. Our errors in method in past cases ordinarily might not indicate a need to forsake an established line of precedent. But here they have produced an "inherent tension" between our interpretation of 2 and the text of the Act and have yielded a construction of the statute that, as I discuss below, is so unworkable in practice and destructive in its effects that it must be repudiated. </s> C </s> "Stare decisis is not an inexorable command," Payne v. Tennessee, 501 U.S. 808, 828 (1991). Indeed, "when </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 49] </s> governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent." Id., at 827 (internal quotation marks omitted). The discussion above should make clear that our decision in Gingles interpreting the scope of 2 was badly reasoned; it wholly substituted reliance on legislative history for analysis of statutory text. In doing so, it produced a far more expansive interpretation of 2 than a careful reading of the language of the statute would allow. </s> Our interpretation of 2 has also proved unworkable. As I outlined above, it has mired the federal courts in an inherently political task - one that requires answers to questions that are ill-suited to principled judicial resolution. Under 2, we have assigned the federal judiciary a project that involves, not the application of legal standards to the facts of various cases or even the elaboration of legal principles on a case-by-case basis, but rather the creation of standards from an abstract evaluation of political philosophy. </s> Worse, our interpretation of 2 has required us to distort our decisions to obscure the fact that the political choice at the heart of our cases rests on precisely the principle the Act condemns: proportional allocation of political power according to race. Continued adherence to a line of decisions that necessitates such dissembling cannot possibly promote what we have perceived to be one of the central values of the policy of stare decisis: the preservation of "the actual and perceived integrity of the judicial process." Payne, supra, at 827. </s> I have endeavored to explain above that the core of any vote dilution claim is an assertion that the plaintiff group does not hold seats in the proportion that it should. 29 There is no logical way to avoid reliance on </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 50] </s> a simple ratio in evaluating such a claim. And allocation of seats in direct proportion to the minority group's percentage in the population provides the most logical ratio to apply as an "undiluted" norm. But 2 makes it clear that the Act does not create a right to proportional representation, and thus dictates that proportionality should not provide the rule of decision for 2 claims. See supra, at 40, and n. 26. Nevertheless, despite the statutory command, in deciding claims of vote dilution we have turned to proportionality as a guide, simply for lack of any better alternative. </s> No formulation of the test for evaluating vote dilution claims has ever dispensed with the inevitable need to consult a mathematical formula to decide a case. The factors listed in White v. Regester, 412 U.S., at 766 -767, resurrected in the Senate Report on the 1982 amendments to 2, see S.Rep. No. 97-417, pp. 28-29 (1982), and finally reincorporated into our decision in Gingles, see 478 U.S., at 44 -45, although praised in our cases as a multi-faceted test ensuring that vote dilution is determined based on the "totality of circumstances," in reality provide no rule for deciding a vote dilution claim based on anything other than a numerical principle. </s> In Gingles, we condensed the import of these "factors" into a formula stating that the "essence" of a vote dilution claim under 2 is that "a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Id., at 47. But it should be </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 51] </s> apparent that whether an electoral practice does or does not reduce the ability of a numerical minority to control the election of representatives can be determined wholly without reference to "social and historical conditions." The dilutive effects of various electoral procedures are matters of mathematics. The "social and historical conditions" "interact" with the election mechanism, and thus are relevant in a vote dilution case, only to the extent that they are important for establishing that the minority group does, in fact, define a distinct political interest group that might assert that its vote has been diluted by the mechanism at issue. Such social and historical considerations, however, cannot supply the answer to the ultimate question whether the group's vote has been diluted. </s> In reality, the list of White factors provides nothing more than just that: a list of possible considerations that might be consulted by a court attempting to develop a gestalt view of the political and racial climate in a jurisdiction, but a list that cannot provide a rule for deciding a vote dilution claim. Take, for example, a case in which a district court determines that a minority group constituting 34% of the population in a certain jurisdiction has suffered discrimination in the past, that the group currently bears the effects of that discrimination, and that there has been a history of racial campaigning in the jurisdiction. Cf. White, supra, at 766-767. How can these facts possibly answer the question whether the group's votes have been diluted if the group controls two rather than three seats in a 10-member governing body? Will the answer to the ultimate question change if the first two factors are found, but the third is not? Obviously, the various "factors," singly or in any combination, cannot provide a principle for determining the result. What one must know to decide the case is whether 20% of the seats in the government is sufficient to reflect "undiluted" voting </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 52] </s> strength, or if 30% should be required. </s> Of course, as suggested above, the White factors may be relevant to determining, as a threshold matter, whether the minority group is a distinct political group that should be able to assert a claim of dilution. But after Gingles, the inquiry into whether race defines political interest effectively has been boiled down to the weakened test for minority "political cohesiveness" and majority bloc voting embodied in the second and third Gingles preconditions. See 478 U.S., at 51 . Once a plaintiff group establishes that it is mathematically possible for it to control another seat (that is, that it satisfies the first Gingles precondition of size and geographic compactness), see id., at 50, and that it is a distinct political group (that is, that it can show political cohesion and majority bloc voting), the only question remaining in the vote dilution claim is whether the current number of seats is the proper number or not. The other White factors have become essentially superfluous. They may be dutifully intoned by courts performing the empty ritual of applying the "totality of circumstances" test, but they can provide no guidance concerning whether the current allocation of seats constitutes "dilution." Cf. Gingles, supra, at 92-93 (O'CONNOR, J., concurring in judgment) (suggesting that the basic contours of a dilution claim require no reference to most of the White factors). </s> In short, it should be clear that the factors listed in Gingles - in their various incarnations and by whatever names they are known - are nothing but puffery used to fill out an impressive verbal formulation and to create the impression that the outcome in a vote dilution case rests upon a reasoned evaluation of a variety of relevant circumstances. The "totality of circumstances" test outlined in Gingles thus serves to obscure the inherent conflict between the text of the Act and an underlying reliance on proportionality. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 53] </s> The resort to proportionality in our cases should hardly come as a surprise. Before 2 was amended in 1982, and thus before the Act explicitly disavowed a right to proportional representation, some members of the Court recognized the inevitable drift toward proportional representation that would occur if the test outlined in White were used to evaluate vote dilution claims. As Justice Stewart, writing for four Members of the Court, observed, the factors listed in White amounted to little more than "gauzy sociological considerations," and it did not appear that "they could, in any principled manner, exclude the claims of any discrete political group that happens, for whatever reason, to elect fewer of its candidates than arithmetic indicates it might." Bolden, 446 U.S., at 75 , n. 22 (emphasis added). Indeed, Justice Stewart was correct in concluding that "the putative limits [imposed by the White factors] are bound to prove illusory if the express purpose informing their application would be," as our vote dilution cases have assumed, "to redress the inequitable distribution of political influence." Ibid. (internal quotation marks omitted). </s> In fact, the framework established by this Court for evaluating vote dilution claims in Gingles was at its inception frankly, and in my view correctly, labeled as setting a rule of roughly proportional representation. See Gingles, supra, at 91, 93, 97-99 (O'CONNOR, J., concurring in judgment). Nothing has happened in the intervening years to change the basic import of the Gingles test. Yet we have continued to apply the same Gingles framework, see, e. g., Growe v. Emison, 507 U.S. ___ (1993), all the while suggesting that we are pursuing merely a totality of the circumstances test. </s> In another case decided today, the Court reconfirms the unstated centrality of proportional results in an opinion that demonstrates the obfuscation that must come to characterize our Voting Rights Act rulings if we </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 54] </s> continue to entertain dilution claims while pretending to renounce reliance on proportionality as a rule of decision. In Johnson v. De Grandy, post p. ___, the Court assures us that proportionality does not provide the principle for deciding vote dilution claims. Post, at 2, 20-24. Rather, the result in each case must depend on a searching inquiry into the ever nebulously defined "totality of circumstances." Post, at 2. </s> But after the Gingles preconditions have been established, post, at 11, and after White factors such as a history of discrimination have been found, see post, at 16, where does the Court turn for a deciding principle to give some meaning to these multifarious facts, which taken individually would each appear to count in favor of a finding of vote dilution? Quite simply, the Court turns to proportionality: "Treating equal political opportunity as the focus of the enquiry, we do not see how these district lines, apparently providing political effectiveness [that is, majority-minority districts] in proportion to voting-age numbers, deny equal political opportunity." Post, at 17. See also post, at 16 (noting that in assessing "dilutive effect," the "pertinent features" of the districting system at issue "were majority-minority districts in substantial proportion to the minority's share of voting-age population"); post, at 2 (O'CONNOR, J., concurring) (the Court's central teaching in De Grandy "is that proportionality - defined as the relationship between the number of majority-minority voting districts and the minority group's share of the relevant population - is always relevant evidence in determining vote dilution"). JUSTICE O'CONNOR's comment about the Court's holding in Davis v. Bandemer, 478 U.S. 109 (1986), is equally applicable to the course pursued in De Grandy today: "[The Court's decision] ultimately rests on a political preference for proportionality - . . . a conviction that the greater the departure from proportionality, the more suspect an </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 55] </s> apportionment plan becomes. 478 U.S., at 159 (O'CONNOR, J., concurring in judgment). </s> To be sure, the De Grandy Court repeatedly declares that proportionality is not a defense to a vote dilution claim. See post, at 20-24. That, of course, must be the stated rule if we are not to abandon openly the explicit disclaimer enacted by Congress in 2(b). But given the Court's equivocation - proportionality is still always relevant - and the Court's ultimate analysis, such assurances ring hollow. The Court decides the question of dilution based upon proportionality. And it is apparent from the reasons the Court gives for rejecting maximization as a rule for decision that proportionality will drive results in future dilution cases as well. </s> Consider, for example, the hypothetical rehearsed by the Court concerning a jurisdiction with a 10-member elected body and a 40% minority voting population. See post, at 19. Assume that, as currently constituted, the districting scheme creates four majority-minority districts. Even if it is established in this hypothetical jurisdiction that all of the Gingles factors have been proved (as was found in De Grandy), and that there are both a history of discrimination and continuing discrimination (as was found in De Grandy), can it be seriously contended that the minority group can succeed, under any combination of facts, in bringing a 2 challenge to require the creation of the mathematically possible seven majority-minority districts? The Court recognizes that it would be "absurd" to think that 2 would allow such a result. That, after all, would give the group "effective political power 75 percent above its numerical strength" - that is, above its proportion in the population. Post, at 20 (emphasis added). But if it is absurd to give the members of the group seven seats, why is it not equally ridiculous to give them six, or five? Or, indeed, anything beyond the four that would secure them seats in proportion to their numbers in the population? </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 56] </s> If it is absurd to give members of the group seven seats, that is because, as the Court tacitly acknowledges, we assume that seats in accord with "numerical strength" will ensure the group "equal" "political effectiveness." Thus, deliberately drawing districts so as to give, under the assumptions of the hypothetical, 40% of the population control over 50% of the seats, while leaving 60% of the population with control of a similar 50% of the seats, would seem to us unfair. Greater deviations from proportionality may appear more patently "absurd" than lesser, but the dividing line between what seems fair and what does not remains the same. The driving principle is proportionality. 30 </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 57] </s> Few words would be too strong to describe the dissembling that pervades the application of the "totality of circumstances" test under our interpretation of 2. It is an empty incantation - a mere conjurer's trick that serves to hide the drive for proportionality that animates our decisions. As actions such as that brought in Shaw v. Reno, 509 U.S. ___ (1993), have already started to show, what might euphemistically be termed the benign "creation of majority-minority single-member districts to enhance the opportunity of minority groups to elect representatives of their choice" might also more simply and more truthfully be termed "racial gerrymandering." Similarly, what we might call a "totality of circumstances" test to determine whether an electoral practice "interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives," Gingles, 478 U.S., at 47 , might more accurately be called a test for ensuring proportional electoral results according to race. Cf. id., at 97 (O'CONNOR, J., concurring in judgment). </s> In my view, our current practice should not continue. Not for another Term, not until the next case, not for another day. The disastrous implications of the policies we have adopted under the Act are too grave; the dissembling in our approach to the Act too damaging to the credibility of the federal judiciary. The "inherent tension" - indeed, I would call it an irreconcilable conflict - between the standards we have adopted for evaluating vote dilution claims and the text of the Voting Rights Act would itself be sufficient, in my view, to warrant overruling the interpretation of 2 set out in Gingles. When that obvious conflict is combined with the destructive effects our expansive reading of the Act has had in involving the federal judiciary in the project of dividing the Nation into racially segregated electoral districts, I can see no reasonable alternative to abandoning </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 58] </s> our current unfortunate understanding of the Act. </s> Stare decisis is a powerful concern, especially in the field of statutory construction. See Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989). See also Fogerty v. Fantasy, Inc., 510 U.S. ___, ___ (1994) (slip op., at 5) (THOMAS, J., concurring in judgment). But "we have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 695 (1978). Stare decisis should not bind the Court to an interpretation of the Voting Rights Act that was based on a flawed method of statutory construction from its inception and that in every day of its continued existence involves the federal judiciary in attempts to obscure the conflict between our cases and the explicit commands of the Act. The Court has noted in the past that stare decisis "`is a principle of policy,'" Payne, 501 U.S., at 828 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)), and it "`is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.'" 501 U.S., at 827 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)). I cannot subscribe to the view that, in our decisions under the Voting Rights Act, it is more important that we have a settled rule than that we have the right rule. When, under our direction, federal courts are engaged in methodically carving the country into racially designated electoral districts, it is imperative that we stop to reconsider whether the course we have charted for the Nation is the one set by the people through their representatives in Congress. I believe it is not. </s> I cannot adhere to the construction of 2 embodied in our decision in Thornburg v. Gingles. I reject the assumption implicit in that case that the terms "standard, practice, or procedure" in 2(a) of the Voting </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 59] </s> Rights Act can be construed to cover potentially dilutive electoral mechanisms. Understood in context, those terms extend the Act's prohibitions only to state enactments that regulate citizens' access to the ballot or the processes for counting a ballot. The terms do not include a State's or political subdivision's choice of one districting scheme over another. The terms certainly do not include, as respondents would argue, the size of a local governing authority. </s> III </s> For the foregoing reasons, I agree with the Court's conclusion that the size of a governing body is not subject to challenge under 2 of the Voting Rights Act. I therefore concur in the Court's judgment reversing the judgment below and remanding for consideration of respondents' constitutional claim of intentional discrimination. </s> [Footnote 1 Of course, many of the basic principles I will discuss are equally applicable to constitutional vote dilution cases. Indeed, prior to the amendment of the Voting Rights Act in 1982, dilution claims typically were brought under the Equal Protection Clause. See, e. g., White v. Regester, 412 U.S. 755 (1973); Whitcomb v. Chavis, 403 U.S. 124 (1971); Burns v. Richardson, 384 U.S. 73 (1966). The early development of our voting rights jurisprudence in those cases provided the basis for our analysis of vote dilution under the amended 2 in Thornburg v. Gingles, 478 U.S. 30 (1986). </s> [Footnote 2 Cf. also L. Guinier, Tyranny of the Majority 49, n. 58 (1994) (hereinafter Guinier) ("The first generation of voting litigation, and the 1965 statute which represented the congressional response, were concerned with the complete and total exclusion of blacks from the electoral process"). </s> [Footnote 3 At that time, seven States elected their congressional delegations on a state-wide ticket. See Wesberry v. Sanders, 376 U.S. 1, 8 , n. 11 (1964). </s> [Footnote 4 See, e. g., Ga. Const., Art. IV (1777); Mass. Const., Part II, ch. I, II, Arts. I, II (1780); N.H. Const., Part II (1784); N.J. Const., Art. III (1776); N.Y. Const., Art. IV (1777); S.C. Const., Art. XIII (1778). See also Klain, A New Look at the Constituencies: The Need for a Recount and a Reappraisal, 49 Am.Pol.Sci.Rev. 1105, 1112-1113 (1955). </s> [Footnote 5 See, e. g., Gingles, 478 U.S., at 88 (1986) (O'CONNOR, J., concurring in judgment) (noting that the Court has determined that "minority voting strength is to be assessed solely in terms of the minority group's ability to elect candidates it prefers") (emphasis omitted). See also Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the Voting Rights Act, 63 N.Y.U.L.Rev. 449, 456, n. 43, 468-471 (1988) (criticizing the Court's "electoral focus" as a narrow conception of "political opportunity"); Guinier 49 (arguing that since Gingles, courts "have measured black political representation and participation solely by reference to the number and consistent election of black candidates"). </s> [Footnote 6 Undoubtedly, one factor that has prompted our focus on control of seats has been a desire, when confronted with an abstract question of political theory concerning the measure of effective participation in government, to seize upon an objective standard for deciding cases, however much it may oversimplify the issues before us. If using control of seats as our standard does not reflect a very nuanced theory of political participation, it at least has the superficial advantage of appealing to the "most easily measured indicia of political power." Davis v. Bandemer, 478 U.S. 109, 157 (1986) (O'CONNOR, J., concurring in judgment). </s> [Footnote 7 Indeed, the assumptions underpinning the Court's conclusions largely parallel principles that John Stuart Mill advanced in proposing a system of proportional representation as an electoral reform in Great Britain. See J. S. Mill, Considerations on Representative Government (1861). In Mill's view, a just system of representative government required an electoral system that ensured "a minority of the electors would always have a minority of the representatives." Id., at 133. To Mill, a system that allowed a portion of the population that constituted a majority in each district to control the election of all representatives and to defeat the minority's choice of candidates was unjust because it operated to produce a "complete disfranchisement of minorities." Id., at 132. </s> [Footnote 8 We ourselves have tacitly acknowledged that our current view of what constitutes an effective vote may be subject to reevaluation, or at least that it may not provide an exclusive definition of effective voting power, </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 11] </s> as we repeatedly have reserved the question whether a vote dilution claim may be brought for failure to create minority "influence" districts. See, e. g., Voinovich v. Quilter, 507 U.S. ___, ___ (1993) (slip op., at 6) (citing cases). Cf. also Bandemer, supra, at 132 (noting that "the power to influence the political process is not limited to winning elections"); Gingles, supra, at 99 (O'CONNOR, J., concurring in judgment) (suggesting that the Court should not focus solely on a minority group's ability to elect representatives in assessing the effectiveness of the group's votes). </s> [Footnote 9 Cf. also Levinson, Gerrymandering and the Brooding Omnipresence of Proportional Representation, 33 UCLA L.Rev. 257, 260-261 (1985). </s> [Footnote 10 There are traces of this view in our cases as well. See Whitcomb, 403 U.S., at 153 , 155; id., at 160 ("The short of it is that we are unprepared to hold that district-based elections decided by plurality vote are unconstitutional in either single- or multi-member districts simply because the supporters of losing candidates have no legislative seats assigned to them"). See also League of United Latin American Citizens v. Midland Independent School Dist., 812 F.2d 1494, 1507 (Higginbotham, J., dissenting) ("I had supposed that the essence of our republican arrangement is that voting minorities lose"), vacated on rehearing, 829 F.2d 546 (CA5 1987) (en banc) (per curiam). </s> [Footnote 11 The point is perhaps so widely accepted at this date that it needs little further demonstration. See, e. g., L. Tribe, American Constitutional Law 13-7, p. 1076, n. 7 (2d ed. 1988) (stating that "no strategy [in vote dilution cases] can avoid the necessity for at least some hard substantive decisions of political theory by the federal judiciary"); Howard & Howard, The Dilemma of the Voting Rights Act - Recognizing the Emerging Political Equality Norm, 83 Colum.L.Rev. 1615, 1633, 1635 (1983) (hereinafter Howard & Howard) (arguing that the Court has developed a "substantive theory of representative government" and a theory of "allocating political power" in vote dilution cases). </s> [Footnote 12 Cf. Citizens for a Better Gretna v. Gretna, 834 F.2d 496, 501-502 (CA5 1987) (emphasizing that political cohesion under Gingles can be shown where a "significant number" of minority voters prefer the same candidate, and suggesting that data showing that anywhere from 49% to 67% of the members of a minority group preferred the same candidate established cohesion), cert. denied, 492 U.S. 905 (1989). </s> [Footnote 13 JUSTICE O'CONNOR agreed with Justice Brennan in Gingles that, insofar as determining political cohesion was concerned, the cause for a correlation between race and candidate preference was irrelevant. She maintained, however, that evidence of the cause of the correlation would still be relevant to the overall vote dilution inquiry and particularly to the question whether a white majority will usually vote to defeat the minority's preferred candidate. See 478 U.S., at 100 (opinion concurring in judgment). The splintering of opinions in Gingles on this point has produced at best, "uncertainty," Overton v. Austin, 871 F.2d 529, 538 (CA5 1989), and has allowed bivariate regression analysis - that is, an analysis that measures merely the correlation between race and candidate preference and that does not directly control for other factors - to become the norm for determining cohesion in vote dilution cases. See id., at 539. But cf. League of United Latin American Citizens v. Clements, 999 F.2d 831, 850-851 (CA5 1993), cert. denied, 510 U.S. ___ (1994). </s> [Footnote 14 Cf. Lijphart, Proportionality by Non-PR Methods: Ethnic Representation in Belgium, Cyprus, Lebanon, New Zealand, West Germany, and Zimbabwe, in Electoral Laws and Their Political Consequences 113, 116 (B. Grofman & A. Lijphart eds. 1986) (describing methods other than separate electoral registers to allocate political power on the basis of ethnicity or race). </s> [Footnote 15 Under a cumulative voting scheme, a system commonly used in corporations to protect the interests of minority shareholders, see R. Clark, Corporate Law 9.1.3, pp. 361-366 (1986), each voter has as many votes as there are posts to be filled, and the voter may cast as many of his votes as he wishes for a single candidate. The system thus allows a numerical minority to concentrate its voting power behind a given candidate without requiring that the minority voters themselves be concentrated into a single district. For a complete description of the mechanics of cumulative voting, see Zimmerman, The Federal Voting Rights Act and Alternative Election Systems, 19 Wm. & Mary L.Rev. 621, 654-657 (1978). </s> [Footnote 16 A system utilizing transferable votes is designed to ensure proportional representation with "mathematical exactness." Id., at 640. Under such a system, each voter rank orders his choices of candidates. To win, a candidate must receive a fixed quota of votes, which may be set by any of several methods. Ballots listing a given candidate as the voter's first </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 21] </s> choice are counted for that candidate until the candidate has secured the quota of votes necessary for election. Remaining first-choice ballots for that candidate are then transferred to another candidate, usually the one listed as the second choice on the ballot. See id., at 640-642. Like cumulative voting, the system allows a minority group to concentrate its voting power without requiring districting, and it has the additional advantage of ensuring that "surplus" votes are transferred to support the election of the minority voters' next preference. </s> [Footnote 17 Such methods of voting cannot be rejected out-of-hand as bizarre concoctions of Voting Rights Act plaintiffs. The system of transferable votes was a widely celebrated, although unsuccessful, proposal for English parliamentary reform in the last century. See generally T. Hare, Election of Representatives (4th ed. 1873); J.S. Mill, Considerations on Representative Government (1861). And while it is an oddity in </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 22] </s> American political history, cumulative voting in an at-large system has been employed in some American jurisdictions. See Weaver, Semi-Proportional and Proportional Representation Systems in the United States, in Choosing an Electoral System 191, 198 (A. Lijphart & B. Grofman eds. 1984); Hyneman & Morgan, Cumulative Voting in Illinois, 32 Ill.L.Rev. 12 (1937). See also Ill. Const., Art. IV, 7, 8 (1870). </s> [Footnote 18 JUSTICE STEVENS suggests that the discussion above outlines policy arguments best addressed to Congress. See post, at 1. In one sense, that is precisely my point. The issues I have discussed above involve policy decisions that are matters best left to Congress. Our interpretation of the Voting Rights Act, however, has required federal courts to take over the policymaking role in the area of voting rights and has forced judges to make decisions on matters beyond the normal sphere of judicial competence. </s> [Footnote 19 Cf. South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966) (noting that "Congress knew that some of the States . . . had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees" and that "Congress had reason to suppose that these States might try similar maneuvers in the future"). </s> [Footnote 20 Indeed, in Mobile v. Bolden, 446 U.S. 55 (1980), a plurality of the Court concluded that the Fifteenth Amendment did not address concerns of dilution at all. See id., at 65. Cf. id., at 84, n. 3 (STEVENS, J., concurring in judgment) (noting that the plurality had concluded that the Fifteenth Amendment "applies only to practices that directly affect access to the ballot, and hence is totally inapplicable to the case at bar"). Contrary to JUSTICE STEVENS' suggestions, post, at 2, 6, Gomillion v. Lightfoot, 364 U.S. 339 (1960), does not indicate that the Fifteenth Amendment, in protecting the right to vote, incorporates a concern for anything beyond securing access to the ballot. The Gomillion plaintiffs' claims centered precisely on access: their complaint was not that the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 32] </s> weight of their votes had been diminished in some way, but that the boundaries of a city had been drawn to prevent blacks from voting in municipal elections altogether. Id., at 341. Gomillion thus "maintains the distinction between an attempt to exclude Negroes totally from the relevant constituency, and a statute that permits Negroes to vote but which uses the gerrymander to contain the impact of Negro suffrage." Allen v. State Bd. of Elections, 393 U.S. 544, 589 (1969) (Harlan, J., concurring in part and dissenting in part). </s> [Footnote 21 The original 2 provided that no "standard, practice, or procedure" should be imposed or applied "to deny or abridge the right . . . to vote." Pub.L. 89-110, 2, 79 Stat. 437. </s> [Footnote 22 If anything, applying the Lorillard principle of construction might suggest that, by reenacting virtually the same language derived from the Fifteenth Amendment to define the basic interest protected by the Act, Congress intended to preserve the limitation that the Bolden plurality found implicit in that language. It is clear from the terms of the amendments passed in 1982 that, where Congress sought to alter the understanding of the Act announced in Bolden, it did so explicitly in the text of the statute. As I explain more fully, infra, at 35, the 1982 amendments modified 2 to eliminate the requirement under Bolden that 2 plaintiffs, like plaintiffs under the Fifteenth Amendment, show that a challenged practice was adopted with a discriminatory intent, see 446 U.S., at 62 -63, and replaced that test with specific language in 2(b) setting a standard based simply on discriminatory results. See Pub.L. 97-205, 3, 96 Stat. 134. Had Congress intended to alter the understanding that 2 protects a concept of the "right to vote" that does not extend to prohibit vote dilution, it likely would have addressed that aspect of Bolden explicitly as well. </s> [Footnote 23 See also Banzhaf, Multi-Member Electoral Districts - Do They Violate the "One Man, One Vote" Principle, 75 Yale L.J. 1309 (1966) (suggesting that how close different districting systems come to providing persons equal political "power" can be measured by comparing the statistical probability under each system that a person's vote will determine the election result). Cf. Whitcomb, 403 U.S., at 145 , n. 23. </s> [Footnote 24 In addition, in one respect, there is a significant tension between the terms of the results test and an interpretation of the Act that reaches vote dilution claims. Section 2(b) provides that a violation may be established where it is shown that members of a minority have less opportunity than other members of the electorate "to participate in the political process and to elect representatives of their choice." 42 U.S.C. 1973(b) (emphasis added). We have held that any challenged "standard, practice, or procedure" must have both of these effects to violate the test outlined in 2(b). See Chisom v. Roemer, 501 U.S. 380, 397 (1991). It is not clear, however, that a potentially dilutive districting method can satisfy both prongs of the test. The primary effect of the choice of one districting system over another will be the direct and mathematically quantifiable impact that the system will have on a minority group's ability to control a given number of seats. But even if one assumes that a districting system may therefore be said to impair a group's "opportunity" to "elect representatives of its choice," it is difficult to see how a districting system could be said to impair a group's opportunity to "participate in the political process," at least if participation is understood to have any meaning distinct from controlling seats. </s> [Footnote 25 As I discuss more fully below, our cases have pursued the latter option. See infra, at 49-56. </s> [Footnote 26 In Johnson v. De Grandy, post the Court suggests that 2(b) disclaims only a guarantee of success for minority candidates and thus that it has nothing to say concerning remedial schemes designed to provide a minority group proportional control over seats. See post, at 16, n. 11. See also post, at 2 (KENNEDY, J., concurring in part and concurring in judgment). Minority control, of course, may or may not result in the election of minority candidates. The Court's reading of the disclaimer, in my view, distorts the obvious import of the provision. The clause rejecting a group's right to elect its own members in proportion to their numbers must be understood as a disclaimer of a minority group's right to proportional political power. Otherwise, in practical terms, the clause would be reduced to a nullity. It should be clear that a system that gives a minority group proportional control effectively provides the "right" to elect a proportionate number of minority candidates that the Act disclaims. Whether that right is utilized by minority voters to elect minority candidates is a matter of the voters' choice. The De Grandy Court's position seems to be that the proviso is directed, not at a system intended to guarantee the ability to elect minority candidates in proportion to the minority's numbers, but only at a system that will invariably guarantee the election of a proportionate number of minority candidates. Only one system </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 41] </s> would fit that description: a system based on a racial register in which a quota of seats are set aside for members of a minority group. I think it would be preposterous to suggest that the disclaimer in 2(b) was intended solely to prohibit the use of such a system. Such a device has never, to my knowledge, been proposed in any voting rights case. Moreover, to the extent that the decisions in White and Whitcomb can inform our understanding of 2(b), they suggest that, in expressing a concern that "proportionality" not be used as the measure of a voting rights violation, Congress was concerned with proportional electoral power, not merely proportional election of minority candidates. See, e. g., Whitcomb, 403 U.S., at 153 (rejecting the "failure of [the minority group] to have legislative seats in proportion to its population" as a sufficient basis for a claim) (emphasis added). The proviso has been understood in the past simply as a disclaimer of a right to proportional representation, see, e. g., Gingles, 478 U.S., at 84 -86, 94 (O'CONNOR, J., concurring in judgment), and I think that understanding is correct. </s> [Footnote 27 I need not decide in this case whether I would overrule our decisions construing the terms "standard, practice, or procedure" in 5; the challenge here involves only 2. Although, in my view, our construction of 5 may well be incorrect as a matter of first impression, stare decisis would suggest that such an error in prior decisions may not, in itself, justify overruling settled precedent. Determining whether to abandon prior decisions requires weighing a multitude of factors, one of the most important of which is the extent to which the decisions in question have proved unworkable. Cf. infra, at 48-49. In that regard, while the practical differences in the application of 2 and 5 that JUSTICE KENNEDY points out, see ante, at 8-9, would not, in my view, suggest as an original matter that the same terms in the two sections should be read to have different meanings, JUSTICE KENNEDY's observations might suggest that different considerations would have a bearing on the question whether our past interpretations should be abandoned in the 5 and 2 contexts. Indeed, in the 5 context they might suggest a contrary conclusion to the result I reach under 2. See infra, at 49-59. That, however, is a question for another day. </s> [Footnote 28 In offering two citations to support the sweeping proposition that Committee Reports provide the authoritative source for legislative intent, Gingles plainly misread the import of our prior decisions. Far from giving an unqualified endorsement of Committee Reports as a guide to congressional intent, the Court in Garcia v. United States, 469 U.S. 70 (1984), merely indicated that, when resort to legislative history is </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 45] </s> necessary, it is only Committee Reports, not the various other sources of legislative history, that should be considered. See id., at 76. The Court, however, carefully repeated Justice Jackson's admonition that "[r]esort to legislative history is only justified where the face of the [statute] is inescapably ambiguous." Id., at 76, n. 3 (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (concurring opinion)). Similarly, in Zuber v. Allen, 396 U.S. 168 (1969), we considered the reliability of Committee Reports only as a relative matter in comparing them to statements made by individual Congressmen during floor debates. See id., at 186. </s> Even if I agreed with Justice Jackson that resort to legislative history is permissible when the text of a statute is "inescapably ambiguous," I could not agree with the use the Court has made of legislative history in interpreting 2. I think it is clear, first, that, in interpreting 2, the Court has never undertaken any inquiry into the meaning of the plain language of the statute to determine whether it is ambiguous, and second, that the text of 2 is not riddled with such hopeless ambiguity. </s> [Footnote 29 I assume, for purposes of the analysis here, that the measure of </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 50] </s> effective votes is control of seats. That is precisely the measure the Court has applied, both in the past, see, e. g., Gingles, 478 U.S., at 46 -51; id., at 93, 99 (O'CONNOR, J., concurring in judgment) (noting that the Court had made electoral results the "linchpin" of dilution claims), and today, see Johnson v. De Grandy, post, at 17 (equating "political effectiveness" with control of majority-minority districts). </s> [Footnote 30 Of course, throughout this discussion concerning the Court's inevitable resort to proportionality, I have assumed that effective votes will be measured in terms of control of seats. See n. 29, supra. As JUSTICE O'CONNOR suggests in her opinion in De Grandy, if we were to measure the effectiveness of votes not simply in terms of numbers of seats, but in terms of some more amorphous concept of "access to the political process," there would be no need to make proportionality "dispositive." See De Grandy, post, at 2 (O'CONNOR, J., concurring). Cf. White, 412 U.S., at 765 -766. But Gingles made control of seats the determining factor in dilution claims; that is the measure that has been applied in cases under Gingles, and it remains the measure applied in practice in the cases handed down today. In my view, it is unrealistic to think that the Court will now reverse course and establish some broader understanding of "political effectiveness" under the "totality of circumstances" test, after it consistently has pursued a measure of effective voting that makes electoral results the "linchpin" of dilution claims. See 478 U.S., at 93 (O'CONNOR, J., concurring in judgment). Indeed, any change in course is made more unlikely by one very practical consideration. As the Court's decision in De Grandy perhaps suggests, measuring political effectiveness by any method other than counting numbers of seats can rapidly become a wholly unmanageable task. As I suggested above, see n. 6, supra, one of the reasons the Court seized upon control of seats as a measure of effective political participation is simply that control of seats provides the "most easily measured indicia of political power." Bandemer, 478 U.S., at 157 (O'CONNOR, J., concurring in judgment). </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE BLACKMUN, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting. </s> Five Justices today agree that the size of a governing body is a "standard, practice, or procedure" under 2 of the Voting Rights Act of 1965, as amended (Act), 42 U.S.C. 1973. A different five Justices decide, under three separate theories, that voting rights plaintiffs cannot bring 2 dilution challenges based on size. I, however, believe that the Act, its history, and our own precedent require us to conclude not only that the size of a governing body is a "standard, practice, or procedure" under 2, but also that minority voters may challenge the dilutive effects of this practice by demonstrating their potential to elect representatives under an objectively reasonable alternative practice. Accordingly, I dissent from the Court's decision that minority voters cannot bring 2 vote dilution challenges based on the size of an existing government body. </s> I </s> Section 2(a) of the Act prohibits the imposition or application of any "voting qualification or prerequisite to voting, or standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account or race or color." </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 2] </s> 42 U.S.C. 1973(a) (emphasis added). Section 5 parallels 2 by requiring certain jurisdictions to preclear with the Attorney General a change in "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." 42 U.S.C. 1973c (emphasis added). Under the broad interpretation that this Court, Congress, and the Attorney General consistently have given the Act in general and 5 in particular, the practice of electing a single commissioner, as opposed to a multimember commission, constitutes a "standard, practice, or procedure" under 2. </s> Nearly 30 years of precedent admonish us that the Act, which was adopted "for the broad remedial purpose of `rid[ding] the country of racial discrimination in voting,'" Chisom, ___ U.S., at ___ (slip op. 22), quoting South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966), should be given "the broadest possible scope." Allen v. State Board of Elections, 393 U.S. 544, 567 (1969). Because "the Act itself nowhere amplifies the meaning of the phrase `standard, practice, or procedure with respect to voting,'" the Court "ha[s] sought guidance from the history and purpose of the Act." Dougherty County Bd. of Ed. v. White, 439 U.S. 32, 37 (1978); see also McCain v. Lybrand, 465 U.S. 236, 246 (1984) (the Act must "be interpreted in light of its prophylactic purpose and the historical experience which it reflects"). </s> Consistent with the Act's remedial purposes, this Court has held that a wide variety of election- and voting-related practices fit within the term "standard, practice, or procedure." Among the covered practices are the annexation of land to enlarge city boundaries, see Perkins v. Matthews, 400 U.S. 379, 388 (1971), and Pleasant Grove v. United States, 479 U.S. 462, 467 (1987); a rule requiring employees to take leaves of absence while they campaign for elective office, see Dougherty County Bd. of Ed., 439 U.S., at 34 ; candidate </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 3] </s> filing dates and other procedural requirements, see Whitley v. Williams, decided with Allen v. State Board of Elections, supra; Hadnott v. Amos, 394 U.S. 358, 365 (1969); NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 176 -177 (1985); and candidate residency requirements, see City of Rome v. United States, 446 U.S., at 160 . </s> Specifically, this Court long has treated a change in the size of a governing authority as a change in a "standard, practice, or procedure" with respect to voting. In City of Rome, 446 U.S., at 161 , it noted that it "is not disputed" that an expansion in the size of a Board of Education was "within the purview of the Act" and subject to preclearance under 5. In Lockhart v. United States, 460 U.S. 125, 131 (1983), it stated that a change from a three-member commission to a five-member commission was subject to 5 preclearance. And, most recently, it said that the term "standard, practice, or procedure with respect to voting" included a change in the size of a governing authority or an increase or decrease in the number of elected offices. Presley v. Etowah County Comm'n, 502 U.S. ___, ___ (1992). </s> This conclusion flowed naturally from the holding in Bunton v. Patterson, 393 U.S. 544 (1969), that a change from an elected to an appointed office was a "standard, practice, or procedure with respect to voting." In Bunton, the Court reasoned that the power of a citizen's vote is affected by the change because the citizen has been "prohibited from electing an officer formerly subject to the approval of the voters." Id., at 570. The reverse is also true: a change from an appointed to an elected office affects a citizen's voting power by increasing the number of officials for whom he may vote. See McCain v. Lybrand, 465 U.S. 236 (1984). And, as the Court recognized in Presley, a change in the size of a governing authority is a "standard, practice, or procedure with </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 4] </s> respect to voting" because the change "increase[s] or diminish[es] the number of officials for whom the electorate may vote," 502 U.S., at ___ (slip op. 11); this change bears "on the substance of voting power," and has "a direct relation to voting and the election process." Ibid. </s> To date, our precedent has dealt with 5 challenges to a change in the size of a governing authority, rather than 2 challenges to the existing size of a governing body. I agree with JUSTICE O'CONNOR, ante, at 2, that, as a textual matter, "standard, practice, or procedure" under 2 is at least as broad as "standard, practice, or procedure with respect to voting" under 5. In fact, because of the "close connection" between 2 and 5, we interpret them similarly. See Chisom v. Roemer, 501 U.S. ___, ___ (1991) (slip op. 22) (concluding that it would be "anomalous" to do otherwise). And in the context of 2, the Court stated: "Section 2 protected the right to vote, and it did so without making any distinctions or imposing any limitations as to which elections would fall within its purview." Chisom, ___ U.S., at ___ (slip op. 10). See also Houston Lawyers' Assn. v. Texas Attorney Gen., 501 U.S. 419 (1991) (rejecting a "single member office" exception to 2). </s> Congress repeatedly has endorsed the broad construction this Court has given the Act in general, and 5 in particular. 1 Significantly, when Congress considered the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 5] </s> 1982 amendments to the Voting Rights Act, it made no effort to curtail the application of 5 to changes in size, in the face of the longstanding practice of submitting such changes for preclearance, and on the heels of this Court's recognition just two years earlier that it was "not disputed" that a change in the size of a governing body was covered under 5. See City of Rome, 446 U.S., at 161 . Similarly, the Attorney General, whose construction of the Act "is entitled to considerable deference," NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 178 -179 (1985), for years has required 5 preclearance of the expansion or reduction of a governing body. 2 It is not surprising that no party to this case argued that the size of a governing authority is not a "standard, practice, or procedure." </s> In light of this consistent and expansive interpretation of the Act by this Court, Congress, and the Attorney General, the Act's "all-inclusive" definition of "standard, practice, or procedure," cannot be read to exclude threshold coverage of challenges to the size of a governing authority. As five members of the Court today </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 6] </s> agree, the size of a governing authority is a "standard, practice, or procedure" with respect to voting for purposes of 2 as well as 5 of the Voting Rights Act. </s> II </s> Although five Justices agree that the size of a governing body is a "standard, practice, or procedure" under 2, a like number of Justices conclude, under varying rationales, that Voting Rights plaintiffs nonetheless cannot bring size challenges under 2. This conclusion is inconsistent with our precedent giving the Act "`the broadest possible scope' in combatting racial discrimination," Chisom, ___ U.S., at ___, quoting Allen, 393 U.S., at 567 , and with the vote dilution analysis prescribed in Thornburg v. Gingles, 478 U.S. 30 (1986). </s> To prevail in a vote dilution challenge, minority voters must show that they "possess the potential to elect representatives in the absence of the challenged structure or practice." Id., at 50, n. 17 (second emphasis supplied). 3 There is widespread agreement, see ante, at 5 (opinion of KENNEDY, J., and REHNQUIST, C.J.); ante, at 3 (opinion of O'CONNOR, J.), that minority voters' potential "in the absence of" the allegedly dilutive mechanism must be measured against the benchmark of an alternative structure or practice that is reasonable and workable under the facts of the specific case. 4 </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 7] </s> By all objective measures, the proposed five-member Bleckley County Commission presents a reasonable, workable benchmark against which to measure the practice of electing a sole commissioner. First, the Georgia Legislature specifically authorized a five-member commission for Bleckley County. 1985 Ga.Laws 4406. Moreover, a five-member commission is the most common form of governing authority in Georgia. See Georgia Dept of Community Affairs, County Government Information Catalog (1989) (Table 1.A: Form of Government) (76 of Georgia's 159 counties had five commissioners, including 25 counties smaller than Bleckley County). Bleckley County, as one of a small and dwindling number of counties in Georgia still employing a sole commissioner, markedly departs from practices elsewhere in Georgia. This marked "depart[ure] . . . from practices elsewhere in the jurisdiction . . . bears on the fairness of [the sole commissioner's] impact." S.Rep. No. 97-417, p. 29, n. 117 (1982). Finally, the county itself has moved from a single superintendent of education to a school board with five members elected from single-member districts, providing a workable and readily available model for commission districts. Thus, the proposed five-member baseline is reasonable and workable. </s> In this case, identifying an appropriate baseline against which to measure dilution is not difficult. In other cases, it may be harder. But the need to make difficult judgments does not "justify a judicially created limitation on the coverage of the broadly worded statute, </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 8] </s> as enacted and amended by Congress." Chisom, ___ U.S., at ___ (slip op. 22). Vote dilution is inherently a relative concept, requiring a highly "flexible, fact-intensive" inquiry, Gingles, 478 U.S., at 46 , and calling for an exercise of the "court's overall judgment, based on the totality of the circumstances and guided by those relevant factors in the particular case," as mandated by Congress. S.Rep. No. 97-417, p. 29, n. 118. Certainly judges who engage in the complex task of evaluating reapportionment plans and examining district lines will be able to determine whether a proposed baseline is an appropriate one against which to measure a claim of vote dilution based on the size of a county commission. </s> There are, to be sure, significant constraints on size challenges. Minority plaintiffs, who bear the burden of demonstrating dilution, also bear the burden of demonstrating that their proposed benchmark is reasonable and workable. One indication of benchmark's reasonableness is its grounding in history, custom, or practice. This consideration will discourage size challenges to traditional single-member executive offices, such as governors and mayors, or even sheriffs or clerks of court. By tradition and practice, these executive positions are occupied by one person, so plaintiffs could rarely point to an objectively reasonable alternative size that has any foundation in the past or present. Cf. The Federalist No. 69, p. 415 (C. Rossiter ed. 1961) (A. Hamilton) ("[T]he executive authority, with few exceptions, is to be vested in a single magistrate"). The sole commissioner, by contrast, holds plenary legislative, as well as executive, power. Ga.Code Ann. 36-5-22.1 (1993). A one-member legislature, far from being the norm, is an anomaly. Accordingly, the Eleventh Circuit, while permitting 2 challenges to the practice of electing a sole commissioner, has held that this provision cannot be used to alter the practice of electing a single person to offices such as lieutenant governor, sheriff, probate </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 9] </s> judge, and tax collector. See Dillard v. Crenshaw County, 831 F.2d 246, 251 (1987); United States v. Dallas County Comm'n, 850 F.2d 1430, 1432, n. 1 (1988), cert. denied, 490 U.S. 1030 (1989). 5 </s> Additionally, every successful vote dilution challenge will be based on the "totality of the circumstances," often including the lingering effects of past discrimination. S.Rep. No. 97-417, pp. 28-30. Not every racial or language minority that constitutes 5% of the population has a claim to have a governing authority expanded to 20 members in order to give them an opportunity to elect a representative. Instead, the voters would have to prove that a 20-member governing authority was a reasonable benchmark - which, of course, respondents could not do here - and that their claim satisfied the three Gingles preconditions, 478 U.S., at 49 , and was warranted under the totality of the circumstances. 6 </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 10] </s> With these limitations, successful vote dilution challenges to the size of a governing authority always will be based not on abstract manipulation of numbers, but on a "searching practical evaluation of `past and present reality.'" S.Rep. No. 97-417, p. 30, quoting White v. Regester, 412 U.S. 755, 770 (1973). These limitations protect against a proliferation of vote dilution challenges premised on eccentric or impracticable alternative methods of redistricting. </s> III </s> The Voting Rights Act of 1965 was bold and ambitious legislation, designed to eradicate the vestiges of past </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 11] </s> discrimination and to make members of racial and language minorities full participants in American political life. Nearly 30 years after the passage of this landmark civil rights legislation, its goals remain unfulfilled. Today, the most blatant forms of discrimination - including poll taxes, literacy tests, and "white" primaries - have been eliminated. But subtler, more complex means of infringing minority voting strength - including submergence or dispersion of minority voters - are still present and indeed prevalent. We have recognized over the years that seemingly innocuous and even well intentioned election practices may impede minority voters' ability not only to vote, but to have their votes count. It is clear that the practice of electing a single-member county commission can be one such dilutive practice. It is equally clear that a five-member commission is an appropriate benchmark against which to measure the alleged dilutive effects of Bleckley County's practice of electing a sole commissioner. I respectfully dissent. </s> [Footnote 1 See Georgia v. United States, 411 U.S. 526, 533 (1973) ("After extensive deliberations in 1970 on bills to extend the Voting Rights Act, during which the Allen case was repeatedly discussed, the Act was extended for five years, without any substantive modification of 5.") (footnote omitted); Dougherty County Bd. of Education v. White, 439 U.S. 32, 39 (1978) ("Again in 1975, both the House and Senate Judiciary Committees, in recommending extension of the Act, noted with approval the `broad interpretations to the scope of Section 5' in Allen and Perkins v. Matthews [400 U.S. 379 (1971)]"); NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 176 (1985) (in the 1982 extension of the </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 5] </s> Act, "Congress specifically endorsed a broad construction" of 5). </s> [Footnote 2 See Hearings on S. 1992 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 2d Sess., 1748 (1982) (noting Attorney General's objection in 1971 to proposed reduction in the size of a school board); id., at 1751 (1971 objection to expansion of a parish council); id., at 1782 (1980 objection to decrease in number of city council members); id., at 1384-1385 (the Voting Rights Act afforded protection against "[s]hifts from ward to at-large elections, from plurality win to majority vote, from slating to numbered posts, annexations and changes in the size of electoral bodies," that "could . . . deprive minority voters of fair and effective procedures for electing candidates of their choice") (statement of Drew S. Days, III, former assistant attorney general for civil rights) (emphasis added). Since covered jurisdictions routinely have submitted changes in the size of their legislative bodies for preclearance, it is not surprising that petitioners concede that a change in the size of the Bleckley County Commission would be subject to 5 preclearance. Tr. of Oral Arg. 4, 13. </s> [Footnote 3 Although Gingles dealt with the use of multimember districts, the analysis it prescribes is applicable in certain other vote dilution contexts, such as a claim of "vote fragmentation" through single-member districts, see Growe v. Emison, 507 U.S. ___, ___ (1993), or the case before us. </s> [Footnote 4 As the United States explains, the minority group must be permitted to establish that, under "a proposed alternative voting arrangement that is reasonable in the legal and factual context of a particular case," it could constitute a majority. Brief for United States as Amicus Curiae 8. The Court of Appeals followed this approach, concluding that "it is appropriate to consider the size and geographical compactness of the minority group within a restructured form of the challenged system </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 7] </s> when the existing structure is being challenged as dilutive" (emphasis in original). 955 F.2d 1563, 1569 (CA7 1992). See also Carrollton Branch of NAACP v. Stallings, 829 F.2d 1547 (CA11 1987) (remand of challenge to sole-commissioner system with instructions to consider size and geographic compactness within proposed three- and five-member commission forms of government). </s> [Footnote 5 Of course, this is not to suggest that single-member executive offices are not within the scope of 2, see Houston Lawyers' Assn. v. Texas Attorney Gen., 501 U.S. 419 , ___ (1991), but only that they are not generally susceptible to size challenges under 2. </s> [Footnote 6 The Senate Report accompanying the 1982 amendments to the Act directed that the vote dilution inquiry include an examination of the factors identified in White v. Regester, 412 U.S. 755 (1973), and refined and developed in Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973) (en banc), aff'd, 424 U.S. 636 (1976) (per curiam). This nonexclusive list of factors, now known variously as the Regester-Zimmer factors or "Senate Report factors," includes "the extent of any history of official discrimination . . . that touched the right of the members of the minority group to register to vote, to vote, or otherwise to participate in the democratic process; . . . the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single-shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; . . . [and] the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas a education, employment and health, which hinder their ability to participate effectively in the political process." S.Rep. No. 97-417, </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 10] </s> pp. 28-29. In this case, for example, the District Court found that, until the passage of federal civil rights laws, Bleckley County "enforced racial segregation in all aspects of local government - courthouse, jails, public housing, governmental services - and deprived its black citizens of the opportunity to participate in local government." Hall v. Holder, 757 F.Supp. 1560, 1562 (MD Ga. 1991). Until the passage of the Voting Rights Act of 1965, "black citizens were virtually prohibited from registering to vote in Bleckley County." Id., at 1563. Until 1984, there were no African-American voting registrars, and no voter registration in places where African-Americans normally congregated. Ibid. From 1978 until 1986, the respondent probate judge appointed 224 poll managers, all white, and 509 poll clerks, 479 of whom were white. Ibid. Since 1964, the election of Bleckley County's sole commissioner has been subject to a majority vote requirement. Although official segregation is no longer imposed, its vestiges remain, as "more black than white residents of Bleckley County continue to endure a depressed socio-economic status," id., at 1562, which "hinders the ability of and deters black residents of Bleckley County from running for public office, voting and otherwise participating in the political process," id., at 1563. The "barriers to active participation in the political process are . . . compounded by the fact that Bleckley County now has only one voting precinct for the entire 219 square-mile area." Id., at 1563, n. 3. That single polling place is located at an all-white civic club. 955 F.2d 1563, 1566 (CA11 1992). </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE GINSBURG, dissenting. </s> I join the dissenting opinion by JUSTICE BLACKMUN and the separate opinion of JUSTICE STEVENS, and add a further observation about the responsibility Congress has given to the judiciary. </s> Section 2 of the Voting Rights Act calls for an inquiry into "[t]he extent to which members of a protected class have been elected to office," but simultaneously disclaims any "right to have members of a protected class elected in numbers equal to their proportion in the population." 42 U.S.C. 1973(b). "There is an inherent tension between what Congress wished to do and what it wished to avoid" - between Congress' "inten[t] to allow vote dilution claims to be brought under 2" and its intent to avoid "creat[ing] a right to proportional representation for minority voters." Thornburgh v. Gingles, 478 U.S. 30, 84 (1986) (O'CONNOR, J., joined by Burger, C.J., Powell, and REHNQUIST, JJ., concurring in judgment). Tension of this kind is hardly unique to the Voting Rights Act, for when Congress acts on issues on which its constituents are divided, sometimes bitterly, the give-and-take of legislative compromise can yield statutory language that fails to reconcile conflicting goals and purposes. </s> Title VII of the Civil Rights Act of 1964, for example, </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 2] </s> is similarly janus-faced, prohibiting discrimination against historically disadvantaged groups, see 42 U.S.C. 2000e-2(a), (d), without "diminish[ing] traditional management prerogatives," United Steelworkers of America v. Weber, 443 U.S. 193, 207 (1979), in regard to employment decisions. See 42 U.S.C. 2000e-2(j) (no requirement that employer "grant preferential treatment to any individual or to any group because of . . . race, color, religion, sex, or national origin"); see also Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 649 (1987) (O'CONNOR, J., concurring in judgment) (noting two "conflicting concerns" built into Title VII: "Congress' intent to root out invidious discrimination against any person on the basis of race or gender, and its goal of eliminating the lasting effects of discrimination against minorities") (emphasis in original) (citation omitted). </s> When courts are confronted with congressionally crafted compromises of this kind, it is "not an easy task" to remain "faithful to the balance Congress struck." Thornburgh v. Gingles, 478 U.S., at 84 (O'CONNOR, J., joined by Burger, C.J., Powell, and REHNQUIST, JJ., concurring in judgment). The statute's broad remedial purposes, as well as the constraints on the courts' remedial powers, need to be carefully considered in light of the particular circumstances of each case to arrive at an appropriate resolution of the competing congressional concerns. However difficult this task may prove to be, it is one that courts must undertake, because it is their mission to effectuate Congress' multiple purposes as best they can. See Chisom v. Roemer, 499 U.S. ___, ___ (1991) ("Even if serious problems lie ahead in applying [`totality of the circumstances' inquiry under 2(b) of the Voting Rights Act], that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute[.]"). </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 1] </s> Separate opinion of JUSTICE STEVENS, in which JUSTICE BLACKMUN, JUSTICE SOUTER, and JUSTICE GINSBURG join. </s> JUSTICE THOMAS has written a separate opinion proposing that the terms "standard, practice, or procedure" as used in the Voting Rights Act should henceforth be construed to refer only to practices that affect minority citizens' access to the ballot. Specifically, JUSTICE THOMAS would no longer interpret the Act to forbid practices that dilute minority voting strength. To the extent that his opinion advances policy arguments in favor of that interpretation of the statute, it should be addressed to Congress, which has ample power to amend the statute. To the extent that the opinion suggests that federal judges have an obligation to subscribe to the proposed narrow reading of statutory language, it is appropriate to supplement JUSTICE THOMAS' writing with a few words of history. </s> I </s> JUSTICE THOMAS notes that the first generation of Voting Rights Act cases focused on access to the ballot. Ante, at 3-4. By doing so, he suggests that the early pattern of enforcement is an indication of the original meaning of the statute. In this regard, it is important </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 2] </s> to note that the Court's first case addressing a voting practice other than access to the ballot arose under the Fifteenth Amendment. In Gomillion v. Lightfoot, 364 U.S. 339 (1960), the Court held that a change in the boundaries of the city of Tuskegee, Alabama, violated the Fifteenth Amendment. In his opinion for the Court, Justice Frankfurter wrote: </s> "The opposite conclusion urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions." Id., at 345. </s> "A statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. According to the allegations here made, the Alabama Legislature has not merely redrawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights, and, to that end, it has incidentally changed the city's boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights." Id., at 347. 1 </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 3] </s> Because Gomillion was decided only a few years before the Voting Rights Act of 1965 was passed, and because coverage under the Voting Rights Act is generally coextensive with or broader than coverage under the Fifteenth Amendment, see Katzenbach v. Morgan, 384 U.S. 641 (1966); Mobile v. Bolden, 446 U.S. 55, 60 -61 (1980) (plurality opinion), it is surely not unreasonable to infer that Congress intended the Act to reach the kind of voting practice that was at issue in that case. Nevertheless, the text of the Act would also have supported the opposite inference, because the language of the Fifteenth Amendment would seem to forbid any denial or abridgment of the right to vote, whereas 2 and 5 of the Voting Rights Act refer only to "voting qualification[s,] . . . prerequisite[s] to voting, . . . standard[s], practice[s], [and] procedure[s]." </s> During the years between 1965 and 1969, the question whether the Voting Rights Act should be narrowly construed to cover nothing more than impediments to access to the ballot was an unresolved issue. What JUSTICE THOMAS describes as "a fundamental shift in the focal point of the Act," ante, at 2, occurred in 1969, when the Court unequivocally rejected the narrow reading, relying heavily on a broad definition of the term "voting" as including "`all action necessary to make a vote effective.'" Allen v. State Bd. of Elections, 393 U.S. 544, 565 -566. </s> Despite Allen's purported deviation from the Act's true meaning, Congress, one year later, reenacted 5 without </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 4] </s> in any way changing the operative words. During the next five years, the Court consistently adhered to Allen, see Perkins v. Matthews, 400 U.S. 379 (1971); Georgia v. United States, 411 U.S. 526 (1973), and, in 1975, Congress again reenacted 5 without change. </s> When, in the late seventies, some parties advocated a narrow reading of the Act, the Court pointed to these Congressional reenactments as solid evidence that Allen, even if not correctly decided in 1969, would now be clearly correct. In United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 132 -133 (1978), the Court noted: </s> "In 1970, Congress was clearly fully aware of this Court's interpretation of 5 as reaching voter changes other than those affecting the registration process and plainly contemplated that the Act would continue to be so construed. See, e. g., Hearings on H.R. 4249 et al. before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 1, 4, 18, 83, 130-131, 133, 147-149, 154-155, 182-184, 402-454 (1969); Hearings on S. 818 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 48, 195-196, 369-370, 397-398, 426-427, 469 (1970). . . . </s> "The congressional history is even clearer with respect to the 1975 extension. . . ." 2 </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 5] </s> As the Court in that case also noted, when Congress reenacts a statute with knowledge of its prior interpretation, that interpretation is binding on the Court. </s> "Whatever one might think of the other arguments advanced, the legislative background of the 1975 reenactment is conclusive of the question before us. When a Congress that reenacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby. See, e.g., Don E. Williams Co. v. Commissioner, 429 U.S. 569, 576 -577 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8 (1975); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1404 (tent. ed. 1958); cf. Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 336 n. 7 (1971); Girouard v. United States, 328 U.S. 61, 69 -70 (1946). Don E. Williams Co. v. Commissioner, supra, is instructive. As here, there had been a longstanding administrative interpretation of a statute when Congress reenacted it, and there, as here, the legislative history of the reenactment showed that Congress agreed with that interpretation, leading this Court to conclude that </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 6] </s> Congress had ratified it. 429 U.S., at 574 -577." Id., at 134-135. </s> If the 1970 and 1975 reenactments had left any doubt as to congressional intent, that doubt would be set aside by the 1982 amendments to 2. Between 1975 and 1982, the Court continued to interpret the Voting Rights Act in the broad manner set out by Allen. See City of Rome v. United States, 446 U.S. 156 (1980); Dougherty County Bd. of Ed. v. White, 439 U.S. 32 (1978); United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977); City of Richmond v. United States, 422 U.S. 358 (1975). In Mobile v. Bolden, 446 U.S. 55 (1980), a plurality of this Court concluded that violations of both the Voting Rights Act and the Fifteenth Amendment required discriminatory purpose. The case involved a claim that at-large voting diluted minority voting strength. In his opinion for the plurality in Bolden, Justice Stewart expressly relied upon Gomillion v. Lightfoot's holding "that allegations of a racially motivated gerrymander of municipal boundaries stated a claim under the Fifteenth Amendment." 446 U.S., at 62 ; see also id., at 85-86 (STEVENS, J., concurring in judgment). The only reason Gomillion did not control the outcome in Bolden was that an "invidious purpose" had been alleged in the earlier case, but not in Bolden. 446 U.S., at 63 . 3 The congressional response to Bolden is familiar history. In the 1982 amendment to 2 of the Voting Rights Act, Congress substituted a "results" test for an intent requirement. Pub.L. 97-205 3, 96 Stat. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 7] </s> 134; see 42 U.S.C. 1973. It is crystal clear that Congress intended the 1982 amendment to cover non-access claims like those in Bolden and Gomillion. 4 </s> II </s> JUSTICE THOMAS' narrow interpretation of the words "voting qualification . . . standard, practice, or procedure," if adopted, would require us to overrule Allen and the cases that have adhered to its reading of the critical statutory language. The radical character of that suggested interpretation is illustrated by the following passage from an opinion decided only nine years after Allen: </s> "The Court's decisions over the past 10 years have given 5 the broad scope suggested by the language of the Act. We first construed it in Allen v. State Board of Elections, [393 U.S. 544 (1969)]. There, our examination of the Act's objectives and original legislative history led us to interpret 5 to give it "the broadest possible scope," 393 U.S., at 567 , and to require prior federal scrutiny of "any state enactment which altered the election law in a covered State in even a minor way." Id., at 566. In so construing 5, we unanimously rejected - as the plain terms of the Act would themselves have seemingly required - the argument of an appellee that 5 should apply only to enactments affecting who may register to vote. 393 U.S., at 564 . Our </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 8] </s> decisions have required federal preclearance of laws changing the location of polling places, see Perkins v. Matthews, 400 U.S. 379 (1971), laws adopting at-large systems of election, ibid.; Fairley v. Patterson (decided with Allen, supra); laws providing for the appointment of previously elected officials, Bunton v. Patterson (decided with Allen, supra); laws regulating candidacy, Whitley v. Williams (decided with Allen, supra); laws changing voting procedures, Allen, supra; annexations, City of Richmond v. United States, 422 U.S. 358 (1975); City of Petersburg v. United States, 410 U.S. 962 (1973), summarily aff'g 354 F.Supp. 1021 (DC 1972); Perkins v. Matthews, supra; and reapportionment and redistricting, Beer v. United States, 425 U.S. 130 (1976); Georgia v. United States, 411 U.S. 526 (1973); see United Jewish Organizations v. Carey, 430 U.S. 144 (1977). In each case, federal scrutiny of the proposed change was required because the change had the potential to deny or dilute the rights conferred by 4(a). United States v. Sheffield Bd. of Comm'rs, 435 U.S., at 122 -123 (footnote omitted). </s> The Allen interpretation of the Act has also been followed in a host of cases decided in later years, among them Houston Lawyers' Assn. v. Attorney General of Texas, 501 U.S. 419 (1991); Pleasant Grove v. United States, 479 U.S. 462 (1987); Thornburg v. Gingles, 478 U.S. 30 (1986); Port Arthur v. United States, 459 U.S. 159 (1982); City of Rome v. United States, 446 U.S. 156 (1980); Dougherty County Bd. of Ed. v. White, 439 U.S. 32 (1978). In addition, JUSTICE THOMAS' interpretation would call into question the numerous other cases since 1978 that have assumed the broad coverage of the Voting Rights Act that JUSTICE THOMAS would now have us reject. Chisom v. Roemer, 501 U.S. 380 (1991); Clark v. Roemer, 500 U.S. 646 (1991); McCain v. </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 9] </s> Lybrand, 465 U.S. 236 (1984); Hathorn v. Lovorn, 457 U.S. 255 (1982); Blanding v. DuBose, 454 U.S. 393 (1982); McDaniel v. Sanchez, 452 U.S. 130 (1981); Berry v. Doles, 438 U.S. 190 (1978); see also Presley v. Etowah County Comm'n, 502 U.S. ___ (1992); Voinovich v. Quilter, 507 U.S. ___ (1993); Growe v. Emison, 507 U.S. ___ (1993); Lockhart v. United States, 460 U.S. 125 (1983). </s> The large number of decisions that we would have to overrule or reconsider, as well as the congressional reenactments discussed above, suggests that JUSTICE THOMAS' radical reinterpretation of the Voting Rights Act is barred by the well-established principle that stare decisis has special force in the statutory arena. Ankenbrandt v. Richards, 504 U.S. ___, ___ (1992); Patterson v. McLean Credit Union, 491 U.S. 164, 171 -172 (1989); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 -737 (1977). </s> JUSTICE THOMAS attempts to minimize the radical implications of his interpretation of the phrase "voting qualification . . . standard, practice, or procedure" by noting that this case involves only the interpretation of 2 of the Voting Rights Act. Section 5, he hints, might be interpreted differently. Even limiting the reinterpretation to 2 cases, however, would require overruling a sizable number of this Court's precedents. Houston Lawyers' Assn. v. Attorney General of Texas, 501 U.S. 419 (1991); Chisom v. Roemer, 501 U.S. 380 (1991); Thornburg v. Gingles, 478 U.S. 30 (1986); see also Voinovich v. Quilter, 507 U.S. ___ (1993); Growe v. Emison, 507 U.S. ___ (1993). In addition, a distinction between 2 and 5 is difficult to square with the language of the statute. Sections 2 and 5 contain exactly the same words: "voting qualification . . . standard, practice, or procedure." If anything, the wording of 5 is narrower, because it adds the limiting phrase "with respect to voting" after the word "procedure." Moreover, </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 10] </s> when Congress amended the Voting Rights Act in 1982 in response to Bolden, it amended 2. As noted above, in those amendments, Congress clearly endorsed the application of the Voting Rights Act to vote dilution claims. While a distinction between 2 and 5 might be supportable on policy grounds, it is an odd distinction for devotees of "plain language" interpretation. </s> Throughout his opinion, JUSTICE THOMAS argues that this case is an exception to stare decisis, because Allen and its progeny have "immersed the federal courts in a hopeless project of weighing questions of political theory." Ante, at 1. There is no question that the Voting Rights Act has required the courts to resolve difficult questions, but that is no reason to deviate from an interpretation that Congress has thrice approved. Statutes frequently require courts to make policy judgments. The Sherman Act, for example, requires courts to delve deeply into the theory of economic organization. Similarly, Title VII of the Civil Rights Act has required the courts to formulate a theory of equal opportunity. Our work would certainly be much easier if every case could be resolved by consulting a dictionary, but when Congress has legislated in general terms, judges may not invoke judicial modesty to avoid difficult questions. </s> III </s> When a statute has been authoritatively, repeatedly, and consistently construed for more than a quarter century, and when Congress has reenacted and extended the statute several times with full awareness of that construction, judges have an especially clear obligation to obey settled law. Whether JUSTICE THOMAS is correct that the Court's settled construction of the Voting Rights Act has been "a disastrous misadventure," ante, at 2, should not affect the decision in this case. It is therefore inappropriate for me to comment on the portions of </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 11] </s> his opinion that are best described as an argument that the statute be repealed or amended in important respects. </s> [Footnote 1 In most of his opinion, JUSTICE THOMAS seems to use the phrase "access to the ballot" to refer to the voter's ability to cast a vote. In an attempt to characterize the Gomillion gerrymander as a practice that interfered with access to the ballot, however, he seems to take the position that the redrawing of the boundaries of a governmental unit is a practice that affects access to the ballot because some </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 3] </s> voters' ballots could not thereafter be cast for the same offices as before. See ante, at 31, n. 20. Under such reasoning the substitution of an appointive office for an elective office, see Bunton v. Patterson, decided with Allen v. State Bd. of Elections, 393 U.S. 544, 550 -551 (1969), or a change in district boundaries that prevented voters from casting ballots for the reelection of their incumbent Congressional Representatives, would also be covered practices. </s> [Footnote 2 See also United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 157 -59 (1977) (opinion of White, J.): "In Allen v. State Board of Elections[, 393 U.S. 544 (1969)], . . . we held that a change from district to at-large voting for county supervisors had to be submitted for federal approval under 5, because of the potential for a "dilution" of minority voting power which could "nullify [its] ability to elect the candidate of [its] choice. . . ." 393 U.S., at 569 . When it renewed the Voting Rights Act in 1970 and again in 1975, Congress was well aware of the application of 5 to redistricting. In </s> [ HOLDER v. HALL, ___ U.S. ___ (1994) </s> , 5] </s> its 1970 extension, Congress relied on findings by the United States Commission on Civil Rights that the newly gained voting strength of minorities was in danger of being diluted by redistricting plans that divided minority communities among predominantly white districts. In 1975, Congress was unmistakably cognizant of this new phase in the effort to eliminate voting discrimination. Former Attorney General Katzenbach testified that 5 "has had its broadest impact . . . in the areas of redistricting and reapportionment," and the Senate and House Reports recommending extension of the Act referred specifically to the Attorney General's role in screening redistricting plans to protect the opportunities for nonwhites to be elected to public office." (footnotes omitted.) </s> [Footnote 3 The idea that the Court in Bolden cast doubt on whether the Voting Rights Act reached diluting practices is flatly refuted by another decision handed down the very same day as the Bolden decision. In City of Rome v. United States, 446 U.S. 156, 186 -187 (1980), the Court held that 5 required preclearance of annexations potentially diluting minority voting strength. Even the dissenters did not suggest that vote dilution claims were now questionable. </s> [Footnote 4 We recently confirmed that interpretation of the 1982 Amendment, stating: "Moreover, there is no question that the terms "standard, practice, or procedure" are broad enough to encompass the use of multimember districts to minimize a racial minority's ability to influence the outcome of an election covered by 2." Chisom v. Roemer, 501 U.S. 380, 390 (1991). Though disagreeing with the Court's holding that the statute covered judicial elections, even the dissenters in that case agreed that the amended 2 "extends to vote dilution claims for the elections of representatives. . . ." Id., at 405. Page I

United States Supreme Court LEVINE v. UNITED STATES(1966) No. 112 Argued: Decided: February 28, 1966 </s> [Footnote * Together with No. 125, Roberts v. United States, No. 230, Grene v. United States, and No. 234, Gradsky et al. v. United States, also on petitions for writs of certiorari to the same court. </s> Petitioners were found guilty by a jury on each count of a tencount indictment, of which the first count was a conspiracy charge and the remaining counts were charges of substantive offenses. The Court of Appeals affirmed the conspiracy convictions, and with some exceptions, the convictions for the substantive offenses. Held: In view of the Solicitor General's concessions that an individual cannot be held criminally liable for substantive offenses committed before he joined or after he had withdrawn from the conspiracy, and that some of the convictions for substantive offenses here must accordingly be reversed, and upon consideration of the entire record, the judgment of the Court of Appeals is vacated insofar as it affirms petitioners' convictions for substantive offenses and remanded to reverse the convictions the Solicitor General concedes must be reversed and to determine whether petitioners are entitled to any further relief regarding the convictions for substantive offenses. </s> Certiorari granted; 342 F.2d 147, vacated and remanded. </s> Nicholas J. Capuano for petitioner in No. 112. </s> Thomas F. Call for petitioner in No. 125. </s> Joseph W. Wyatt for petitioner in No. 230. </s> Sidney M. Dubbin and E. David Rosen for petitioners in No. 234. </s> Solicitor General Marshall, former Solicitor General Cox, Assistant Attorney General Vinson, Beatrice Rosenberg and Daniel H. Benson for the United States. </s> PER CURIAM. </s> Ten persons were found guilty by a jury on each count of a 10-count indictment. The count predicated on 18 [383 U.S. 265, 266] 18 U.S.C. 371 (1964 ed.) charged all defendants with conspiring to violate 17 of the Securities Act of 1933, 15 U.S.C. 77q (a) (1964 ed.), and the Mail Fraud Act, 18 U.S.C. 1341 (1964 ed.); each of the remaining nine counts charged all defendants with substantive offenses of violating these latter statutes. The Court of Appeals affirmed all the conspiracy convictions; and, with some exception for petitioner Roberts and two other defendants, that court also affirmed the convictions for the substantive offenses. 342 F.2d 147. Four defendants petitioned for writs of certiorari, and a fifth defendant subsequently moved to be added as a co-petitioner in one of the petitions already filed (No. 234). We grant that motion; and we grant the petitions for writs of certiorari limited to the issue whether petitioners were improperly convicted of substantive offenses committed by members of the conspiracy before petitioners had joined the conspiracy or after they had withdrawn from it. In all other respects the petitions are denied. </s> In response to specific questions addressed by this Court, the Solicitor General has made a two-pronged concession: First, he concedes that an individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy; and second, he concedes that in this case some of the convictions for the substantive offenses must be reversed because they are inconsistent with this principle. 1 On the basis of this concession, and upon consideration of the entire record, we vacate the judgment of the Court of Appeals insofar as it affirms petitioners' convictions for the substantive offenses. We remand the [383 U.S. 265, 267] case to that court with instructions to reverse the convictions the Solicitor General concedes must be reversed, and to determine, in light of the concession, the evidence, the instructions to the jury, and the applicable principles of law, whether in addition to the relief conceded by the Solicitor General petitioners are entitled to further relief regarding the convictions for the substantive offenses. </s> Vacated and remanded. </s> Footnotes [Footnote 1 Specifically, the Solicitor General concedes that petitioner Levine's convictions on Counts 1, 3, 4, 5, 6, 7, and 8, and petitioner Grene's convictions on Counts 1 and 7 must be reversed. </s> [383 U.S. 265, 268]

United States Supreme Court MAYLE, WARDEN v. FELIX(2005) No. 04-563 Argued: April 19, 2005Decided: June 23, 2005 </s> Respondent Felix was convicted of murder and robbery in California state court and sentenced to life imprisonment. His current application for federal habeas relief centers on two alleged trial-court errors, both involving the admission of out-of-court statements during the prosecutor's case-in-chief but otherwise unrelated. Felix had made inculpatory statements during pretrial police interrogation. He alleged that those statements were coerced, and that their admission violated his Fifth Amendment privilege against self-incrimination. He also alleged that the admission of a videotape recording of testimony of a prosecution witness violated the Sixth Amendment's Confrontation Clause. </s> Felix's conviction was affirmed on appeal and became final on August 12, 1997. Under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §2244(d)(1), Felix had until August 12, 1998 to file a habeas petition in federal court. On May 8, 1998, in a timely filed habeas petition, Felix asserted his Confrontation Clause challenge to admission of the videotaped prosecution witness testimony, but did not then challenge the admission of his own pretrial statements. On January 28, 1999, over five months after the August 12, 1998 expiration of AEDPA's time limit and eight months after the court appointed counsel to represent him, Felix filed an amended petition asserting a Fifth Amendment objection to admission of his pretrial statements. In response to the State's argument that the Fifth Amendment claim was time barred, Felix asserted the rule that pleading amendments relate back to the filing date of the original pleading when both the original plea and the amendment arise out of the same "conduct, transaction, or occurrence set forth ... in the original pleading," Fed. Rule Civ. Proc.15(c)(2). Because his Fifth Amendment and Confrontation Clause claims challenged the constitutionality of the same criminal conviction, Felix urged, both claims arose out of the same "conduct, transaction, or occurrence." The District Court dismissed the Fifth Amendment claim as time barred, and rejected the Confrontation Clause claim on its merits. The Ninth Circuit affirmed as to the latter claim, but reversed the dismissal of the coerced statements claim and remanded it for further proceedings. In the court's view, the relevant "transaction" for Rule 15(c)(2) purposes was Felix's state-court trial and conviction. Defining transaction with greater specificity, the court reasoned, would unduly strain the meaning of "conduct, transaction, or occurrence" by dividing the trial and conviction into a series of individual occurrences. Held:An amended habeas petition does not relate back (and thereby avoid AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. Pp.7-18. (a)Under §2244(d)(1), a one-year limitation period applies to a state prisoner's federal habeas application. Habeas Corpus Rule 11 permits application of the Federal Rules of Civil Procedure in habeas cases "to the extent [the civil rules] are not inconsistent with any statutory provisions or [the habeas] rules." Section 2242 provides that habeas applications "may be amended ... as provided in the rules of procedure applicable to civil actions." Federal Rule of Civil Procedure 15(a) allows pleading amendments with "leave of court" any time during a proceeding. Before a responsive pleading is served, pleadings may be amended once as a "matter of course," i.e., without seeking court leave. Ibid. Amendments made after the statute of limitations has run relate back to the date of the original pleading if the original and amended pleadings "ar[i]se out of the same conduct, transaction, or occurrence." Rule 15(c)(2). The "original pleading" in a habeas proceeding is the petition as initially filed. That pleading must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." Habeas Corpus Rule 2(c). A prime purpose of Rule 2(c)'s demand that petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted," §2243, or the petition instead should be summarily dismissed without ordering a responsive pleading. Habeas Corpus Rule 4. Pp.7-9. </s> (b)Under the Ninth Circuit's comprehensive definition of "conduct, transaction, or occurrence," virtually any new claim introduced in an amended habeas petition will relate back, for federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence, and commonly attack proceedings anterior thereto. The majority of Circuits define "conduct, transaction, or occurrence" in federal habeas cases far less broadly, allowing relation back only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in both time and type from the originally raised episodes. Under that view, Felix's own pretrial statements, newly raised in his amended petition, would not relate back because they were separated in time and type from the videotaped witness testimony. This Court is not aware, in the run-of-the-mine civil proceedings Rule 15 governs, of any reading of "conduct, transaction, or occurrence" as capacious as the Ninth Circuit's construction for habeas cases. Decisions applying Rule 15(c)(2) in the civil context illustrate that Rule 15(c)(2) relaxes, but does not obliterate, the statute of limitations; hence relation back depends on the existence of a common core of operative facts uniting the original and newly asserted claims. The Court disagrees with Felix's assertion that he seeks, and the Ninth Circuit accorded, no wider range for Rule 15(c)'s relation-back provision than was given the words "conduct, transaction, or occurrence" in Tiller v. Atlantic Coast Line R.Co., 323 U.S. 574, 580-581. There, the amended complaint invoked a legal theory not suggested in the original complaint and relied on facts not originally asserted. Relation back was nevertheless permitted. In Tiller, however, there was but one "occurrence," the death of the petitioner's husband, which she attributed throughout to the respondent's failure to provide a safe workplace. In contrast, Felix targeted discrete episodes, the videotaped witness testimony in his original petition and his own interrogation at a different time and place in his amended petition. Pp.9-13. </s> Felix's contention that the trial itself is the appropriate "transaction" or "occurrence" artificially truncates his claims by homing in only on what makes those claims actionable in a habeas proceeding. Although his self-incrimination claim did not ripen until the prosecutor introduced his pretrial statements at trial, the essential predicate for his Fifth Amendment claim was an extrajudicial event, i.e., an out-of-court police interrogation. The dispositive question in an adjudication of that claim would be the character of the police interrogation, specifically, did Felix answer voluntarily or were his statements coerced. See Haynes v. Washington, 373 U.S. 503, 513-514. Under Habeas Corpus Rule 2(c)'s particularity-in-pleading requirement, Felix's Confrontation Clause claim would be pleaded discretely, as would his self-incrimination claim. Each separate congeries of facts supporting the grounds for relief, the Rule suggests, would delineate an "occurrence." Felix's and the Ninth Circuit's approach is boundless by comparison, allowing a miscellany of claims for relief to be raised later rather than sooner and to relate back. If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance. Pp.13-16. </s> Felix's argument that a firm check against petition amendments presenting new, discrete claims after AEDPA's limitation period has run is provided by Rule 15(a)--which gives district courts discretion to deny petition amendments once a responsive pleading has been filed--overlooks a pleader's right to amend without leave of court "any time before a responsive pleading is served." That time can be long under Habeas Corpus Rule 4, pursuant to which a petition is not served until the judge first examines it to determine whether "it plainly appears ... that the petitioner is not entitled to relief." This Court's reading that relation back will be in order so long as the original and amended petitions state claims that are tied to a common core of operative facts is consistent with Rule 15(c)(2)'s general application in civil cases, with Habeas Corpus Rule 2(c), and with AEDPA's tight time line for petitions. Pp.16-18. 379 F.3d 612, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O'Connor, Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, J., joined. </s> DENEICE A. MAYLE, WARDEN, PETITIONER v. JACOBY LEE FELIX on writ of certiorari to the united states court of appeals for the ninth circuit [June 23, 2005] </s> Justice Ginsburg delivered the opinion of the Court. </s> This case involves two federal prescriptions: the one-year limitation period imposed on federal habeas corpus petitioners by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §2244(d)(1); and the rule that pleading amendments relate back to the filing date of the original pleading when both the original plea and the amendment arise out of the same "conduct, transaction, or occurrence," Fed. Rule Civ. Proc.15(c)(2). </s> Jacoby Lee Felix, California prisoner and federal habeas petitioner, was convicted in California state court of first-degree murder and second-degree robbery, and received a life sentence. Within the one-year limitation period AEDPA allows for habeas petitions, Felix filed a pro se petition in federal court. He initially alleged, inter alia, that the admission into evidence of videotaped testimony of a witness for the prosecution violated his rights under the Sixth Amendment's Confrontation Clause. Five months after the expiration of AEDPA's time limit, and eight months after the federal court appointed counsel to represent him, Felix filed an amended petition in which he added a new claim for relief: He asserted that, in the course of pretrial interrogation, the police used coercive tactics to obtain damaging statements from him, and that admission of those statements at trial violated his Fifth Amendment right against self-incrimination. The question presented concerns the timeliness of Felix's Fifth Amendment claim. </s> In ordinary civil proceedings, the governing Rule, Rule 8 of the Federal Rules of Civil Procedure, requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc.8(a)(2). Rule 2(c) of the Rules Governing Habeas Corpus Cases requires a more detailed statement. The habeas rule instructs the petitioner to "specify all the grounds for relief available to [him]" and to "state the facts supporting each ground."1 By statute, Congress provided that a habeas petition "may be amended ... as provided in the rules of procedure applicable to civil actions." 28 U.S.C. §2242. The Civil Rule on amended pleadings, Rule 15 of the Federal Rules of Civil Procedure, instructs: "An amendment of a pleading relates back to the date of the original pleading when ... the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. Rule Civ. Proc. 15(c)(2). </s> The issue before us is one on which federal appellate courts have divided: Whether, under Federal Rule of Civil Procedure 15(c)(2), Felix's amended petition, filed after AEDPA's one-year limitation and targeting his pretrial statements, relates back to the date of his original timely filed petition, which targeted the videotaped witness testimony. Felix urges, and the Court of Appeals held, that the amended petition qualifies for relation back because both the original petition and the amended pleading arose from the same trial and conviction. We reverse the Court of Appeals' judgment in this regard. An amended habeas petition, we hold, does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth. I </s> In 1995, after a jury trial in Sacramento, California, respondent Jacoby Lee Felix was found guilty of murder and robbery stemming from his participation in a carjacking in which the driver of the car was shot and killed. App. E to Pet. for Cert. 2-7. He was sentenced to life imprisonment without the possibility of parole. App. C to Pet. for Cert. 1-2. The current controversy centers on two alleged errors at Felix's trial. Both involve the admission of out-of-court statements during the prosecutor's case in chief, but the two are otherwise unrelated. One prompted a Fifth Amendment self-incrimination objection originally raised in the trial court, the other, a Sixth Amendment Confrontation Clause challenge, also raised in the trial proceedings. </s> Felix's Fifth Amendment claim rested on the prosecution's introduction of statements Felix made during pretrial police interrogation. These statements were adduced at trial on direct examination of the investigating officer. Felix urged that the police used coercive tactics to elicit the statements. Id., at 8-9. His Sixth Amendment claim related to the admission of the videotaped statements prosecution witness Kenneth Williams made at a jailhouse interview. The videotape records Williams, a friend of Felix, telling the police that he had overheard a conversation in which Felix described the planned robbery just before it occurred. When Williams testified at trial that he did not recall the police interview, the trial court determined that Williams' loss of memory was feigned, and that the videotape was admissible because it contained prior inconsistent statements. App. E to Pet. for Cert. 10-13. On direct appeal, Felix urged, inter alia, that the admission of Williams' videotaped statements violated Felix's constitutional right to confront the witnesses against him. He did not, however, argue that admission of his own pretrial statements violated his right to protection against self-incrimination. The intermediate appellate court affirmed Felix's conviction and sentence, id., at 10-13, 17, and the California Supreme Court denied his petition for review, App. F to Pet. for Cert. 2. Felix's conviction became final on August 12, 1997. App. C to Pet. for Cert. 10. </s> Under AEDPA's one-year statute of limitations, Felix had until August 12, 1998 to file a petition for a writ of habeas corpus in federal district court. See §2244(d)(1)(A). Within the one-year period, on May 8, 1998, he filed a pro se petition for federal habeas relief. Felix's federal petition repeated his Sixth Amendment objection to the admission of the Williams videotape, but he again failed to reassert the objection he made in the trial court to the admission of his own pretrial statements. App. G to Pet. for Cert. 1-7. On May 29, 1998, a Magistrate Judge appointed counsel to represent Felix. App. C to Pet. for Cert. 6; App. H to Pet. for Cert. 2. Thereafter, on September 15, 1998, the Magistrate Judge ordered Felix to file an amended petition within 30 days. Id., at 3. On Felix's unopposed requests, that period was successively extended. Id., at 4-5. Pending the filing of an amended petition, the State was not required to interpose an answer. </s> On January 28, 1999, over five months after the August 12, 1998 expiration of AEDPA's time limit, and eight months after the appointment of counsel to represent him, Felix filed an amended petition. Id., at 5. In this pleading, he reasserted his Confrontation Clause claim, and also asserted, for the first time post-trial, that his own pretrial statements to the police were coerced and therefore inadmissible at trial. App. I to Pet. for Cert. 4. Further, he alleged that his counsel on appeal to the California intermediate appellate court was ineffective in failing to raise the coerced confession claim on direct appeal. Id., at 18-19.2 In its answer to the amended petition, the State asserted that the Fifth Amendment claim was time barred because it was initially raised after the expiration of AEDPA's one-year limitation period. Felix argued in response that the new claim related back to the date of his original petition. Because both Fifth Amendment and Confrontation Clause claims challenged the constitutionality of the same criminal conviction, Felix urged, the Fifth Amendment claim arose out of the "conduct, transaction, or occurrence set forth ... in the original pleading," Fed. Rule Civ. Proc. 15(c)(2). App. C to Pet. for Cert. 16. </s> The Magistrate Judge recommended dismissal of Felix's Fifth Amendment coerced statements claim. Relation back was not in order, the Magistrate said, because Felix's "allegedly involuntary statements to police d[id] not arise out of the same conduct, transaction or occurrence as the videotaped interrogation of [prosecution witness] Kenneth Williams." Id., at 16. It did not suffice, the Magistrate observed, that Felix's Fifth and Sixth Amendment claims attack the same criminal conviction. Ibid. Adopting the Magistrate Judge's report and recommendation in full, the District Court dismissed the Fifth Amendment claim as time barred, and rejected the Confrontation Clause claim on its merits. App. B to Pet. for Cert. 1-3. </s> A divided panel of the Court of Appeals for the Ninth Circuit affirmed the District Court's dismissal of Felix's Confrontation Clause claim, but reversed the dismissal of his coerced statements claim and remanded that claim for further proceedings. 379 F.3d 612 (2004). In the majority's view, the relevant "transaction" for purposes of Rule 15(c)(2) was Felix's "trial and conviction in state court." Id., at 615. Defining the transaction at any greater level of specificity, the majority reasoned, would "unduly strai[n] the usual meaning of 'conduct, transaction, or occurrence'" by dividing the "trial and conviction [into] a series of perhaps hundreds of individual occurrences." Ibid. Judge Tallman concurred in part and dissented in part. In his view, defining "conduct, transaction, or occurrence" under Rule 15(c)(2) "so broadly that any claim stemming from pre-trial motions, the trial, or sentencing relates back to a timely-filed habeas petition" would "obliterat[e] AEDPA's one year statute of limitation." Id., at 618. "While an amendment offered to clarify or amplify the facts already alleged in support of a timely claim may relate back," he reasoned, "an amendment that introduces a new legal theory based on facts different from those underlying the timely claim may not." Id., at 621. </s> We granted certiorari, 543 U.S. ___ (2005), to resolve the conflict among Courts of Appeals on relation back of habeas petition amendments. Compare 379 F.3d, at 614 (if original petition is timely filed, amendments referring to the same trial and conviction may relate back); Ellzey v. United States, 324 F.3d 521, 525-527 (CA7 2003) (same), with United States v. Hicks, 283 F.3d 380, 388-389 (CADC 2002) (relevant transaction must be defined more narrowly than the trial and conviction); United States v. Espinoza-Saenz, 235 F.3d 501, 503-505 (CA10 2000) (same); Davenport v. United States, 217 F.3d 1341, 1344-1346 (CA11 2000) (same); United States v. Pittman, 209 F.3d 314, 317-318 (CA4 2000) (same); United States v. Duffus, 174 F.3d 333, 337 (CA3 1999) (same); United States v. Craycraft, 167 F.3d 451, 457 (CA8 1999) (same). We now reverse the Ninth Circuit's judgment to the extent that it allowed relation back of Felix's Fifth Amendment claim. II A </s> In enacting AEDPA in 1996, Congress imposed for the first time a fixed time limit for collateral attacks in federal court on a judgment of conviction. Section 2244(d)(1) provides: "A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." See also §2255, ¶6 (providing one-year limitation period in which to file a motion to vacate a federal conviction).3 A discrete set of Rules governs federal habeas proceedings launched by state prisoners. See Rules Governing Section 2254 Cases in the United States District Courts.4 The last of those Rules, Habeas Corpus Rule 11, permits application of the Federal Rules of Civil Procedure in habeas cases "to the extent that [the civil rules] are not inconsistent with any statutory provisions or [the habeas] rules." See also Fed. Rule Civ. Proc. 81(a)(2) (The civil rules "are applicable to proceedings for ... habeas corpus."). Rule 11, the Advisory Committee's Notes caution, "permits application of the civil rules only when it would be appropriate to do so," and would not be "inconsistent or inequitable in the overall framework of habeas corpus." Advisory Committee's Note on Habeas Corpus Rule 11, 28 U.S.C., p. 480. In addition to the general prescriptions on application of the civil rules in federal habeas cases, §2242 specifically provides that habeas applications "may be amended ... as provided in the rules of procedure applicable to civil actions." </s> The Civil Rule governing pleading amendments, Federal Rule of Civil Procedure 15, made applicable to habeas proceedings by §2242, Federal Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11, allows pleading amendments with "leave of court" any time during a proceeding. See Fed. Rule Civ. Proc. 15(a). Before a responsive pleading is served, pleadings may be amended once as a "matter of course," i.e., without seeking court leave. Ibid. Amendments made after the statute of limitations has run relate back to the date of the original pleading if the original and amended pleadings "ar[i]se out of the conduct, transaction, or occurrence." Rule 15(c)(2). </s> The "original pleading" to which Rule 15 refers is the complaint in an ordinary civil case, and the petition in a habeas proceeding. Under Rule 8(a), applicable to ordinary civil proceedings, a complaint need only provide "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important ...."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface: "CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date." Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App. (emphasis inoriginal). </s> A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." §2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition ... that the petitioner is not entitled to relief in district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5. B </s> This case turns on the meaning of Federal Rule of Civil Procedure 15(c)(2)'s relation-back provision in the context of federal habeas proceedings and AEDPA's one-year statute of limitations. Rule 15(c)(2), as earlier stated, provides that pleading amendments relate back to the date of the original pleading when the claim asserted in the amended plea "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." The key words are "conduct, transaction, or occurrence." The Ninth Circuit, whose judgment we here review, in accord with the Seventh Circuit, defines those words to allow relation back of a claim first asserted in an amended petition, so long as the new claim stems from the habeas petitioner's trial, conviction, or sentence. Under that comprehensive definition, virtually any new claim introduced in an amended petition will relate back, for federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence, and commonly attack proceedings anterior thereto. See Espinoza-Saenz, 235 F.3d, at 505 (A "majority of amendments" to habeas petitions raise issues falling under the "broad umbrella" of "a defendant's trial and sentencing."); Hicks, 283 F.3d, at 388. The majority of Circuits, mindful of "Congress' decision to expedite collateral attacks by placing stringent time restrictions on [them]," id., at 388, define "conduct, transaction, or occurrence" in federal habeas cases less broadly. See id., at 388-389; Espinoza-Saenz, 235 F.3d, at 503-505; Davenport, 217 F.3d, at 1344-1346; Pittman, 209 F.3d, at 317-318; Duffus, 174 F.3d, at 337; Craycraft, 167 F.3d, at 457. They allow relation back only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in "both time and type" from the originally raised episodes. Craycraft, 167 F.3d, at 457. Because Felix's own pretrial statements, newly raised in his amended petition, were separated in time and type from witness Williams' videotaped statements, raised in Felix's original petition, the former would not relate back under the definition of "conduct, transaction, or occurrence" to which most Circuits adhere. </s> We are not aware, in the run-of-the-mine civil proceedings Rule 15 governs, of any reading of "conduct, transaction, or occurrence" as capacious as the construction the Ninth and Seventh Circuits have adopted for habeas cases. Compare Maegdlin v. International Assn. of Machinists and Aerospace Workers, 309 F.3d 1051, 1052 (CA8 2002) (allowing relation back where original complaint alleged that defendant union had breached its duty of fair representation by inadequately representing plaintiff because of his gender, and amended complaint asserted a Title VII gender discrimination claim based on the same differential treatment); Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1246, 1259, n. 29 (CA9 1982) (claim asserting that defendant included fraudulent information in rate protests filed with the Interstate Commerce Commission related back to original complaint, which asserted that defendant filed the same rate protests "for the purpose of ... restricting ... competition" (internal quotation marks omitted))5; Santana v. Holiday Inns, Inc., 686 F.2d 736, 738 (CA9 1982) (original complaint alleging slander and amendment alleging interference with employment relations arose out of the same conduct or occurrence because both were based on defendant's making allegedly untruthful statements about plaintiff's behavior to plaintiff's employer); Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 361-362 (CA9 1966) (in a Fair Labor Standards Act of 1938 suit alleging minimum wage violations for certain pay periods, amendment asserting the same type of violation during an additional pay period related back), with Nettis v. Levitt, 241 F.3d 186, 193 (CA2 2001) (disallowing relation back where Nettis' original complaint alleged that his employer retaliated in response to Nettis' objections to employer's sales tax collection procedure, and amendment alleged retaliation for Nettis' report of payroll and inventory irregularities); Inre Coastal Plains, Inc., 179 F.3d 197, 216 (CA5 1999) (Coastal Plains's claim that creditor interfered with business relations by attempting to sell Coastal Plains to a third party did not relate back to claim based on creditor's failure to return inventory to Coastal Plains, even though both claims were linked to creditor's alleged "broader plan to destroy Coastal [Plains]"); Sierra Club v. Penfold, 857 F.2d 1307, 1315-1316 (CA9 1988) (where original complaint challenged the manner in which an agency applied a regulation, an amendment challenging the agency's "conduct in adopting the regulatio[n]" did not relate back). See also Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 256 (CA2 1998) (although all of plaintiff's 42 U.S.C. §1983 claims arose out of a single state-court criminal proceeding, plaintiff's First Amendment claims did not arise out of the same conduct as the originally asserted excessive force claims, and therefore did not relate back). As these decisions illustrate, Rule 15(c)(2) relaxes, but does not obliterate, the statute of limitations; hence relation back depends on the existence of a common "core of operative facts" uniting the original and newly asserted claims. See Clipper Exxpress, 690 F.2d, at 1259, n. 29; 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1497, p. 85 (2d ed. 1990). </s> Felix asserts that he seeks, and the Ninth Circuit accorded, no wider range for Rule 15(c)'s relation back provision than this Court gave to the Rule's key words "conduct, transaction, or occurrence" in Tiller v. Atlantic Coast Line R.Co., 323 U.S. 574, 580-581 (1945). We disagree. In Tiller, a railroad worker was struck and killed by a railroad car. His widow sued under the Federal Employers Liability Act, 45 U.S.C. §51 et seq., to recover for his wrongful death. She initially alleged various negligent acts. In an amended complaint, she added a claim under the Federal Boiler Inspection Act for failure to provide the train's locomotive with a rear light. We held that the amendment related back, and therefore avoided a statute of limitations bar, even though the amendment invoked a legal theory not suggested by the original complaint and relied on facts not originally asserted. </s> There was but one episode-in-suit in Tiller, a worker's death attributed from the start to the railroad's failure to provide its employee with a reasonably safe place to work. The federal rulemakers recognized that personal injury plaintiffs often cannot pinpoint the precise cause of an injury prior to discovery. See 5 C. Wright & A. Miller, Federal Practice and Procedure §1215, pp. 138-143 (2d ed. 1990). They therefore included in the Appendix to the Federal Rules an illustrative form indicating that a personal injury plaintiff could adequately state a claim for relief simply by alleging that the defendant negligently operated a certain instrumentality at a particular time and place. See Form 9, Complaint for Negligence, Forms App., Fed. Rule Civ. Proc., 28 U.S.C. App., p. 829. The widow in Tiller met that measure. She based her complaint on a single "occurrence," an accident resulting in her husband's death. In contrast, Felix targeted separate episodes, the pretrial police interrogation of witness Williams in his original petition, his own interrogation at a different time and place in his amended petition. </s> Felix contends, however, that his amended petition qualifies for relation back because the trial itself is the "transaction" or "occurrence" that counts. See Brief for Respondent 21-23. Citing Chavez v. Martinez, 538 U.S. 760 (2003) (plurality opinion), Felix urges that neither the videotaped interview with witness Williams nor the pretrial police interrogation to which Felix himself was exposed transgressed any constitutional limitation. Until the statements elicited by the police were introduced at trial, Felix argues, he had no actionable claim at all. Both the confrontation right he timely presented and the privilege against self-incrimination he asserted in his amended petition are "trial right[s]," Felix underscores. Brief for Respondent 21 (emphasis deleted). His claims based on those rights, he maintains, are not "separate," id., at 22; rather, they are related in time and type, for "they arose on successive days during the trial and both challenged [on constitutional grounds] admission of pretrial statements," id., at 22-23. </s> Felix artificially truncates his claims by homing in only on what makes them actionable in a habeas proceeding. We do not here question his assertion that his Fifth Amendment right did not ripen until his statements were admitted against him at trial. See Chavez, 373 U.S. 503, 513-514 (1963) (voluntariness is evaluated by examining the "totality of circumstances" surrounding the "making and signing of the challenged confession"). </s> Habeas Corpus Rule 2(c), we earlier noted, see supra, at 8-9, instructs petitioners to "specify all [available] grounds for relief" and to "state the facts supporting each ground." Under that Rule, Felix's Confrontation Clause claim would be pleaded discretely, as would his self-incrimination claim. Each separate congeries of facts supporting the grounds for relief, the Rule suggests, would delineate an "occurrence." Felix's approach, the approach that prevailed in the Ninth Circuit, is boundless by comparison. A miscellany of claims for relief could be raised later rather than sooner and relate back, for "conduct, transaction, or occurrence" would be defined to encompass any pretrial, trial, or post-trial error that could provide a basis for challenging the conviction. An approach of that breadth, as the Fourth Circuit observed, "views 'occurrence' at too high a level of generality." Pittman, 209 F.3d, at 318.6 </s> Congress enacted AEDPA to advance the finality of criminal convictions. See Rhines v. Weber, 544 U.S. ___, ___ (2005) (slip op., at 6). To that end, it adopted a tight time line, a one-year limitation period ordinarily running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. §2244(d)(1)(A). If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance. See 379 F.3d, at 619 (Tallman, J., concurring in part and dissenting in part) (Ninth Circuit's rule would permit "the 'relation back' doctrine to swallow AEDPA's statute of limitation"); Pittman, 209 F.3d, at 318 ("If we were to craft such a rule, it would mean that amendments ... would almost invariably be allowed even after the statute of limitations had expired, because most [habeas] claims arise from a criminal defendant's underlying conviction and sentence."); Duffus, 174 F.3d, at 338 ("A prisoner should not be able to assert a claim otherwise barred by the statute of limitations merely because he asserted a separate claim within the limitations period."). The very purpose of Rule 15(c)(2), as the dissent notes, is to "qualify a statute of limitations." Post, at 2. But "qualify" does not mean repeal. See Fuller v. Marx, 724 F. 2d 717, 720 (CA8 1984). Given AEDPA's "finality" and "federalism" concerns, see Williams v. Taylor, 529 U.S. 420, 436 (2000); Hicks, 283 F.3d, at 389, it would be anomalous to allow relation back under Rule 15(c)(2) based on a broader reading of the words "conduct, transaction, or occurrence" in federal habeas proceedings than in ordinary civil litigation, see supra, at 10-12. </s> Felix urges that an unconstrained reading of Rule 15(c)(2) is not problematic because Rule 15(a) arms district courts with "ample power" to deny leave to amend when justice so requires. See Brief for Respondent 31-33. Under that Rule, once a responsive pleading has been filed, a prisoner may amend the petition "only by leave of court or by written consent of the adverse party." Rule 15(a); see Ellzey v. United States, 324 F.3d 521, 526 (CA7 2003) (AEDPA's aim to "expedite resolution of collateral attacks ... should influence the exercise of discretion under Rule 15(a)--which gives the district judge the right to disapprove proposed amendments that would unduly prolong or complicate the case."). This argument overlooks a pleader's right to amend without leave of court "any time before a responsive pleading is served." Rule 15(a). In federal habeas cases that time can be rather long, as indeed it was in the instant case. See supra, at 4. Under Habeas Corpus Rule 4, a petition is not immediately served on the respondent. The judge first examines the pleading to determine whether "it plainly appears ... that the petitioner is not entitled to relief." Only if the petition survives that preliminary inspection will the judge "order the respondent to file an answer." In the interim, the petitioner may amend his pleading "as a matter of course," as Felix did in this very case. Rule 15(a). Accordingly, we do not regard Rule 15(a) as a firm check against petition amendments that present new claims dependent upon discrete facts after AEDPA's limitation period has run. </s> Our rejection of Felix's translation of same "conduct, transaction, or occurrence" to mean same "trial, conviction, or sentence" scarcely leaves Rule 15(c)(2) "meaningless in the habeas context," 379 F.3d, at 615. So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.7 Our reading is consistent with the general application of Rule 15(c)(2) in civil cases, see supra, at 10-12, with Habeas Corpus Rule 2(c), see supra, at 8-9, and with AEDPA's installation of a tight time line for §2254 petitions, see supra, at 15-16.8 *** As to the question presented, for the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. </s> DENEICE A. MAYLE, WARDEN, PETITIONER v. JACOBY LEE FELIX on writ of certiorari to the united states court of appeals for the ninth circuit [June 23, 2005] </s> Justice Souter, with whom Justice Stevens joins, dissenting. </s> This case requires the Court to decide how the relation back provision of Rule 15(c)(2) of the Federal Rules of Civil Procedure ought to apply in federal habeas corpus cases, when neither text nor precedent provides clear guidance. I see nothing in habeas law or practice that calls for the Court's narrow construction of the rule, and good reasons to go the other way, including the unfortunate consequence that the Court's view creates an unfair disparity between indigent habeas petitioners and those able to afford their own counsel. I respectfully dissent. I </s> At the outset, there is need for care in understanding the narrow scope of the problem this case presents. A habeas petitioner's opportunity to amend as a matter of course, without permission of the trial court, exists only before the responsive pleading is served, and even then only once. Rule 15(a). After one amendment, or after the government files the answer or other response, assuming one is even required, see Habeas Corpus Rule 4, the prisoner may not amend without the court's leave or the government's consent, Fed. Rule Civ. Proc. 15(a). While leave to amend "shall be freely given when justice so requires," ibid., justice does, after all, have to require it, and the District Courts will presumably say no, for example, in the face of unjustifiable delay or threatened prejudice to the State. See Foman v. Davis, 371 U.S. 178, 182 (1962); see also Brief for Professor Arthur R. Miller etal. as Amici Curiae 20-21 (describing reasons courts regularly deny leave to amend and citing cases); 6 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §§1487-1488 (2d ed. 1990) (hereinafter Wright & Miller) (discussing reasons leave to amend may be and often is denied, including delay and prejudice). The Court's concern for "unconstrained" recourse to petition amendments, ante, at 16, is thus misplaced. The limited opportunity to amend also supplies perspective on the claim that Felix's reading of the relation back rule would undermine the 1-year limitation period of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the statute's concomitant concern for finality of judgments. See ante, at 15-16. In fact, AEDPA's objectives bear little weight in the analysis, because the very point of every relation back rule is to qualify a statute of limitations, and Rule 15(c) "is based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of defenses or claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading." 6A Wright & Miller §1496, at 64. That AEDPA's statute of limitations, like any other, may be trumped by relating back when the subject of the amendment arises out of the same conduct, transaction, or occurrence described in the original pleading, does not alone help us to figure out what conduct, transaction, or occurrence is the same. II </s> Felix's disputed right to amend with relation back effect turns entirely, as the Court says, ante, at 9, on how narrowly or how broadly the tripartite authorization for relation back ought to be construed: whether the relevant "conduct, transaction, or occurrence"1 to which a habeas petition refers includes the underlying trial (which resulted in the custody being challenged) or is limited to the set of facts underlying each trial ruling claimed to be constitutionally defective (in this case, the unconfronted videotaped testimony and the interrogation that produced the incriminating statement). If the former, a habeas petitioner will have the benefit of relation back for any amendment raising trial error, subject to the district judge's discretion to deny leave except for the one amendment of right; if the latter, a petitioner is effectively precluded from making any amendment unless a single trial ruling amounts to distinct errors or an underlying fact is the subject of distinct rulings, notwithstanding Congress's evident intent to provide relation back in habeas proceedings, see 28 U.S.C. §2242; Fed. Rule Civ. Proc. 81(a)(2); Habeas Corpus Rule 11. The text alone does not tell us the answer, for either the facts specific to the claim or the trial as a whole could be the relevant "conduct, transaction, or occurrence." The Court assumes that the former approach is correct and then proceeds to explain, based on that assumption, the infirmity of a contrary approach. For example, the Court asserts that under Felix's rule, "all manner of factually and temporally unrelated conduct may be raised after the statute of limitations has run ...." Ante, at 11, n.6. But in saying this the Court presumes that the relevant transaction is what occurred outside the courtroom. Felix's entire argument is that the proper transaction is instead what occurred in court, namely the imposition of the conviction that justifies the challenged custody. If he is right, then the Court's assertion is incorrect, for what Felix seeks to add is a claim not about "factually and temporally unrelated conduct," ibid., but about conduct that occurred at the same trial as the conduct addressed in the initial petition. That newly addressed conduct will hardly be "temporally unrelated" to what was previously targeted; it likely will have occurred on the same day of trial as the original conduct or within a few days. Nor will it be "factually ... unrelated" to the previously raised in-court conduct, for it will almost certainly involve the same judge, the same parties and attorneys, the same courtroom, and the same jurors. Again, my point is just that much of the Court's argument lacks force because it assumes that the proper transaction is what occurred outside the courtroom rather than inside, when that is the question we must answer. </s> The Court also cautions that "it would be anomalous to allow relation back under Rule 15(c)(2) based on a broader reading of the words 'conduct, transaction, or occurrence' in federal habeas proceedings than in ordinary civil litigation." Ante, at 16. The cases the Court cites to establish the scope of civil relation back, however, see ante, at 10-13, simply stand for the proposition that an amendment relates back only if it deals with the same conduct, transaction, or occurrence. Felix does not purport to claim anything more.2 </s> At first glance, an argument for the narrow reading urged by petitioner Mayle inheres in the distinctive pleading requirement for habeas petitions. Unlike the generous notice-pleading standard for the benefit of ordinary civil plaintiffs under Federal Rule of Civil Procedure 8(a), see Conley v. Gibson, 355 U.S. 41, 47 (1957), Habeas Corpus Rule 2(c) requires habeas petitioners to "specify all the grounds for relief available," and to "state the facts supporting each ground." The Court implies that because pleading must be factually specific, the "conduct, transaction, or occurrence" of Federal Rule of Civil Procedure 15(c) must be specifically factual to a parallel degree; as the Court puts it, a habeas petitioner will plead claims "discretely," ante, at 14, such that each ground for relief "would delineate an 'occurrence,'" ante, at 15. But this does not follow; all that follows from "discret[e]" pleading is that each claim would delineate a separate ground for relief, whatever may be the conduct, transaction, or occurrence out of which the claims arise. As Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574 (1945), and the other civil cases the Court cites demonstrate, see ante, at 11-13, relation back is regularly allowed when an amendment raises a separate claim for relief arising out of the same transaction or occurrence, no matter how discretely that claim might be stated. Indeed, this is what the text anticipates; Rule 15(c)(2) permits relation back when "the claim or defense" asserted in the amendment arises out of the same conduct, transaction, or occurrence set forth in the original pleading. That is, the same conduct, transaction, or occurrence can support multiple, discrete claims for relief. </s> Nor is there any policy underlying the particular habeas pleading rule that requires a more grudging relation back standard. As the Court concedes, ante, at 9, the purpose of the heightened pleading standard in habeas cases is to help a district court weed out frivolous petitions before calling upon the State to answer. See Advisory Committee's Note on Habeas Corpus Rule 2, 28 U.S.C., p. 469; Advisory Committee Note on Rule 4, id., at 471 ("[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer"); 1 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §11.6, p. 573, n.3 (4th ed. 2001) (hereinafter Hertz & Liebman) ("[F]act pleading, like other habeas corpus rules and practices, enables courts ... to separate substantial petitions from insubstantial ones quickly and without need of adversary proceedings"); Note, Developments in the Law--Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 1175 (1970) ("The justification for stringent pleading requirements in habeas corpus is thought to lie in the need to protect the courts from the burden of entertaining frivolous applications"). Identifying meritless claims has nothing to do with the effect of amendment to initial petitions for relief, except in the remote sense that an amendment will require a district judge to examine one more item. But there is no claim here that Federal Rule of Civil Procedure 15(c) has to be narrow to protect judges; the government is objecting because it wants fewer claims to defend, and that objection is unrelated to the habeas fact-pleading standard.3 </s> While considerations based on habeas pleading fail to pan out with support for Mayle's restricted reading of Rule 15(c), several reasons convince me that Felix's reading is right. Most obvious is the fact that both of his claims can easily fit within the same "transaction or occurrence," understood as a trial ending in conviction resulting in a single ultimate injury of unlawful custody. ("Conduct" sounds closer to underlying facts, perhaps, but Rule 15(c) turns on either conduct, transaction, or occurrence.) The Court acknowledges that Felix's claims regarding his own interrogation and the videotaped testimony of witness Kenneth Williams are potentially actionable here only because the resulting incriminating statements were introduced at trial, ante, at 14, but argues that they nevertheless arise out of separate transactions or occurrences because they rest on distinct "essential predicate[s]," ibid., meaning pretrial acts. It is certainly true that the claims depend on those distinct pretrial acts, but the claims depend equally on the specified trial errors, without which there would be no habeas claim: without the introduction of each set of statements at trial, Felix would have no argument for habeas relief, regardless of what happened outside of court.4 The Court's own opinion demonstrates this, as its descriptions of Felix's two claims refer not only to what happened outside court but also to what happened at trial, and they specifically ground the alleged constitutional violations on the latter. See ante, at 1 ("He initially alleged ... that the admission into evidence of videotaped testimony of a witness for the prosecution violated his rights under the Sixth Amendment's Confrontation Clause"); ante, at 2 ("He asserted that, in the course of pretrial interrogation, the police used coercive tactics to obtain damaging statements from him, and that admission of those statements at trial violated his Fifth Amendment right against self-incrimination").5 Moreover, habeas review will of course look at more of the underlying trial record than just the ruling admitting the disputed evidence, for Felix's claims like a great many others will call for examining the trial record as a whole for signs of requisite prejudice or reversible error.6 Here, for example, if a court were to conclude that introducing Felix's statements did violate the Fifth Amendment, relief would still turn on whether the error was harmless. This would call for a careful look at the other evidence admitted at trial, including the statements said to have come in contrary to the Confrontation Clause. In sum, Felix's claims are not outside the text of Rule 15(c)(2). </s> Then there are a number of indications that Congress would not want the rule read narrowly, the first centering on the word "transaction." That term not only goes to the breadth of relation back, but also to the scope of claim preclusion. E.g., Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482, n. 22 (1982) ("Res judicata has recently been taken to bar claims arising from the same transaction even if brought under different statutes ..."); accord, 1 Restatement (Second) of Judgments §24(1) (1980) ("[T]he claim extinguished includes all rights ... with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose"). For purposes of claim preclusion in habeas cases, the scope of "transaction" is crucial in applying AEDPA's limitation on second or successive petitions: with very narrow exceptions, federal habeas limits a prisoner to only one petition challenging his conviction or sentence. See 28 U.S.C. §2244(b)(1).7 The provisions limiting second or successive habeas petitions regard the relevant "transaction" for purposes of habeas claim preclusion as the trial that yielded the conviction or sentence under attack; once a challenge to that conviction or sentence has been rejected, other challenges are barred even if they raise different claims. By contrast, under the Court's view of Rule 15(c) that the relevant "transaction" is the facts or conduct underlying each discrete claim, a prisoner should be allowed to file a second habeas petition so long as it is based on different underlying facts or conduct (i.e., on what the Court considers a separate "transaction"). The Court thus adopts, for purposes of relation back in habeas cases, a definition of "transaction" different from the one Congress apparently intended for purposes of claim preclusion in habeas cases. Judge Easterbrook explained this tension in Ellzey v. United States, 324 F.3d 521 (CA7 2003), and the Court offers no evidence that Congress would have decreed any such apparent anomaly within the body of habeas standards.8 </s> There is, rather, a fair indication that Congress would have intended otherwise, in the fact that it has already placed limits on the right of some habeas petitioners to amend their petitions. In Chapter 154 of Title 28, providing special procedures for habeas cases brought by petitioners subject to capital sentences in certain States, Congress specifically prohibited amendment of the original habeas petitions after the filing of the answer, except on the grounds specified for second or successive petitions under 28 U.S.C. §2244(b). See §2266(b)(3)(B). Congress's intent to limit capital petitioners' opportunity to amend (and thus to take advantage of relation back) makes sense owing to capital petitioners' incentive for delay, but the provision it enacted also helps us make sense of Rule 15(c) in the usual habeas case where a prisoner has no incentive to string the process out. For Congress has shown not only that it knows how to limit amendment in habeas cases, but also that it specifically considered the subject of limiting amendment in such cases and chose not to limit amendment in the ordinary ones. </s> The final reason to view the trial as the relevant "transaction" in Rule 15(c)(2) lies in the real consequences of today's decision, which will fall most heavily on the shoulders of indigent habeas petitioners who can afford no counsel without the assistance of the court. In practical terms, the significance of the right to amend arises from the fact that in the overwhelming majority of cases, the original petition is the work of a pro se petitioner. See Duncan v. Walker, 533 U.S. 167, 191 (2001) (Breyer, J., dissenting) (93% of habeas petitioners in study were pro se (citing U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Federal Habeas Corpus Review: Challenging State Court Criminal Convictions 14 (1995))); 1 Hertz & Liebman, §12.2, at 601 ("[N]early all" federal habeas petitioners commence proceedings either without legal assistance or with only the aid of a fellow inmate or a volunteer attorney). Unless required by statute, appointment of counsel is most often a matter of discretion on the part of the court. The district judge may well choose not to exercise that discretion unless and until a habeas proceeding advances to the stage of discovery or evidentiary hearing. See Habeas Corpus Rule 6(a) (requiring appointment of counsel for indigent petitioner "[i]f necessary for effective discovery"); Rule 8(c) (requiring appointment of counsel "[i]f an evidentiary hearing is warranted"). And the judge almost certainly will not appoint counsel until after the preliminary review of the petition to see whether it plainly warrants dismissal. See Rule 4. Where a petition (even in its pro se form) has survived this review by showing enough merit to justify appointing counsel, it makes no sense to say that counsel (appointed because of that apparent merit) should be precluded from exercising professional judgment when that judgment calls for adding a new ground for relief that would relate back to the filing of the original petition. For by hobbling counsel this way, the Court limits the capacity of appointed counsel to provide the professional service that a paid lawyer, hired at the outset, can give a client. The lawyer hired at the start of the proceeding will be able to draft an original petition containing all the claims revealed to his trained eye; if the same lawyer is appointed by the court only after the petitioner has demonstrated some merit in an original pro se filing, he and his prisoner client will have no right to state all claims by adding to the original petition, unless the lawyer happens to be appointed and able to get up to speed before the statute of limitations runs out. The rule the Court adopts today may not make much difference to prisoners with enough money to hire their own counsel; but it will matter a great deal to poor prisoners who need appointed counsel to see and plead facts showing a colorable basis for relief. 9 </s> The Court of Appeals got it right, and I respectfully dissent. </s> FOOTNOTESFootnote 1The Habeas Corpus Rules were recently amended, effective December 1, 2004. Because the amended Rules are not materially different from those in effect when Felix filed his habeas petition, this opinion refers to the current version of the Rules. Footnote 2Because Felix had not presented his coerced statements Fifth Amendment claim on appeal to the California courts, the State moved to dismiss the amended petition on the ground that it contained both exhausted and unexhausted claims. See 28 U.S.C. §2254(b)(1)(A); Brief for Respondent 6-7. Before the Magistrate Judge acted on the motion, Felix presented the coerced statements/ineffective assistance claim to the California Supreme Court in a habeas petition. Opposition to Respondents' Motion to Dismiss in No. Civ. S-98-0828 WBS GGH P (ED Cal.), p.3. After that court denied the petition without comment, the State withdrew its motion to dismiss. See Request to Vacate Hearing on Motion to Dismiss in No. Civ. S-98-0828 WBS GGH P (ED Cal.), pp.1-2. Footnote 3Section 2255 establishes a separate avenue for postconviction challenges to federal, as opposed to state, convictions. Footnote 4Habeas corpus proceedings are characterized as civil in nature. See, e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906). Footnote 5The dissent asserts that Clipper Exxpress is comparable to this case in according Rule 15(c)(2) a "'capacious'" reading. Post, at 4, n.2. Clipper Exxpress involved a series of allegedly sham protests, commonly designed to restrain trade, a charge of the pattern or practice type. The amendment in question added a fraud charge, a new legal theory tied to the same operative facts as those initially alleged. Clipper Exxpress, 690 F.2d, at 1259, n. 29. That unremarkable application of the relation-back rule bears little resemblance to the argument made by Felix and embraced by the dissent--that all manner of factually and temporally unrelated conduct may be raised after the statute of limitations has run and relate back, so long as the new and originally pleaded claims challenge the same conviction. See infra, at 12-15. Footnote 6The dissent builds a complex discussion on an apparent assumption that claim preclusion operates in habeas cases largely as it does in mine-run civil cases. See post, at 9-11. Ironically, few habeas petitions would survive swift dismissal were that so, for the very objective of the petition is to undo a final judgment after direct appeals have been exhausted or are time barred. On judicial and legislative development of standards governing successive habeas petitions, standards that do not track the Restatement of Judgments, see Schlup v. Delo, 513 U.S. 298, 317-320 (1995); 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §28.2b, pp. 1270-1275 (4th ed. 2001); Note, Developments in the Law--Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 1113, 1148-1154 (1970). The dissent would read Rule 15(c)(2)'s words, "conduct, transaction, or occurrence," into AEDPA's provisions governing second or successive petitions and motions (28 U.S.C. §§2244(b) and 2255, ¶8), although Congress did not put those words there. Nor is there any other reason to believe that Congress designed AEDPA's confinement of successive petitions and motions with a view to the relation back concept employed in Rule 15(c)(2). Footnote 7For example, in Mandacina v. United States, 328 F.3d 995, 1000-1001 (CA8 2003), the original petition alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), while the amended petition alleged the Government's failure to disclose a particular report. Both pleadings related to evidence obtained at the same time by the same police department. The Court of Appeals approved relation back. And in Woodward v. Williams, 263 F.3d 1135, 1142 (CA10 2001), the appeals court upheld relation back where the original petition challenged the trial court's admission of recanted statements, while the amended petition challenged the court's refusal to allow the defendant to show that the statements had been recanted. See also 3 J. Moore, et al., Moore's Federal Practice §15.19[2], p. 15-82 (3d ed. 2004) (relation back ordinarily allowed "when the new claim is based on the same facts as the original pleading and only changes the legal theory"). Footnote 8The dissent is concerned that our decision "creates an unfair disparity between indigent habeas petitioners and those able to afford their own counsel." Post, at 1; see post, at 11 ("[T]oday's decision ... will fall most heavily on the shoulders of indigent habeas petitioners who can afford no counsel without the assistance of the court."). The concern is understandable, although we note that in Felix's case, counsel was appointed, and had some two and a half months to amend the petition before AEDPA's limitation period expired. See supra, at 4. That was ample time to add a claim based on the alleged pretrial extraction of damaging statements from Felix. Ordinarily, as we observed in Halbert v. Michigan, ante, at 17, n.8, the government (federal or state) "'need not equalize economic conditions' between criminal defendants of lesser and greater wealth." (quoting Griffin v. Illinois, 351 U.S. 12, 23 (1956) (Frankfurter, J., concurring in judgment); see Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (holding that States need not provide appointed counsel in postconviction proceedings). This case, it is inescapably true, does not fit within the confined circumstances in which our decisions require appointment of counsel for an indigent litigant at a critical stage to ensure his meaningful access to justice. See Halbert, ante, at 2-4, 17, n.8. FOOTNOTESFootnote 1There is a tendency toward the gestalt in reading the phrase, but the three items are distinct, and a party claiming the benefit of the rule need satisfy only one. Footnote 2In any event, it is not clear why it is more "capacious," ante, at 11, to regard a single trial lasting days or weeks as one transaction or occurrence than it is, for example, to view numerous separate protests filed with the Interstate Commerce Commission over a period of two years (each in response to a different proposed tariff amendment) as one transaction or occurrence, see Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1260, n. 29 (CA9 1982) ("The protests involve a single transaction or occurrence" (emphasis deleted)), cited ante, at 11. </s> The Court responds that in Clipper Exxpress the amendment was "tied to the same operative facts as those initially alleged." Ante, at 11, n. 5. But as just noted, those "operative facts" (i.e., the relevant transaction) consisted of a number of separate protests filed with the Interstate Commerce Commission over a period of two years, each in response to a different proposed tariff amendment. This is, to say the least, a rather expansive transaction, much more so in my view than a single trial involving (for all claims stemming from it) the same judge, the same parties, the same attorneys, the same jury, the same indictment, and so on. Footnote 3Neither does the warning on the model habeas petition (that failure to set forth every ground for relief may preclude the presentation of additional grounds later) tell us anything about relation back. The Court implies that it does, ante, at 9, but the language on the form says nothing about relation back, and if the Court's implication were correct then the warning would also bar amendments filed within the limitations period. Footnote 4By contrast, use at trial of the fruits of the alleged police misconduct would not be a prerequisite to success in an action under Rev. Stat. §1979, 42 U.S.C. §1983, because such an action would indeed be challenging the conduct itself rather than the custody obtained by use at trial of the fruits of that conduct. Cf. ante, at 12 (citing Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254 (CA2 1998), where the Court of Appeals, in a §1983 case, concluded that two different instances of postarrest police conduct were not part of a single transaction or occurrence). The Court's analysis thus lies in some tension with our understanding that the signal, defining feature setting habeas cases apart from other tort claims against the State is that they "necessarily demonstrat[e] the invalidity of the conviction," Heck v. Humphrey, 512 U.S. 477, 481-482 (1994); see generally Wilkinson v. Dotson, 544 U.S. ___, ___ (2005) (slip op., at 3-7). Footnote 5There are other examples of the Court's describing Felix's claims with reference to the trial. See ante, at 3 ("Felix's Fifth Amendment claim rested on the prosecution's introduction of statements Felix made during pretrial police interrogation.... His Sixth Amendment claim related to the admission of the videotaped statements prosecution witness Kenneth Williams made at a jailhouse interview"); ante, at 4 ("On direct appeal, Felix urged ... that the admission of Williams' videotaped statements violated Felix's constitutional right to confront the witnesses against him. He did not, however, argue that admission of his own pretrial statements violated his right to protection against self-incrimination"). Footnote 6See Neder v. United States, 527 U.S. 1, 18 (1999) ("The erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless-error analysis under our cases" (citations omitted)); Penry v. Johnson, 532 U.S. 782, 795 (2001) (success on Fifth Amendment self-incrimination claim in habeas case requires showing that the error had "substantial and injurious effect or influence in determining the jury's verdict" (internal quotation marks omitted)); see also, e.g., Banks v. Dretke, 540 U.S. 668, 691 (2004) (elements of prosecutorial misconduct claim under Brady v. Maryland, 373 U.S. 83 (1963), include showing of prejudice); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (improper prosecutorial comment not reversible error unless remarks "so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process"); Strickland v. Washington, 466 U.S. 668, 695 (1984) (to find prejudice for purposes of ineffective assistance claim, court "must consider the totality of the evidence before the judge or jury"). Footnote 7The Court asserts that my argument here "builds ... on an apparent assumption that claim preclusion operates in habeas cases largely as it does in mine-run civil cases." Ante, at 15, n.6. In actuality, the argument rests only on a fact we have previously recognized: that AEDPA's "restrictions on successive petitions constitute a modified res judicata rule ...." Felker v. Turpin, 518 U.S. 651, 664 (1996). Footnote 8The Court is mistaken in stating that I "would read Rule 15(c)(2)'s words, 'conduct, transaction, or occurrence,' into ... 28 U.S.C. §§2244(b) and 2255, ¶8 ...." Ante, at 15, n.6. What I would do is adopt, for purposes of reconciling Rule 15(c)(2) with AEDPA's one-year statute of limitations, a definition of "transaction" that is consistent with what other sections of AEDPA, those governing second or successive petitions, functionally regard as the relevant "transaction." Footnote 9It is not that I see the Court's rule as constitutionally troubling. But this case requires us to apply text that is ambiguous, and the Court's resolution of that ambiguity is based on the assumption that when Congress authorized the appointment of counsel in habeas cases, it would have intended the appointed lawyer to have one hand tied behind his back, as compared with an attorney hired by a prisoner with money. That is not in my view a sound assumption. (The Court also observes that in this case counsel had plenty of time to file an amended petition, but that fact cannot drive this decision, for the rule the Court adopts today will of course apply in cases other than this one.)

United States Supreme Court BOWEN v. KENDRICK(1988) No. 87-253 Argued: March 30, 1988Decided: June 29, 1988 </s> A group of federal taxpayers, clergymen, and the American Jewish Congress (hereinafter appellees) filed this action in Federal District Court, seeking declaratory and injunctive relief, and challenging the constitutionality, under the Religion Clauses of the First Amendment, of the Adolescent Family Life Act (AFLA or Act), which authorizes federal grants to public or nonprofit private organizations or agencies for services and research in the area of premarital adolescent sexual relations and pregnancy. The Act provides, inter alia, that a grantee must furnish certain types of services, including various types of counseling and education relating to family life and problems associated with adolescent premarital sexual relations; that the complexity of the problem requires the involvement of religious and charitable organizations, voluntary associations, and other groups in the private sector, as well as governmental agencies; and that grantees may not use funds for certain purposes, including family planning services and the promotion of abortion. Federal funding under the Act has gone to a wide variety of recipients, including organizations with institutional ties to religious denominations. Granting summary judgment for appellees, the court declared that the Act, both on its face and as applied, violated the Establishment Clause insofar as it provided for the involvement of religious organizations in the federally funded programs. </s> Held: </s> 1. The Act, on its face, does not violate the Establishment Clause. Pp. 600-618. </s> (a) With regard to the first factor of the applicable three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602 , the AFLA has a valid secular purpose. The face of the Act shows that it was motivated primarily, if not entirely, by the legitimate purpose of eliminating or reducing social and economic problems caused by teenage sexuality, pregnancy, [487 U.S. 589, 590] and parenthood. Although the Act, in amending its predecessor, increased the role of religious organizations in programs sponsored by the Act, the challenged provisions were also motivated by other, entirely legitimate secular concerns, such as attempting to enlist the aid of other groups in the private sector to increase broad-based community involvement. Pp. 602-604. </s> (b) As to the second Lemon factor, the Act does not have the primary effect of advancing religion. It authorizes grants to institutions that are capable of providing certain services to adolescents, and requires that potential grantees describe how they will involve other organizations, including religious organizations, in the funded programs. However, there is no requirement that grantees be affiliated with any religious denomination, and the services to be provided under the Act are not religious in character. The Act's approach toward dealing with adolescent sexuality and pregnancy is not inherently religious, although it may coincide with the approach taken by certain religions. The provisions expressly mentioning the role of religious organizations reflect at most Congress' considered judgment that religious organizations can help solve the problems to which the Act is addressed. When, as Congress found, prevention of adolescent sexual activity and pregnancy depends primarily upon developing close family ties, it seems sensible for Congress to recognize that religious organizations can influence family life. To the extent that this congressional recognition has any effect of advancing religion, the effect is at most "incidental and remote." Moreover, to the extent that religious institutions, along with other types of organizations, are allowed to participate as recipients of federal funds, nothing on the Act's face suggests that it is anything but neutral with respect to the grantee's status as a sectarian or purely secular institution. The possibility that AFLA grants may go to religious institutions that can be considered "pervasively sectarian" is not sufficient to conclude that no grants whatsoever can be given to religious organizations. Nor does the Act necessarily have the effect of advancing religion because religiously affiliated AFLA grantees will be providing educational and counseling services to adolescents; because it authorizes "teaching" by religious grantees on matters that are fundamental elements of religious doctrine; because of any "crucial symbolic link" between government and religion; or because the statute lacks an express provision preventing the use of federal funds for religious purposes. Pp. 604-615. </s> (c) With regard to the third Lemon factor, the Act does not create an excessive entanglement of church and state. The monitoring of AFLA grants is necessary to ensure that public money is to be spent in the way that Congress intended and in a way that comports with the Establishment Clause. However, there is no reason to assume that the religious [487 U.S. 589, 591] organizations which may receive AFLA grants are "pervasively sectarian" in the same sense as parochial schools have been held to be in cases finding excessive "entanglement." There is accordingly no reason to fear that the less intensive monitoring involved here will cause the Government to intrude unduly in the day-to-day operations of the religiously affiliated grantees. Pp. 615-618. </s> 2. The case is remanded for further consideration of whether the statute, as applied, violates the Establishment Clause. Pp. 618-624. </s> (a) Appellees have standing to raise the claim that the AFLA is unconstitutional as applied. Federal taxpayers have standing to raise Establishment Clause claims against exercises of congressional power under the taxing and spending power of Article I, 8, of the Constitution. Flast v. Cohen, 392 U.S. 83 . There is no merit to appellants' contention that a challenge to the AFLA "as applied" is really a challenge to executive action. The claim that AFLA funds are being used improperly by individual grantees is not any less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary of Health and Human Services. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 ; and Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 , distinguished. Pp. 618-620. </s> (b) On the merits of the "as applied" challenge, the District Court did not follow the proper approach in assessing appellees' claim that the Secretary is making grants under the Act that violate the Establishment Clause. Although the record contains evidence of specific incidents of impermissible behavior by grantees, the case must be remanded for consideration of the evidence insofar as it sheds light on the manner in which the statute is presently being administered. If the Court concludes on the evidence presented that grants are being made by the Secretary in violation of the Establishment Clause, an appropriate remedy would be to require the Secretary to withdraw the approval of such grants. Pp. 620-622. </s> 657 F. Supp. 1547, reversed and remanded. </s> REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 622. KENNEDY, J., filed a concurring opinion, in which SCALIA, J., joined, post, p. 624. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 625. </s> [Footnote * Together with No. 87-431, Bowen, Secretary of Health and Human Services v. Kendrick et al., No. 87-462, Kendrick et al. v. Bowen, Secretary of Health and Human Services, et al., and No. 87-775, United Families of America v. Kendrick et al., also on appeal from the same court. [487 U.S. 589, 592] </s> Solicitor General Fried argued the cause for appellant in Nos. 87-253 and 87-431, and for the federal appellee in No. 87-462. With him on the briefs were Assistant Attorney General Willard, Acting Assistant Attorney General Spears, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Cynkar, Lawrence S. Robbins, Michael Jay Singer, Jay S. Bybee, and Theodore C. Hirt. Michael W. McConnell argued the cause for appellant in No. 87-775. With him on the briefs were Edward R. Grant, Clarke D. Forsythe, Paul Arneson, and Michael J. Woodruff. </s> Janet Benshoof argued the cause for appellees in Nos. 87-253, 87-431, and 87-775 and appellants in No. 87-462. With her on the briefs were Lynn M. Paltrow, Nan D. Hunter, Rachael N. Pine, and Bruce J. Ennis, Jr.Fn </s> Fn [487 U.S. 589, 592] Briefs of amici curiae urging reversal were filed for the Attorney General of Arizona et al. by Gary B. Born and James S. Campbell; for the Catholic League for Religious and Civil Rights et al. by Steven Frederick McDowell; for the Institute for Youth Advocacy by Gregory A. Loken; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the Rutherford Institute et al. by John W. Whitehead, David E. Morris, Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, William Bonner, John F. Southworth, Jr., and W. Charles Bundren; and for the United States Catholic Conference by Mark E. Chopko and Philip H. Harris. </s> Briefs of amici curiae urging affirmance were filed for the American Public Health Association et al. by John H. Hall, Nadine Taub, and Judith Levin; for the Baptist Joint Committee on Public Affairs et al. by Oliver S. Thomas; for the Committee for Public Education and Religious Liberty by Leo Pfeffer; for the Council on Religious Freedom by Lee Boothby, Robert W. Nixon, and Rolland Truman; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell, David H. Remes, and Herman Schwartz; and for the NOW Legal Defense and Education Fund et al. by Sarah E. Burns and Marsha Levick. </s> Briefs of amici curiae were filed for the Anti-Defamation League of B'nai B'rith et al. by Ruti G. Teitel, Justin J. Finger, Jeffrey P. Sinensky, Meyer Eisenberg, and Steven M. Freeman; for Catholic Charities, [487 U.S. 589, 593] U.S. A., et al. by Patrick Francis Geary; and for the Unitarian Universalist Association et al. by Patricia Hennessey. [487 U.S. 589, 593] </s> CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. </s> This litigation involves a challenge to a federal grant program that provides funding for services relating to adolescent sexuality and pregnancy. Considering the federal statute both "on its face" and "as applied," the District Court ruled that the statute violated the Establishment Clause of the First Amendment insofar as it provided for the involvement of religious organizations in the federally funded programs. We conclude, however, that the statute is not unconstitutional on its face, and that a determination of whether any of the grants made pursuant to the statute violate the Establishment Clause requires further proceedings in the District Court. </s> I </s> The Adolescent Family Life Act (AFLA or Act), Pub. L. 97-35, 95 Stat. 578, 42 U.S.C. 300z et seq. (1982 ed. and Supp. IV), was passed by Congress in 1981 in response to the "severe adverse health, social, and economic consequences" that often follow pregnancy and childbirth among unmarried adolescents. 42 U.S.C. 300z(a)(5) (1982 ed., Supp. IV). Like its predecessor, the Adolescent Health Services and Pregnancy Prevention and Care Act of 1978, Pub. L. 95-626, Tit. VI, 92 Stat. 3595-3601 (Title VI), the AFLA is essentially a scheme for providing grants to public or nonprofit private organizations or agencies "for services and research in the area of premarital adolescent sexual relations and pregnancy." S. Rep. No. 97-161, p. 1 (1981) (hereinafter Senate Report). These grants are intended to serve several purposes, including the promotion of "self discipline and other prudent approaches to the problem of adolescent premarital sexual relations," 300z(b)(1), the promotion of adoption as an alternative for adolescent parents, 300z(b)(2), the [487 U.S. 589, 594] establishment of new approaches to the delivery of care services for pregnant adolescents, 300z(b)(3), and the support of research and demonstration projects "concerning the societal causes and consequences of adolescent premarital sexual relations, contraceptive use, pregnancy, and child rearing," 300z(b)(4). </s> In pertinent part, grant recipients are to provide two types of services: "care services," for the provision of care to pregnant adolescents and adolescent parents, 300z-1(a)(7), and "prevention services," for the prevention of adolescent sexual relations, 300z-1(a)(8). 1 While the AFLA leaves it up to the Secretary of Health and Human Services (the Secretary) to define exactly what types of services a grantee must provide, see 300z-1(a)(7), (8), 300z-1(b), the statute contains a listing of "necessary services" that may be funded. These services include pregnancy testing and maternity counseling, adoption counseling and referral services, prenatal and postnatal health care, nutritional information, counseling, child care, mental health services, and perhaps most importantly for present purposes, "educational services relating to family life and problems associated with adolescent premarital sexual relations," 300z-1(a)(4). 2 </s> [487 U.S. 589, 595] </s> In drawing up the AFLA and determining what services to provide under the Act, Congress was well aware that "the problems of adolescent premarital sexual relations, pregnancy, and parenthood are multiple and complex." 300z(a) (8)(A). Indeed, Congress expressly recognized that legislative or governmental action alone would be insufficient: </s> "[S]uch problems are best approached through a variety of integrated and essential services provided to adolescents and their families by other family members, religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives." 300z(a)(8)(B). [487 U.S. 589, 596] </s> Accordingly, the AFLA expressly states that federally provided services in this area should promote the involvement of parents, and should "emphasize the provision of support by other family members, religious and charitable organizations, voluntary associations, and other groups." 300z(a)(10)(C). The AFLA implements this goal by providing in 300z-2 that demonstration projects funded by the government </s> "shall use such methods as will strengthen the capacity of families to deal with the sexual behavior, pregnancy, or parenthood of adolescents and to make use of support systems such as other family members, friends, religious and charitable organizations, and voluntary associations." </s> In addition, AFLA requires grant applicants, among other things, to describe how they will, "as appropriate in the provision of services[,] involve families of adolescents[, and] involve religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives." 300z-5(a)(21). This broad-based involvement of groups outside of the government was intended by Congress to "establish better coordination, integration, and linkages" among existing programs in the community, 300z(b)(3) (1982 ed., Supp. IV), to aid in the development of "strong family values and close family ties," 300z(a)(10)(A), and to "help adolescents and their families deal with complex issues of adolescent premarital sexual relations and the consequences of such relations." 300z(a)(10)(C). </s> In line with its purposes, the AFLA also imposes limitations on the use of funds by grantees. First, the AFLA expressly states that no funds provided for demonstration projects under the statute may be used for family planning services (other than counseling and referral services) unless appropriate family planning services are not otherwise available in the community. 300z-3(b)(1). Second, the AFLA restricts the awarding of grants to "programs or projects [487 U.S. 589, 597] which do not provide abortions or abortion counseling or referral," except that the program may provide referral for abortion counseling if the adolescent and her parents request such referral. 300z-10(a). Finally, the AFLA states that "grants may be made only to projects or programs which do not advocate, promote, or encourage abortion." 300z-10(a). 3 </s> Since 1981, when the AFLA was adopted, the Secretary has received 1,088 grant applications and awarded 141 grants. Brief for Federal Appellant 8. Funding has gone to a wide variety of recipients, including state and local health agencies, private hospitals, community health associations, privately operated health care centers, and community and charitable organizations. It is undisputed that a number of grantees or subgrantees were organizations with institutional ties to religious denominations. See App. 748-756 (listing grantees). </s> In 1983, this lawsuit against the Secretary was filed in the United States District Court for the District of Columbia by appellees, a group of federal taxpayers, clergymen, and the American Jewish Congress. Seeking both declaratory and injunctive relief, appellees challenged the constitutionality of the AFLA on the grounds that on its face and as applied the statute violates the Religion Clauses of the First Amendment. 4 Following cross-motions for summary judgment, the [487 U.S. 589, 598] District Court held for appellees and declared that the AFLA was invalid both on its face and as applied "insofar as religious organizations are involved in carrying out the programs and purposes of the Act." 657 F. Supp. 1547, 1570 (DC 1987). </s> The court first found that under Flast v. Cohen, 392 U.S. 83 (1968), appellees had standing to challenge the statute both on its face and as applied. Turning to the merits, the District Court applied the three-part test for Establishment Clause cases set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). 5 The court concluded that the AFLA has a valid secular purpose: the prevention of social and economic injury caused by teenage pregnancy and premarital sexual relations. In the court's view, however, the AFLA does not survive the second prong of the Lemon test because it has the "direct and immediate" effect of advancing religion insofar as it expressly requires grant applicants to describe how they will involve religious organizations in the provision of services. 300z-5(a)(21)(B). The statute also permits religious organizations to be grantees and "envisions a direct role for those organizations in the education and counseling components of AFLA grants." 657 F. Supp., at 1562. As written, the AFLA makes it possible for religiously affiliated grantees to teach adolescents on issues that can be considered "fundamental elements of religious doctrine." The [487 U.S. 589, 599] AFLA does all this without imposing any restriction whatsoever against the teaching of "religion qua religion" or the inculcation of religious beliefs in federally funded programs. As the District Court put it, "[t]o presume that AFLA counselors from religious organizations can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic." Id., at 1563 (citing Grand Rapids School District v. Ball, 473 U.S. 373 (1985)). </s> The District Court then concluded that the statute as applied also runs afoul of the Lemon effects test. 6 The evidence presented by appellees revealed that AFLA grants had gone to various organizations that were affiliated with religious denominations and that had corporate requirements that the organizations abide by religious doctrines. Other AFLA grantees were not explicitly affiliated with organized religions, but were "religiously inspired and dedicated to teaching the dogma that inspired them." 657 F. Supp., at 1564. In the District Court's view, the record clearly established that the AFLA, as it has been administered by the Secretary, has in fact directly advanced religion, provided funding for institutions that were "pervasively sectarian," or allowed federal funds to be used for education and counseling that "amounts to the teaching of religion." Ibid. As to the entanglement prong of Lemon, the court ruled that because AFLA funds are used largely for counseling and teaching, it would require overly intrusive monitoring or oversight to ensure that religion is not advanced by religiously affiliated AFLA grantees. Indeed, the court felt that "it is impossible to comprehend entanglement more extensive and continuous [487 U.S. 589, 600] than that necessitated by the AFLA." 657 F. Supp., at 1568. 7 </s> In a separate order, filed August 13, 1987, the District Court ruled that the "constitutionally infirm language of the AFLA, namely its references to `religious organizations,'" App. to Juris. Statement in No. 431, p. 53a, is severable from the Act pursuant to Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987). The court also denied the Secretary's Federal Rule of Civil Procedure 59(e) motion to clarify what the court meant by "religious organizations" for purposes of determining the scope of its injunction. On the same day that this order was entered, appellants docketed their appeal on the merits directly with this Court pursuant to 28 U.S.C. 1252. A separate appeal from the District Court's August 13 order was also docketed, as was a cross-appeal by appellees on the severability issue. On November 9, 1987, we noted probable jurisdiction in all three appeals and consolidated the cases for argument. 484 U.S. 942 (1987). </s> II </s> The District Court in this lawsuit held the AFLA unconstitutional both on its face and as applied. Few of our cases in the Establishment Clause area have explicitly distinguished between facial challenges to a statute and attacks on the statute as applied. Several cases have clearly involved challenges to a statute "on its face." For example, in Edwards v. Aguillard, 482 U.S. 578 (1987), we considered the validity of the Louisiana "Creationism Act," finding the Act "facially invalid." Indeed, in that case it was clear that only a facial challenge could have been considered, as the Act had not been implemented. Id., at 581, n. 1. Other cases, as well, have considered the validity of statutes without the benefit of a record as to how the statute had actually been applied. [487 U.S. 589, 601] See Wolman v. Walter, 433 U.S. 229 (1977); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973). </s> In other cases we have, in the course of determining the constitutionality of a statute, referred not only to the language of the statute but also to the manner in which it had been administered in practice. Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472, 479 (1973); Meek v. Pittenger, 421 U.S. 349 (1975). See also Grand Rapids School District v. Ball, supra, at 377-379; Aguilar v. Felton, 473 U.S. 402 (1985). In several cases we have expressly recognized that an otherwise valid statute authorizing grants might be challenged on the grounds that the award of a grant in a particular case would be impermissible. Hunt v. McNair, 413 U.S. 734 (1973), involved a challenge to a South Carolina statute that provided for the issuance of revenue bonds to assist "institutions of higher learning" in constructing new facilities. The plaintiffs in that case did not contest the validity of the statute as a whole, but contended only that a statutory grant to a religiously affiliated college would be invalid. Id., at 736. In Tilton v. Richardson, 403 U.S. 672 (1971), the Court reviewed a federal statute authorizing construction grants to colleges exclusively for secular educational purposes. We rejected the contention that the statute was invalid "on its face" and "as applied" to the four church-related colleges that were named as defendants in the case. However, we did leave open the possibility that the statute might authorize grants which could be invalid, stating that "[i]ndividual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess" sectarian characteristics that might make a grant of aid to the institution constitutionally impermissible. Id., at 682. See also Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 760 -761 (1976) (upholding a similar statute authorizing grants to colleges against [487 U.S. 589, 602] a "facial" attack and pretermitting the question whether "particular applications may result in unconstitutional use of funds"). </s> There is, then, precedent in this area of constitutional law for distinguishing between the validity of the statute on its face and its validity in particular applications. Although the Court's opinions have not even adverted to (to say nothing of explicitly delineated) the consequences of this distinction between "on its face" and "as applied" in this context, we think they do justify the District Court's approach in separating the two issues as it did here. </s> This said, we turn to consider whether the District Court was correct in concluding that the AFLA was unconstitutional on its face. As in previous cases involving facial challenges on Establishment Clause grounds, e. g., Edwards v. Aguillard, supra; Mueller v. Allen, 463 U.S. 388 (1983), we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon standard, which guides "[t]he general nature of our inquiry in this area," Mueller v. Allen, supra, at 394, a court may invalidate a statute only if it is motivated wholly by an impermissible purpose, Lynch v. Donnelly, 465 U.S. 668, 680 (1984); Stone v. Graham, 449 U.S. 39, 41 (1980), if its primary effect is the advancement of religion, Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708 (1985), or if it requires excessive entanglement between church and state, Lemon, supra, at 613; Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). We consider each of these factors in turn. </s> As we see it, it is clear from the face of the statute that the AFLA was motivated primarily, if not entirely, by a legitimate secular purpose - the elimination or reduction of social and economic problems caused by teenage sexuality, pregnancy, and parenthood. See 300z(a), (b) (1982 ed. and Supp. IV). Appellees cannot, and do not, dispute that, on the whole, religious concerns were not the sole motivation [487 U.S. 589, 603] behind the Act, see Lynch, supra, at 680, nor can it be said that the AFLA lacks a legitimate secular purpose, see Edwards v. Aguillard, 482 U.S., at 585 . In the court below, however, appellees argued that the real purpose of the AFLA could only be understood in reference to the AFLA's predecessor, Title VI. Appellees contended that Congress had an impermissible purpose in adopting the AFLA because it specifically amended Title VI to increase the role of religious organizations in the programs sponsored by the Act. In particular, they pointed to the fact that the AFLA, unlike Title VI, requires grant applicants to describe how they will involve religious organizations in the programs funded by the AFLA. 300z-5(a)(21)(B). </s> The District Court rejected this argument, however, reasoning that even if it is assumed that the AFLA was motivated in part by improper concerns, the parts of the statute to which appellees object were also motivated by other, entirely legitimate secular concerns. We agree with this conclusion. As the District Court correctly pointed out, Congress amended Title VI in a number of ways, most importantly for present purposes by attempting to enlist the aid of not only "religious organizations," but also "family members . . ., charitable organizations, voluntary associations, and other groups in the private sector," in addressing the problems associated with adolescent sexuality. 300z(a)(8)(B); see also 300z-5(a)(21)(A), (B). Cf. Title VI, 601(a) (5) ("[T]he problems of adolescent [sexuality] . . . are best approached through a variety of integrated and essential services"). Congress' decision to amend the statute in this way reflects the entirely appropriate aim of increasing broad-based community involvement "in helping adolescent boys and girls understand the implications of premarital sexual relations, pregnancy, and parenthood." See Senate Report, at 2, 15-16. In adopting the AFLA, Congress expressly intended to expand the services already authorized by Title VI, to insure the increased participation of parents in education [487 U.S. 589, 604] and support services, to increase the flexibility of the programs, and to spark the development of new, innovative services. Id., at 7-9. These are all legitimate secular goals that are furthered by the AFLA's additions to Title VI, including the challenged provisions that refer to religious organizations. There simply is no evidence that Congress' "actual purpose" in passing the AFLA was one of "endorsing religion." See Edwards v. Aguillard, 482 U.S., at 589 -594. Nor are we in a position to doubt that Congress' expressed purposes are "sincere and not a sham." Id., at 587. 8 </s> As usual in Establishment Clause cases, see, e. g., Grand Rapids School District v. Ball, 473 U.S. 373 (1985); Mueller, supra, the more difficult question is whether the primary effect of the challenged statute is impermissible. Before we address this question, however, it is useful to review again just what the AFLA sets out to do. Simply stated, it authorizes grants to institutions that are capable of providing certain care and prevention services to adolescents. Because of the complexity of the problems that Congress sought to remedy, potential grantees are required to describe how they will involve other organizations, including religious organizations, in the programs funded by the federal grants. 300z-5(a)(21)(B); see also 300z-2(a). There is no requirement in the Act that grantees be affiliated with any religious denomination, although the Act clearly does not rule out grants to religious organizations. 9 The services to be provided [487 U.S. 589, 605] under the AFLA are not religious in character, see n. 2, supra, nor has there been any suggestion that religious institutions or organizations with religious ties are uniquely well qualified to carry out those services. 10 Certainly it is true that a substantial part of the services listed as "necessary services" under the Act involve some sort of education or counseling, see, e. g., 300z-1(a)(4)(D), (G), (H), (J), (L), (M), (O), but there is nothing inherently religious about these activities and appellees do not contend that, by themselves, the AFLA's "necessary services" somehow have the primary effect of advancing religion. Finally, it is clear that the AFLA takes a particular approach toward dealing with adolescent sexuality and pregnancy - for example, two of its stated purposes are to "promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations," 300z(b)(1), and to "promote adoption as an alternative," 300z(b)(2) - but again, that approach is not inherently religious, although it may coincide with the approach taken by certain religions. </s> Given this statutory framework, there are two ways in which the statute, considered "on its face," might be said to have the impermissible primary effect of advancing religion. First, it can be argued that the AFLA advances religion by expressly recognizing that "religious organizations have a role to play" in addressing the problems associated with teenage [487 U.S. 589, 606] sexuality. Senate Report, at 16. In this view, even if no religious institution receives aid or funding pursuant to the AFLA, the statute is invalid under the Establishment Clause because, among other things, it expressly enlists the involvement of religiously affiliated organizations in the federally subsidized programs, it endorses religious solutions to the problems addressed by the Act, or it creates symbolic ties between church and state. Secondly, it can be argued that the AFLA is invalid on its face because it allows religiously affiliated organizations to participate as grantees or subgrantees in AFLA programs. From this standpoint, the Act is invalid because it authorizes direct federal funding of religious organizations which, given the AFLA's educational function and the fact that the AFLA's "viewpoint" may coincide with the grantee's "viewpoint" on sexual matters, will result unavoidably in the impermissible "inculcation" of religious beliefs in the context of a federally funded program. </s> We consider the former objection first. As noted previously, the AFLA expressly mentions the role of religious organizations in four places. It states (1) that the problems of teenage sexuality are "best approached through a variety of integrated and essential services provided to adolescents and their families by[, among others,] religious organizations," 300z(a)(8)(B), (2) that federally subsidized services "should emphasize the provision of support by[, among others,] religious and charitable organizations," 300z(a)(10)(C), (3) that AFLA programs "shall use such methods as will strengthen the capacity of families . . . to make use of support systems such as . . . religious . . . organizations," 300z-2(a), and (4) that grant applicants shall describe how they will involve religious organizations, among other groups, in the provision of services under the Act. 300z-5(a)(21)(B). </s> Putting aside for the moment the possible role of religious organizations as grantees, these provisions of the statute reflect at most Congress' considered judgment that religious organizations can help solve the problems to which the [487 U.S. 589, 607] AFLA is addressed. See Senate Report, at 15-16. Nothing in our previous cases prevents Congress from making such a judgment or from recognizing the important part that religion or religious organizations may play in resolving certain secular problems. Particularly when, as Congress found, "prevention of adolescent sexual activity and adolescent pregnancy depends primarily upon developing strong family values and close family ties," 300z(a)(10)(A), it seems quite sensible for Congress to recognize that religious organizations can influence values and can have some influence on family life, including parents' relations with their adolescent children. To the extent that this congressional recognition has any effect of advancing religion, the effect is at most "incidental and remote." See Lynch, 465 U.S., at 683 ; Estate of Thornton v. Caldor, Inc., 472 U.S., at 710 ; Nyquist, 413 U.S., at 771 . In addition, although the AFLA does require potential grantees to describe how they will involve religious organizations in the provision of services under the Act, it also requires grantees to describe the involvement of "charitable organizations, voluntary associations, and other groups in the private sector," 300z-5(a)(21)(B). 11 In our view, this reflects the statute's successful maintenance of "a course of neutrality among religions, and between religion and non-religion," Grand Rapids School District v. Ball, 473 U.S., at 382 . [487 U.S. 589, 608] </s> This brings us to the second ground for objecting to the AFLA: the fact that it allows religious institutions to participate as recipients of federal funds. The AFLA defines an "eligible grant recipient" as a "public or nonprofit private organization or agency" which demonstrates the capability of providing the requisite services. 300z-1(a)(3). As this provision would indicate, a fairly wide spectrum of organizations is eligible to apply for and receive funding under the Act, and nothing on the face of the Act suggests it is anything but neutral with respect to the grantee's status as a sectarian or purely secular institution. See Senate Report, at 16 ("Religious affiliation is not a criterion for selection as a grantee . . ."). In this regard, then, the AFLA is similar to other statutes that this Court has upheld against Establishment Clause challenges in the past. In Roemer v. Maryland Bd. of Public Works, 426 U.S. 736 (1976), for example, we upheld a Maryland statute that provided annual subsidies directly to qualifying colleges and universities in the State, including religiously affiliated institutions. As the plurality stated, "religious institutions need not be quarantined from public benefits that are neutrally available to all." Id., at 746 (discussing Everson v. Board of Education, 330 U.S. 1 (1947) (approving busing services equally available to both public and private school children), and Board of Education v. Allen, 392 U.S. 236 (1968) (upholding state provision of secular textbooks for both public and private school students)). Similarly, in Tilton v. Richardson, 403 U.S. 672 (1971), we approved the federal Higher Educational Facilities Act, which was intended by Congress to provide construction grants to "all colleges and universities regardless of any affiliation with or sponsorship by a religious body." Id., at 676. And in Hunt v. McNair, 413 U.S. 734 (1973), we rejected a challenge to a South Carolina statute that made certain benefits "available to all institutions of higher education in South Carolina, whether or not having a religious affiliation." Id., at 741. In other cases involving indirect [487 U.S. 589, 609] grants of state aid to religious institutions, we have found it important that the aid is made available regardless of whether it will ultimately flow to a secular or sectarian institution. See, e. g., Witters v. Washington Dept. of Services for Blind, 474 U.S. 481, 487 (1986); Mueller v. Allen, 463 U.S., at 398 ; Everson v. Board of Education, supra, at 17-18; Walz v. Tax Comm'n, 397 U.S., at 676 . </s> We note in addition that this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs. To the contrary, in Bradfield v. Roberts, 175 U.S. 291 (1899), the Court upheld an agreement between the Commissioners of the District of Columbia and a religiously affiliated hospital whereby the Federal Government would pay for the construction of a new building on the grounds of the hospital. In effect, the Court refused to hold that the mere fact that the hospital was "conducted under the auspices of the Roman Catholic Church" was sufficient to alter the purely secular legal character of the corporation, id., at 298, particularly in the absence of any allegation that the hospital discriminated on the basis of religion or operated in any way inconsistent with its secular charter. In the Court's view, the giving of federal aid to the hospital was entirely consistent with the Establishment Clause, and the fact that the hospital was religiously affiliated was "wholly immaterial." Ibid. The propriety of this holding, and the long history of cooperation and interdependency between governments and charitable or religious organizations is reflected in the legislative history of the AFLA. See S. Rep. No. 98-496, p. 10 (1984) ("Charitable organizations with religious affiliations historically have provided social services with the support of their communities and without controversy"). </s> Of course, even when the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct government aid to religiously affiliated institutions does not have the primary effect of advancing religion. [487 U.S. 589, 610] One way in which direct government aid might have that effect is if the aid flows to institutions that are "pervasively sectarian." We stated in Hunt that </s> "[a]id normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission . . . ." 413 U.S., at 743 . </s> The reason for this is that there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution's "religious mission." See Grand Rapids School District v. Ball, 473 U.S., at 385 (discussing how aid to religious schools may impermissibly advance religion). Accordingly, a relevant factor in deciding whether a particular statute on its face can be said to have the improper effect of advancing religion is the determination of whether, and to what extent, the statute directs government aid to pervasively sectarian institutions. In Grand Rapids School District, for example, the Court began its "effects" inquiry with "a consideration of the nature of the institutions in which the [challenged] programs operate." Id., at 384. </s> In this lawsuit, nothing on the face of the AFLA indicates that a significant proportion of the federal funds will be disbursed to "pervasively sectarian" institutions. Indeed, the contention that there is a substantial risk of such institutions receiving direct aid is undercut by the AFLA's facially neutral grant requirements, the wide spectrum of public and private organizations which are capable of meeting the AFLA's requirements, and the fact that, of the eligible religious institutions, many will not deserve the label of "pervasively sectarian." 12 This is not a case like Grand Rapids, where the [487 U.S. 589, 611] challenged aid flowed almost entirely to parochial schools. In that case the State's "Shared Time" program was directed specifically at providing certain classes for nonpublic schools, and 40 of 41 of the schools that actually participated in the program were found to be "pervasively sectarian." Id., at 385. See also Nyquist, 413 U.S., at 768 ("`all or practically all'" of the schools entitled to receive grants were religiously affiliated); Meek v. Pittenger, 421 U.S., at 371 . Instead, this litigation more closely resembles Tilton and Roemer, where it was foreseeable that some proportion of the recipients of government aid would be religiously affiliated, but that only a small portion of these, if any, could be considered "pervasively sectarian." In those cases we upheld the challenged statutes on their face and as applied to the institutions named in the complaints, but left open the consequences which would ensue if they allowed federal aid to go to institutions that were in fact pervasively sectarian. Tilton, 403 U.S., at 682 ; Roemer, 426 U.S., at 760 . As in Tilton and Roemer, we do not think the possibility that AFLA grants may go to religious institutions that can be considered "pervasively sectarian" is sufficient to conclude that no grants whatsoever can be given under the statute to religious organizations. We think that the District Court was wrong in concluding otherwise. </s> Nor do we agree with the District Court that the AFLA necessarily has the effect of advancing religion because the religiously affiliated AFLA grantees will be providing educational and counseling services to adolescents. Of course, we have said that the Establishment Clause does "prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith," Grand [487 U.S. 589, 612] Rapids, supra, at 385, and we have accordingly struck down programs that entail an unacceptable risk that government funding would be used to "advance the religious mission" of the religious institution receiving aid. See, e. g., Meek, supra, at 370. But nothing in our prior cases warrants the presumption adopted by the District Court that religiously affiliated AFLA grantees are not capable of carrying out their functions under the AFLA in a lawful, secular manner. Only in the context of aid to "pervasively sectarian" institutions have we invalidated an aid program on the grounds that there was a "substantial" risk that aid to these religious institutions would, knowingly or unknowingly, result in religious indoctrination. E. g., Grand Rapids, supra, at 387-398; Meek, supra, at 371. In contrast, when the aid is to flow to religiously affiliated institutions that were not pervasively sectarian, as in Roemer, we refused to presume that it would be used in a way that would have the primary effect of advancing religion. Roemer, we refused to presume that it would be used in a way that would have the primary effect of advancing religion. Roemer, 426 U.S., at 760 ("We must assume that the colleges . . . will exercise their delegated control over use of the funds in compliance with the statutory, and therefore the constitutional, mandate"). We think that the type of presumption that the District Court applied in this case is simply unwarranted. As we stated in Roemer: "It has not been the Court's practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds." Id., at 761; see also Tilton, supra, at 682. </s> We also disagree with the District Court's conclusion that the AFLA is invalid because it authorizes "teaching" by religious grant recipients on "matters [that] are fundamental elements of religious doctrine," such as the harm of premarital sex and the reasons for choosing adoption over abortion. 657 F. Supp., at 1562. On an issue as sensitive and important as teenage sexuality, it is not surprising that the Government's secular concerns would either coincide or conflict [487 U.S. 589, 613] with those of religious institutions. But the possibility or even the likelihood that some of the religious institutions who receive AFLA funding will agree with the message that Congress intended to deliver to adolescents through the AFLA is insufficient to warrant a finding that the statute on its face has the primary effect of advancing religion. See Lynch, 465 U.S., at 682 ; id., at 715-716 (BRENNAN, J., dissenting); Harris v. McRae, 448 U.S. 297, 319 -320 (1980). Nor does the alignment of the statute and the religious views of the grantees run afoul of our proscription against "fund[ing] a specifically religious activity in an otherwise substantially secular setting." Hunt, 413 U.S., at 743 . The facially neutral projects authorized by the AFLA - including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc. - are not themselves "specifically religious activities," and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations. </s> As yet another reason for invalidating parts of the AFLA, the District Court found that the involvement of religious organizations in the Act has the impermissible effect of creating a "crucial symbolic link" between government and religion. 657 F. Supp., at 1564 (citing, e. g., Grand Rapids, 473 U.S., at 390 ). If we were to adopt the District Court's reasoning, it could be argued that any time a government aid program provides funding to religious organizations in an area in which the organization also has an interest, an impermissible "symbolic link" could be created, no matter whether the aid was to be used solely for secular purposes. This would jeopardize government aid to religiously affiliated hospitals, for example, on the ground that patients would perceive a "symbolic link" between the hospital - part of whose "religious mission" might be to save lives - and whatever government entity is subsidizing the purely secular medical services provided to the patient. We decline to adopt the [487 U.S. 589, 614] District Court's reasoning and conclude that, in this litigation, whatever "symbolic link" might in fact be created by the AFLA's disbursement of funds to religious institutions is not sufficient to justify striking down the statute on its face. </s> A final argument that has been advanced for striking down the AFLA on "effects" grounds is the fact that the statute lacks an express provision preventing the use of federal funds for religious purposes. 13 Cf. Tilton, 403 U.S., at 675 ; Roemer, supra, at 740-741. Clearly, if there were such a provision in this statute, it would be easier to conclude that the statute on its face could not be said to have the primary effect of advancing religion, see, e. g., Roemer, supra, at 760, but we have never stated that a statutory restriction is constitutionally required. The closest we came to such a holding was in Tilton, where we struck down a provision of the statute that would have eliminated Government sanctions for violating the statute's restrictions on religious uses of funds after 20 years. 403 U.S., at 683 . The reason we did so, however, was because the 20-year limit on sanctions created a risk that the religious institution would, after the 20 years were up, act as if there were no longer any constitutional or statutory limitations on its use of the federally funded building. This aspect of the decision in Tilton was thus intended to indicate that the constitutional limitations on use of federal funds, as embodied in the statutory restriction, could not simply "expire" at some point during the economic life of the benefit that the grantee received from the Government. In this litigation, although there is no express statutory limitation on religious use of funds, there is also no intimation in the statute that at some point, or for some grantees, religious uses are permitted. To the contrary, the 1984 Senate Report on the AFLA states that "the use of Adolescent Family Life Act funds to [487 U.S. 589, 615] promote religion, or to teach the religious doctrines of a particular sect, is contrary to the intent of this legislation." S. Rep. No. 98-496, p. 10 (1984). We note in addition that the AFLA requires each grantee to undergo evaluations of the services it provides, 300z-5(b)(1), and also requires grantees to "make such reports concerning its use of Federal funds as the Secretary may require," 300z-5(c). The application requirements of the Act, as well, require potential grantees to disclose in detail exactly what services they intend to provide and how they will be provided. 300z-5(a). These provisions, taken together, create a mechanism whereby the Secretary can police the grants that are given out under the Act to ensure that federal funds are not used for impermissible purposes. Unlike some other grant programs, in which aid might be given out in one-time grants without ongoing supervision by the Government, the programs established under the authority of the AFLA can be monitored to determine whether the funds are, in effect, being used by the grantees in such a way as to advance religion. Given this statutory scheme, we do not think that the absence of an express limitation on the use of federal funds for religious purposes means that the statute, on its face, has the primary effect of advancing religion. </s> This, of course, brings us to the third prong of the Lemon Establishment Clause "test" - the question whether the AFLA leads to "`an excessive government entanglement with religion.'" Lemon, 403 U.S., at 613 (quoting Walz v. Tax Comm'n, 397 U.S., at 674 ). There is no doubt that the monitoring of AFLA grants is necessary if the Secretary is to ensure that public money is to be spent in the way that Congress intended and in a way that comports with the Establishment Clause. Accordingly, this litigation presents us with yet another "Catch-22" argument: the very supervision of the aid to assure that it does not further religion renders the statute invalid. See Aguilar v. Felton, 473 U.S., at 421 (REHNQUIST, J., dissenting); id., at 418 (Powell, J., concurring) [487 U.S. 589, 616] (interaction of entanglement and effects tests forces schools "to tread an extremely narrow line"); Roemer, 426 U.S., at 768 -769 (WHITE, J., concurring in judgment). For this and other reasons, the "entanglement" prong of the Lemon test has been much criticized over the years. See, e. g., Aguilar v. Felton, supra, at 429 (O'CONNOR, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 109 -110 (1985) (REHNQUIST, J., dissenting); Lynch v. Donnelly, 465 U.S., at 689 (O'CONNOR, J., concurring); Lemon, supra, at 666-668 (WHITE, J., concurring and dissenting). Most of the cases in which the Court has divided over the "entanglement" part of the Lemon test have involved aid to parochial schools; in Aguilar v. Felton, for example, the Court's finding of excessive entanglement rested in large part on the undisputed fact that the elementary and secondary schools receiving aid were "pervasively sectarian" and had "`as a substantial purpose the inculcation of religious values.'" 473 U.S., at 411 (quoting Nyquist, 413 U.S., at 768 ); see also 473 U.S., at 411 (expressly distinguishing Roemer, Hunt, and Tilton as cases involving aid to institutions that were not pervasively sectarian). In Aguilar, the Court feared that an adequate level of supervision would require extensive and permanent on-site monitoring, 473 U.S., at 412 -413, and would threaten both the "freedom of religious belief of those who [were] not adherents of that denomination" and the "freedom of . . . the adherents of the denomination." Id., at 409-410. </s> Here, by contrast, there is no reason to assume that the religious organizations which may receive grants are "pervasively sectarian" in the same sense as the Court has held parochial schools to be. There is accordingly no reason to fear that the less intensive monitoring involved here will cause the Government to intrude unduly in the day-to-day operation of the religiously affiliated AFLA grantees. Unquestionably, the Secretary will review the programs set up and run by the AFLA grantees, and undoubtedly this will involve a review of, for example, the educational materials that a [487 U.S. 589, 617] grantee proposes to use. The Secretary may also wish to have Government employees visit the clinics or offices where AFLA programs are being carried out to see whether they are in fact being administered in accordance with statutory and constitutional requirements. But in our view, this type of grant monitoring does not amount to "excessive entanglement," at least in the context of a statute authorizing grants to religiously affiliated organizations that are not necessarily "pervasively sectarian." 14 </s> In sum, in this somewhat lengthy discussion of the validity of the AFLA on its face, we have concluded that the statute has a valid secular purpose, does not have the primary effect of advancing religion, and does not create an excessive entanglement of church and state. We note, as is proper given the traditional presumption in favor of the constitutionality of statutes enacted by Congress, that our conclusion that the statute does not violate the Establishment Clause is consistent with the conclusion Congress reached in the course of its deliberations on the AFLA. As the Senate Committee Report states: </s> "In the committee's view, provisions for the involvement of religious organizations [in the AFLA] do not violate the constitutional separation between church and state. Recognizing the limitations of Government in dealing with a problem that has complex moral and social dimensions, the committee believes that promoting the involvement of religious organizations in the solution to [487 U.S. 589, 618] these problems is neither inappropriate or illegal." Senate Report, at 15-16. </s> For the foregoing reasons we conclude that the AFLA does not violate the Establishment Clause "on its face." </s> III </s> We turn now to consider whether the District Court correctly ruled that the AFLA was unconstitutional as applied. Our first task in this regard is to consider whether appellees had standing to raise this claim. In Flast v. Cohen, 392 U.S. 83 (1968), we held that federal taxpayers have standing to raise Establishment Clause claims against exercises of congressional power under the taxing and spending power of Article I, 8, of the Constitution. Although we have considered the problem of standing and Article III limitations on federal jurisdiction many times since then, we have consistently adhered to Flast and the narrow exception it created to the general rule against taxpayer standing established in Frothingham v. Mellon, 262 U.S. 447 (1923). Accordingly, in this case there is no dispute that appellees have standing to raise their challenge to the AFLA on its face. What is disputed, however, is whether appellees also have standing to challenge the statute as applied. The answer to this question turns on our decision in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982). In Valley Forge, we ruled that taxpayers did not have standing to challenge a decision by the Secretary of Health, Education, and Welfare (HEW) to dispose of certain property pursuant to the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, 40 U.S.C. 471 et seq. We rejected the taxpayers' claim of standing for two reasons: first, because "the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property," 454 U.S., at 479 , and second, because "the property transfer about which [the taxpayers] complain was not an exercise of [487 U.S. 589, 619] authority conferred by the Taxing and Spending Clause of Art. I, 8," id., at 480. Appellants now contend that appellees' standing in this case is deficient for the former reason; they argue that a challenge to the AFLA "as applied" is really a challenge to executive action, not to an exercise of congressional authority under the Taxing and Spending Clause. We do not think, however, that appellees' claim that AFLA funds are being used improperly by individual grantees is any less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary. Indeed, Flast itself was a suit against the Secretary of HEW, who had been given the authority under the challenged statute to administer the spending program that Congress had created. In subsequent cases, most notably Tilton, we have not questioned the standing of taxpayer plaintiffs to raise Establishment Clause challenges, even when their claims raised questions about the administratively made grants. See Tilton, 403 U.S., at 676 ; see also Hunt, 413 U.S., at 735 -736 (not questioning standing of state taxpayer to file suit against state executive in an "as applied" challenge); Roemer, 426 U.S., at 744 (same). This is not a case like Valley Forge, where the challenge was to an exercise of executive authority pursuant to the Property Clause of Article IV, 3, see 454 U.S., at 480 , or Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228 (1974), where the plaintiffs challenged the executive decision to allow Members of Congress to maintain their status as officers of the Armed Forces Reserve. See also United States v. Richardson, 418 U.S. 166, 175 (1974) (rejecting standing in challenge to statutes regulating the Central Intelligence Agency's accounting and reporting requirements). Nor is this, as we stated in Flast, a challenge to "an incidental expenditure of tax funds in the administration of an essentially regulatory statute." 392 U.S., at 102 . The AFLA is at heart a program of disbursement of funds pursuant to Congress' [487 U.S. 589, 620] taxing and spending powers, and appellees' claims call into question how the funds authorized by Congress are being disbursed pursuant to the AFLA's statutory mandate. In this litigation there is thus a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power, notwithstanding the role the Secretary plays in administering the statute. 15 </s> On the merits of the "as applied" challenge, it seems to us that the District Court did not follow the proper approach in assessing appellees' claim that the Secretary is making grants under the Act that violate the Establishment Clause of the First Amendment. Although the District Court stated several times that AFLA aid had been given to religious organizations that were "pervasively sectarian," see 657 F. Supp., at 1564, 1565, 1567, it did not identify which grantees it was referring to, nor did it discuss with any particularity the aspects of those organizations which in its view warranted classification as "pervasively sectarian." 16 The District Court did identify certain instances in which it felt AFLA funds were used for constitutionally improper purposes, but in our view the court did not adequately design its remedy to address the specific problems it found in the Secretary's administration of the statute. Accordingly, although there is no dispute that the record contains evidence of specific incidents of impermissible behavior by AFLA grantees, we feel that this lawsuit should be remanded to the District [487 U.S. 589, 621] Court for consideration of the evidence presented by appellees insofar as it sheds light on the manner in which the statute is presently being administered. It is the latter inquiry to which the court must direct itself on remand. </s> In particular, it will be open to appellees on remand to show that AFLA aid is flowing to grantees that can be considered "pervasively sectarian" religious institutions, such as we have held parochial schools to be. See Hunt, supra, at 743. As our previous discussion has indicated, and as Tilton, Hunt, and Roemer make clear, it is not enough to show that the recipient of a challenged grant is affiliated with a religious institution or that it is "religiously inspired." </s> The District Court should also consider on remand whether in particular cases AFLA aid has been used to fund "specifically religious activit[ies] in an otherwise substantially secular setting." Hunt, supra, at 743. In Hunt, for example, we deemed it important that the conditions on which the aid was granted were sufficient to preclude the possibility that funds would be used for the construction of a building used for religious purposes. Here it would be relevant to determine, for example, whether the Secretary has permitted AFLA grantees to use materials that have an explicitly religious content or are designed to inculcate the views of a particular religious faith. As we have pointed out in our previous discussion, evidence that the views espoused on questions such as premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show that the grant funds are being used in such a way as to have a primary effect of advancing religion. </s> If the District Court concludes on the evidence presented that grants are being made by the Secretary in violation of the Establishment Clause, it should then turn to the question of the appropriate remedy. We deal here with a funding statute with respect to which Congress has expressed the view that the use of funds by grantees to promote religion, [487 U.S. 589, 622] or to teach religious doctrines of a particular sect, would be contrary to the intent of the statute. See S. Rep. No. 98-496, p. 10 (1984). The Secretary has promulgated a series of conditions to each grant, including a prohibition against teaching or promoting religion. See App. 757. While these strictures may not be coterminous with the requirements of the Establishment Clause, they make it very likely that any particular grant which would violate the Establishment Clause would also violate the statute and the grant conditions imposed by the Secretary. Should the court conclude that the Secretary has wrongfully approved certain AFLA grants, an appropriate remedy would require the Secretary to withdraw such approval. </s> IV </s> We conclude, first, that the District Court erred in holding that the AFLA is invalid on its face, and second, that the court should consider on remand whether particular AFLA grants have had the primary effect of advancing religion. Should the court conclude that the Secretary's current practice does allow such grants, it should devise a remedy to insure that grants awarded by the Secretary comply with the Constitution and the statute. The judgment of the District Court is accordingly </s> Reversed. </s> Footnotes [Footnote 1 In addition to these services, the AFLA also provides funding for research projects. See 300z(b)(4)-(6), 300z-7. This aspect of the statute is not involved in this case. </s> [Footnote 2 Section 300z-1(a)(4) provides in full: </s> "(4) `necessary services' means services which may be provided by grantees which are - </s> "(A) pregnancy testing and maternity counseling; </s> "(B) adoption counseling and referral services which present adoption as an option for pregnant adolescents, including referral to licensed adoption agencies in the community if the eligible grant recipient is not a licensed adoption agency; </s> "(C) primary and preventive health services including prenatal and postnatal care; </s> "(D) nutrition information and counseling; </s> "(E) referral for screening and treatment of venereal disease; </s> "(F) referral to appropriate pediatric care; [487 U.S. 589, 595] </s> "(G) educational services relating to family life and problems associated with adolescent premarital sexual relations, including - </s> "(i) information about adoption; </s> "(ii) education on the responsibilities of sexuality and parenting; </s> "(iii) the development of material to support the role of parents as the provider of sex education; and </s> "(iv) assistance to parents, schools, youth agencies, and health providers to educate adolescents and preadolescents concerning self-discipline and responsibility in human sexuality; </s> "(H) appropriate educational and vocational services and referral to such services; </s> "(I) referral to licensed residential care or maternity home services; and </s> "(J) mental health services and referral to mental health services and to other appropriate physical health services; </s> "(K) child care sufficient to enable the adolescent parent to continue education or to enter into employment; </s> "(L) consumer education and homemaking; </s> "(M) counseling for the immediate and extended family members of the eligible person; </s> "(N) transportation; </s> "(O) outreach services to families of adolescents to discourage sexual relations among unemancipated minors; </s> "(P) family planning services; and </s> "(Q) such other services consistent with the purposes of this subchapter as the Secretary may approve in accordance with regulations promulgated by the Secretary." </s> [Footnote 3 Section 300z-10(a) reads in full: </s> "Grants or payments may be made only to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion." </s> [Footnote 4 On October 2, 1984, the District Court allowed United Families of America (UFA) to intervene and participate as a defendant-intervenor in support of the constitutionality of the AFLA. </s> [Footnote 5 The court rejected appellees' claim that a strict-scrutiny standard should apply to the AFLA because the statute's restriction of funding to organizations that oppose abortion explicitly and deliberately discriminates among religious denominations. See Larson v. Valente, 456 U.S. 228 (1982). The court found that the AFLA does not precondition the award of a grant on a grantee's having a particular religious belief; it merely restricts the grantees from using federal tax dollars to advocate a certain course of action. See 300z-10. While the AFLA's restriction on the advocacy of abortion does coincide with certain religious beliefs, that fact by itself did not, in the District Court's opinion, trigger the application of strict scrutiny under Larson. This aspect of the District Court's opinion has not been challenged on this appeal. </s> [Footnote 6 Prior to this, the court reviewed "the motions, the statements of material fact not in dispute, the allegations of disputed facts, the golconda of documents submitted to the Court, and the case law," and concluded that the material facts were not in dispute and that summary judgment would be proper. 657 F. Supp., at 1554. </s> [Footnote 7 The court also found that the AFLA's funding of religious organizations is likely to incite political divisiveness. See id., at 1569 (citing, e. g., Lynch v. Donnelly, 465 U.S. 668, 689 (1984) (O'CONNOR, J., concurring)). </s> [Footnote 8 We also see no reason to conclude that the AFLA serves an impermissible religious purpose simply because some of the goals of the statute coincide with the beliefs of certain religious organizations. See Harris v. McRae, 448 U.S. 297, 319 -320 (1980); McGowan v. Maryland, 366 U.S. 420, 442 (1961). </s> [Footnote 9 Indeed, the legislative history shows that Congress was aware that religious organizations had been grantees under Title VI and that it did not disapprove of that practice. The Senate Report, at 16, states: </s> "It should be noted that under current law [Title VI], the Office of Adolescent Pregnancy Programs has made grants to two religious-affiliated organizations, two Christian organizations and several other groups that are [487 U.S. 589, 605] indirectly affiliated with religious bodies. Religious affiliation is not a criterion for selection as a grantee under the adolescent family life program, but any such grants made by the Secretary would be a simple recognition that nonprofit religious organizations have a role to play in the provision of services to adolescents." </s> [Footnote 10 One witness before the Senate Committee testified that "projects which target hispanic and other minority populations are more accepted by the population if they include sectarian, as well as non-sectarian, organizations in the delivery of those services." S. Rep. No. 98-496, p. 10 (1984). This indicates not that sectarian grantees are particularly well qualified to perform AFLA services, but that the inclusion of both secular and sectarian grantees can improve the effectiveness of the Act's programs. </s> [Footnote 11 This undercuts any argument that religion has been "advanced" simply because AFLA added to Title VI the various references to religious organizations. As we noted previously, the amendments to Title VI were motivated by the secular purpose of increasing community involvement in the problems associated with adolescent sexuality. Although the AFLA amendments may have the effect of increasing the role of religious organizations in services provided under the AFLA, at least relative to services provided under Title VI, this reflects merely the fact that the AFLA program as a whole was expanded, with the role of all community organizations being increased as a result. This expansion of programs available under the AFLA, as opposed to Title VI, has only the "incidental" effect, if that, of advancing religion. </s> [Footnote 12 The validity of this observation is borne out by the statistics for the AFLA program in fiscal year 1986. According to the record of funding for that year, some $10.7 million in funding was awarded under the AFLA to a total of 86 organizations. Of this, about $3.3 million went to 23 religiously [487 U.S. 589, 611] affiliated grantees, with only $1.3 million of this figure going to the 13 projects that were cited by the District Court for constitutional violations. App. 748-756. Of these 13 projects, 4 appear to be state or local government organizations, and at least 1 is a hospital. Id., at 755. Of the 13 religiously affiliated organizations listed, 2 are universities. Id., at 756. </s> [Footnote 13 Section 300z-3 does, however, expressly define the uses to which federal funds may be put, including providing care and prevention services to eligible individuals. Nowhere in this section is it suggested that use of funds for religious purposes would be permissible. </s> [Footnote 14 We also disagree with the District Court's conclusion that the AFLA is invalid because it is likely to create political division along religious lines. See 657 F. Supp., at 1569. It may well be that because of the importance of the issues relating to adolescent sexuality there may be a division of opinion along religious lines as well as other lines. But the same may be said of a great number of other public issues of our day. In addition, as we said in Mueller v. Allen, 463 U.S. 388, 404 , n. 11 (1983), the question of "political divisiveness" should be "regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools." </s> [Footnote 15 Because we find that the taxpayer appellees have standing, we need not consider the standing of the clergy or the American Jewish Congress. </s> [Footnote 16 The closest the court came was to identify "at least ten AFLA grantees or subgrantees [that] were themselves `religious organizations,' in the sense that they have explicit corporate ties to a particular religious faith and by-laws or policies that prohibit any deviation from religious doctrine." 657 F. Supp., at 1565. While these factors are relevant to the determination of whether an institution is "pervasively sectarian," they are not conclusive, and we do not find the court's conclusion that these institutions are "religious organizations" to be equivalent to a finding that their secular purposes and religious mission are "inextricably intertwined." </s> JUSTICE O'CONNOR, concurring. </s> This litigation raises somewhat unusual questions involving a facially valid statute that appears to have been administered in a way that led to violations of the Establishment Clause. I agree with the Court's resolution of those questions, and I join its opinion. I write separately, however, to explain why I do not believe that the Court's approach reflects any tolerance for the kind of improper administration that seems to have occurred in the Government program at issue here. </s> The dissent says, and I fully agree, that "[p]ublic funds may not be used to endorse the religious message." Post, at [487 U.S. 589, 623] 642. As the Court notes, "there is no dispute that the record contains evidence of specific incidents of impermissible behavior by AFLA grantees." Ante, at 620. Because the District Court employed an analytical framework that did not require a detailed discussion of the voluminous record, the extent of this impermissible behavior and the degree to which it is attributable to poor administration by the Executive Branch is somewhat less clear. In this circumstance, two points deserve to be emphasized. First, any use of public funds to promote religious doctrines violates the Establishment Clause. Second, extensive violations - if they can be proved in this case - will be highly relevant in shaping an appropriate remedy that ends such abuses. For that reason, appellees may yet prevail on remand, and I do not believe that the Court's approach entails a relaxation of "the unwavering vigilance that the Constitution requires against any law `respecting an establishment of religion.'" See post, at 648 (quoting U.S. Const., Amdt. 1); cf. post, at 630, n. 4. </s> The need for detailed factual findings by the District Court stems in part from the delicacy of the task given to the Executive Branch by the Adolescent Family Life Act (AFLA). Government has a strong and legitimate secular interest in encouraging sexual restraint among young people. At the same time, as the dissent rightly points out, "[t]here is a very real and important difference between running a soup kitchen or a hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them." Post, at 641. Using religious organizations to advance the secular goals of the AFLA, without thereby permitting religious indoctrination, is inevitably more difficult than in other projects, such as ministering to the poor and the sick. I nonetheless agree with the Court that the partnership between governmental and religious institutions contemplated by the AFLA need not result in constitutional violations, despite an undeniably greater risk than is present in cooperative undertakings that involve less sensitive objectives. If the District Court finds [487 U.S. 589, 624] on remand that grants are being made in violation of the Establishment Clause, an appropriate remedy would take into account the history of the program's administration as well as the extent of any continuing constitutional violations. </s> JUSTICE KENNEDY, with whom JUSTICE SCALIA joins, concurring. </s> I join the Court's opinion, and write this separate concurrence to discuss one feature of the proceedings on remand. The Court states that "it will be open to appellees on remand to show that AFLA aid is flowing to grantees that can be considered `pervasively sectarian' religious institutions, such as we have held parochial schools to be." Ante, at 621. In my view, such a showing will not alone be enough, in an as-applied challenge, to make out a violation of the Establishment Clause. </s> Though I am not confident that the term "pervasively sectarian" is a well-founded juridical category, I recognize the thrust of our previous decisions that a statute which provides for exclusive or disproportionate funding to pervasively sectarian institutions may impermissibly advance religion and as such be invalid on its face. We hold today, however, that the neutrality of the grant requirements and the diversity of the organizations described in the statute before us foreclose the argument that it is disproportionately tied to pervasively sectarian groups. Ante, at 610-611. Having held that the statute is not facially invalid, the only purpose of further inquiring whether any particular grantee institution is pervasively sectarian is as a preliminary step to demonstrating that the funds are in fact being used to further religion. In sum, where, as in this litigation, a statute provides that the benefits of a program are to be distributed in a neutral fashion to religious and nonreligious applicants alike, and the program withstands a facial challenge, it is not unconstitutional as applied solely by reason of the religious character of a specific recipient. The question in an as-applied challenge is not [487 U.S. 589, 625] whether the entity is of a religious character, but how it spends its grant. </s> JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. </s> In 1981, Congress enacted the Adolescent Family Life Act (AFLA), 95 Stat. 578, 42 U.S.C. 300z et seq. (1982 ed. and Supp. IV), thereby "involv[ing] families[,] . . . religious and charitable organizations, voluntary associations, and other groups," 300z-5(a)(21), in a broad-scale effort to alleviate some of the problems associated with teenage pregnancy. It is unclear whether Congress ever envisioned that public funds would pay for a program during a session of which parents and teenagers would be instructed: </s> "You want to know the church teachings on sexuality. . . . You are the church. You people sitting here are the body of Christ. The teachings of you and the things you value are, in fact, the values of the Catholic Church." App. 226. </s> Or of curricula that taught: </s> "The Church has always taught that the marriage act, or intercourse, seals the union of husband and wife, (and is a representation of their union on all levels.) Christ commits Himself to us when we come to ask for the sacrament of marriage. We ask Him to be active in our life. God is love. We ask Him to share His love in ours, and God procreates with us, He enters into our physical union with Him, and we begin new life." Id., at 372. </s> Or the teaching of a method of family planning described on the grant application as "not only a method of birth regulation but also a philosophy of procreation," id., at 143, and promoted as helping "spouses who are striving . . . to transform their married life into testimony[,] . . . to cultivate their matrimonial spirituality[, and] to make themselves better instruments [487 U.S. 589, 626] in God's plan," and as "facilitat[ing] the evangelization of homes." Id., at 385. </s> Whatever Congress had in mind, however, it enacted a statute that facilitated and, indeed, encouraged the use of public funds for such instruction, by giving religious groups a central pedagogical and counseling role without imposing any restraints on the sectarian quality of the participation. As the record developed thus far in this litigation makes all too clear, federal tax dollars appropriated for AFLA purposes have been used, with Government approval, to support religious teaching. Today the majority upholds the facial validity of this statute and remands the action to the District Court for further proceedings concerning appellees' challenge to the manner in which the statute has been applied. Because I am firmly convinced that our cases require invalidating this statutory scheme, I dissent. </s> I </s> The District Court, troubled by the lack of express guidance from this Court as to the appropriate manner in which to examine Establishment Clause challenges to an entire statute as well as to specific instances of its implementation, reluctantly proceeded to analyze the AFLA both "on its face" and "as applied." Thereafter, on cross-motions for summary judgment supported by an extensive record of undisputed facts, the District Court applied the three-pronged analysis of Lemon v. Kurtzman, 403 U.S. 602 (1971), and declared the AFLA unconstitutional both facially and as applied. 657 F. Supp. 1547 (DC 1987). The majority acknowledges that this Court in some cases has passed on the facial validity of a legislative enactment and in others limited its analysis to the particular applications at issue; yet, while confirming that the District Court was justified in analyzing the AFLA both ways, the Court fails to elaborate on the consequences that flow from the analytical division. [487 U.S. 589, 627] </s> While the distinction is sometimes useful in constitutional litigation, the majority misuses it here to divide and conquer appellees' challenge. 1 By designating appellees' broad attack on the statute as a "facial" challenge, the majority justifies divorcing its analysis from the extensive record developed in the District Court, and thereby strips the challenge of much of its force and renders the evaluation of the Lemon "effects" prong particularly sterile and meaningless. By characterizing appellees' objections to the real-world operation of the AFLA an "as-applied" challenge, the Court risks misdirecting the litigants and the lower courts toward piece-meal litigation continuing indefinitely throughout the life of the AFLA. In my view, a more effective way to review Establishment Clause challenges is to look to the type of relief [487 U.S. 589, 628] prayed for by the plaintiffs, and the force of the arguments and supporting evidence they marshal. Whether we denominate a challenge that focuses on the systematically unconstitutional operation of a statute a "facial" challenge - because it goes to the statute as a whole - or an "as-applied" challenge - because we rely on real-world events - the Court should not blind itself to the facts revealed by the undisputed record. 2 </s> As is evident from the parties' arguments, the record compiled below, and the decision of the District Court, this law-suit has been litigated primarily as a broad challenge to the statutory scheme as a whole, not just to the awarding of grants to a few individual applicants. The thousands of pages of depositions, affidavits, and documentary evidence were not intended to demonstrate merely that particular grantees should not receive further funding. Indeed, because of the 5-year grant cycle, some of the original grantees are no longer AFLA participants. This record was designed to show that the AFLA had been interpreted and implemented by the Government in a manner that was clearly unconstitutional, and appellees sought declaratory and injunctive relief as to the entire statute. [487 U.S. 589, 629] </s> In discussing appellees' as-applied challenge, the District Court recognized that their objections went further than the validity of the particular grants under review: </s> "The undisputed record before the Court transforms the inherent conflicts between the AFLA and the Constitution into reality. . . . While the Court will not engage in an exhaustive recitation of the record, references to representative portions of the record reveal the extent to which the AFLA has in fact `directly and immediately' advanced religion, funded `pervasively sectarian' institutions, or permitted the use of federal tax dollars for education and counseling that amounts to the teaching of religion." 657 F. Supp., at 1564 (footnote omitted). </s> The majority declines to accept the District Court's characterization of the record, yet fails to review it independently, relying instead on its assumptions and casual observations about the character of the grantees and potential grantees. 3 </s> [487 U.S. 589, 630] See ante, at 610, 611-612, 616-617. In doing so, the Court neglects its responsibilities under the Establishment Clause and gives uncharacteristically short shrift to the District Court's understanding of the facts. 4 </s> II </s> Before proceeding to apply Lemon's three-part analysis to the AFLA, I pause to note a particular flaw in the majority's method. A central premise of the majority opinion seems to be that the primary means of ascertaining whether a statute that appears to be neutral on its face in fact has the effect of advancing religion is to determine whether aid flows to "pervasively sectarian" institutions. See ante, at 609-610, 616, 621. This misplaced focus leads the majority to ignore the substantial body of case law the Court has developed in analyzing programs providing direct aid to parochial schools, [487 U.S. 589, 631] and to rely almost exclusively on the few cases in which the Court has upheld the supplying of aid to private colleges, including religiously affiliated institutions. </s> "Pervasively sectarian," a vaguely defined term of art, has its roots in this Court's recognition that government must not engage in detailed supervision of the inner workings of religious institutions, and the Court's sensible distaste for the "picture of state inspectors prowling the halls of parochial schools and auditing classroom instruction," Lemon v. Kurtzman, 403 U.S., at 650 (BRENNAN, J., concurring); see also Aguilar v. Felton, 473 U.S. 402, 411 (1985); Roemer v. Maryland Public Works Board, 426 U.S. 736, 762 (1976) (plurality opinion). Under the "effects" prong of the Lemon test, the Court has used one variant or another of the pervasively sectarian concept to explain why any but the most indirect forms of government aid to such institutions would necessarily have the effect of advancing religion. For example, in Meek v. Pittenger, 421 U.S. 349, 365 (1975), the Court explained: </s> "[I]t would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania's church-related elementary and secondary schools and to then characterize Act 195 as channeling aid to the secular without providing direct aid to the sectarian." </s> See also Hunt v. McNair, 413 U.S. 734, 743 (1973). </s> The majority first skews the Establishment Clause analysis by adopting a cramped view of what constitutes a pervasively sectarian institution. Perhaps because most of the Court's decisions in this area have come in the context of aid to parochial schools, which traditionally have been characterized as pervasively sectarian, the majority seems to equate the characterization with the institution. 5 In support of that [487 U.S. 589, 632] illusion, the majority relies heavily on three cases in which the Court has upheld direct government funding to liberal arts colleges with some religious affiliation, noting that such colleges were not "pervasively sectarian." But the happenstance that the few cases in which direct-aid statutes have been upheld have concerned religiously affiliated liberal arts colleges no more suggests that only parochial schools should be considered "pervasively sectarian," than it suggests that the only religiously affiliated institutions that may ever receive direct government funding are private liberal arts colleges. In fact, the cases on which the majority relies have stressed that the institutions' "predominant higher education mission is to provide their students with a secular education." Tilton v. Richardson, 403 U.S. 672, 687 (1971) (emphasis added); see Roemer v. Maryland Public Works Board, 426 U.S., at 755 (noting "high degree of institutional autonomy" and that "the encouragement of spiritual development is only one secondary objective of each college") (internal quotations omitted); Hunt v. McNair, 413 U.S., at 744 (finding "no basis to conclude that the College's operations are oriented significantly towards sectarian rather than secular education"). In sharp contrast, the District Court here concluded that AFLA grantees and participants included "organizations with institutional ties to religious denominations and corporate requirements that the organizations abide by and not contradict religious doctrines. In addition, other recipients of AFLA funds, while not explicitly affiliated with a religious denomination, are religiously inspired and dedicated to teaching the dogma that inspired them" (emphasis [487 U.S. 589, 633] added). 657 F. Supp., at 1564. On a continuum of "sectarianism" running from parochial schools at one end to the colleges funded by the statutes upheld in Tilton, Hunt, and Roemer at the other, the AFLA grantees described by the District Court clearly are much closer to the former than to the latter. </s> More importantly, the majority also errs in suggesting that the inapplicability of the label is generally dispositive. While a plurality of the Court has framed the inquiry as "whether an institution is so `pervasively sectarian' that it may receive no direct state aid of any kind," Roemer v. Maryland Public Works Board, 426 U.S., at 758 , the Court never has treated the absence of such a finding as a license to disregard the potential for impermissible fostering of religion. The characterization of an institution as "pervasively sectarian" allows us to eschew further inquiry into the use that will be made of direct government aid. In that sense, it is a sufficient, but not a necessary, basis for a finding that a challenged program creates an unacceptable Establishment Clause risk. The label thus serves in some cases as a proxy for a more detailed analysis of the institution, the nature of the aid, and the manner in which the aid may be used. </s> The voluminous record compiled by the parties and reviewed by the District Court illustrates the manner in which the AFLA has been interpreted and implemented by the agency responsible for the aid program, and eliminates whatever need there might be to speculate about what kind of institutions might receive funds and how they might be selected; the record explains the nature of the activities funded with Government money, as well as the content of the educational programs and materials developed and disseminated. There is no basis for ignoring the volumes of depositions, pleadings, and undisputed facts reviewed by the District Court simply because the recipients of the Government funds may not in every sense resemble parochial schools. [487 U.S. 589, 634] </s> III </s> As is often the case, it is the effect of the statute, rather than its purpose, that creates Establishment Clause problems. Because I have no meaningful disagreement with the majority's discussion of the AFLA's essentially secular purpose, and because I find the statute's effect of advancing religion dispositive, I turn to that issue directly. </s> A </s> The majority's holding that the AFLA is not unconstitutional on its face marks a sharp departure from our precedents. While aid programs providing nonmonetary, verifiably secular aid have been upheld notwithstanding the indirect effect they might have on the allocation of an institution's own funds for religious activities, see, e. g., Board of Education v. Allen, 392 U.S. 236 (1968) (lending secular textbooks to parochial schools); Everson v. Board of Education, 330 U.S. 1 (1947) (providing bus services to parochial schools), direct cash subsidies have always required much closer scrutiny into the expected and potential uses of the funds, and much greater guarantees that the funds would not be used inconsistently with the Establishment Clause. Parts of the AFLA prescribing various forms of outreach, education, and counseling services 6 specifically authorize the expenditure of funds in ways previously held unconstitutional. For example, the Court has upheld the use of public funds to support a parochial school's purchase of secular textbooks already approved for use in public schools, see Wolman v. Walter, 433 U.S. 229, 236 -238 (1977); Meek v. Pittenger, 421 U.S., at 359 -362, or its grading and administering of state-prepared tests, Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980). When the books, teaching materials, or examinations were to [487 U.S. 589, 635] be selected or designed by the private schools themselves, however, the Court consistently has held that such government aid risked advancing religion impermissibly. See, e. g., Wolman v. Walter, 433 U.S., at 248 -251; Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472 (1973); Lemon v. Kurtzman, 403 U.S., at 620 -621. The teaching materials that may be purchased, developed, or disseminated with AFLA funding are in no way restricted to those already selected and approved for use in secular contexts. 7 </s> Notwithstanding the fact that Government funds are paying for religious organizations to teach and counsel impressionable adolescents on a highly sensitive subject of considerable religious significance, often on the premises of a church or parochial school and without any effort to remove religious symbols from the sites, 657 F. Supp., at 1565-1566, the majority concludes that the AFLA is not facially invalid. The majority acknowledges the constitutional proscription on [487 U.S. 589, 636] government-sponsored religious indoctrination but, on the basis of little more than an indefensible assumption that AFLA recipients are not pervasively sectarian and consequently are presumed likely to comply with statutory and constitutional mandates, dismisses as insubstantial the risk that indoctrination will enter counseling. Ante, at 611-612. Similarly, the majority rejects the District Court's conclusion that the subject matter renders the risk of indoctrination unacceptable, and does so, it says, because "the likelihood that some of the religious institutions who receive AFLA funding will agree with the message that Congress intended to deliver to adolescents through the AFLA" does not amount to the advancement of religion. Ante, at 613. I do not think the statute can be so easily and conveniently saved. </s> (1) </s> The District Court concluded that asking religious organizations to teach and counsel youngsters on matters of deep religious significance, yet expect them to refrain from making reference to religion is both foolhardy and unconstitutional. The majority's rejection of this view is illustrative of its doctrinal misstep in relying so heavily on the college-funding cases. The District Court reasoned: </s> "To presume that AFLA counselors from religious organizations can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic. . . . Even if it were possible, government would tread impermissibly on religious liberty merely by suggesting that religious organizations instruct on doctrinal matters without any conscious or unconscious reference to that doctrine. Moreover, the statutory scheme is fraught with the possibility that religious beliefs might infuse instruction and never be detected by the impressionable and unlearned adolescent to whom the instruction is directed" (emphasis in original). 657 F. Supp., at 1563. [487 U.S. 589, 637] </s> The majority rejects the District Court's assumptions as unwarranted outside the context of a pervasively sectarian institution. In doing so, the majority places inordinate weight on the nature of the institution receiving the funds, and ignores altogether the targets of the funded message and the nature of its content. </s> I find it nothing less than remarkable that the majority relies on statements expressing confidence that administrators of religiously affiliated liberal arts colleges would not breach statutory proscriptions and use government funds earmarked "for secular purposes only," to finance theological instruction or religious worship, see ante, at 612, citing Roemer, 426 U.S., at 760 -761, and Tilton, 403 U.S., at 682 , in order to reject a challenge based on the risk of indoctrination inherent in "educational services relating to family life and problems associated with adolescent premarital sexual relations," or "outreach services to families of adolescents to discourage sexual relations among unemancipated minors." 300z-1(a)(4)(G), (O). The two situations are simply not comparable. 8 </s> [487 U.S. 589, 638] </s> The AFLA, unlike any statute this Court has upheld, pays for teachers and counselors, employed by and subject to the direction of religious authorities, to educate impressionable young minds on issues of religious moment. Time and again we have recognized the difficulties inherent in asking even the best-intentioned individuals in such positions to make "a total separation between secular teaching and religious doctrine." Lemon v. Kurtzman, 403 U.S., at 619 . Accord, Levitt v. Committee for Public Education & Religious Liberty, 413 U.S., at 481 ; Meek v. Pittenger, 421 U.S., at 370 -371; Roemer v. Maryland Public Works Board, 426 U.S., at 749 (plurality opinion); Wolman v. Walter, 433 U.S., at 254 ; Grand Rapids School District v. Ball, 473 U.S. 373, 388 (1985). Where the targeted audience is composed of children, of course, the Court's insistence on adequate safeguards has always been greatest. See, e. g., Grand Rapids School District v. Ball, 473 U.S., at 383 , 390; Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 796 -798 (1973), Lemon v. Kurtzman, 403 U.S., at 622 -624. In those cases in which funding of colleges with religious affiliations has been upheld, the Court has relied on the assumption that "college students are less impressionable and less susceptible to religious indoctrination. . . . The skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and limitations" (footnote omitted). Tilton v. Richardson, 403 U.S., at 686 (plurality opinion). See also Widmar v. Vincent, 454 U.S. 263, 274 , n. 14 (1981) ("University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion"). </s> (2) </s> By observing that the alignment of the statute and the religious views of the grantees do not render the AFLA a statute which funds "specifically religious activity," the majority [487 U.S. 589, 639] makes light of the religious significance in the counseling provided by some grantees. Yet this is a dimension that Congress specifically sought to capture by enlisting the aid of religious organizations in battling the problems associated with teenage pregnancy. See S. Rep. No. 97-161, pp. 15-16 (1981); S. Rep. No. 98-496, pp. 9-10 (1984). Whereas there may be secular values promoted by the AFLA, including the encouragement of adoption and premarital chastity and the discouragement of abortion, it can hardly be doubted that when promoted in theological terms by religious figures, those values take on a religious nature. Not surprisingly, the record is replete with observations to that effect. 9 It [487 U.S. 589, 640] should be undeniable by now that religious dogma may not be employed by government even to accomplish laudable secular purposes such as "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature." Abington School District v. Schempp, 374 U.S. 203, 223 (1963) (holding unconstitutional daily reading of Bible verses and recitation of the Lord's Prayer in public schools); Stone v. Graham, 449 U.S. 39 (1980) (holding unconstitutional posting of Ten Commandments despite notation explaining secular application thereof). 10 </s> It is true, of course, that the Court has recognized that the Constitution does not prohibit the government from supporting secular social-welfare services solely because they are provided by a religiously affiliated organization. See ante, at 609. But such recognition has been closely tied to the nature of the subsidized social service: "the State may send a [487 U.S. 589, 641] cleric, indeed even a clerical order, to perform a wholly secular task" (emphasis added). Roemer v. Maryland Public Works Board, 426 U.S., at 746 (plurality opinion). There is a very real and important difference between running a soup kitchen or a hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them. The risk of advancing religion at public expense, and of creating an appearance that the government is endorsing the medium and the message, is much greater when the religious organization is directly engaged in pedagogy, with the express intent of shaping belief and changing behavior, than where it is neutrally dispensing medication, food, or shelter. 11 </s> There is also, of course, a fundamental difference between government's employing religion because of its unique appeal to a higher authority and the transcendental nature of its message, and government's enlisting the aid of religiously committed individuals or organizations without regard to their sectarian motivation. In the latter circumstance, religion plays little or no role; it merely explains why the individual or organization has chosen to get involved in the publicly funded program. In the former, religion is at the core of the subsidized activity, and it affects the manner in which the "service" is dispensed. For some religious organizations, [487 U.S. 589, 642] the answer to a teenager's question "Why shouldn't I have an abortion?" or "Why shouldn't I use barrier contraceptives?" will undoubtedly be different from an answer based solely on secular considerations. 12 Public funds may not be used to endorse the religious message. </s> B </s> The problems inherent in a statutory scheme specifically designed to involve religious organizations in a government-funded pedagogical program are compounded by the lack of any statutory restrictions on the use of federal tax dollars to promote religion. Conscious of the remarkable omission from the AFLA of any restriction whatsoever on the use of public funds for sectarian purposes, the Court disingenuously argues that we have "never stated that a statutory restriction is constitutionally required." Ante, at 614. In Tilton v. Richardson, this Court upheld a statute providing grants and loans to colleges for the construction of academic facilities because it "expressly prohibit[ed] their use for religious instruction, training, or worship . . . and the record show[ed] that some church-related institutions ha[d] been required to disgorge benefits for failure to obey" the restriction, 403 U.S., at 679 -680, but severed and struck a provision of the statute that permitted the restriction to lapse after 20 years. The Tilton Court noted that the statute required applicants to [487 U.S. 589, 643] provide assurances only that use of the funded facility would be limited to secular purposes for the initial 20-year period, and that this limitation, "obviously opens the facility to use for any purpose at the end of that period." Id., at 683. Because they expired after 20 years, "the statute's enforcement provisions [were] inadequate to ensure that the impact of the federal aid will not advance religion." Id., at 682. </s> The majority interprets Tilton "to indicate that the constitutional limitations on use of federal funds, as embodied in the statutory restriction, could not simply `expire'" after 20 years, but concludes that the absence of a statutory restriction in the AFLA is not troubling, because "there is also no intimation in the statute that at some point, or for some grantees, religious uses are permitted." Ante, at 614. Although there is something to the notion that the lifting of a pre-existing restriction may be more likely to be perceived as affirmative authorization than would the absence of any restriction at all, there was in Tilton no provision that stated that after 20 years facilities built under the aid program could be converted into chapels. What there was in Tilton was an express statutory provision, which lapsed, leaving no restrictions; it was that vacuum that the Court found constitutionally impermissible. In the AFLA, by way of contrast, there is a vacuum right from the start. 13 </s> [487 U.S. 589, 644] </s> If Tilton were indeed the only indication that cash-grant programs must include prohibitions on the use of public funds to advance or endorse religion, one might argue more plausibly that ordinary reporting requirements, in conjunction with some presumption that Government agencies administer federal programs in a constitutional fashion, 14 might suffice to [487 U.S. 589, 645] protect a statute against facial challenge. That, however, is simply not the case. In Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980), for example, the Court upheld a state program whereby private schools were reimbursed for the actual cost of administering state-required tests. The statute specifically required that no payments be made for religious instruction and incorporated an extensive auditing system. The Court warned, however: "Of course, under the relevant cases the outcome would likely be different were there no effective means for insuring that the cash reimbursements would cover only secular services." Id., at 659. In this regard, the Regan Court merely echoed and reaffirmed what was already well established. In Committee for Public Education & Religious Liberty v. Nyquist, the Court explained: </s> "Nothing in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught, or the cost of heating and lighting those same facilities. Absent appropriate restrictions on expenditures for these and similar purposes, it simply cannot be denied that this section has a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools" (emphasis added). 413 U.S., at 774 . [487 U.S. 589, 646] </s> See id., at 780 ("In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid"); Lemon v. Kurtzman, 403 U.S., at 621 ("The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance"). See also Roemer v. Maryland Public Works Board, 426 U.S., at 760 (upholding grant program containing statutory restriction on using state funds for "sectarian purposes"); Hunt v. McNair, 413 U.S., at 744 (noting that the statute at issue "specifically states that a project `shall not include' any buildings or facilities used for religious purposes"). 15 </s> Despite the glaring omission of a restriction on the use of funds for religious purposes, the Court attempts to resurrect the AFLA by noting a legislative intent not to promote religion, and observing that various reporting provisions of the statute "create a mechanism whereby the Secretary can police the grants." Ante, at 615. However effective this "mechanism" might prove to be in enforcing clear statutory directives, it is of no help where, as here, no restrictions are found on the face of the statute, and the Secretary has not promulgated any by regulation. Indeed, the only restriction [487 U.S. 589, 647] on the use of AFLA funds for religious purposes is found in the Secretary's "Notice of Grant Award" sent to grantees, which specifies that public funds may not be used to "teach or promote religion," 657 F. Supp., at 1563, n. 13, and apparently even that clause was not inserted until after this litigation was underway. Furthermore, the "enforcement" of the limitation on sectarian use of AFLA funds, such as it is, lacks any bite. There is no procedure pursuant to which funds used to promote religion must be refunded to the Government, as there was, for example, in Tilton v. Richardson, 403 U.S., at 682 . </s> Indeed, nothing in the AFLA precludes the funding of even "pervasively sectarian" organizations, whose work by definition cannot be segregated into religious and secular categories. And, unlike a pre-enforcement challenge, where there is no record to review, or a limited challenge to a specific grant, where the Court is reluctant to invalidate a statute "in anticipation that particular applications may result in unconstitutional use of funds," Roemer v. Maryland Public Works Board, 426 U.S., at 761 , in this litigation the District Court expressly found that funds have gone to pervasively sectarian institutions and tax dollars have been used for the teaching of religion. 657 F. Supp., at 1564. Moreover, appellees have specifically called into question the manner in which the grant program was administered and grantees were selected. See n. 14, supra. These objections cannot responsibly be answered by reliance on the Secretary's enforcement mechanism. See, e. g., Levitt v. Committee for Public Education & Religious Liberty, 413 U.S., at 480 ("[T]he State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination"); Lemon v. Kurtzman, 403 U.S., at 619 ("The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion"). [487 U.S. 589, 648] </s> C </s> By placing unsupportable weight on the "pervasively sectarian" label, and recharacterizing appellees' objections to the statute, the Court attempts to create an illusion of consistency between our prior cases and its present ruling that the AFLA is not facially invalid. But the Court ignores the unwavering vigilance that the Constitution requires against any law "respecting an establishment of religion," U.S. Const., Amdt. 1, which, as we have recognized time and again, calls for fundamentally conservative decisionmaking: our cases do not require a plaintiff to demonstrate that a government action necessarily promotes religion, but simply that it creates such a substantial risk. See, e. g., Grand Rapids School District v. Ball, 473 U.S., at 387 (observing a "substantial risk that, overtly or subtly, the religious message . . . will infuse the supposedly secular classes"); Committee for Public Education & Religious Liberty v. Regan, 444 U.S., at 656 (describing as "minimal" the chance that religious bias would enter process of grading state-drafted tests in secular subjects, given "complete" state safeguards); Wolman v. Walter, 433 U.S., at 254 (noting "unacceptable risk of fostering of religion" as "an inevitable byproduct" of teacher-accompanied field trips); Meek v. Pittenger, 421 U.S., at 372 (finding "potential for impermissible fostering of religion"); Levitt v. Committee for Public Education & Religious Liberty, 413 U.S., at 480 (finding dispositive "the substantial risk that . . . examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church"); Lemon v. Kurtzman, 403 U.S., at 619 (finding "potential for impermissible fostering of religion"). Given the nature of the subsidized activity, the lack of adequate safeguards, and the chronicle of past experience with this statute, there is no room for doubt that the AFLA creates a substantial risk of impermissible fostering of religion. [487 U.S. 589, 649] </s> IV </s> While it is evident that the AFLA does not pass muster under Lemon's "effects" prong, the unconstitutionality of the statute becomes even more apparent when we consider the unprecedented degree of entanglement between Church and State required to prevent subsidizing the advancement of religion with AFLA funds. The majority's brief discussion of Lemon's "entanglement" prong is limited to (a) criticizing it as a "Catch-22," and (b) concluding that because there is "no reason to assume that the religious organizations which may receive grants are `pervasively sectarian' in the same sense as the Court has held parochial schools to be," there is no need to be concerned about the degree of monitoring which will be necessary to ensure compliance with the AFLA and the Establishment Clause. Ante, at 615-616. As to the former, although the majority is certainly correct that the Court's entanglement analysis has been criticized in the separate writings of some Members of the Court, the question whether a government program leads to "`an excessive government entanglement with religion'" nevertheless is and remains a part of the applicable constitutional inquiry. Lemon v. Kurtzman, 403 U.S., at 613 , quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). I accept the majority's conclusion that "[t]here is no doubt that the monitoring of AFLA grants is necessary . . . to ensure that public money is to be spent . . . in a way that comports with the Establishment Clause," ante, at 615, but disagree with its easy characterization of entanglement analysis as a "Catch-22." To the extent any metaphor is helpful, I would be more inclined to characterize the Court's excessive entanglement decisions as concluding that to implement the required monitoring, we would have to kill the patient to cure what ailed him. See, e. g., Lemon v. Kurtzman, 403 U.S., at 614 -615; Meek v. Pittenger, 421 U.S., at 370 ; Aguilar v. Felton, 473 U.S., at 413 -414. [487 U.S. 589, 650] </s> As to the Court's conclusion that our precedents do not indicate that the Secretary's monitoring will have to be exceedingly intensive or entangling, because the grant recipients are not sufficiently like parochial schools, I must disagree. As discussed above, the majority's excessive reliance on the distinction between the Court's parochial-school-aid cases and college-funding cases is unwarranted. Lemon, Meek, and Aguilar cannot be so conveniently dismissed solely because the majority declines to assume that the "pervasively sectarian" label can be applied here. </s> To determine whether a statute fosters excessive entanglement, a court must look at three factors: (1) the character and purpose of the institutions benefited; (2) the nature of the aid; and (3) the nature of the relationship between the government and the religious organization. See Lemon v. Kurtzman, 403 U.S., at 614 -615. Thus, in Lemon, it was not solely the fact that teachers performed their duties within the four walls of the parochial school that rendered monitoring difficult and, in the end, unconstitutional. It seems inherent in the pedagogical function that there will be disagreements about what is or is not "religious" and which will require an intolerable degree of government intrusion and censorship. </s> "What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion. . . . </s> . . . . . </s> ". . . Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment." Id., at 619. </s> Accord, Aguilar v. Felton, 473 U.S., at 413 . See also New York v. Cathedral Academy, 434 U.S. 125, 133 (1977) (noting that the State "would have to undertake a search [487 U.S. 589, 651] for religious meaning in every classroom examination . . . . The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment"). </s> In Roemer, Tilton, and Hunt, the Court relied on "the ability of the State to identify and subsidize separate secular functions carried out at the school, without on-the-site inspections being necessary to prevent diversion of the funds to sectarian purposes," Roemer v. Maryland Public Works Board, 426 U.S., at 765 (emphasis added), and on the fact that one-time grants require "no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution's expenditures on secular as distinguished from religious activities." Tilton v. Richardson, 403 U.S., at 688 . AFLA grants, of course, are not simply one-time construction grants. As the majority readily acknowledges, the Secretary will have to "review the programs set up and run by the AFLA grantees[, including] a review of, for example, the educational materials that a grantee proposes to use." Ante, at 616-617. And, as the majority intimates, monitoring the use of AFLA funds will undoubtedly require more than the "minimal" inspection "necessary to ascertain that the facilities are devoted to secular education," Tilton, 403 U.S., at 687 . Since teachers and counselors, unlike buildings, "are not necessarily religiously neutral, greater governmental surveillance would be required to guarantee that state salary aid would not in fact subsidize religious instruction." Id., at 687-688. </s> V </s> The AFLA, without a doubt, endorses religion. Because of its expressed solicitude for the participation of religious organizations in all AFLA programs in one form or another, the statute creates a symbolic and real partnership between the clergy and the fisc in addressing a problem with substantial [487 U.S. 589, 652] religious overtones. Given the delicate subject matter and the impressionable audience, the risk that the AFLA will convey a message of Government endorsement of religion is overwhelming. The statutory language and the extensive record established in the District Court make clear that the problem lies in the statute and its systematically unconstitutional operation, and not merely in isolated instances of misapplication. I therefore would find the statute unconstitutional without remanding to the District Court. I trust, however, that after all its labors thus far, the District Court will not grow weary prematurely and read into the Court's decision a suggestion that the AFLA has been constitutionally implemented by the Government, for the majority deliberately eschews any review of the facts. 16 After such further [487 U.S. 589, 653] proceedings as are now to be deemed appropriate, and after the District Court enters findings of fact on the basis of the testimony and documents entered into evidence, it may well decide, as I would today, that the AFLA as a whole indeed has been unconstitutionally applied. 17 </s> [Footnote 1 A related point on which I do agree with the majority is worth acknowledging explicitly. In his appeal to this Court, the Secretary of Health and Human Services vigorously criticized the District Court's analysis of the AFLA on its face, asserting that it "cannot be squared with this Court's explanation in United States v. Salerno, [481 U.S. 739, 745 (1987),] that in mounting a facial challenge to a legislative Act, `the challenger must establish that no set of circumstances exists under which the Act would be valid.'" Brief for Federal Appellant 30. The Court, however, rejects the application of such rigid analysis in Establishment Clause cases, explaining: "As in previous cases involving facial challenges on Establishment Clause grounds, . . . we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971)." Ante, at 602. Indeed, the Secretary's proposed test is wholly incongruous with analysis of an Establishment Clause challenge under Lemon, which requires our examination of the purpose of the legislative enactment, as well as its primary effect or potential for fostering excessive entanglement. Although I may differ with the majority in the application of the Lemon analysis to the AFLA, I join it in rejecting the Secretary's approach which would render review under the Establishment Clause a nullity. Even in a statute like the AFLA, with its solicitude for, and specific averment to, the participation of religious organizations, one could hypothesize some "set of circumstances . . . under which the Act would be valid," as, for example, might be the case if no religious organization ever actually applied for or participated under an AFLA grant. The Establishment Clause cannot be eviscerated by such artifice. </s> [Footnote 2 Of course, the manner in which the challenge is characterized does not limit the relief available. Where justified by the nature of the controversy and the evidence in the record, a federal district court may invoke broad equitable powers to prevent continued unconstitutional activity. See Hutto v. Finney, 437 U.S. 678, 687 , and n. 9 (1978); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971) ("[B]readth and flexibility are inherent in equitable remedies"). In Milliken v. Bradley, 433 U.S. 267 (1977), the Court reiterated that in exercising its broad equitable powers, a district court should focus on the "nature and scope of the constitutional violation," and ensure that decrees be "remedial in nature." Id., at 280 (emphasis omitted). On remand, therefore, as instructed by the majority, the District Court must undertake the delicate task of fashioning relief appropriate to the scope of any particular violation it discovers. </s> [Footnote 3 The majority finds support for its "observation[s]" in the statistics for the AFLA program in fiscal 1986. See ante, at 610, n. 12. Because there are some organizations that were funded in 1982, but not in 1986, and vice versa, I find the cumulative funding figures for FY 1982-1986 more helpful. Looking at those figures, and the same group of recipients identified by the majority, I find that of approximately $53.5 million in AFLA funding, over $10 million went to the 13 organizations specifically cited in the District Court's opinion for constitutional violations. App. 748-756. The District Court, of course, did not "engage in an exhaustive recitation of the record," but made references only to "representative portions." 657 F. Supp. 1547, 1564 (DC 1987). Another 13 organizations characterized as "religiously affiliated" in a tabulation prepared by the Department of Health and Human Services in connection with this litigation, received an additional $6 million during this period. Looking at the figures from a different perspective, a third of the approximately 100,000 "clients served" by all AFLA grantees during the 1985-1986 period received their services from the "cited" grantees, and nearly 11,000 more from the other "religiously affiliated" institutions. App. 748-756. At a minimum, these figures already demonstrate substantial constitutionally suspect funding through the AFLA, rendering the majority's expectations unrealistic and [487 U.S. 589, 630] unwarranted. And, because of the Government's failure to require grantees to report on subgrant and subcontract arrangements, id., at 745, we only can speculate as to what additional public funds subsidized the religious missions of groups that the secular grantees brought in to fulfill their statutory obligation to involve religious organizations in the provision of services. See 300z-5(a)(21)(B). </s> [Footnote 4 The Court leaves for the District Court on remand the "consideration of the evidence presented by appellees insofar as it sheds light on the manner in which the statute is presently being administered," ante, at 621, conceding, as it must, that the factual record could paint a troubling picture about the true effect of the AFLA as a whole. See Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481, 488 (1986) (finding significant that "nothing in the record indicates that, if petitioner succeeds, any significant portion of the aid expended under the . . . program as a whole will end up flowing to religious education"); Aguilar v. Felton, 473 U.S. 402, 412 , n. 8 (1985) ("`If any significant number of the . . . schools create the risks described in Meek, Meek applies'"), quoting Felton v. Secretary, United States Dept. of Education, 739 F.2d 48, 70 (CA2 1984); Widmar v. Vincent, 454 U.S. 263, 275 (1981) (noting absence of empirical evidence that religious groups would dominate university's open forum). </s> I fully agree with the majority's determination that appellees have standing as taxpayers to challenge the operation of the AFLA, ante, at 618-620, and note that appellees may yet prevail on remand. </s> [Footnote 5 In rejecting the claim that the AFLA leads to excessive government entanglement with religion, the Court declines "to assume that the religious [487 U.S. 589, 632] organizations which may receive grants are `pervasively sectarian' in the same sense as the Court has held parochial schools to be." Ante, at 616. With respect to the claim that the AFLA is unconstitutional at least as applied, if not on its face, the Court - apparently unsatisfied with findings the District Court already made to that very effect - instructs that on remand, appellees may show that "AFLA aid is flowing to grantees that can be considered `pervasively sectarian' religious institutions, such as we have held parochial schools to be." Ante, at 621. </s> [Footnote 6 The District Court observed that 9 of 17 "necessary services," see 300z-1(a)(4), expressly involved some sort of education, counseling, or an intimately related service. 657 F. Supp., at 1562. </s> [Footnote 7 Thus, for example, until discovery began in this lawsuit, St. Ann's, a home for unmarried pregnant teenagers, operated by the Order of the Daughters of Charity and owned by the Archdiocese of Washington, D.C., purchased books containing Catholic doctrine on chastity, masturbation, homosexuality, and abortion, using AFLA funds, and distributed them to participants. See App. 336, 354-359, 362. Catholic Family Services of Amarillo, Tex., used a curriculum outline guide for AFLA-funded parent workshops with explicit theological references, as well as religious "reference" materials, including the film "Everyday Miracle," described as "depicting the miracle of the process of human reproduction as a gift from God." Record 155, Plaintiffs' Appendix, Vol. IV, p. 119. The District Court concluded: </s> "The record demonstrates that some grantees have included explicitly religious materials, or a curriculum that indicates an intent to teach theological and secular views on sexual conduct, in their HHS-approved grant proposals. . . . One such application, which was funded for one year, included a program designed, inter alia, `to communicate the Catholic diocese, Mormon (Church of Jesus Christ of Latter Day Saints) and Young Buddhist Association's approaches to sex education.'" 657 F. Supp., at 1565-1566. </s> [Footnote 8 In addition to funding activity of a wholly different character, the AFLA differs from the statutes reviewed in those cases in its expressed solicitude for the participation of religious organizations. In Tilton v. Richardson, 403 U.S. 672, 675 (1971), the statute "authorize[d] federal grants and loans to `institutions of higher education' for the construction of a wide variety of `academic facilities'"; in Hunt v. McNair, 413 U.S. 734, 736 (1973), South Carolina had established a state agency "the purpose of which [was] `to assist institutions for higher education in the construction, financing and refinancing of projects' . . . primarily through the issuance of revenue bonds"; in Roemer v. Maryland Public Works Board, 426 U.S. 736, 740 (1976) (plurality opinion), the State provided funding to "`any [qualified] private institution of higher learning within the State of Maryland.'" The AFLA, in contrast, expressly requires applicants for grants to describe how they "will, as appropriate in the provision of services . . . (B) involve religious . . . organizations." 300z-5(a)(21)(B), and the legislative history conclusively shows that Congress intended religious organizations to participate as grantees and as participants under grants awarded to other organizations. See S. Rep. No. 97-161, pp. 15-16 (1981). </s> [Footnote 9 The District Court's conclusion, which I find compelling, is that the AFLA requires teaching and counseling "on matters inseparable from religious dogma." 657 F. Supp., at 1565. This conclusion is borne out by statements of AFLA administrators and participants. For example, the Lyon County, Kan., Health Department's grant proposal acknowledges that "[s]uch sensitive and intimate material cannot be presented without touching on . . . religious beliefs." Record 155, Plaintiffs' Appendix, Vol. IV, p. 221. Patrick J. Sheeran, the Director of the Division of Program Development and Monitoring in the Office of Adolescent Pregnancy Programs explained: </s> "Broadly speaking, I find it hard to find any kind of educational or value type of program that doesn't have some kind of basic religious or ethical foundation, and while a sex education class may be completely separate from a religious class, it might relate back to it in terms of principles that are embedded philosophically or theologically or religiously in another discipline." App. 122. </s> Mr. Sheeran's views were echoed by Dr. Paul Simmons, a Baptist clergyman and professor of Christian Ethics: </s> "The very purpose of religion is to transmit certain values, and those values associated with sex, marriage, chastity and abortion involve religious values and theological or doctrinal issues. In encouraging premarital chastity, it would be extremely difficult for a religiously affiliated group not to impart its own religious values and doctrinal perspectives when teaching a subject that has always been central to its religious teachings." Id., at 597. </s> In any event, regardless of the efforts AFLA teachers and counselors may have undertaken in attempting to separate their religious convictions from the advice they actually dispensed to participating teenagers, the [487 U.S. 589, 640] District Court found that "the overwhelming number of comments shows that program participants believed that these federally funded programs were also sponsored by the religious denomination." 657 F. Supp., at 1566. </s> [Footnote 10 Religion plays an important role to many in our society. By enlisting its aid in combating certain social ills, while imposing the restrictions required by the First Amendment on the use of public funds to promote religion, we risk secularizing and demeaning the sacred enterprise. Whereas there is undoubtedly a role for churches of all denominations in helping prevent the problems often associated with early sexual activity and unplanned pregnancies, any attempt to confine that role within the strictures of a government-sponsored secular program can only taint the religious mission with a "corrosive secularism." Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985). The First Amendment protects not only the State from being captured by the Church, but also protects the Church from being corrupted by the State and adopted for its purposes. A government program that provides funds for religious organizations to carry out secular tasks inevitably risks promoting "the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it." Roemer v. Maryland Public Works Board, 426 U.S., at 775 (STEVENS, J., dissenting); see also Lynch v. Donnelly, 465 U.S. 668, 726 -727 (1984) (BLACKMUN, J., dissenting). </s> [Footnote 11 In arguing that providing "social welfare services" is categorically different from educating schoolchildren for Establishment Clause purposes, appellants relied heavily on Bradfield v. Roberts, 175 U.S. 291 (1899), a case in which the Court upheld the appropriation of money for the construction of two buildings to be part of a religiously affiliated hospital. Unlike the AFLA, however, which seeks "to promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations," 300z(b)(1), the Act of Congress by which the hospital at issue in Bradfield had been incorporated expressed that "`the specific and limited object of its creation' is the opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the corporation." 175 U.S., at 299 -300. </s> [Footnote 12 Employees of some grantees must follow the directives set forth in a booklet entitled "The Ethical and Religious Directives for Catholic Health Facilities," approved by the Committee on Doctrine of the National Conference of Catholic Bishops. App. 526, 540-544. Solely because of religious dictates, some AFLA grantees teach and refer teenagers for only "natural family planning," which "has never been used successfully with teenagers," id., at 535, and may not refer couples to programs that offer artificial methods of birth control, because those programs conflict with the teachings of the Roman Catholic Church. Id., at 407, 628. One nurse midwife working at an AFLA program was even reprimanded for contravening the hospital's religious views on sex when she answered "yes" to a teenager who asked, as a medical matter, whether she could have sex during pregnancy. Id., at 552. </s> [Footnote 13 This vacuum is particularly noticeable when we consider the pains to which Congress went to specify other restrictions on the use of AFLA funds. For example, the AFLA expressly provides: </s> "Grants or payments may be made only to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion." 300z-10. </s> The AFLA also sets certain conditions on funding for family planning services, 300z-3(b)(1), and requires of applicants some 18 separate [487 U.S. 589, 644] "assurances" covering everything from confidentiality of patient records, 300z-5(a)(11), to a commitment that the applicant will "make every reasonable effort . . . to secure from eligible persons payment for services in accordance with [structured fee] schedules," 300z-5(a)(16)(B). Yet nowhere in the statute is there a single restriction on the use of federal funds to promote or advance religion. See ante, at 614-615. </s> [Footnote 14 Appellees have challenged that presumption here, calling into question the manner in which grantees were selected and supervised. Mr. Sheeran, the Director of the Division of Program Development and Monitoring in the Office of Adolescent Pregnancy Programs, testified that he was surprised at the lack of experience, yet high proportion of religious affiliation, among those selected to read and evaluate grant applications. App. 98. Some of the reader's comments strongly suggest they considered religious indoctrination indispensable to achieve the AFLA's stated purpose, see, e. g., id., at 509; Record 155, Plaintiffs' Appendix Vol. I, pp. 354-355, and that evidence of no involvement by religious organizations was a factor in rejecting applications, see, e. g., Record 155, Plaintiffs' Appendix, Vol. I-A, pp. 505D, 505E, 505G; Record 155, Plaintiffs' Appendix, Vol. I, pp. 340, 346. </s> Despite the clear religious mission of many applicants, pre-award investigations or admonitions against the use of AFLA funds to promote religion were minimal. Mr. Sheeran was instructed to call Catholic grantees already selected for funding, and obtain assurances that the grant money would not be used for "teaching of morals, dogmas, [or] religious principles." App. 107. The calls lasted two or three minutes, and involved no detailed discussion of the use of church and parochial school facilities, or religious literature. Id., at 112-113. </s> The District Court found that the problems that should have been noted at the application stage remained uncured in implementation: </s> "Nor do the facts suggest that the programs in operation cured the First Amendment problems evident from these approved grant applications. At least one grantee actually included `spiritual counseling' in its AFLA program. Other AFLA programs used curricula with explicitly religious [487 U.S. 589, 645] materials. In addition, a very large number of AFLA programs took place on sites adorned with religious symbols . . . . </s> "Similarly, the record reveals that some grantees attempted to evade restrictions they perceived on AFLA-funded religious teaching by establishing programs in which an AFLA-funded staffer's presentations would be immediately followed, in the same room and in the staffer's presence, by a program presented by a member of a religious order and dedicated to presentation of religious views on the subject covered by the AFLA staffer" (citations omitted). 657 F. Supp., at 1566. </s> [Footnote 15 Indeed, the AFLA stands out among similar grant programs, precisely because of the absence of such restrictions. Cf., e. g., 20 U.S.C. 27 (support for vocational education); 20 U.S.C. 241-1(a)(4) (federal disaster relief for local education agencies); 20 U.S.C. 1021(c) (assistance to college and research libraries); 20 U.S.C. 1070e(c)(1)(B) (1982 ed., Supp. IV) (assistance to institutions of higher education); 20 U.S.C. 1134e(g) (1982 ed., Supp. IV) (fellowships for graduate and professional study); 20 U.S.C. 1210 (1982 ed. and Supp. IV) (grants to adult education programs); 42 U.S.C. 2753(b)(1)(C) (college work-study grants); 42 U.S.C. 5001(a)(2) (grants to retired senior-citizen volunteer service programs). </s> [Footnote 16 JUSTICE KENNEDY, joined by JUSTICE SCALIA, would further constrain the District Court's consideration of the evidence as to how grantees spent their money, regardless of whether the grantee could be labeled "pervasively sectarian," see ante, at 624-625, asserting that "[t]he question in an as-applied challenge is not whether the entity is of a religious character." This statement comes without citation to authority and is contrary to the clear import of our cases. As ill-defined as the concept behind the "pervasively sectarian" label may be, this Court consistently has held, and reaffirms today, that "`[a]id normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.'" Ante, at 610, quoting Hunt v. McNair, 413 U.S., at 743 . </s> See also Roemer v. Maryland Public Works Board, 426 U.S., at 758 ("[T]he question [is] whether an institution is so `pervasively sectarian' that it may receive no direct state aid of any kind"). Indeed, to suggest that because a challenge is labeled "as-applied," the character of the institution receiving the aid loses its relevance is to misunderstand the very nature of the concept of a "pervasively sectarian" institution, which is based in part on the conclusion that the secular and sectarian activities of an institution are "inextricably intertwined," see ante, at 620, n. 16. Not surprisingly, the Court flatly rejects JUSTICE KENNEDY's suggestion, observing that "it will be open to appellees on remand to show that AFLA aid is flowing to grantees that can be considered `pervasively sectarian' religious institutions." Ante, at 621. </s> [Footnote 17 Appellees argued in the District Court, and here as cross-appellants, that the portions of the statute inviting the participation of religious organizations were not severable, and thus that the entire statute must be held unconstitutional. I take no position on this issue. </s> [487 U.S. 589, 654]

United States Supreme Court KATZENBACH v. MORGAN(1966) No. 847 Argued: April 18, 1966Decided: June 13, 1966 </s> [Footnote * Together with No. 877, New York City Board of Elections v. Morgan et ux., also on appeal from the same court. </s> Appellees, registered voters in New York City, brought this suit to challenge the constitutionality of 4 (e) of the Voting Rights Act of 1965 to the extent that the provision prohibits enforcement of the statutory requirement for literacy in English as applied to numerous New York City residents from Puerto Rico who, because of that requirement, had previously been denied the right to vote. Section 4 (e) provides that no person who has completed the sixth grade in a public school, or an accredited private school, in Puerto Rico in which the language of instruction was other than English shall be disfranchised for inability to read or write English. A three-judge District Court granted appellees declaratory and injunctive relief, holding that in enacting 4 (e) Congress had exceeded its powers. Held: Section 4 (e) is a proper exercise of the powers under 5 of the Fourteenth Amendment, and by virtue of the Supremacy Clause, New York's English literacy requirement cannot be enforced to the extent it conflicts with 4 (e). Pp. 646-658. </s> (a) Though the States have power to fix voting qualifications, they cannot do so contrary to the Fourteenth Amendment or any other constitutional provision. P. 647. </s> (b) Congress' power under 5 of the Fourteenth Amendment to enact legislation prohibiting enforcement of a state law is not limited to situations where the state law has been adjudged to violate the provisions of the Amendment which Congress sought to enforce. It is therefore the Court's task here to determine, not whether New York's English literacy requirement as applied violates the Equal Protection Clause, but whether 4 (e)'s prohibition against that requirement is "appropriate legislation" to enforce the Clause. Lassiter v. Northampton Election Bd., 360 U.S. 45 , distinguished. Pp. 648-650. [384 U.S. 641, 642] </s> (c) Section 5 of the Fourteenth Amendment is a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees. The test of McCulloch v. Maryland, 4 Wheat. 316, 421, is to be applied to determine whether a congressional enactment is "appropriate legislation" under 5 of the Fourteenth Amendment. Pp. 650-651. </s> (d) Section 4 (e) was enacted to enforce the Equal Protection Clause as a measure to secure nondiscriminatory treatment by government for numerous Puerto Ricans residing in New York, both in the imposition of voting qualifications and the provision or administration of governmental services. Pp. 652-653. </s> (e) Congress had an adequate basis for deciding that 4 (e) was plainly adapted to that end. Pp. 653-656. </s> (f) Section 4 (e) does not itself invidiously discriminate in violation of the Fifth Amendment for failure to extend relief to those educated in non-American flag schools. A reform measure such as 4 (e) is not invalid because Congress might have gone further than it did and did not eliminate all the evils at the same time. Pp. 656-658. </s> 247 F. Supp. 196, reversed. </s> Solicitor General Marshall argued the cause for appellants in No. 847. With him on the brief were Assistant Attorney General Doar, Ralph S. Spritzer, Louis F. Claiborne, St. John Barrett and Louis M. Kauder. </s> J. Lee Rankin argued the cause for appellant in No. 877. With him on the brief were Norman Redlich and Seymour B. Quel. </s> Alfred Avins argued the cause and filed a brief for appellees in both cases. </s> Rafael Hernandez Colon, Attorney General, argued the cause and filed a brief for the Commonwealth of Puerto Rico, as amicus curiae, urging reversal. </s> Jean M. Coon, Assistant Attorney General, argued the cause for the State of New York, as amicus curiae, urging affirmance. With her on the brief were Louis J. Lefkowitz, [384 U.S. 641, 643] Attorney General, and Ruth Kessler Toch, Acting Solicitor General. </s> MR. JUSTICE BRENNAN delivered the opinion of the Court. </s> These cases concern the constitutionality of 4 (e) of the Voting Rights Act of 1965. 1 That law, in the respects pertinent in these cases, provides that no person who has successfully completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English shall be denied the right to vote in any election because of his inability to read or write English. Appellees, registered voters in New York City, brought this suit to challenge the constitutionality of 4 (e) insofar as it pro tanto prohibits [384 U.S. 641, 644] the enforcement of the election laws of New York 2 requiring an ability to read and write English as a condition of voting. Under these laws many of the several hundred thousand New York City residents who have migrated there from the Commonwealth of Puerto Rico had previously been denied the right to vote, and appellees attack 4 (e) insofar as it would enable many of [384 U.S. 641, 645] these citizens to vote. 3 Pursuant to 14 (b) of the Voting Rights Act of 1965, appellees commenced this proceeding in the District Court for the District of Columbia seeking a declaration that 4 (e) is invalid and an injunction prohibiting appellants, the Attorney General of the United States and the New York City Board of Elections, from either enforcing or complying with [384 U.S. 641, 646] 4 (e). 4 A three-judge district court was designated. 28 U.S.C. 2282, 2284 (1964 ed.). Upon cross motions for summary judgment, that court, one judge dissenting, granted the declaratory and injunctive relief appellees sought. The court held that in enacting 4 (e) Congress exceeded the powers granted to it by the Constitution and therefore usurped powers reserved to the States by the Tenth Amendment. 247 F. Supp. 196. Appeals were taken directly to this Court, 28 U.S.C. 1252, 1253 (1964 ed.), and we noted probable jurisdiction. 382 U.S. 1007 . We reverse. We hold that, in the application challenged in these cases, 4 (e) is a proper exercise of the powers granted to Congress by 5 of the Fourteenth Amendment 5 and that by force of the [384 U.S. 641, 647] Supremacy Clause, Article VI, the New York English literacy requirement cannot be enforced to the extent that it is inconsistent with 4 (e). </s> Under the distribution of powers effected by the Constitution, the States establish qualifications for voting for state officers, and the qualifications established by the States for voting for members of the most numerous branch of the state legislature also determine who may vote for United States Representatives and Senators, Art. I, 2; Seventeenth Amendment; Ex parte Yarbrough, 110 U.S. 651, 663 . But, of course, the States have no power to grant or withhold the franchise on conditions that are forbidden by the Fourteenth Amendment, or any other provision of the Constitution. Such exercises of state power are no more immune to the limitations of the Fourteenth Amendment than any other state action. The Equal Protection Clause itself has been held to forbid some state laws that restrict the right to vote. 6 </s> [384 U.S. 641, 648] </s> The Attorney General of the State of New York argues that an exercise of congressional power under 5 of the Fourteenth Amendment that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought to enforce. More specifically, he urges that 4 (e) cannot be sustained as appropriate legislation to enforce the Equal Protection Clause unless the judiciary decides - even with the guidance of a congressional judgment - that the application of the English literacy requirement prohibited by 4 (e) is forbidden by the Equal Protection Clause itself. We disagree. Neither the language nor history of 5 supports such a construction. 7 As was said with regard to 5 in Ex parte Virginia, 100 U.S. 339, 345 , "It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective." A construction of 5 that would require a judicial determination that the enforcement of the state law precluded by Congress violated the Amendment, as a condition of sustaining the congressional enactment, would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment. 8 It would confine the legislative power [384 U.S. 641, 649] in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the "majestic generalities" of 1 of the Amendment. See Fay v. New York, 332 U.S. 261, 282 -284. </s> Thus our task in this case is not to determine whether the New York English literacy requirement as applied to deny the right to vote to a person who successfully completed the sixth grade in a Puerto Rican school violates the Equal Protection Clause. Accordingly, our decision in Lassiter v. Northampton Election Bd., 360 U.S. 45 , sustaining the North Carolina English literacy requirement as not in all circumstances prohibited by the first sections of the Fourteenth and Fifteenth Amendments, is inapposite. Compare also Guinn v. United States, 238 U.S. 347, 366 ; Camacho v. Doe, 31 Misc. 2d 692, 221 N. Y. S. 2d 262 (1958), aff'd 7 N. Y. 2d 762, 163 N. E. 2d 140 (1959); Camacho v. Rogers, 199 F. Supp. 155 (D.C. S. D. N. Y. 1961). Lassiter did not present the question before us here: Without regard to whether the judiciary would find that the Equal Protection Clause itself nullifies New York's English literacy requirement as so applied, could Congress prohibit the enforcement of the state law by legislating under 5 of the Fourteenth Amendment? In answering this question, our task is limited to determining whether such [384 U.S. 641, 650] legislation is, as required by 5, appropriate legislation to enforce the Equal Protection Clause. </s> By including 5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, 8, cl. 18. 9 The classic formulation of the reach of those powers was established by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421: </s> "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." </s> Ex parte Virginia, 100 U.S., at 345 -346, decided 12 years after the adoption of the Fourteenth Amendment, held that congressional power under 5 had this same broad scope: </s> "Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power." [384 U.S. 641, 651] </s> Strauder v. West Virginia, 100 U.S. 303, 311 ; Virginia v. Rives, 100 U.S. 313, 318 . Section 2 of the Fifteenth Amendment grants Congress a similar power to enforce by "appropriate legislation" the provisions of that amendment; and we recently held in South Carolina v. Katzenbach, 383 U.S. 301, 326 , that "[t]he basic test to be applied in a case involving 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States." That test was identified as the one formulated in McCulloch v. Maryland. See also James Everard's Breweries v. Day, 265 U.S. 545, 558 -559 (Eighteenth Amendment). Thus the McCulloch v. Maryland standard is the measure of what constitutes "appropriate legislation" under 5 of the Fourteenth Amendment. Correctly viewed, 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment. </s> We therefore proceed to the consideration whether 4 (e) is "appropriate legislation" to enforce the Equal Protection Clause, that is, under the McCulloch v. Maryland standard, whether 4 (e) may be regarded as an enactment to enforce the Equal Protection Clause, whether it is "plainly adapted to that end" and whether it is not prohibited by but is consistent with "the letter and spirit of the constitution." 10 </s> [384 U.S. 641, 652] </s> There can be no doubt that 4 (e) may be regarded as an enactment to enforce the Equal Protection Clause. Congress explicitly declared that it enacted 4 (e) "to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English." The persons referred to include those who have migrated from the Commonwealth of Puerto Rico to New York and who have been denied the right to vote because of their inability to read and write English, and the Fourteenth Amendment rights referred to include those emanating from the Equal Protection Clause. More specifically, 4 (e) may be viewed as a measure to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government - both in the imposition of voting qualifications and the provision or administration of governmental services, such as public schools, public housing and law enforcement. </s> Section 4 (e) may be readily seen as "plainly adapted" to furthering these aims of the Equal Protection Clause. The practical effect of 4 (e) is to prohibit New York from denying the right to vote to large segments of its Puerto Rican community. Congress has thus prohibited the State from denying to that community the right that is "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 . This enhanced political power will be helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community. 11 Section [384 U.S. 641, 653] 4 (e) thereby enables the Puerto Rican minority better to obtain "perfect equality of civil rights and the equal protection of the laws." It was well within congressional authority to say that this need of the Puerto Rican minority for the vote warranted federal intrusion upon any state interests served by the English literacy requirement. It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations - the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support 4 (e) in the application in question in this case. Any contrary conclusion would require us to be blind to the realities familiar to the legislators. 12 </s> The result is no different if we confine our inquiry to the question whether 4 (e) was merely legislation aimed [384 U.S. 641, 654] at the elimination of an invidious discrimination in establishing voter qualifications. We are told that New York's English literacy requirement originated in the desire to provide an incentive for non-English speaking immigrants to learn the English language and in order to assure the intelligent exercise of the franchise. Yet Congress might well have questioned, in light of the many exemptions provided, 13 and some evidence suggesting that prejudice played a prominent role in the enactment of the requirement, 14 whether these were actually the interests being served. Congress might have also questioned whether denial of a right deemed so precious and fundamental in our society was a necessary or appropriate means of encouraging persons to learn English, or of furthering the goal of an intelligent exercise of the franchise. 15 Finally, Congress might well have concluded that [384 U.S. 641, 655] as a means of furthering the intelligent exercise of the franchise, an ability to read or understand Spanish is as effective as ability to read English for those to whom Spanish-language newspapers and Spanish-language radio and television programs are available to inform them of election issues and governmental affairs. 16 Since Congress undertook to legislate so as to preclude the enforcement of the state law, and did so in the context of a general appraisal of literacy requirements for voting, see [384 U.S. 641, 656] South Carolina v. Katzenbach, supra, to which it brought a specially informed legislative competence, 17 it was Congress' prerogative to weigh these competing considerations. Here again, it is enough that we perceive a basis upon which Congress might predicate a judgment that the application of New York's English literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted an invidious discrimination in violation of the Equal Protection Clause. </s> There remains the question whether the congressional remedies adopted in 4 (e) constitute means which are not prohibited by, but are consistent "with the letter and spirit of the constitution." The only respect in which appellees contend that 4 (e) fails in this regard is that the section itself works an invidious discrimination in violation of the Fifth Amendment by prohibiting the enforcement of the English literacy requirement only for those educated in American-flag schools (schools located within United States jurisdiction) in which the language of instruction was other than English, and not for those educated in schools beyond the territorial limits of the United States in which the language of instruction was also other than English. This is not a complaint that Congress, in enacting 4 (e), has unconstitutionally denied or diluted anyone's right to vote but rather that Congress violated the Constitution by not extending the [384 U.S. 641, 657] relief effected in 4 (e) to those educated in non-American-flag schools. We need not pause to determine whether appellees have a sufficient personal interest to have 4 (e) invalidated on this ground, see generally United States v. Raines, 362 U.S. 17 , since the argument, in our view, falls on the merits. </s> Section 4 (e) does not restrict or deny the franchise but in effect extends the franchise to persons who otherwise would be denied it by state law. Thus we need not decide whether a state literacy law conditioning the right to vote on achieving a certain level of education in an American-flag school (regardless of the language of instruction) discriminates invidiously against those educated in non-American-flag schools. We need only decide whether the challenged limitation on the relief effected in 4 (e) was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights, see n. 15, supra, is inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a "statute is not invalid under the Constitution because it might have gone farther than it did," Roschen v. Ward, 279 U.S. 337, 339 , that a legislature need not "strike at all evils at the same time," Semler v. Dental Examiners, 294 U.S. 608, 610 , and that "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind," Williamson v. Lee Optical Co., 348 U.S. 483, 489 . </s> Guided by these principles, we are satisfied that appellees' challenge to this limitation in 4 (e) is without merit. In the context of the case before us, the congressional choice to limit the relief effected in 4 (e) may, [384 U.S. 641, 658] for example, reflect Congress' greater familiarity with the quality of instruction in American-flag schools, 18 a recognition of the unique historic relationship between the Congress and the Commonwealth of Puerto Rico, 19 an awareness of the Federal Government's acceptance of the desirability of the use of Spanish as the language of instruction in Commonwealth schools, 20 and the fact that Congress has fostered policies encouraging migration from the Commonwealth to the States. 21 We have no occasion to determine in this case whether such factors would justify a similar distinction embodied in a voting-qualification law that denied the franchise to persons educated in non-American-flag schools. We hold only that the limitation on relief effected in 4 (e) does not constitute a forbidden discrimination since these factors might well have been the basis for the decision of Congress to go "no farther than it did." </s> We therefore conclude that 4 (e), in the application challenged in this case, is appropriate legislation to enforce the Equal Protection Clause and that the judgment of the District Court must be and hereby is </s> Reversed. </s> MR. JUSTICE DOUGLAS joins the Court's opinion except for the discussion, at pp. 656-658, of the question whether the congressional remedies adopted in 4 (e) constitute means which are not prohibited by, but are consistent with "the letter and spirit of the constitution." On that [384 U.S. 641, 659] question, he reserves judgment until such time as it is presented by a member of the class against which that particular discrimination is directed. </s> Footnotes [Footnote 1 The full text of 4 (e) is as follows: </s> "(1) Congress hereby declares that to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language. </s> "(2) No person who demonstrates that he has successfully completed the sixth primary grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English, shall be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language, except that in States in which State law provides that a different level of education is presumptive of literacy, he shall demonstrate that he has successfully completed an equivalent level of education in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico in which the predominant classroom language was other than English." 79 Stat. 439, 42 U.S.C. 1973b (e) (1964 ed., Supp. I). </s> [Footnote 2 Article II, 1, of the New York Constitution provides, in pertinent part: </s> "Notwithstanding the foregoing provisions, after January first, one thousand nine hundred twenty-two, no person shall become entitled to vote by attaining majority, by naturalization or otherwise, unless such person is also able, except for physical disability, to read and write English." </s> Section 150 of the New York Election Law provides, in pertinent part: </s> ". . . In the case of a person who became entitled to vote in this state by attaining majority, by naturalization or otherwise after January first, nineteen hundred twenty-two, such person must, in addition to the foregoing provisions, be able, except for physical disability, to read and write English. A `new voter,' within the meaning of this article, is a person who, if he is entitled to vote in this state, shall have become so entitled on or after January first, nineteen hundred twenty-two, and who has not already voted at a general election in the state of New York after making proof of ability to read and write English, in the manner provided in section one hundred sixty-eight." </s> Section 168 of the New York Election Law provides, in pertinent part: </s> "1. The board of regents of the state of New York shall make provisions for the giving of literacy tests. </s> . . . . . </s> "2. . . . But a new voter may present as evidence of literacy a certificate or diploma showing that he has completed the work up to and including the sixth grade of an approved elementary school or of an approved higher school in which English is the language of instruction or a certificate or diploma showing that he has completed the work up to and including the sixth grade in a public school or a private school accredited by the Commonwealth of [384 U.S. 641, 645] Puerto Rico in which school instruction is carried on predominantly in the English language or a matriculation card issued by a college or university to a student then at such institution or a certificate or a letter signed by an official of the university or college certifying to such attendance." </s> Section 168 of the Election Law as it now reads was enacted while 4 (e) was under consideration in Congress. See 111 Cong. Rec. 19376-19377. The prior law required the successful completion of the eighth rather than the sixth grade in a school in which the language of instruction was English. </s> [Footnote 3 This limitation on appellees' challenge to 4 (e), and thus on the scope of our inquiry, does not distort the primary intent of 4 (e). The measure was sponsored in the Senate by Senators Javits and Kennedy and in the House by Representatives Gilbert and Ryan, all of New York, for the explicit purpose of dealing with the disenfranchisement of large segments of the Puerto Rican population in New York. Throughout the congressional debate it was repeatedly acknowledged that 4 (e) had particular reference to the Puerto Rican population in New York. That situation was the almost exclusive subject of discussion. See 111 Cong. Rec. 11028, 11060-11074, 15666, 16235-16245, 16282-16283, 19192-19201, 19375-19378; see also Voting Rights, Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on H. R. 6400, 89th Cong., 1st Sess., 100-101, 420-421, 508-517 (1965). The Solicitor General informs us in his brief to this Court, that in all probability the practical effect of 4 (e) will be limited to enfranchising those educated in Puerto Rican schools. He advises us that, aside from the schools in the Commonwealth of Puerto Rico, there are no public or parochial schools in the territorial limits of the United States in which the predominant language of instruction is other than English and which would have generally been attended by persons who are otherwise qualified to vote save for their lack of literacy in English. </s> [Footnote 4 Section 14 (b) provides, in pertinent part: </s> "No court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue . . . any restraining order or temporary or permanent injunction against the . . . enforcement of any provision of this Act or any action of any Federal officer or employee pursuant hereto." 79 Stat. 445, 42 U.S.C. 1973l (b) (1964 ed., Supp. I). </s> The Attorney General of the United States was initially named as the sole defendant. The New York City Board of Elections was joined as a defendant after it publicly announced its intention to comply with 4 (e); it has taken the position in these proceedings that 4 (e) is a proper exercise of congressional power. The Attorney General of the State of New York has participated as amicus curiae in the proceedings below and in this Court, urging 4 (e) be declared unconstitutional. The United States was granted leave to intervene as a defendant, 28 U.S.C. 2403 (1964 ed.); Fed. Rule Civ. Proc. 24 (a). </s> [Footnote 5 "SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." </s> It is therefore unnecessary for us to consider whether 4 (e) could be sustained as an exercise of power under the Territorial Clause, Art. IV, 3; see dissenting opinion of Judge McGowan below, 247 F. Supp., at 204; or as a measure to discharge certain treaty obligations of the United States, see Treaty of Paris of 1898, 30 Stat. 1754. 1759; United Nations Charter, Articles 55 and 56; [384 U.S. 641, 647] Art. I, 8, cl. 18. Nor need we consider whether 4 (e) could be sustained insofar as it relates to the election of federal officers as an exercise of congressional power under Art. I, 4, see Minor v. Happersett, 21 Wall. 162, 171; United States v. Classic, 313 U.S. 299, 315 ; Literacy Tests and Voter Requirements in Federal and State Elections, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 480, S. 2750, and S. 2979, 87th Cong., 2d Sess., 302, 306-311 (1962) (brief of the Attorney General); nor whether 4 (e) could be sustained, insofar as it relates to the election of state officers, as an exercise of congressional power to enforce the clause guaranteeing to each State a republican form of government, Art. IV, 4; Art. I, 8, cl. 18. </s> [Footnote 6 Harper v. Virginia Board of Elections, 383 U.S. 663 ; Carrington v. Rash, 380 U.S. 89 . See also United States v. Mississippi, 380 U.S. 128 ; Louisiana v. United States, 380 U.S. 145, 151 ; Lassiter v. Northampton Election Bd., 360 U.S. 45 ; Pope v. Williams, 193 U.S. 621, 632 -634; Minor v. Happersett, 21 Wall. 162; cf. Burns v. Richardson, ante, p. 73, at 92; Reynolds v. Sims, 377 U.S. 533 . </s> [Footnote 7 For the historical evidence suggesting that the sponsors and supporters of the Amendment were primarily interested in augmenting the power of Congress, rather than the judiciary, see generally Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L. J. 1353, 1356-1357; Harris, The Quest for Equality, 33-56 (1960); tenBroek, The Antislavery Origins of the Fourteenth Amendment 187-217 (1951). </s> [Footnote 8 Senator Howard, in introducing the proposed Amendment to the Senate, described 5 as "a direct affirmative delegation of power to Congress," and added: </s> "It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in [384 U.S. 641, 649] good faith, and that no State infringes the rights of persons or property. I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty. It enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment." Cong. Globe, 39th Cong., 1st Sess., 2766, 2768 (1866). </s> This statement of 5's purpose was not questioned by anyone in the course of the debate. Flack, The Adoption of the Fourteenth Amendment 138 (1908). </s> [Footnote 9 In fact, earlier drafts of the proposed Amendment employed the "necessary and proper" terminology to describe the scope of congressional power under the Amendment. See tenBroek, The Antislavery Origins of the Fourteenth Amendment 187-190 (1951). The substitution of the "appropriate legislation" formula was never thought to have the effect of diminishing the scope of this congressional power. See, e. g., Cong. Globe, 42d Cong., 1st Sess., App. 83 (Representative Bingham, a principal draftsman of the Amendment and the earlier proposals). </s> [Footnote 10 Contrary to the suggestion of the dissent, post, p. 668, 5 does not grant Congress power to exercise discretion in the other direction and to enact "statutes so as in effect to dilute equal protection and due process decisions of this Court." We emphasize that Congress' power under 5 is limited to adopting measures to enforce the guarantees of the Amendment; 5 grants Congress no power to restrict, abrogate, or dilute these guarantees. Thus, for example, an enactment authorizing the States to establish racially segregated systems [384 U.S. 641, 652] of education would not be - as required by 5 - a measure "to enforce" the Equal Protection Clause since that clause of its own force prohibits such state laws. </s> [Footnote 11 Cf. James Everard's Breweries v. Day, supra, which held that, under the Enforcement Clause of the Eighteenth Amendment, Congress could prohibit the prescription of intoxicating malt liquor for medicinal purposes even though the Amendment itself only prohibited the manufacture and sale of intoxicating liquors for beverage purposes. Cf. also the settled principle applied in the Shreveport [384 U.S. 641, 653] Case (Houston, E. & W. T. R. Co. v. United States, 234 U.S. 342 ), and expressed in United States v. Darby, 312 U.S. 100, 118 , that the power of Congress to regulate interstate commerce "extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end . . . ." Accord, Atlanta Motel v. United States, 379 U.S. 241, 258 . </s> [Footnote 12 See, e. g., 111 Cong. Rec. 11061-11062, 11065-11066, 16240; Literacy Tests and Voter Requirements in Federal and State Elections, Senate Hearings, n. 5, supra, 507-508. </s> [Footnote 13 The principal exemption complained of is that for persons who had been eligible to vote before January 1, 1922. See n. 2, supra. </s> [Footnote 14 This evidence consists in part of statements made in the Constitutional Convention first considering the English literacy requirement, such as the following made by the sponsor of the measure: </s> "More precious even than the forms of government are the mental qualities of our race. While those stand unimpaired, all is safe. They are exposed to a single danger, and that is that by constantly changing our voting citizenship through the wholesale, but valuable and necessary infusion of Southern and Eastern European races . . . . The danger has begun. . . . We should check it." III New York State Constitutional Convention 3012 (Rev. Record 1916). </s> See also id., at 3015-3017, 3021-3055. This evidence was reinforced by an understanding of the cultural milieu at the time of proposal and enactment, spanning a period from 1915 to 1921 - not one of the enlightened eras of our history. See generally Chafee, Free Speech in the United States 102, 237, 269-282 (1954 ed.). Congress was aware of this evidence. See, e. g., Literacy Tests and Voter Requirements in Federal and State Elections, Senate Hearings, n. 5, supra, 507-513; Voting Rights, House Hearings, n. 3, supra, 508-513. </s> [Footnote 15 Other States have found ways of assuring an intelligent exercise of the franchise short of total disenfranchisement of persons not [384 U.S. 641, 655] literate in English. For example, in Hawaii, where literacy in either English or Hawaiian suffices, candidates' names may be printed in both languages, Hawaii Rev. Laws 11-38 (1963 Supp.); New York itself already provides assistance for those exempt from the literacy requirement and are literate in no language, N. Y. Election Law 169; and, of course, the problem of assuring the intelligent exercise of the franchise has been met by those States, more than 30 in number, that have no literacy requirement at all, see e. g., Fla. Stat. Ann. 97.061, 101.061 (1960) (form of personal assistance); New Mexico Stat. Ann. 3-2-11, 3-3-13 (personal assistance for those literate in no language), 3-3-7, 3-3-12, 3-2-41 (1953) (ballots and instructions authorized to be printed in English or Spanish). Section 4 (e) does not preclude resort to these alternative methods of assuring the intelligent exercise of the franchise. True, the statute precludes, for a certain class, disenfranchisement and thus limits the States' choice of means of satisfying a purported state interest. But our cases have held that the States can be required to tailor carefully the means of satisfying a legitimate state interest when fundamental liberties and rights are threatened, see, e. g., Carrington v. Rash, 380 U.S. 89, 96 ; Harper v. Virginia Board of Elections, 383 U.S. 663, 670 ; Thomas v. Collins, 323 U.S. 516, 529 -530; Thornhill v. Alabama, 310 U.S. 88, 95 -96; United States v. Carolene Products Co., 304 U.S. 144, 152 -153, n. 4; Meyer v. Nebraska, 262 U.S. 390 ; and Congress is free to apply the same principle in the exercise of its powers. </s> [Footnote 16 See, e. g., 111 Cong. Rec. 11060-11061, 15666, 16235. The record in this case includes affidavits describing the nature of New York's two major Spanish-language newspapers, one daily and one weekly, and its three full-time Spanish-language radio stations and affidavits from those who have campaigned in Spanish-speaking areas. </s> [Footnote 17 See, e. g., 111 Cong. Rec. 11061 (Senator Long of Louisiana and Senator Young), 11064 (Senator Holland), drawing on their experience with voters literate in a language other than English. See also an affidavit from Representative Willis of Louisiana expressing the view that on the basis of his thirty years' personal experience in politics he has "formed a definite opinion that French-speaking voters who are illiterate in English generally have as clear a grasp of the issues and an understanding of the candidates, as do people who read and write the English language." </s> [Footnote 18 See, e. g., 111 Cong. Rec. 11060-11061. </s> [Footnote 19 See Magruder, The Commonwealth Status of Puerto Rico, 15 U. Pitt. L. Rev. 1 (1953). </s> [Footnote 20 See, e. g., 111 Cong. Rec. 11060-11061, 11066, 11073, 16235. See Osuna, A History of Education in Puerto Rico (1949). </s> [Footnote 21 See, e. g., 111 Cong. Rec. 16235; Voting Rights, House Hearings, n. 3, supra, 362. See also Jones Act of 1917, 39 Stat. 953, conferring United States citizenship on all citizens of Puerto Rico. </s> MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting. * </s> Worthy as its purposes may be thought by many, I do not see how 4 (e) of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. 1973b (e) (1964 ed. Supp. I), can be sustained except at the sacrifice of fundamentals in the American constitutional system - the separation between the legislative and judicial function and the boundaries between federal and state political authority. By the same token I think that the validity of New York's literacy test, a question which the Court considers only in the context of the federal statute, must be upheld. It will conduce to analytical clarity if I discuss the second issue first. </s> I. </s> The Cardona Case (No. 673). </s> This case presents a straightforward Equal Protection problem. Appellant, a resident and citizen of New York, sought to register to vote but was refused registration because she failed to meet the New York English literacy qualification respecting eligibility for the franchise. 1 She maintained that although she could not read or write English, she had been born and educated in Puerto Rico and was literate in Spanish. She alleges that New York's statute requiring satisfaction of an English literacy test is an arbitrary and irrational classification that violates the [384 U.S. 641, 660] Equal Protection Clause at least as applied to someone who, like herself, is literate in Spanish. </s> Any analysis of this problem must begin with the established rule of law that the franchise is essentially a matter of state concern, Minor v. Happersett, 21 Wall. 162; Lassiter v. Northampton Election Bd., 360 U.S. 45 , subject only to the overriding requirements of various federal constitutional provisions dealing with the franchise, e. g., the Fifteenth, Seventeenth, Nineteenth, and Twenty-fourth Amendments, 2 and, as more recently decided, to the general principles of the Fourteenth Amendment. Reynolds v. Sims, 377 U.S. 533 ; Carrington v. Rash, 380 U.S. 89 . </s> The Equal Protection Clause of the Fourteenth Amendment, which alone concerns us here, forbids a State from arbitrarily discriminating among different classes of persons. Of course it has always been recognized that nearly all legislation involves some sort of classification, and the equal protection test applied by this Court is a narrow one: a state enactment or practice may be struck down under the clause only if it cannot be justified as founded upon a rational and permissible state policy. See, e. g., Powell v. Pennsylvania, 127 U.S. 678 ; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 ; Walters v. City of St. Louis, 347 U.S. 231 . </s> It is suggested that a different and broader equal protection standard applies in cases where "fundamental liberties and rights are threatened," see ante, p. 655, note 15; dissenting opinion of DOUGLAS, J., in Cardona, post, [384 U.S. 641, 661] pp. 676-677, which would require a State to show a need greater than mere rational policy to justify classifications in this area. No such dual-level test has ever been articulated by this Court, and I do not believe that any such approach is consistent with the purposes of the Equal Protection Clause, with the overwhelming weight of authority, or with well-established principles of federalism which underlie the Equal Protection Clause. </s> Thus for me, applying the basic equal protection standard, the issue in this case is whether New York has shown that its English-language literacy test is reasonably designed to serve a legitimate state interest. I think that it has. </s> In 1959, in Lassiter v. Northampton Election Bd., supra, this Court dealt with substantially the same question and resolved it unanimously in favor of the legitimacy of a state literacy qualification. There a North Carolina English literacy test was challenged. We held that there was "wide scope" for State qualifications of this sort. 360 U.S., at 51 . Dealing with literacy tests generally, the Court there held: </s> "The ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot. . . . Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. . . . It was said last century in Massachusetts that a literacy test was designed to insure an `independent and intelligent' exercise of the right of suffrage. Stone v. Smith, 159 Mass. 413-414, 34 N. E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that [384 U.S. 641, 662] policy. We cannot say, however, that it is not an allowable one measured by constitutional standards." 360 U.S., at 51 -53. </s> I believe the same interests recounted in Lassiter indubitably point toward upholding the rationality of the New York voting test. It is true that the issue here is not so simply drawn between literacy per se and illiteracy. Appellant alleges that she is literate in Spanish, and that she studied American history and government in United States Spanish-speaking schools in Puerto Rico. She alleges further that she is "a regular reader of the New York City Spanish-language daily newspapers and other periodicals, which . . . provide proportionately more coverage of government and politics than do most English-language newspapers," and that she listens to Spanish-language radio broadcasts in New York which provide full treatment of governmental and political news. It is thus maintained that whatever may be the validity of literacy tests per se as a condition of voting, application of such a test to one literate in Spanish, in the context of the large and politically significant Spanish-speaking community in New York, serves no legitimate state interest, and is thus an arbitrary classification that violates the Equal Protection Clause. </s> Although to be sure there is a difference between a totally illiterate person and one who is literate in a foreign tongue, I do not believe that this added factor vitiates the constitutionality of the New York statute. Accepting appellant's allegations as true, it is nevertheless also true that the range of material available to a resident of New York literate only in Spanish is much more limited than what is available to an English-speaking resident, that the business of national, state, and local government is conducted in English, and that propositions, amendments, and offices for which candidates are running listed on the ballot are likewise in English. It [384 U.S. 641, 663] is also true that most candidates, certainly those campaigning on a national or statewide level, make their speeches in English. New York may justifiably want its voters to be able to understand candidates directly, rather than through possibly imprecise translations or summaries reported in a limited number of Spanish news media. It is noteworthy that the Federal Government requires literacy in English as a prerequisite to naturalization, 66 Stat. 239, 8 U.S.C. 1423 (1964 ed.), attesting to the national view of its importance as a prerequisite to full integration into the American political community. Relevant too is the fact that the New York English test is not complex, 3 that it is fairly administered, 4 </s> [384 U.S. 641, 664] and that New York maintains free adult education classes which appellant and members of her class are encouraged to attend. 5 Given the State's legitimate concern with promoting and safeguarding the intelligent use of the ballot, and given also New York's long experience with the process of integrating non-English-speaking residents into the mainstream of American life, I do not see how it can be said that this qualification for suffrage is unconstitutional. I would uphold the validity of the New York statute, unless the federal statute prevents that result, the question to which I now turn. [384 U.S. 641, 665] </s> II. </s> The Morgan Cases (Nos. 847 and 877). </s> These cases involve the same New York suffrage restriction discussed above, but the challenge here comes not in the form of a suit to enjoin enforcement of the state statute, but in a test of the constitutionality of a federal enactment which declares that "to secure the rights under the fourteenth amendment of persons educated in American-flag schools in which the predominant classroom language was other than English, it is necessary to prohibit the States from conditioning the right to vote of such persons on ability to read. write, understand, or interpret any matter in the English language." Section 4 (e) of the Voting Rights Act of 1965. Section 4 (e) declares that anyone who has successfully completed six grades of schooling in an "American-flag" school, in which the primary language is not English, shall not be denied the right to vote because of an inability to satisfy an English literacy test. 6 Although the statute is framed in general terms, so far as has been shown it applies in actual effect only to citizens of Puerto Rican background, and the Court so treats it. </s> The pivotal question in this instance is what effect the added factor of a congressional enactment has on the straight equal protection argument dealt with above. The Court declares that since 5 of the Fourteenth Amendment 7 gives to the Congress power to "enforce" [384 U.S. 641, 666] the prohibitions of the Amendment by "appropriate" legislation. the test for judicial review of any congressional determination in this area is simply one of rationality; that is, in effect, was Congress acting rationally in declaring that the New York statute is irrational? Although 5 most certainly does give to the Congress wide powers in the field of devising remedial legislation to effectuate the Amendment's prohibition on arbitrary state action. Ex parte Virginia, 100 U.S. 339 , I believe the Court has confused the issue of how much enforcement power Congress possesses under 5 with the distinct issue of what questions are appropriate for congressional determination and what questions are essentially judicial in nature. </s> When recognized state violations of federal constitutional standards have occurred, Congress is of course empowered by 5 to take appropriate remedial measures to redress and prevent the wrongs. See Strauder v. West Virginia, 100 U.S. 303, 310 . But it is a judicial question whether the condition with which Congress has thus sought to deal is in truth an infringement of the Constitution, something that is the necessary prerequisite to bringing the 5 power into play at all. Thus, in Ex parte Virginia, supra, involving a federal statute making it a federal crime to disqualify anyone from jury service because of race, the Court first held as a matter of constitutional law that "the Fourteenth Amendment secures, among other civil rights, to colored men, when charged with criminal offences against a State, an impartial jury trial, by jurors indifferently selected or chosen without discrimination against such jurors because of their color." 100 U.S., at 345 . Only then did the Court hold that to enforce this prohibition upon state discrimination, Congress could enact a criminal statute of the type under consideration. See also Clyatt v. United States, 197 U.S. 207 . sustaining the constitutionality of the antipeonage [384 U.S. 641, 667] laws, 14 Stat. 546, now 42 U.S.C. 1994 (1964 ed.), under the Enforcement Clause of the Thirteenth Amendment. </s> A more recent Fifteenth Amendment case also serves to illustrate this distinction. In South Carolina v. Katzenbach, 383 U.S. 301 , decided earlier this Term, we held certain remedial sections of this Voting Rights Act of 1965 constitutional under the Fifteenth Amendment, which is directed against deprivations of the right to vote on account of race. In enacting those sections of the Voting Rights Act the Congress made a detailed investigation of various state practices that had been used to deprive Negroes of the franchise. See 383 U.S., at 308 -315. In passing upon the remedial provisions, we reviewed first the "voluminous legislative history" as well as judicial precedents supporting the basic congressional finding that the clear commands of the Fifteenth Amendment had been infringed by various state subterfuges. See 383 U.S., at 309 , 329-330, 333-334. Given the existence of the evil, we held the remedial steps taken by the legislature under the Enforcement Clause of the Fifteenth Amendment to be a justifiable exercise of congressional initiative. </s> Section 4 (e), however, presents a significantly different type of congressional enactment. The question here is not whether the statute is appropriate remedial legislation to cure an established violation of a constitutional command, but whether there has in fact been an infringement of that constitutional command, that is, whether a particular state practice or, as here, a statute is so arbitrary or irrational as to offend the command of the Equal Protection Clause of the Fourteenth Amendment. That question is one for the judicial branch ultimately to determine. Were the rule otherwise, Congress would be able to qualify this Court's constitutional decisions under the Fourteenth and Fifteenth Amendments, [384 U.S. 641, 668] let alone those under other provisions of the Constitution, by resorting to congressional power under the Necessary and Proper Clause. In view of this Court's holding in Lassiter, supra, that an English literacy test is a permissible exercise of state supervision over its franchise, I do not think it is open to Congress to limit the effect of that decision as it has undertaken to do by 4 (e). In effect the Court reads 5 of the Fourteenth Amendment as giving Congress the power to define the substantive scope of the Amendment. If that indeed be the true reach of 5, then I do not see why Congress should not be able as well to exercise its 5 "discretion" by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court. In all such cases there is room for reasonable men to differ as to whether or not a denial of equal protection or due process has occurred, and the final decision is one of judgment. Until today this judgment has always been one for the judiciary to resolve. </s> I do not mean to suggest in what has been said that a legislative judgment of the type incorporated in 4 (e) is without any force whatsoever. Decisions on questions of equal protection and due process are based not on abstract logic, but on empirical foundations. To the extent "legislative facts" are relevant to a judicial determination, Congress is well equipped to investigate them, and such determinations are of course entitled to due respect. 8 In South Carolina v. Katzenbach, supra, such legislative findings were made to show that racial discrimination in voting was actually occurring. Similarly, in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 , and Katzenbach v. McClung, 379 U.S. 294 , this Court upheld [384 U.S. 641, 669] Title II of the Civil Rights Act of 1964 under the Commerce Clause. There again the congressional determination that racial discrimination in a clearly defined group of public accommodations did effectively impede interstate commerce was based on "voluminous testimony," 379 U.S., at 253 , which had been put before the Congress and in the context of which it passed remedial legislation. </s> But no such factual data provide a legislative record supporting 4 (e) 9 by way of showing that Spanish-speaking citizens are fully as capable of making informed decisions in a New York election as are English-speaking citizens. Nor was there any showing whatever to support the Court's alternative argument that 4 (e) should be viewed as but a remedial measure designed to cure or assure against unconstitutional discrimination of other varieties, e. g., in "public schools, public housing and law enforcement," ante, p. 652, to which Puerto Rican minorities might be subject in such communities as New York. There is simply no legislative record supporting such hypothesized discrimination of the sort we have hitherto insisted upon when congressional power is brought to bear on constitutionally reserved state concerns. See Heart of Atlanta Motel, supra; South Carolina v. Katzenbach, supra. </s> Thus, we have here not a matter of giving deference to a congressional estimate, based on its determination of legislative facts, bearing upon the validity vel non of a statute, but rather what can at most be called a legislative announcement that Congress believes a state law to entail an unconstitutional deprivation of equal protection. Although this kind of declaration is of course [384 U.S. 641, 670] entitled to the most respectful consideration, coming as it does from a concurrent branch and one that is knowledgeable in matters of popular political participation, I do not believe it lessens our responsibility to decide the fundamental issue of whether in fact the state enactment violates federal constitutional rights. </s> In assessing the deference we should give to this kind of congressional expression of policy, it is relevant that the judiciary has always given to congressional enactments a presumption of validity. The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457-458. However, it is also a canon of judicial review that state statutes are given a similar presumption, Butler v. Commonwealth, 10 How. 402, 415. Whichever way this case is decided, one statute will be rendered inoperative in whole or in part, and although it has been suggested that this Court should give somewhat more deference to Congress than to a state legislature, 10 such a simple weighing of presumptions is hardly a satisfying way of resolving a matter that touches the distribution of state and federal power in an area so sensitive as that of the regulation of the franchise. Rather it should be recognized that while the Fourteenth Amendment is a "brooding omnipresence" over all state legislation, the substantive matters which it touches are all within the primary legislative competence of the States. Federal authority, legislative no less than judicial, does not intrude unless there has been a denial by state action of Fourteenth Amendment limitations, in this instance a denial of equal protection. At least in the area of primary state concern a state statute that passes constitutional muster under the judicial standard of rationality should not be permitted to be set at naught by a mere contrary congressional [384 U.S. 641, 671] pronouncement unsupported by a legislative record justifying that conclusion. </s> To deny the effectiveness of this congressional enactment is not of course to disparage Congress' exertion of authority in the field of civil rights; it is simply to recognize that the Legislative Branch like the other branches of federal authority is subject to the governmental boundaries set by the Constitution. To hold, on this record, that 4 (e) overrides the New York literacy requirement seems to me tantamount to allowing the Fourteenth Amendment to swallow the State's constitutionally ordained primary authority in this field. For if Congress by what, as here, amounts to mere ipse dixit can set that otherwise permissible requirement partially at naught I see no reason why it could not also substitute its judgment for that of the States in other fields of their exclusive primary competence as well. </s> I would affirm the judgments in each of these cases. 11 </s> [Footnote * [This opinion applies also to Cardona v. Power, post, p. 672.] </s> [Footnote 1 The pertinent portions of the New York Constitution, Art. II, 1, and statutory provisions are reproduced in the Court's opinion, ante, pp. 644-645, n. 2. </s> [Footnote 2 The Fifteenth Amendment forbids denial or abridgment of the franchise "on account of race, color, or previous condition of servitude"; the Seventeenth deals with popular election of members of the Senate; the Nineteenth provides for equal suffrage for women; the Twenty-fourth outlaws the poll tax as a qualification for participation in federal elections. </s> [Footnote 3 The test is described in McGovney, The American Suffrage Medley 63 (1949) as follows: "The examination is based upon prose compositions of about ten lines each, prepared by the personnel of the State Department of Education, designed to be of the level of reading in the sixth grade . . . . These are uniform for any single examination throughout the state. The examination is given by school authorities and graded by school superintendents or teachers under careful instructions from the central authority, to secure uniformity of grading as nearly as is possible." The 1943 test, submitted by the Attorney General of New York as representative, is reproduced below: </s> NEW YORK STATE REGENTS LITERACY TEST </s> (To be filled in by the candidate in ink) </s> Write your name here........................................... First name Middle initial Last name </s> Write your address here........................................ </s> Write the date here............................................ Month Day Year </s> Read this and then write the answers to the questions Read it as many times as you need to </s> The legislative branch of the National Government is called the Congress of the United States. Congress makes the laws of the Nation. Congress is composed of two houses. The upper house is called the Senate and its members are called Senators. There are 96 Senators in the upper house, two from each State. Each United [384 U.S. 641, 664] States Senator is elected for a term of six years. The lower house of Congress is known as the House of Representatives. The number of Representatives from each state is determined by the population of that state. At present there are 435 members of the House of Representatives. Each Representative is elected for a term of two years. Congress meets in the Capitol at Washington. </s> The answers to the following questions are to be taken from the above paragraph </s> 1 How many houses are there in Congress? ......................... 2 What does Congress do? ......................................... 3 What is the lower house of Congress called?..................... 4 How many members are there in the lower house? ................. 5 How long is the term of office of a United States Senator? ..... 6 How many Senators are there from each state? ................... 7 For how long a period are members of the House of Representatives elected? ....................................................... 8 In what city does Congress meet? ............................... </s> [Footnote 4 There is no allegation of discriminatory enforcement, and the method of examination, see n. 3, supra, makes unequal application virtually impossible. McGovney has noted, op. cit. supra, at 62, that "New York is the only state in the Union that both has a reasonable reading requirement and administers it in a manner that secures uniformity of application throughout the state and precludes discrimination, so far as is humanly possible." See Camacho v. Rogers, 199 F. Supp. 155, 159-160. </s> [Footnote 5 See McKinney's Consolidated Laws of New York Ann., Education Law 4605. See generally Handbook of Adult Education in the United States 455-465 (Knowles ed. 1960). </s> [Footnote 6 The statute makes an exception to its sixth-grade rule so that where state law "provides that a different level of education is presumptive of literacy," the applicant must show that he has completed "an equivalent level of education" in the foreign-language United States school. </s> [Footnote 7 Section 5 of the Fourteenth Amendment states that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." </s> [Footnote 8 See generally Karst, Legislative Facts in Constitutional Litigation, 1960 The Supreme Court Review 75 (Kurland ed.); Alfange, The Relevance of Legislative Facts in Constitutional Law, 114 U. Pa. L. Rev. 637 (1966). </s> [Footnote 9 There were no committee hearings or reports referring to this section, which was introduced from the floor during debate on the full Voting Rights Act. See 111 Cong. Rec. 11027, 15666, 16234. </s> [Footnote 10 See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 154-155 (1893). </s> [Footnote 11 A number of other arguments have been suggested to sustain the constitutionality of 4 (e). These are referred to in the Court's opinion, ante, pp. 646-647, n. 5. Since all of such arguments are rendered superfluous by the Court's decision and none of them is considered by the majority, I deem it unnecessary to deal with them save to say that in my opinion none of those contentions provides an adequate constitutional basis for sustaining the statute. </s> [384 U.S. 641, 672]

United States Supreme Court ADLER v. BOARD OF EDUCATION(1952) No. 8 Argued: January 3, 1952Decided: March 3, 1952 </s> The Civil Service Law of New York, 12-a, makes ineligible for employment in any public school any member of any organization advocating the overthrow of the Government by force, violence or any unlawful means. Section 3022 of the Education Law, added by the Feinberg Law, requires the Board of Regents (1) to adopt and enforce rules for the removal of any employee who violates, or is ineligible under, 12-a, (2) to promulgate a list of organizations described in 12-a, and (3) to provide in its rules that membership in any organization so listed is prima facie evidence of disqualification for employment in the public schools. No organization may be so listed, and no person severed from or denied employment, except after a hearing and subject to judicial review. Held: This Court finds no constitutional infirmity in 12-a of the Civil Service Law of New York or in 3022 of the Education Law. Pp. 486-496. </s> 1. Section 3022 and the rules promulgated thereunder do not constitute an abridgment of the freedom of speech and assembly of persons employed or seeking employment in the public schools of New York. Garner v. Los Angeles Board, 341 U.S. 716 . Pp. 491-493. </s> 2. The provision of 3022 directing the Board of Regents to provide in rules thereunder that membership in any organization so listed by the Board shall constitute prima facie evidence of disqualification for employment in the public schools does not deny members of such organizations due process of law. Pp. 494-496. </s> 3. The use of the word "subversive" in 1 of the Feinberg Law, which is a preamble and not a definitive part of the Act, does not render the statute void for vagueness under the Due Process Clause, in view of the fact that in subdivision 2 of 3022 it is given a very definite meaning - i. e., an organization that advocates the overthrow of government by force or violence. P. 496. </s> 4. The constitutionality of 3021 of the Education Law not having been questioned in the proceedings in the lower courts and being raised here for the first time, it will not be passed upon by this Court before the state courts have had an opportunity to pass upon it. P. 496. </s> 301 N. Y. 476, 95 N. E. 2d 806, affirmed. [342 U.S. 485, 486] </s> In a declaratory judgment action, the Supreme Court of New York, Kings County, held that subdivision (c) of 12-a of the New York Civil Service Law, 3022 of the New York Education Law, and the rules of the State Board of Regents promulgated thereunder violated the Due Process Clause of the Fourteenth Amendment, and enjoined action thereunder by the Board of Education of New York City. 196 Misc. 873, 95 N. Y. S. 2d 114. The Appellate Division reversed. 276 App. Div. 527, 96 N. Y. S. 2d 466. The Court of Appeals of New York affirmed the decision of the Appellate Division. 301 N. Y. 476, 95 N. E. 2d 806. On appeal to this Court, affirmed, p. 496. </s> Osmond K. Fraenkel argued the cause for appellants. With him on the brief was Arthur Garfield Hays. </s> Michael A. Castaldi argued the cause for appellee. With him on the brief were Denis M. Hurley, Seymour B. Quel, Daniel T. Scannell and Bernard Friedlander. </s> By special leave of Court, Wendell P. Brown, Solicitor General, argued the cause for the State of New York, as amicus curiae, urging affirmance. With him on the brief were Nathaniel L. Goldstein, Attorney General, and Ruth Kessler Toch, Assistant Attorney General. </s> Dorothy Kenyon, Raymond L. Wise and Herbert Monte Levy filed a brief for the American Civil Liberties Union, as amicus curiae, supporting appellants. </s> MR. JUSTICE MINTON delivered the opinion of the Court. </s> Appellants brought a declaratory judgment action in the Supreme Court of New York, Kings County, praying that 12-a of the Civil Service Law, 1 as implemented by [342 U.S. 485, 487] the so-called Feinberg Law, 2 be declared unconstitutional, and that action by the Board of Education of the City of New York thereunder be enjoined. On motion for judgment on the pleadings, the court held that subdivision (c) of 12-a, the Feinberg Law, and the Rules of the State Board of Regents promulgated thereunder violated the Due Process Clause of the Fourteenth Amendment, and issued an injunction. 196 Misc. 873, 95 N. Y. S. 2d 114. The Appellate Division of the Supreme Court reversed, 276 App. Div. 527, 96 N. Y. S. 2d 466, and the Court of Appeals affirmed the judgment of the Appellate Division, 301 N. Y. 476, 95 N. E. 2d 806. The appellants come here by appeal under 28 U.S.C. 1257. </s> Section 12-a of the Civil Service Law, hereafter referred to as 12-a, is set forth in the margin. 3 To implement [342 U.S. 485, 488] this law, the Feinberg Law was passed, adding a new section, 3022, to the Education Law of the State of New York, which section so far as here pertinent is set forth in the margin. 4 The Feinberg Law was also to implement [342 U.S. 485, 489] 3021 of the Education Law of New York. 5 The constitutionality of this section was not attacked in the proceedings below. </s> The preamble of the Feinberg Law, 1, makes elaborate findings that members of subversive groups, particularly of the Communist Party and its affiliated organizations, have been infiltrating into public employment in the public schools of the State; that this has occurred and continues notwithstanding the existence of protective statutes designed to prevent the appointment to or retention in employment in public office, and particularly in the public schools, of members of any organizations which teach or advocate that the government of the United States or of any state or political subdivision thereof shall be overthrown by force or violence or by any other unlawful means. As a result, propaganda can be disseminated among the children by those who teach them and to whom they look for guidance, authority, and leadership. The Legislature further found that the members of such groups use their positions to advocate and teach their doctrines, and are frequently bound by [342 U.S. 485, 490] oath, agreement, pledge, or understanding to follow, advocate and teach a prescribed party line or group dogma or doctrine without regard to truth or free inquiry. This propaganda, the Legislature declared, is sufficiently subtle to escape detection in the classroom; thus, the menace of such infiltration into the classroom is difficult to measure. Finally, to protect the children from such influence, it was thought essential that the laws prohibiting members of such groups, such as the Communist Party or its affiliated organizations, from obtaining or retaining employment in the public schools be rigorously enforced. It is the purpose of the Feinberg Law to provide for the disqualification and removal of superintendents of schools, teachers, and employees in the public schools in any city or school district of the State who advocate the overthrow of the Government by unlawful means or who are members of organizations which have a like purpose. </s> Section 3022 of the Education Law, added by the Feinberg Law, provides that the Board of Regents, which has charge of the public school system in the State of New York, shall, after full notice and hearing, make a listing of organizations which it finds advocate, advise, teach, or embrace the doctrine that the government should be overthrown by force or violence or any other unlawful means, and that such listing may be amended and revised from time to time. </s> It will be observed that the listings are made only after full notice and hearing. In addition, the Court of Appeals construed the statute in conjunction with Article 78 of the New York Civil Practice Act, Gilbert-Bliss' N. Y. Civ. Prac., Vol. 6B, so as to provide listed organizations a right of review. </s> The Board of Regents is further authorized to provide in rules and regulations, and has so provided, that membership in any listed organization, after notice and hearing, "shall constitute prima facie evidence for disqualification [342 U.S. 485, 491] for appointment to or retention in any office or position in the school system"; 6 but before one who is an employee or seeks employment is severed from or denied employment, he likewise must be given a full hearing with the privilege of being represented by counsel and the right to judicial review. 7 It is 12-a of the Civil Service Law, as implemented by the Feinberg Law as above indicated, that is under attack here. </s> It is first argued that the Feinberg Law and the rules promulgated thereunder constitute an abridgment of the [342 U.S. 485, 492] freedom of speech and assembly of persons employed or seeking employment in the public schools of the State of New York. </s> It is clear that such persons have the right under our law to assemble, speak, think and believe as they will. Communications Assn. v. Douds, 339 U.S. 382 . It is equally clear that they have no right to work for the State in the school system on their own terms. United Public Workers v. Mitchell, 330 U.S. 75 . They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. Such persons are or may be denied, under the statutes in question, the privilege of working for the school system of the State of New York because, first, of their advocacy of the overthrow of the government by force or violence, or, secondly, by unexplained membership in an organization found by the school authorities, after notice and hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose. </s> The constitutionality of the first proposition is not questioned here. Gitlow v. New York, 268 U.S. 652, 667 -672, construing 161 of the New York Penal Law. </s> As to the second, it is rather subtly suggested that we should not follow our recent decision in Garner v. Los Angeles Board, 341 U.S. 716 . We there said: </s> "We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship [342 U.S. 485, 493] to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment." 341 U.S., at p. 720. </s> We adhere to that case. A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one's reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate. </s> If, under the procedure set up in the New York law, a person is found to be unfit and is disqualified from employment in the public school system because of membership in a listed organization, he is not thereby denied the right of free speech and assembly. His freedom of choice between membership in the organization and employment in the school system might be limited, but not his freedom of speech or assembly, except in the remote sense that limitation is inherent in every choice. Certainly such limitation is not one the state may not make in the exercise of its police power to protect the schools from pollution and thereby to defend its own existence. [342 U.S. 485, 494] </s> It is next argued by appellants that the provision in 3022 directing the Board of Regents to provide in rules and regulations that membership in any organization listed by the Board after notice and hearing, with provision for review in accordance with the statute, shall constitute prima facie evidence of disqualification, denies due process, because the fact found bears no relation to the fact presumed. In other words, from the fact found that the organization was one that advocated the overthrow of government by unlawful means and that the person employed or to be employed was a member of the organization and knew of its purpose, 8 to presume that such member is disqualified for employment is so unreasonable as to be a denial of due process of law. We do not agree. </s> "The law of evidence is full of presumptions either of fact or law. The former are, of course, disputable, and the strength of any inference of one fact from proof of another depends upon the generality of the experience upon which it is founded. . . . </s> "Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, National and state, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous." Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35 , at p. 42. </s> Membership in a listed organization found to be within the statute and known by the member to be within the [342 U.S. 485, 495] statute is a legislative finding that the member by his membership supports the thing the organization stands for, namely, the overthrow of government by unlawful means. We cannot say that such a finding is contrary to fact or that "generality of experience" points to a different conclusion. Disqualification follows therefore as a reasonable presumption from such membership and support. Nor is there here a problem of procedural due process. The presumption is not conclusive but arises only in a hearing where the person against whom it may arise has full opportunity to rebut it. The holding of the Court of Appeals below is significant in this regard: </s> "The statute also makes it clear that . . . proof of such membership `shall constitute prima facie evidence of disqualification' for such employment. But, as was said in Potts v. Pardee (220 N. Y. 431, 433): `The presumption growing out of a prima facie case . . . remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and unless met by further proof there is nothing to justify a finding based solely upon it.' Thus the phrase `prima facie evidence of disqualification,' as used in the statute, imports a hearing at which one who seeks appointment to or retention in a public school position shall be afforded an opportunity to present substantial evidence contrary to the presumption sanctioned by the prima facie evidence for which subdivision 2 of section 3022 makes provision. Once such contrary evidence has been received, however, the official who made the order of ineligibility has thereafter the burden of sustaining the validity of that order by a fair preponderance of the evidence. (Civil Service Law, 12-a, subd. [d].) Should an order of ineligibility then issue, the party aggrieved thereby may avail himself of the provisions for review prescribed by [342 U.S. 485, 496] the section of the statute last cited above. In that view there here arises no question of procedural due process." 301 N. Y. 476, at p. 494, 95 N. E. 2d 806, at 814-815. </s> Where, as here, the relation between the fact found and the presumption is clear and direct and is not conclusive, the requirements of due process are satisfied. </s> Without raising in the complaint or in the proceedings in the lower courts the question of the constitutionality of 3021 of the Education Law of New York, appellants urge here for the first time that this section is unconstitutionally vague. The question is not before us. We will not pass upon the constitutionality of a state statute before the state courts have had an opportunity to do so. Asbury Hospital v. Cass County, 326 U.S. 207, 213 -216; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 460 -462; Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 546 . </s> It is also suggested that the use of the word "subversive" is vague and indefinite. But the word is first used in 1 of the Feinberg Law, which is the preamble to the Act, and not in a definitive part thereof. When used in subdivision 2 of 3022, the word has a very definite meaning, namely, an organization that teaches and advocates the overthrow of government by force or violence. </s> We find no constitutional infirmity in 12-a of the Civil Service Law of New York or in the Feinberg Law which implemented it, and the judgment is </s> Affirmed. </s> Footnotes [Footnote 1 N. Y. Laws 1939, c. 547, as amended N. Y. Laws 1940, c. 564. </s> [Footnote 2 N. Y. Laws 1949, c. 360. </s> [Footnote 3 " 12-a. Ineligibility </s> "No person shall be appointed to any office or position in the service of the state or of any civil division or city thereof, nor shall any person presently employed in any such office or position be continued in such employment, nor shall any person be employed in the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college, or any other state educational institution who: (a) By word of mouth or writing wilfully and deliberately advocates, advises or teaches the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means; or </s> "(b) Prints, publishes, edits, issues or sells, any book, paper, document or written or printed matter in any form containing or advocating, advising or teaching the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown by force, violence or any unlawful means, and who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein; </s> "(c) Organizes or helps to organize or becomes a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision [342 U.S. 485, 488] thereof shall be overthrown by force or violence, or by any unlawful means; </s> "(d) A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility." </s> [Footnote 4 " 3022. Elimination of subversive persons from the public school system </s> "1. The board of regents shall adopt, promulgate, and enforce rules and regulations for the disqualification or removal of superintendents of schools, teachers or employees in the public schools in any city or school district of the state who violate the provisions of section three thousand twenty-one of this article or who are ineligible for appointment to or retention in any office or position in such public schools on any of the grounds set forth in section twelve-a of the civil service law and shall provide therein appropriate methods and procedure for the enforcement of such section of this article and the civil service law. </s> "2. The board of regents shall, after inquiry, and after such notice and hearing as may be appropriate, make a listing of organizations which it finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the civil service law. Such listings may be amended and revised from time to time. The board, in making such inquiry, may utilize any similar listings or designations promulgated by any federal [342 U.S. 485, 489] agency or authority authorized by federal law, regulation or executive order, and for the purposes of such inquiry, the board may request and receive from such federal agencies or authorities any supporting material or evidence that may be made available to it. The board of regents shall provide in the rules and regulations required by subdivision one hereof that membership in any such organization included in such listing made by it shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state." </s> [Footnote 5 " 3021. Removal of superintendents, teachers and employees for treasonable or seditious acts or utterances </s> "A person employed as superintendent of schools, teacher or employee in the public schools, in any city or school district of the state, shall be removed from such position for the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts while holding such position." </s> [Footnote 6 " 254. Disqualification or removal of superintendents, teachers and other employes. </s> . . . . . </s> "2. List of subversive organizations to be issued. Pursuant to chapter 360 of the Laws of 1949, the Board of Regents will issue a list, which may be amended and revised from time to time, of organizations which the Board finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the Government of the United States, or of any state or of any political subdivision thereof, shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section 12-a of the Civil Service Law. Evidence of membership in any organization so listed on or after the tenth day subsequent to the date of official promulgation of such list shall constitute prima facie evidence of disqualification for appointment to or retention of any office or position in the school system. Evidence of membership in such an organization prior to said day shall be presumptive evidence that membership has continued, in the absence of a showing that such membership has been terminated in good faith." Official Compilation of Codes, Rules and Regulations of the State of New York (Fifth Supp.), Vol. 1, pp. 205-206. </s> [Footnote 7 The Court of Appeals construed the statute in conjunction with 12-a subd. [d], supra, n. 3. The Rules of the Board of Regents provided: "In all cases all rights to a fair trial, representation by counsel and appeal or court review as provided by statute or the Constitution shall be scrupulously observed." Section 254, 1 (e), Official Compilation of Codes, Rules and Regulations of the State of New York (Fifth Supp.), Vol. 1, p. 206. </s> [Footnote 8 In the proceedings below, both the Appellate Division of the Supreme Court and the Court of Appeals construed the statute to require such knowledge. 276 App. Div. 527, 530, 96 N. Y. S. 2d 466, 470-471; 301 N. Y. 476, 494, 95 N. E. 2d 806, 814-815. </s> MR. JUSTICE BLACK, dissenting. </s> While I fully agree with the dissent of MR. JUSTICE DOUGLAS, the importance of this holding prompts me to add these thoughts. </s> This is another of those rapidly multiplying legislative enactments which make it dangerous - this time for school [342 U.S. 485, 497] teachers - to think or say anything except what a transient majority happen to approve at the moment. Basically these laws rest on the belief that government should supervise and limit the flow of ideas into the minds of men. The tendency of such governmental policy is to mould people into a common intellectual pattern. Quite a different governmental policy rests on the belief that government should leave the mind and spirit of man absolutely free. Such a governmental policy encourages varied intellectual outlooks in the belief that the best views will prevail. This policy of freedom is in my judgment embodied in the First Amendment and made applicable to the states by the Fourteenth. Because of this policy public officials cannot be constitutionally vested with powers to select the ideas people can think about, censor the public views they can express, or choose the persons or groups people can associate with. Public officials with such powers are not public servants; they are public masters. </s> I dissent from the Court's judgment sustaining this law which effectively penalizes school teachers for their thoughts and their associates. </s> MR. JUSTICE FRANKFURTER, dissenting. </s> We are asked to pass on a scheme to counteract what are currently called "subversive" influences in the public school system of New York. The scheme is formulated partly in statutes and partly in administrative regulations, but all of it is still an unfinished blueprint. We are asked to adjudicate claims against its constitutionality before the scheme has been put into operation, before the limits that it imposes upon free inquiry and association, the scope of scrutiny that it sanctions, and the procedural safeguards that will be found to be implied for its enforcement have been authoritatively defined. I think we should adhere to the teaching of this Court's history to [342 U.S. 485, 498] avoid constitutional adjudications on merely abstract or speculative issues and to base them on the concreteness afforded by an actual, present, defined controversy, appropriate for judicial judgment, between adversaries immediately affected by it. In accordance with the settled limits upon our jurisdiction I would dismiss this appeal. </s> An understanding of the statutory scheme and the action thus far taken under it is necessary to a proper consideration of the issues which for me control disposition of the case, namely, standing of the parties and ripeness of the constitutional question. </s> A New York enactment of 1949 precipitated this litigation. But that legislation is tied to prior statutes. By a law of 1917 "treasonable or seditious" utterances or acts barred employment in the public schools. New York Education Law, 3021. In 1939 a further enactment disqualified from the civil service and the educational system anyone who advocates the overthrow of government by force, violence or any unlawful means, or publishes material advocating such overthrow or organizes or joins any society advocating such doctrine. New York Civil Service Law, 12-a. This states with sufficient accuracy the provisions of this Law, which also included detailed provisions for the hearing and review of charges. </s> During the thirty-two years and ten years, respectively, that these laws have stood on the books, no proceedings, so far as appears, have been taken under them. In 1949 the Legislature passed a new act, familiarly known as the Feinberg Law, designed to reinforce the prior legislation. The Law begins with a legislative finding, based on "common report" of widespread infiltration by "members of subversive groups, and particularly of the communist party and certain of its affiliated organizations," into the educational system of the State and the evils attendant upon that infiltration. It takes note of existing laws and exhorts the authorities to greater endeavor [342 U.S. 485, 499] of enforcement. The State Board of Regents, in which are lodged extensive powers over New York's educational system, was charged by the Feinberg Law with these duties: </s> (1) to promulgate rules and regulations for the more stringent enforcement of existing law; </s> (2) to list "after inquiry, and after such notice and hearing as may be appropriate" those organizations membership in which is proscribed by subsection (c) of 12-a of the Civil Service law; </s> (3) to provide in its rules and regulations that membership in a listed organization shall be prima facie evidence of disqualification under 12-a; </s> (4) to report specially and in detail to the legislature each year on measures taken for the enforcement of these laws. </s> Accordingly, the Board of Regents adopted Rules for ferreting out violations of 3021 or 12-a. An elaborate machinery was designed for annual reports on each employee with a view to discovering evidence of violations of these sections and to assuring appropriate action on such discovery. The Board also announced its intention to publish the required list of proscribed organizations and defined the significance of an employee's membership therein in proceedings for his dismissal. These Rules by the Board of Regents were published with an accompanying Memorandum by the Commissioner of Education. He is the administrative head of New York's school system and his Memorandum was for the guidance of school officials throughout the State. It warned of the danger of indiscriminate or careless action under the Feinberg Law and the Regents' Rules, and laid down this duty: </s> "The statutes and the Regents' Rules make it clear that it is a primary duty of the school authorities [342 U.S. 485, 500] in each school district to take positive action to eliminate from the school system any teacher in whose case there is evidence that he is guilty of subversive activity. School authorities are under obligation to proceed immediately and conclusively in every such case." </s> The Rules and Memorandum appear in the record; we shall have occasion to refer later to their relevance to what was decided below. Our attention has also been called to an order of the Board of Education of the City of New York, the present appellee. This order further elaborates the part of the Regents' Rules dealing with reports on teachers. It is not clear whether this order has gone into effect. In any event it was not before the lower courts and is not in the record here. </s> It thus appears that we are asked to review a complicated statutory scheme prohibiting those who engage in the kind of speech or conduct that is proscribed from holding positions in the public school system. The scheme is aligned with a complex system of enforcement by administrative investigation, reporting and listing of proscribed organizations. All this must further be related to the general procedures under the New York law for hearing and reviewing charges of misconduct against educational employees, modified as those procedures may be by the Feinberg Law and the Regents' Rules. </s> This intricate machinery has not yet been set in motion. Enforcement has been in abeyance since the present suit, among others, was brought to enjoin the Board of Education from taking steps or spending funds under the statutes and Rules on the theory that these transgressed various limitations which the United States Constitution places on the power of the States. The case comes here on the bare bones of the Feinberg Law only partly given flesh by the Regents' Rules. It was decided wholly on pleadings: a complaint, identifying the plaintiffs and their [342 U.S. 485, 501] interests, setting out the offending statutes and Rules, and concluding in a more or less argumentative fashion that these provisions violate numerous constitutional rights of the various plaintiffs; an answer, denying that the impact of the statute is unconstitutional and that the plaintiffs have any interest to support the suit. On these pleadings summary judgment in favor of some of the plaintiffs was granted by the Supreme Court in Kings County, 196 Misc. 873, 95 N. Y. S. 2d 114; this was reversed by the Appellate Division for the Second Department with direction that the complaint be dismissed, 276 App. Div. 527, 96 N. Y. S. 2d 466, and the Court of Appeals affirmed the Appellate Division. 301 N. Y. 476, 95 N. E. 2d 806. These pleadings and the opinions below are the basis on which we are asked to decide this case. </s> About forty plaintiffs brought the action initially; the trial court dismissed as to all but eight. 196 Misc., at 877, 95 N. Y. S. 2d, at 117-118. The others were found without standing to sue under New York law. The eight who are here as appellants alleged that they were municipal taxpayers and were empowered, by virtue of N. Y. Gen. Municipal Law 51, to bring suit against municipal agencies to enjoin waste of funds. New York is free to determine how the views of its courts on matters of constitutionality are to be invoked. But its action cannot of course confer jurisdiction on this Court, limited as that is by the settled construction of Article III of the Constitution. We cannot entertain, as we again recognize this very day, a constitutional claim at the instance of one whose interest has no material significance and is undifferentiated from the mass of his fellow citizens. Doremus v. Board of Education, 342 U.S. 429 . This is not a "pocketbook action." As taxpayers these plaintiffs cannot possibly be affected one way or the other by any disposition of this case, and they make no such claim. It may well be that the authorities will, if left free, divert funds and effort [342 U.S. 485, 502] from other purposes for the enforcement of the provisions under review, though how much leads to the merest conjecture. But the total expenditure, certainly the new expenditure, necessary to implement the Act and Rules may well be de minimis. The plaintiffs at any rate have not attempted to show that any such expenditure would come from funds to which their taxes contribute. In short, they have neither alleged nor shown that our decision on the issues they tender would have the slightest effect on their tax bills or even on the aggregate bill of all the City's taxpayers whom they claim to represent. The high improbability of being able to make such a demonstration, in the circumstances of this case, does not dispense with the requirements for our jurisdiction. If the incidence of taxation in a city like New York bears no relation to the factors here under consideration, that is precisely why these taxpayers have no claim on our jurisdiction. </s> This ends the matter for plaintiffs Krieger and Newman. But six of the plaintiffs advanced grounds other than that of being taxpayers in bringing this action. Two are parents of children in New York City schools. Four are teachers in these schools. On the basis of the record before us these claims, too, are insufficient, in view of our controlling adjudications, to support the jurisdiction of this Court. </s> The trial court found the interests of the plaintiffs as parents inconsequential. 196 Misc., at 875, 95 N. Y. S. 2d, at 816. I agree. Parents may dislike to have children educated in a school system where teachers feel restrained by unconstitutional limitations on their freedom. But it is like catching butterflies without a net to try to find a legal interest, indispensable for our jurisdiction, in a parent's desire to have his child educated in schools free from such restrictions. The hurt to parents' sensibilities is too tenuous or the inroad upon rightful claims to public education [342 U.S. 485, 503] too argumentative to serve as the earthy stuff required for a legal right judicially enforceable. The claim does not approach in immediacy or directness or solidity that which our whole process of constitutional adjudication has deemed a necessary condition to the Court's settlement of constitutional issues. </s> An apt contrast is provided by McCollum v. Board of Education, 33 U.S. 203 , where a parent did present an individualized claim of his own that was direct and palpable. There the parent alleged that Illinois imposed restrictions on the child's free exercise of faith and thereby on the parent's. The basis of jurisdiction in the McCollum case was not at all a parental right to challenge in the courts - or at least in this Court - educational provisions in general. The closely defined encroachment of the particular arrangement on a constitutionally protected right of the child, and of the parent's right in the child, furnished the basis for our review. The Feinberg Law puts no limits on any definable legal interest of the child or of its parents. </s> This leaves only the teachers, Adler, Spencer, and George and Mark Friedlander. The question whether their interest as teachers was sufficient to give them standing to sue was thought by the trial court to be conclusively settled by our decision in United Public Workers v. Mitchell, 330 U.S. 75 . I see no escape from the controlling relevance of the Mitchell case. There individual government employees sought to enjoin enforcement of the provisions of the Hatch Act forbidding government employees to take active part in politics. The complaint contained detailed recitals of the desire, intent and specific steps short of violation on the part of plaintiffs to engage in the prohibited activities. See id., at 87-88, n. 18. There as here the law was attacked as violating constitutional guaranties of freedom of speech. We found jurisdiction wanting to decide the issue except as to one [342 U.S. 485, 504] plaintiff whose conduct had already violated the applicable standards. </s> The allegations in the present action fall short of those found insufficient in the Mitchell case. These teachers do not allege that they have engaged in proscribed conduct or that they have any intention to do so. They do not suggest that they have been, or are, deterred from supporting causes or from joining organizations for fear of the Feinberg Law's interdict, except to say generally that the system complained of will have this effect on teachers as a group. They do not assert that they are threatened with action under the law, or that steps are imminent whereby they would incur the hazard of punishment for conduct innocent at the time, or under standards too vague to satisfy due process of law. They merely allege that the statutes and Rules permit such action against some teachers. Since we rightly refused in the Mitchell case to hear government employees whose conduct was much more intimately affected by the law there attacked than are the claims of plaintiffs here, this suit is wanting in the necessary basis for our review. </s> This case proves anew the wisdom of rigorous adherence to the prerequisites for pronouncement by this Court on matters of constitutional law. The absence in these plaintiffs of the immediacy and solidity of interest necessary to support jurisdiction is reflected in the atmosphere of abstraction and ambiguity in which the constitutional issues are presented. The broad, generalized claims urged at the bar touch the deepest interests of a democratic society: its right to self-preservation and ample scope for the individual's freedom, especially the teacher's freedom of thought, inquiry and expression. No problem of a free society is probably more difficult than the reconciliation or accommodation of these too often conflicting interests. The judicial role in this [342 U.S. 485, 505] process of accommodation is necessarily very limited and must be carefully circumscribed. To that end the Court, in its long history, has developed "a series of rules" carefully formulated by Mr. Justice Brandeis, "under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 . </s> We have emphasized that, as to the kind of constitutional questions raised by the Feinberg Law, "the distinction is one of degree, and it is for this reason that the effect of the statute in proscribing beliefs - like its effect in restraining speech or freedom of association - must be carefully weighed by the courts in determining whether the balance struck by [the State] comports with the dictates of the Constitution." American Communications Assn. v. Douds, 339 U.S. 382, 409 . But as the case comes to us we can have no guide other than our own notions - however uncritically extra-judicial - of the real bearing of the New York arrangement on the freedom of thought and activity, and especially on the feeling of such freedom, which are, as I suppose no one would deny, part of the necessary professional equipment of teachers in a free society. The scheme for protecting the school system from being made the instrument of purposes other than a school system should serve in a free society - certainly a concern within the constitutional powers of a State - bristles with ambiguities which must enter into any constitutional decision we may make. Of these only a few have been considered by the courts below. We are told that an organization cannot be listed by the Regents except after hearing. 301 N. Y., at 488, 493, 494, 95 N. E. 2d, at 810-811, 814-815. From this it may be assumed that the hearing contemplated is that found wanting by some members of this Court in Joint Anti-Fascist Refugee Committee v. McGrath, [342 U.S. 485, 506] 341 U.S. 123 . The effect of the requirement that membership in a listed organization be prima facie evidence of disqualification in a dismissal proceeding is enlarged upon. 301 N. Y., at 494, 95 N. E. 2d, at 814-815. And the Court of Appeals indicates that only one who "knowingly holds membership in an organization named upon any listing" is subjected to the operation of that rebuttable presumption. Id., at 494, 95 N. E. 2d, at 814. </s> These are the only islands of clarity. Otherwise we are at sea. We are not told the meaning to be attributed to the words "treasonable or seditious" in 3021 of the Education Law, though that is one of the two sections of preexisting law which the elaborate apparatus of the Feinberg Law is designed to enforce. In light of the experience under the Sedition Act of 1798, 1 Stat. 596, "seditious" can hardly be deemed a self-defining term or a word of art. See Miller, Crisis in Freedom, 136-137. Nor can we turn to practical application or judicial construction for sufficient particularity of the meaning to be attributed to the range of activity proscribed by 12-a. Concern over the latitude afforded by such phrases as "the overthrow of government by . . . any unlawful means" when positions of trust or public employment are conditioned upon disbelief in such an objective cannot be deemed without warrant. See American Communications Assn. v. Douds, 339 U.S. 382, 415 , 435; Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 724 . In those cases the Court had ground for limiting the reach of a dubious formula. No such alternative is available here. </s> These gaps in our understanding of the precise scope of the statutory provisions are deepened by equal uncertainties in the implementing Rules. Indeed, according to the Appellate Division these Rules are not in the case. 276 App. Div., at 531, 96 N. Y. S. 2d, at 471. And the Court of Appeals was silent on the point. Therefore we [342 U.S. 485, 507] are without enlightenment, for example, on the nature of the reporting system described by the Rules. This may be a vital matter, affecting not the special circumstances of a particular case but coloring the whole scheme. For it may well be of constitutional significance whether the reporting system contemplates merely the notation as to each teacher that no evidence of disqualification has turned up, if such be the case, or whether it demands systematic and continuous surveillance and investigation of evidence. The difference cannot be meaningless, it may even be decisive, if our function is to balance the restrictions on freedom of utterance and of association against the evil to be suppressed. Again, the Rules seem to indicate that past activities of the proscribed organizations or past membership in listed organizations may be enough to bar new applicants for employment. But we do not know, nor can we determine it. This, too, may make a difference. See Garner v. Board of Public Works of Los Angeles, supra, at 729 (MR. JUSTICE BURTON dissenting in part). We do not know, nor can we ascertain, the effect of the presumption of continuing membership in proscribed organizations that is drawn from evidence of past membership "in the absence of a showing that such membership has been terminated in good faith." We are uninformed of the effect in law of the Commissioner's memorandum, and there is no basis on which to appraise its effect in practice. As for the order of the Board of Education of the City of New York, it is not even formally in the case. In the face of such uncertainties this Court has in the past found jurisdiction wanting, howsoever much the litigants were eager for constitutional pronouncements. Alabama State Federation of Labor v. McAdory, 325 U.S. 450 ; Congress of Industrial Organizations v. McAdory, 325 U.S. 472 ; Rescue Army v. Municipal Court, 331 U.S. 549 ; Parker v. County of Los Angeles, 338 U.S. 327 . [342 U.S. 485, 508] </s> This statement of reasons for declining jurisdiction sounds technical, perhaps, but the principles concerned are not so. Rare departures from them are regrettable chapters in the Court's history, and in well-known instances they caused great public misfortune. </s> MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting. </s> I have not been able to accept the recent doctrine that a citizen who enters the public service can be forced to sacrifice his civil rights. * I cannot for example find in our constitutional scheme the power of a state to place its employees in the category of second-class citizens by denying them freedom of thought and expression. The Constitution guarantees freedom of thought and expression to everyone in our society. All are entitled to it; and none needs it more than the teacher. </s> The public school is in most respects the cradle of our democracy. The increasing role of the public school is seized upon by proponents of the type of legislation represented by New York's Feinberg law as proof of the importance and need for keeping the school free of "subversive influences." But that is to misconceive the effect of this type of legislation. Indeed the impact of this kind of censorship on the public school system illustrates the high purpose of the First Amendment in freeing speech and thought from censorship. </s> The present law proceeds on a principle repugnant to our society - guilt by association. A teacher is disqualified because of her membership in an organization found to be "subversive." The finding as to the "subversive" character of the organization is made in a proceeding to which the teacher is not a party and in which it is not [342 U.S. 485, 509] clear that she may even be heard. To be sure, she may have a hearing when charges of disloyalty are leveled against her. But in that hearing the finding as to the "subversive" character of the organization apparently may not be reopened in order to allow her to show the truth of the matter. The irrebuttable charge that the organization is "subversive" therefore hangs as an ominous cloud over her own hearing. The mere fact of membership in the organization raises a prima facie case of her own guilt. She may, it is said, show her innocence. But innocence in this case turns on knowledge; and when the witch hunt is on, one who must rely on ignorance leans on a feeble reed. </s> The very threat of such a procedure is certain to raise havoc with academic freedom. Youthful indiscretions, mistaken causes, misguided enthusiasms - all long forgotten - become the ghosts of a harrowing present. Any organization committed to a liberal cause, any group organized to revolt against an hysterical trend, any committee launched to sponsor an unpopular program becomes suspect. These are the organizations into which Communists often infiltrate. Their presence infects the whole, even though the project was not conceived in sin. A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner freedom of expression will be stifled. </s> But that is only part of it. Once a teacher's connection with a listed organization is shown, her views become subject to scrutiny to determine whether her membership in the organization is innocent or, if she was formerly a member, whether she has bona fide abandoned her membership. </s> The law inevitably turns the school system into a spying project. Regular loyalty reports on the teachers must be made out. The principals become detectives; the [342 U.S. 485, 510] students, the parents, the community become informers. Ears are cocked for tell-tale signs of disloyalty. The prejudices of the community come into play in searching out the disloyal. This is not the usual type of supervision which checks a teacher's competency; it is a system which searches for hidden meanings in a teacher's utterances. </s> What was the significance of the reference of the art teacher to socialism? Why was the history teacher so openly hostile to Franco Spain? Who heard overtones of revolution in the English teacher's discussion of the Grapes of Wrath? What was behind the praise of Soviet progress in metallurgy in the chemistry class? Was it not "subversive" for the teacher to cast doubt on the wisdom of the venture in Korea? </s> What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A "party line" - as dangerous as the "party line" of the Communists - lays hold. It is the "party line" of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin. </s> This, I think, is what happens when a censor looks over a teacher's shoulder. This system of spying and [342 U.S. 485, 511] surveillance with its accompanying reports and trials cannot go hand in hand with academic freedom. It produces standardized thought, not the pursuit of truth. Yet it was the pursuit of truth which the First Amendment was designed to protect. A system which directly or inevitably has that effect is alien to our system and should be struck down. Its survival is a real threat to our way of life. We need be bold and adventuresome in our thinking to survive. A school system producing students trained as robots threatens to rob a generation of the versatility that has been perhaps our greatest distinction. The Framers knew the danger of dogmatism; they also knew the strength that comes when the mind is free, when ideas may be pursued wherever they lead. We forget these teachings of the First Amendment when we sustain this law. </s> Of course the school systems of the country need not become cells for Communist activities; and the classrooms need not become forums for propagandizing the Marxist creed. But the guilt of the teacher should turn on overt acts. So long as she is a law-abiding citizen, so long as her performance within the public school system meets professional standards, her private life, her political philosophy, her social creed should not be the cause of reprisals against her. </s> [Footnote * United Public Workers v. Mitchell, 330 U.S. 75 ; Garner v. Board of Public Works of Los Angeles, 341 U.S. 716 . </s> [342 U.S. 485, 512]

United States Supreme Court SMITH v. UNITED STATES(1954) No. 52 Argued: Decided: December 6, 1954 </s> Petitioner was convicted under 145 of the Internal Revenue Code of willful attempts to evade his income taxes for 1946 through 1949. In addition to the net worth method of proof considered in Holland v. United States, ante, p. 121, the Government relied on an extrajudicial written net worth statement signed by petitioner and delivered to government agents, plus independent evidence of petitioner's expenditures, savings and investments. Petitioner contended (a) that his extrajudicial statement was not sufficiently corroborated by other evidence, and (b) that it should not have been admitted in evidence because it was procured pursuant to an understanding with a government agent that the case would be closed and petitioner granted immunity. At a pretrial hearing, the trial judge denied a motion to suppress this statement as evidence. At the trial, he refused to hold a hearing outside the presence of the jury to determine preliminarily the admissibility of the statement, and he submitted the issue to the jury with instructions that they should reject the statement and all evidence obtained through it, if "trickery, fraud or deceit" were practiced on petitioner or his accountant. Held: The conviction is affirmed. Pp. 149-159. </s> 1. The issue of fraud or deceit on the part of the government agent was properly submitted to the jury, and the jury, in arriving at its general verdict, could have found from the conflicting evidence that no fraudulent inducements had been offered petitioner or his accountant. Pp. 150-151. </s> 2. Denial of a voir dire during the trial, on the issue of fraud or deceit on the part of the government agent, did not deprive petitioner of any substantial right. The trial judge had already held a hearing on this issue in passing on the pretrial motion to suppress evidence, the only evidence offered in seeking a voir dire during the trial was that which had been heard in the pretrial hearing, and that evidence was narrated again to judge and jury after the voir dire had been denied. P. 151. </s> 3. There was sufficient independent evidence to corroborate petitioner's extrajudicial admission that he did not have sufficient [348 U.S. 147, 148] assets at the beginning of the computation period to account for the increases in net worth attributed to him. Pp. 151-159. </s> (a) The requirement of corroboration of extrajudicial confessions is applicable to the crime of tax evasion. Pp. 153-154. </s> (b) The rule requiring corroboration of extrajudicial confessions is applicable to the statement involved in this case, which, though not a confession admitting all of the elements of the offense, was made after the fact to an official charged with investigating the possibility of wrongdoing and which embraced an element vital to the Government's case. Pp. 154-156. </s> (c) Corroboration is necessary for all elements of the offense established by admission alone; but it is sufficient if the corroboration merely fortifies the truth of the admission, without independently establishing the crime charged. P. 156. </s> (d) All elements of the offense must be established by independent evidence or corroborated admissions; but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense through the statements of the accused. P. 156. </s> (e) The Government may provide the necessary corroboration by introducing substantial evidence, apart from the taxpayer's admissions, tending to show that he willfully understated his taxable income. P. 157. </s> (f) This may be accomplished by substantiating the opening net worth computation directly, since that figure, together with the remainder of the net worth computation, amply establishes a consistent understatement by petitioner of his taxable income; and from this the jury could infer willfulness. P. 157. </s> (g) In this case, petitioner's tax returns adequately corroborated his extrajudicial statements as to his financial history, and the two together corroborated the Government's computation of his net worth. Pp. 157-158. </s> (h) Petitioner's extrajudicial statements were further corroborated by independent evidence showing substantial expenditures, savings and investments during the period involved. Pp. 158-159. </s> 210 F.2d 496, affirmed. </s> W. Arthur Garrity, Jr. argued the cause for petitioner. With him on the brief were Richard Maguire and Paul G. Counihan. [348 U.S. 147, 149] </s> Marvin E. Frankel argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack and Joseph F. Goetten. </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> This is the third of the net worth cases and the first dealing with the Government's use of extrajudicial statements made by the accused. Petitioner and his wife were jointly tried on five counts charging them with willful attempts to evade and defeat their income taxes for the years 1946 through 1950. A motion for acquittal was granted as to the wife on all five counts, and as to petitioner on the fifth count (for the year 1950). The jury found petitioner guilty on the first four counts, and the conviction was affirmed by the Court of Appeals. 210 F.2d 496. We granted certiorari in order to pass on the issues raised by the prosecution's use of defendant's extrajudicial statements. 347 U.S. 1010 . </s> The Government's theory was that the increases in the net worth of petitioner and his wife exceeded their reported income for each of the prosecution years, and that these increments represented taxable income. The evidence tended to show that petitioner and his wife were persons of moderate means prior to 1945, and that toward the end of that year petitioner acquired a racing-news service. In the four succeeding years, the prosecution years here in issue, petitioner and his wife acquired a large amount of visible wealth in the form of bank accounts, real estate, securities, and other assets. The evidence, taken as a whole, tended to prove that petitioner and his wife had understated their income for the four-year period by over $190,000. </s> The issues in this case stem from a statement signed by the petitioner and delivered to the Government agents [348 U.S. 147, 150] along with a check, the latter supposedly representing the amount of tax he thought due and owing. 1 The statement, a five-page document, included tables on petitioner's securities, prior tax returns, living expenses, and a listing of petitioner's assets for each of the years 1945 through 1949, showing changes in his net worth over the prosecution period. While each of the pages was headed by the names of petitioner and his wife, the statement was signed only by the petitioner. His signature appeared after a clause describing the listing of assets as "my true net worth for the period covered herein." </s> Admissibility of the Statement. </s> Petitioner contends that his net worth statement should not have been admitted in evidence because it was procured pursuant to an understanding between petitioner and a Government agent that the case would be closed and the petitioner granted immunity. See Wan v. United States, 266 U.S. 1, 14 ; Bram v. United States, 168 U.S. 532, 542 -543; Wilson v. United States, 162 U.S. 613, 622 -623; Sparf and Hansen v. United States, 156 U.S. 51, 55 . Petitioner's accountant, who carried on negotiations with this Government agent, testified that the agent had promised to close the case if the net worth statement and a check to cover the tax deficiency were forthcoming, and that he, the accountant, would never have submitted the statement had he not believed that the case would be closed on this basis. The Government agent testified that he was aware of no such understanding and that he had made no promises to close the case. After a pretrial hearing on petitioner's motion to suppress evidence, the trial judge refused to suppress the net worth statement. [348 U.S. 147, 151] During the course of the trial, he refused to hold a hearing outside the presence of the jury to determine preliminarily the statement's admissibility. He submitted the issue to the jury with the instruction that they were to reject the statement, and all evidence obtained through it, if "trickery, fraud or deceit" were practiced on petitioner or his accountant. </s> The issue of fraud or deceit on the part of the Government agent was properly submitted to the jury, and the jury, in arriving at its general verdict, could have found from the conflicting evidence that no fraudulent inducement had been offered petitioner or his accountant. Petitioner cannot complain that he was denied a voir dire, cf. United States v. Carignan, 342 U.S. 36 , since the trial judge had already held a hearing on this issue in passing on the pretrial motion to suppress evidence. Moreover, the only evidence offered by petitioner in seeking this hearing during the trial was the testimony of petitioner's accountant, evidence which had been heard in the pretrial hearing and was narrated again to judge and jury after the voir dire had been denied. Under these circumstances, it cannot be said that the refusal to hold a preliminary hearing deprived petitioner of any substantial right. </s> Corroboration of Petitioner's Statement. </s> Petitioner's second major objection is that his net worth statement, as it related to his opening net worth, was not corroborated - or was insufficiently corroborated - by independent evidence. Petitioner's statement listed his opening net worth as follows: </s> Bank account ........................ $1,079.60 Residence ........................... 12,000.00 Automobile .......................... 2,000.00 __________ </s> Total assets .................... $15,079.60 [348 U.S. 147, 152] </s> The Government agents credited petitioner with a higher opening net worth: </s> Cash in banks ....................... $8,058.58 Drug store partnership .............. 5,618.39 Real estate ......................... 18,600.00 Furniture ........................... 2,000.00 Automobile .......................... 2,000.00 __________ </s> Total ............................ $36,276.97 </s> In determining these opening net worth figures, the Government agents relied in part on figures furnished by petitioner in his net worth statement and in other of his extrajudicial admissions - for the autos, the furniture, and one parcel of real estate. Any variation in these figures would not materially affect the result. 2 But petitioner further complains that the Government did not corroborate the negative implications of his net worth statement, that he did not have at the end of 1945 any substantial assets - for example, cash on hand - which were not reflected in his or the Government's net worth computation. The question presented, therefore, is whether there is sufficient independent evidence to corroborate petitioner's extrajudicial admission that he did not have sufficient assets at the starting point to account for the increases in net worth attributed to him in the prosecution years. </s> The general rule that an accused may not be convicted on his own uncorroborated confession has previously been recognized by this Court, Warszower v. United States, 312 U.S. 342 ; Isaacs v. United States, 159 U.S. 487 ; cf. Miles v. United States, 103 U.S. 304, 311 -312, and has been consistently applied in the lower federal courts and [348 U.S. 147, 153] in the overwhelming majority of state courts, 127 A. L. R. 1130; 7 Wigmore, Evidence, 2070-2072. Its purpose is to prevent "errors in convictions based upon untrue confessions alone," Warszower v. United States, supra, at 347; its foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, and although separate doctrines excluded involuntary confessions from consideration by the jury, Bram v. United States, supra; Wilson v. United States, supra, further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be "involuntary" within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation - whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past. Finally, the experience of the courts, the police and the medical profession recounts a number of false confessions voluntarily made, Note, 28 Ind. L. J. 374. These are the considerations which justify a restriction on the power of the jury to convict, for this experience with confessions is not shared by the average juror. Nevertheless, because this rule does infringe on the province of the primary finder of facts, its application should be scrutinized lest the restrictions it imposes surpass the dangers which gave rise to them. </s> The first issue is whether the requirement of corroboration may properly be applied to the crime of tax evasion. The corroboration rule, at its inception, served an extremely limited function. In order to convict of serious crimes of violence, then capital offenses, independent proof was required that someone had indeed inflicted the [348 U.S. 147, 154] violence, the so-called corpus delicti. Once the existence of the crime was established, however, the guilt of the accused could be based on his own otherwise uncorroborated confession. But in a crime such as tax evasion there is no tangible injury which can be isolated as a corpus delicti. As to this crime, it cannot be shown that the crime has been committed without identifying the accused. Thus we are faced with the choice either of applying the corroboration rule to this offense and according the accused even greater protection than the rule affords to a defendant in a homicide prosecution, Evans v. United States, 122 F.2d 461; Murray v. United States, 53 App. D.C. 119, 288 F. 1008, or of finding the rule wholly inapplicable because of the nature of the offense, stripping the accused of this guarantee altogether. We choose to apply the rule, with its broader guarantee, to crimes in which there is no tangible corpus delicti, where the corroborative evidence must implicate the accused in order to show that a crime has been committed. See, e. g., Tabor v. United States, 152 F.2d 254; United States v. Kertess, 139 F.2d 923; Ercoli v. United States, 76 U.S. App. D.C. 360, 131 F.2d 354; Pines v. United States, 123 F.2d 825; Forte v. United States, 68 App. D.C. 111, 94 F.2d 236; Tingle v. United States, 38 F.2d 573; Wynkoop v. United States, 22 F.2d 799; Daeche v. United States, 250 F. 566. </s> The next problem presented is whether the statement here involved - the opening net worth - must be corroborated. Although this statement was part of a document which may have admitted an understatement of taxable income, one of the elements of the crime of tax evasion, still it is clear that the statement is not a confession admitting to all the elements of the offense. There is some uncertainly in the lower court opinions as to whether the corroboration requirement applies to mere admissions, see United States v. Kertess, supra, at 929; Ercoli v. United [348 U.S. 147, 155] States, supra, 76 U.S. App. D.C., at 362, 131 F.2d, at 356. But see Warszower v. United States, supra, at 347. We hold the rule applicable to such statements, at least where, as in this case, the admission is made after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embraces an element vital to the Government's case. 3 Cf. Gulotta v. United States, 113 F.2d 683, assimilating admissions to confessions but failing to distinguish between admissions before and after the fact as required by the Warszower case. Accord, Duncan v. United States, 68 F.2d 136; Gordnier v. United States, 261 F. 910. </s> The negative implications of petitioner's opening net worth admission formed the cornerstone of the Government's theory of guilt. Without proof that assets on hand at the beginning of the prosecution period did not account for the alleged net worth increases, the Government could not succeed. Holland v. United States, ante, p. 121. An admission which assumes this importance in the presentation of the prosecution's case should not go uncorroborated, and this is true whether we consider the statement an admission of one of the formal "elements" of the crime or of a fact subsidiary to the proof of these "elements." It is the practical relation of the statement to the Government's case which is crucial, not its theoretical relation to the definition of the offense. </s> Although we are unable to hold on this record that petitioner's statement was inadmissible, the evidence is sufficient to cast doubt on the accuracy of his admissions. The unreliability of the statement is illustrated by the great variance between its net worth calculation and the Government's computation, although petitioner's consistent [348 U.S. 147, 156] erring in his own favor made it not unreasonable for the Government to hold him to his word where it was to the Government's advantage. On the whole, the statement is one which should be carefully scrutinized in the light of the available independent evidence. </s> There has been considerable debate concerning the quantum of corroboration necessary to substantiate the existence of the crime charged. It is agreed that the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty. Gregg v. United States, 113 F.2d 687; Jordan v. United States, 60 F.2d 4; Forte v. United States, supra; Daeche v. United States, supra. But cf. United States v. Fenwick, 177 F.2d 488. In addition to differing views on the substantiality of specific independent evidence, the debate has centered largely about two questions: (1) whether corroboration is necessary for all elements of the offense established by admissions alone, compare Ercoli v. United States, supra, and Pines v. United States, supra, with Wynkoop v. United States, supra, and Pearlman v. United States, 10 F.2d 460, and (2) whether it is sufficient if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged, compare Pearlman v. United States, supra, and Daeche v. United States, supra, with Pines v. United States, supra, and Forte v. United States, supra. We answer both in the affirmative. All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense "through" the statements of the accused. Cf. Parker v. State, 228 Ind. 1, 88 N. E. 2d 556. [348 U.S. 147, 157] </s> Under the above standard the Government may provide the necessary corroboration by introducing substantial evidence, apart from petitioner's admissions, tending to show that petitioner willfully understated his taxable income. This may be accomplished by substantiating the opening net worth directly, since that figure, taken together with the remainder of the net worth computation, amply establishes a consistent understatement by petitioner of his taxable income; and from this the jury could infer willfulness. Two significant items of evidence tend to show that petitioner owned no assets at the starting point in excess of those attributed to him in the Government's statement. First, a Government official testified that petitioner had filed no income tax returns in the years 1936 through 1939, nontaxable returns for 1940 and 1942, a nonassessable return for 1943, a refundable return for 1944, and a taxable return for 1941. Second, the testimony of a Government agent, touching upon the economic activities of the petitioner in the years immediately preceding the prosecution period, disclosed that prior to 1941 petitioner had been employed as a manager of a racing-news service; that from 1941 to 1945 he worked in a package store for $40 a week; and that for a short time during this latter period his wife worked as a hairdresser. The agent's testimony, however, was based solely on the extrajudicial statements of the petitioner, and under the standard we have adopted these admissions must be corroborated by substantial independent evidence. 4 The [348 U.S. 147, 158] tax returns adequately corroborate petitioner's statements as to his financial history, and we hold that the two together corroborate the opening net worth. The jury could find from this evidence that petitioner's resources prior to the prosecution years were such that he could not have amassed a greater store of wealth than the amount credited to him in the Government's net worth statement. The proof is buttressed somewhat by independent evidence that petitioner had bought a modest home in 1943 for $9,600, paying less than one-third in cash and the balance in installments, and by the fact that petitioner's wife, who held the bilk of the family's assets in her name was a housewife through almost all of the prosecution years with no significant independent sources of income. </s> But substantiating the opening net worth is just one method of corroborating these extrajudicial statement. Petitioner's admissions may also be corroborated by an entirely different line of proof - by independent evidence concerning petitioner's conduct during the prosecution period, which tends to established the crime of tax evasion without resort to the net worth computations. The Government evidence showed that coincident with petitioner's opening of the racing-news service, in which he kept no records, petitioner and his wife opened 9 new bank accounts, making their over-all total 14 accounts in 12 banks; that the money in these accounts, which amounted to only $8,000 at the beginning of the prosecution period, varied between $42,000 and $80,000 during the prosecution years; that brokerage accounts, opened by petitioner and his wife in 1947 and 1948 respectively, were worth $9,000 in 1947 and over $41,000 in 1948 and 1949; that petitioner and his wife made new investments in reality during the prosecution period, about $2,000 in 1946, over $14,000 in 1948, and $35,000 in 1949; that other substantial expenditures were made during the [348 U.S. 147, 159] prosecution years, $3,750 in U.S. Savings Bonds in 1946, a total investment of $4,768 in new cars in 1947 and 1948, and a $37,000 annuity payment and $3,750 mink coat in 1949. During these a same years petitioners declared income exceeded his living expenses by less than $3,000. These substantial expenditures, savings and investments might not of themselves suffice to support a conviction of tax evasion without evidence of a starting point indicating a lack of funds from which these payments might have come. But this conduct does corroborate the net worth statement by tending to show that the petitioner was understating his income during the prosecution years. We cannot say that there is so little relation between expenditures and income that the Government proof of expenditures far in excess of reported income, coupled with proof of a business producing unrecorded amounts of income, fails to corroborate the charge that petitioner's earnings during the prosecution years exceeded his declared income. </s> We hold that under either of these two lines of proof sufficient corroboration was shown to permit the case to go to the jury. The circumstances leading up to petitioner's statement, and the failure of the facts shown therein to mesh with the other evidence adduced by the Government, imposed on the trial judge and the reviewing courts a duty of careful scrutiny. Nevertheless, the independent evidence was strong enough, we believe to overcome these indicia of unreliability, and we accordingly </s> Affirm. </s> Footnotes [Footnote 1 Although there had previously been discussion of a civil fraud penalty, this check was apparently meant to cover only the tax liability proper. </s> [Footnote 2 The Government also relied on petitioner's admissions in establishing his living expenses during the prosecution years. But these do not bear on opening net worth and are therefore not fairly within the question presented. Moreover, the variation possible in these figures is too slight to affect the result in any significant respect. </s> [Footnote 3 Admissions given under special circumstances, providing grounds for a strong inference of reliability may not have to be corroborated. Cf. Miles v. United States, supra; State v. Saltzman, 241 Iowa 1373, 44 N. W. 2d 24. </s> [Footnote 4 They were made to officials after the offense had been committed. It may be questioned, though, whether admissions were as basic to the Government's case as the statements concerning opening net worth, and whether they should therefore be exempted from the requirement of corroboration. But where a fact is sufficiently important that the Government adduces extrajudicial statements of the accused bearing in its existence, and then relied in its existence to sustain the defendant's conviction there is need for corroboration. Cf.United States v. Kertess, supra, at 930. </s> [348 U.S. 147, 160]

United States Supreme Court CTS CORP. v. DYNAMICS CORP. OF AMERICA(1987) No. 86-71 Argued: March 2, 1987Decided: April 21, 1987 </s> The federal Williams Act and implementing regulations govern hostile corporate stock tender offers by requiring, inter alia, that offers remain open for at least 20 business days. An Indiana Act applies to certain business corporations chartered in Indiana that have specified levels of shares or shareholders within the State and that opt into the Act's protection. The Indiana Act provides that the acquisition of "control shares" in such a corporation - shares that, but for the Act, would bring the acquiring entity's voting power to or above certain threshold levels - does not include voting rights unless a majority of all pre-existing disinterested shareholders so agree at their next regularly scheduled meeting. However, the stock acquiror can require a special meeting within 50 days by following specified procedures. Appellee Dynamics Corporation announced a tender offer that would have raised its ownership interest in CTS Corporation above the Indiana Act's threshold. Dynamics also filed suit in Federal District Court alleging federal securities violations by CTS. After CTS opted into the Indiana Act, Dynamics amended its complaint to challenge the Act's validity. The District Court granted Dynamics' motion for declaratory relief, ruling that the Act is pre-empted by the Williams Act and violates the Commerce Clause. The Court of Appeals affirmed, adopting the holding of the plurality opinion in Edgar v. MITE Corp., 457 U.S. 624 , that the Williams Act pre-empts state statutes that upset the balance between target company management and a tender offeror. The court based its pre-emption finding on the view that the Indiana Act, in effect, imposes at least a 50-day delay on the consummation of tender offers and that this conflicts with the minimum 20-day, hold-open period under the Williams Act. The court also held that the state Act violates the Commerce Clause since it deprives nonresidents of the valued opportunity to accept tender offers from nonresidents, and that it violates the conflict-of-laws "internal affairs" doctrine in that it has a direct, intended, and [481 U.S. 69, 70] substantial effect on the interstate market in securities and corporate control. </s> Held: </s> 1. The Indiana Act is consistent with the provisions and purposes of the Williams Act and is not pre-empted thereby. Pp. 78-87. </s> (a) The Indiana Act protects independent shareholders from the coercive aspects of tender offers by allowing them to vote as a group, and thereby furthers the Williams Act's basic purpose of placing investors on an equal footing with takeover bidders. Moreover, the Indiana Act avoids the problems the plurality discussed in MITE, since it does not give either management or the offeror an advantage in communicating with shareholders, nor impose an indefinite delay on offers, nor allow the state government to interpose its views of fairness between willing buyers and sellers. Thus, the Act satisfies even the MITE plurality's broad interpretation of the Williams Act. Pp. 81-84. </s> (b) The possibility that the Indiana Act will delay some tender offers does not mandate pre-emption. The state Act neither imposes an absolute 50-day delay on the consummation of tender offers nor precludes offerors from purchasing shares as soon as federal law permits. If an adverse shareholder vote is feared, the tender offer can be conditioned on the shares' receiving voting rights within a specified period. Furthermore, even assuming that the Indiana Act does impose some additional delay, the MITE plurality found only that "unreasonable" delays conflict with the Williams Act. Here, it cannot be said that a 50-day delay is unreasonable since that period falls within a 60-day period Congress established for tendering shareholders to withdraw their unpurchased shares. If the Williams Act were construed to pre-empt any state statute that caused delays, it would pre-empt a variety of state corporate laws of hitherto unquestioned validity. The longstanding prevalence of state regulation in this area suggests that, if Congress had intended to pre-empt all such state laws, it would have said so. Pp. 84-87. </s> 2. The Indiana Act does not violate the Commerce Clause. The Act's limited effect on interstate commerce is justified by the State's interests in defining attributes of its corporations' shares and in protecting shareholders. Pp. 87-94. </s> (a) The Act does not discriminate against interstate commerce since it has the same effect on tender offers whether or not the offeror is an Indiana domiciliary or resident. That the Act might apply most often to out-of-state entities who launch most hostile tender offers is irrelevant, since a claim of discrimination is not established by the mere fact that the burden of a state regulation falls on some interstate companies. Pp. 87-88. [481 U.S. 69, 71] </s> (b) The Act does not create an impermissible risk of inconsistent regulation of tender offers by different States. It simply and evenhandedly exercises the State's firmly established authority to define the voting rights of shareholders in Indiana corporations, and thus subjects such corporations to the law of only one State. Pp. 88-89. </s> (c) The Court of Appeals' holding that the Act unconstitutionally hinders tender offers ignores the fact that a State, in its role as overseer of corporate governance, enacts laws that necessarily affect certain aspects of interstate commerce, particularly with respect to corporations with shareholders in other States. A State has interests in promoting stable relationships among parties involved in its corporations and in ensuring that investors have an effective voice in corporate affairs. The Indiana Act validly furthers these interests by allowing shareholders collectively to determine whether the takeover is advantageous to them. The argument that Indiana has no legitimate interest in protecting nonresident shareholders is unavailing, since the Act applies only to corporations incorporated in Indiana that have a substantial number of shareholders in the State. Pp. 89-93. </s> (d) Even if the Act should decrease the number of successful tender offers for Indiana corporations, this would not offend the Commerce Clause. The Act does not prohibit any resident or nonresident from offering to purchase, or from purchasing, shares in Indiana corporations, or from attempting thereby to gain control. It only provides regulatory procedures designed for the better protection of the corporations' shareholders. The Commerce Clause does not protect the particular structure or methods of operation in a market. Pp. 93-94. </s> 794 F.2d 250, reversed. </s> POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, MARSHALL, and O'CONNOR, JJ., joined, and in Parts I, III-A, and III-B of which SCALIA, J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 94. WHITE, J., filed a dissenting opinion, in Part II of which BLACKMUN and STEVENS, JJ., joined, post, p. 97. </s> [Footnote * Together with No. 86-97, Indiana v. Dynamics Corporation of America, also on appeal from the same court. </s> James A. Strain argued the cause for appellant in No. 86-71. With him on the brief were Richard E. Deer and Stanley C. Fickle. John F. Pritchard argued the cause and filed a brief for appellant in No. 86-97. [481 U.S. 69, 72] </s> Lowell E. Sachnoff argued the cause for appellee in both cases. With him on the brief were Dean A. Dickie and Sarah R. Wolff.Fn </s> Fn [481 U.S. 69, 72] Briefs of amici curiae urging reversal were filed for the State of New York by Robert Abrams, Attorney General, O. Peter Sherwood, Solicitor General, Mary Ellen Burns, Deputy Chief Assistant Attorney General, and Colvin W. Grannum, Assistant Attorney General; for the State of Minnesota by Hubert H. Humphrey III, Attorney General, and Alan I. Gilbert and Barry R. Greller, Special Assistant Attorneys General; and for the Indiana Chamber of Commerce et al. by Donald F. Elliott, Jr., and Barton R. Peterson. </s> Briefs of amici curiae urging affirmance were filed for the Securities and Exchange Commission et al. by Solicitor General Fried, Deputy Solicitor General Cohen, Roy T. Englert, Jr., Daniel L. Goelzer, and Paul Gonson; for the Securities Industry Association, Inc., by Marc P. Cherno, Irwin Blum, and William J. Fitzpatrick; and for the United Shareholders Association by James Edward Maloney and David E. Warden. </s> JUSTICE POWELL delivered the opinion of the Court. </s> These cases present the questions whether the Control Share Acquisitions Chapter of the Indiana Business Corporation Law, Ind. Code 23-1-42-1 et seq. (Supp. 1986), is preempted by the Williams Act, 82 Stat. 454, as amended, 15 U.S.C. 78m(d)-(e) and 78n(d)-(f) (1982 ed. and Supp. III), or violates the Commerce Clause of the Federal Constitution, Art. I, 8, cl. 3. </s> I </s> A </s> On March 4, 1986, the Governor of Indiana signed a revised Indiana Business Corporation Law, Ind. Code 23-1-17-1 et seq. (Supp. 1986). That law included the Control Share Acquisitions Chapter (Indiana Act or Act). Beginning on August 1, 1987, the Act will apply to any corporation incorporated in Indiana, 23-1-17-3(a), unless the corporation amends its articles of incorporation or bylaws to opt out of the Act, 23-1-42-5. Before that date, any Indiana corporation can opt into the Act by resolution of its board of directors. 23-1-17-3(b). The Act applies only to "issuing [481 U.S. 69, 73] public corporations." The term "corporation" includes only businesses incorporated in Indiana. See 23-1-20-5. An "issuing public corporation" is defined as: </s> "a corporation that has: </s> "(1) one hundred (100) or more shareholders; </s> "(2) its principal place of business, its principal office, or substantial assets within Indiana; and </s> "(3) either: </s> "(A) more than ten percent (10%) of its shareholders resident in Indiana; </s> "(B) more than ten percent (10%) of its shares owned by Indiana residents; or </s> "(C) ten thousand (10,000) shareholders resident in Indiana." 23-1-42-4(a). 1 </s> The Act focuses on the acquisition of "control shares" in an issuing public corporation. Under the Act, an entity acquires "control shares" whenever it acquires shares that, but for the operation of the Act, would bring its voting power in the corporation to or above any of three thresholds: 20%, 33 1/3%, or 50%. 23-1-42-1. An entity that acquires control shares does not necessarily acquire voting rights. Rather, it gains those rights only "to the extent granted by resolution approved by the shareholders of the issuing public corporation." 23-1-42-9(a). Section 23-1-42-9(b) requires a majority vote of all disinterested 2 shareholders holding each [481 U.S. 69, 74] class of stock for passage of such a resolution. The practical effect of this requirement is to condition acquisition of control of a corporation on approval of a majority of the pre-existing disinterested shareholders. 3 </s> The shareholders decide whether to confer rights on the control shares at the next regularly scheduled meeting of the shareholders, or at a specially scheduled meeting. The [481 U.S. 69, 75] acquiror can require management of the corporation to hold such a special meeting within 50 days if it files an "acquiring person statement," 4 requests the meeting, and agrees to pay the expenses of the meeting. See 23-1-42-7. If the shareholders do not vote to restore voting rights to the shares, the corporation may redeem the control shares from the acquiror at fair market value, but it is not required to do so. 23-1-42-10(b). Similarly, if the acquiror does not file an acquiring person statement with the corporation, the corporation may, if its bylaws or articles of incorporation so provide, redeem the shares at any time after 60 days after the acquiror's last acquisition. 23-1-42-10(a). </s> B </s> On March 10, 1986, appellee Dynamics Corporation of America (Dynamics) owned 9.6% of the common stock of appellant CTS Corporation, an Indiana corporation. On that day, six days after the Act went into effect, Dynamics announced a tender offer for another million shares in CTS; purchase of those shares would have brought Dynamics' ownership interest in CTS to 27.5%. Also on March 10, Dynamics filed suit in the United States District Court for the Northern District of Illinois, alleging that CTS had violated the federal securities laws in a number of respects no longer relevant to these proceedings. On March 27, the board of directors of CTS, an Indiana corporation, elected to be governed by the provisions of the Act, see 23-1-17-3. </s> Four days later, on March 31, Dynamics moved for leave to amend its complaint to allege that the Act is pre-empted by the Williams Act, 15 U.S.C. 78m(d)-(e) and 78n(d)-(f) (1982 ed. and Supp. III), and violates the Commerce Clause, Art. I, 8, cl. 3. Dynamics sought a temporary restraining order, a preliminary injunction, and declaratory relief against [481 U.S. 69, 76] CTS' use of the Act. On April 9, the District Court ruled that the Williams Act pre-empts the Indiana Act and granted Dynamics' motion for declaratory relief. 637 F. Supp. 389 (ND Ill. 1986). Relying on JUSTICE WHITE's plurality opinion in Edgar v. MITE Corp., 457 U.S. 624 (1982), the court concluded that the Act "wholly frustrates the purpose and objective of Congress in striking a balance between the investor, management, and the takeover bidder in takeover contests." 637 F. Supp., at 399. A week later, on April 17, the District Court issued an opinion accepting Dynamics' claim that the Act violates the Commerce Clause. This holding rested on the court's conclusion that "the substantial interference with interstate commerce created by the [Act] outweighs the articulated local benefits so as to create an impermissible indirect burden on interstate commerce." Id., at 406. The District Court certified its decisions on the Williams Act and Commerce Clause claims as final under Federal Rule of Civil Procedure 54(b). Ibid. </s> CTS appealed the District Court's holdings on these claims to the Court of Appeals for the Seventh Circuit. Because of the imminence of CTS' annual meeting, the Court of Appeals consolidated and expedited the two appeals. On April 23 - 23 days after Dynamics first contested application of the Act in the District Court - the Court of Appeals issued an order affirming the judgment of the District Court. The opinion followed on May 28. 794 F.2d 250 (1986). </s> After disposing of a variety of questions not relevant to this appeal, the Court of Appeals examined Dynamics' claim that the Williams Act pre-empts the Indiana Act. The court looked first to the plurality opinion in Edgar v. MITE Corp., supra, in which three Justices found that the Williams Act pre-empts state statutes that upset the balance between target management and a tender offeror. The court noted that some commentators had disputed this view of the Williams Act, concluding instead that the Williams Act was "an anti-takeover statute, expressing a view, however benighted, [481 U.S. 69, 77] that hostile takeovers are bad." 794 F.2d, at 262. It also noted: </s> "[I]t is a big leap from saying that the Williams Act does not itself exhibit much hostility to tender offers to saying that it implicitly forbids states to adopt more hostile regulations. . . . But whatever doubts of the Williams' Act preemptive intent we might entertain as an original matter are stilled by the weight of precedent." Ibid. </s> Once the court had decided to apply the analysis of the MITE plurality, it found the case straightforward: </s> "Very few tender offers could run the gauntlet that Indiana has set up. In any event, if the Williams Act is to be taken as a congressional determination that a month (roughly) is enough time to force a tender offer to be kept open, 50 days is too much; and 50 days is the minimum under the Indiana act if the target corporation so chooses." Id., at 263. </s> The court next addressed Dynamic's Commerce Clause challenge to the Act. Applying the balancing test articulated in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), the court found the Act unconstitutional: </s> "Unlike a state's blue sky law the Indiana statute is calculated to impede transactions between residents of other states. For the sake of trivial or even negative benefits to its residents Indiana is depriving nonresidents of the valued opportunity to accept tender offers from other nonresidents. </s> ". . . Even if a corporation's tangible assets are immovable, the efficiency with which they are employed and the proportions in which the earnings they generate are divided between management and shareholders depends on the market for corporate control - an interstate, indeed international, market that the State of Indiana is not authorized to opt out of, as in effect it has done in this statute." 794 F.2d, at 264. [481 U.S. 69, 78] </s> Finally, the court addressed the "internal affairs" doctrine, a "principle of conflict of laws . . . designed to make sure that the law of only one state shall govern the internal affairs of a corporation or other association." Ibid. It stated: </s> "We may assume without having to decide that Indiana has a broad latitude in regulating those affairs, even when the consequence may be to make it harder to take over an Indiana corporation. . . . But in this case the effect on the interstate market in securities and corporate control is direct, intended, and substantial. . . . [T]hat the mode of regulation involves jiggering with voting rights cannot take it outside the scope of judicial review under the commerce clause." Ibid. </s> Accordingly, the court affirmed the judgment of the District Court. </s> Both Indiana and CTS filed jurisdictional statements. We noted probable jurisdiction under 28 U.S.C. 1254(2), 479 U.S. 810 (1986), and now reverse. 5 </s> II </s> The first question in these cases is whether the Williams Act pre-empts the Indiana Act. As we have stated frequently, absent an explicit indication by Congress of an intent to pre-empt state law, a state statute is pre-empted only [481 U.S. 69, 79] </s> "`where compliance with both federal and state regulations is a physical impossibility . . .,' Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 -143 (1963), or where the state `law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67 (1941) . . . ." Ray v. Atlantic Richfield Co., 435 U.S. 151, 158 (1978). </s> Because it is entirely possible for entities to comply with both the Williams Act and the Indiana Act, the state statute can be pre-empted only if it frustrates the purposes of the federal law. </s> A </s> Our discussion begins with a brief summary of the structure and purposes of the Williams Act. Congress passed the Williams Act in 1968 in response to the increasing number of hostile tender offers. Before its passage, these transactions were not covered by the disclosure requirements of the federal securities laws. See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 22 (1977). The Williams Act, backed by regulations of the SEC, imposes requirements in two basic areas. First, it requires the offeror to file a statement disclosing information about the offer, including: the offeror's background and identity; the source and amount of the funds to be used in making the purchase; the purpose of the purchase, including any plans to liquidate the company or make major changes in its corporate structure; and the extent of the offeror's holdings in the target company. See 15 U.S.C. 78n(d)(1) (incorporating 78m(d)(1) by reference); 17 CFR 240.13d-1, 240.14d-3 (1986). </s> Second, the Williams Act, and the regulations that accompany it, establish procedural rules to govern tender offers. For example, stockholders who tender their shares may withdraw them while the offer remains open, and, if the offeror has not purchased their shares, any time after 60 days from commencement of the offer. 15 U.S.C. 78n(d)(5); 17 [481 U.S. 69, 80] CFR 240.14d-7(a)(1) (1986), as amended, 51 Fed. Reg. 25873 (1986). The offer must remain open for at least 20 business days. 17 CFR 240.14e-1(a) (1986). If more shares are tendered than the offeror sought to purchase, purchases must be made on a pro rata basis from each tendering shareholder. 15 U.S.C. 78n(d)(6); 17 CFR 240.14(8) (1986). Finally, the offeror must pay the same price for all purchases; if the offering price is increased before the end of the offer, those who already have tendered must receive the benefit of the increased price. 78n(d)(7). </s> B </s> The Indiana Act differs in major respects from the Illinois statute that the Court considered in Edgar v. MITE Corp., 457 U.S. 624 (1982). After reviewing the legislative history of the Williams Act, JUSTICE WHITE, joined by Chief Justice Burger and JUSTICE BLACKMUN (the plurality), concluded that the Williams Act struck a careful balance between the interests of offerors and target companies, and that any state statute that "upset" this balance was pre-empted. Id., at 632-634. </s> The plurality then identified three offending features of the Illinois statute. JUSTICE WHITE's opinion first noted that the Illinois statute provided for a 20-day precommencement period. During this time, management could disseminate its views on the upcoming offer to shareholders, but offerors could not publish their offers. The plurality found that this provision gave management "a powerful tool to combat tender offers." Id., at 635. This contrasted dramatically with the Williams Act; Congress had deleted express precommencement notice provisions from the Williams Act. According to the plurality, Congress had determined that the potentially adverse consequences of such a provision on shareholders should be avoided. Thus, the plurality concluded that the Illinois provision "frustrate[d] the objectives of the Williams Act." Ibid. The second criticized feature of [481 U.S. 69, 81] the Illinois statute was a provision for a hearing on a tender offer that, because it set no deadline, allowed management "`to stymie indefinitely a takeover,'" id., at 637 (quoting MITE Corp. v. Dixon, 633 F.2d 486, 494 (CA7 1980)). The plurality noted that "`delay can seriously impede a tender offer,'" 457 U.S., at 637 (quoting Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1277 (CA5 1978) (Wisdom, J.)), and that "Congress anticipated that investors and the takeover offeror would be free to go forward without unreasonable delay," 457 U.S., at 639 . Accordingly, the plurality concluded that this provision conflicted with the Williams Act. The third troublesome feature of the Illinois statute was its requirement that the fairness of tender offers would be reviewed by the Illinois Secretary of State. Nothing that "Congress intended for investors to be free to make their own decisions," the plurality concluded that "`[t]he state thus offers investor protection at the expense of investor autonomy - an approach quite in conflict with that adopted by Congress.'" Id., at 639-640 (quoting MITE Corp. v. Dixon, supra, at 494). </s> C </s> As the plurality opinion in MITE did not represent the views of a majority of the Court, 6 we are not bound by its reasoning. We need not question that reasoning, however, because we believe the Indiana Act passes muster even under the broad interpretation of the Williams Act articulated by JUSTICE WHITE in MITE. As is apparent from our summary of its reasoning, the overriding concern of the [481 U.S. 69, 82] MITE plurality was that the Illinois statute considered in that case operated to favor management against offerors, to the detriment of shareholders. By contrast, the statute now before the Court protects the independent shareholder against the contending parties. Thus, the Act furthers a basic purpose of the Williams Act, "`plac[ing] investors on an equal footing with the takeover bidder,'" Piper v. Chris-Craft Industries, Inc., 430 U.S., at 30 (quoting the Senate Report accompanying the Williams Act, S. Rep. No. 550, 90th Cong., 1st Sess., 4 (1967)). 7 </s> The Indiana Act operates on the assumption, implicit in the Williams Act, that independent shareholders faced with tender offers often are at a disadvantage. By allowing such [481 U.S. 69, 83] shareholders to vote as a group, the Act protects them from the coercive aspects of some tender offers. If, for example, shareholders believe that a successful tender offer will be followed by a purchase of nontendering shares at a depressed price, individual shareholders may tender their shares - even if they doubt the tender offer is in the corporation's best interest - to protect themselves from being forced to sell their shares at a depressed price. As the SEC explains: "The alternative of not accepting the tender offer is virtual assurance that, if the offer is successful, the shares will have to be sold in the lower priced, second step." Two-Tier Tender Offer Pricing and Non-Tender Offer Purchase Programs, SEC Exchange Act Rel. No. 21079 (June 21, 1984), [1984 Transfer Binder] CCH Fed. Sec. L. Rep. § 83,637, p. 86,916 (footnote omitted) (hereinafter SEC Release No. 21079). See Lowenstein, Pruning Deadwood in Hostile Takeovers: A Proposal for Legislation, 83 Colum. L. Rev. 249, 307-309 (1983). In such a situation under the Indiana Act, the shareholders as a group, acting in the corporation's best interest, could reject the offer, although individual shareholders might be inclined to accept it. The desire of the Indiana Legislature to protect shareholders of Indiana corporations from this type of coercive offer does not conflict with the Williams Act. Rather, it furthers the federal policy of investor protection. </s> In implementing its goal, the Indiana Act avoids the problems the plurality discussed in MITE. Unlike the MITE statute, the Indiana Act does not give either management or the offeror an advantage in communicating with the shareholders about the impending offer. The Act also does not impose an indefinite delay on tender offers. Nothing in the Act prohibits an offeror from consummating an offer on the 20th business day, the earliest day permitted under applicable federal regulations, see 17 CFR 240.14e-1(a) (1986). Nor does the Act allow the state government to interpose its views of fairness between willing buyers and sellers of shares [481 U.S. 69, 84] of the target company. Rather, the Act allows shareholders to evaluate the fairness of the offer collectively. </s> D </s> The Court of Appeals based its finding of pre-emption on its view that the practical effect of the Indiana Act is to delay consummation of tender offers until 50 days after the commencement of the offer. 794 F.2d, at 263. As did the Court of Appeals, Dynamics reasons that no rational offeror will purchase shares until it gains assurance that those shares will carry voting rights. Because it is possible that voting rights will not be conferred until a shareholder meeting 50 days after commencement of the offer, Dynamics concludes that the Act imposes a 50-day delay. This, it argues, conflicts with the shorter 20-business-day period established by the SEC as the minimum period for which a tender offer may be held open. 17 CFR 240.14e-1 (1986). We find the alleged conflict illusory. </s> The Act does not impose an absolute 50-day delay on tender offers, nor does it preclude an offeror from purchasing shares as soon as federal law permits. If the offeror fears an adverse shareholder vote under the Act, it can make a conditional tender offer, offering to accept shares on the condition that the shares receive voting rights within a certain period of time. The Williams Act permits tender offers to be conditioned on the offeror's subsequently obtaining regulatory approval. E. g., Interpretive Release Relating to Tender Offer Rules, SEC Exchange Act Rel. No. 34-16623 (Mar. 5, 1980), 3 CCH Fed. Sec. L. Rep. § 24,284I, p. 17,758, quoted in MacFadden Holdings, Inc. v. JB Acquisition Corp., 802 F.2d 62, 70 (CA2 1986). 8 There is no reason to doubt that [481 U.S. 69, 85] this type of conditional tender offer would be legitimate as well. 9 </s> Even assuming that the Indiana Act imposes some additional delay, nothing in MITE suggested that any delay imposed by state regulation, however short, would create a conflict with the Williams Act. The plurality argued only that the offeror should "be free to go forward without unreasonable delay." 457 U.S., at 639 (emphasis added). In that case, the Court was confronted with the potential for indefinite delay and presented with no persuasive reason why some deadline could not be established. By contrast, the Indiana Act provides that full voting rights will be vested - if this eventually is to occur - within 50 days after commencement of the offer. This period is within the 60-day period Congress established for reinstitution of withdrawal rights in 15 U.S.C. 78n(d)(5). We cannot say that a delay within that congressionally determined period is unreasonable. </s> Finally, we note that the Williams Act would pre-empt a variety of state corporate laws of hitherto unquestioned validity if it were construed to pre-empt any state statute that may limit or delay the free exercise of power after a successful tender offer. State corporate laws commonly permit corporations to stagger the terms of their directors. See Model Business Corp. Act 37 (1969 draft) in 3 Model Business Corp. Act Ann. (2d ed. 1971) (hereinafter MBCA); American [481 U.S. 69, 86] Bar Foundation, Revised Model Business Corp. Act 8.06 (1984 draft) (1985) (hereinafter RMBCA). 10 By staggering the terms of directors, and thus having annual elections for only one class of directors each year, corporations may delay the time when a successful offeror gains control of the board of directors. Similarly, state corporation laws commonly provide for cumulative voting. See 1 MBCA 33, § 4; RMBCA 7.28. 11 By enabling minority shareholders to assure themselves of representation in each class of directors, cumulative voting provisions can delay further the ability of offerors to gain untrammeled authority over the affairs of the target corporation. See Hochman & Folger, Deflecting Takeovers: Charter and By-Law Techniques, 34 Bus. Law. 537, 538-539 (1979). </s> In our view, the possibility that the Indiana Act will delay some tender offers is insufficient to require a conclusion that the Williams Act pre-empts the Act. The longstanding prevalence of state regulation in this area suggests that, if Congress had intended to pre-empt all state laws that delay the acquisition of voting control following a tender offer, it would have said so explicitly. The regulatory conditions that the Act places on tender offers are consistent with the text and the purposes of the Williams Act. Accordingly, we [481 U.S. 69, 87] hold that the Williams Act does not pre-empt the Indiana Act. </s> III </s> As an alternative basis for its decision, the Court of Appeals held that the Act violates the Commerce Clause of the Federal Constitution. We now address this holding. On its face, the Commerce Clause is nothing more than a grant to Congress of the power "[t]o regulate Commerce . . . among the several States. . .," Art. I, 8, cl. 3. But it has been settled for more than a century that the Clause prohibits States from taking certain actions respecting interstate commerce even absent congressional action. See, e. g., Cooley v. Board of Wardens, 12 How. 299 (1852). The Court's interpretation of "these great silences of the Constitution," H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949), has not always been easy to follow. Rather, as the volume and complexity of commerce and regulation have grown in this country, the Court has articulated a variety of tests in an attempt to describe the difference between those regulations that the Commerce Clause permits and those regulations that it prohibits. See, e. g., Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 441 , n. 15 (1978). </s> A </s> The principal objects of dormant Commerce Clause scrutiny are statutes that discriminate against interstate commerce. See, e. g., Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 36 -37 (1980); Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). See generally Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091 (1986). The Indiana Act is not such a statute. It has the same effects on tender offers whether or not the offeror is a domiciliary or resident of Indiana. Thus, it "visits its effects equally upon both interstate and local business," Lewis v. BT Investment Managers, Inc., supra, at 36. [481 U.S. 69, 88] </s> Dynamics nevertheless contends that the statute is discriminatory because it will apply most often to out-of-state entities. This argument rests on the contention that, as a practical matter, most hostile tender offers are launched by offerors outside Indiana. But this argument avails Dynamics little. "The fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce." Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 126 (1978). See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 -472 (1981) (rejecting a claim of discrimination because the challenged statute "regulate[d] evenhandedly . . . without regard to whether the [commerce came] from outside the State"); Commonwealth Edison Co. v. Montana, 453 U.S. 609, 619 (1981) (rejecting a claim of discrimination because the "tax burden [was] borne according to the amount . . . consumed and not according to any distinction between instate and out-of-state consumers"). Because nothing in the Indiana Act imposes a greater burden on out-of-state offerors than it does on similarly situated Indiana offerors, we reject the contention that the Act discriminates against interstate commerce. </s> B </s> This Court's recent Commerce Clause cases also have invalidated statutes that may adversely affect interstate commerce by subjecting activities to inconsistent regulations. E. g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 583 -584 (1986); Edgar v. MITE Corp., 457 U.S., at 642 (plurality opinion of WHITE, J.); Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 671 (1981) (plurality opinion of POWELL, J.). See Southern Pacific Co. v. Arizona, 325 U.S. 761, 774 (1945) (noting the "confusion and difficulty" that would attend the "unsatisfied need for uniformity" in setting maximum limits on train lengths); Cooley v. Board of Wardens, supra, at 319 (stating that the Commerce Clause prohibits States from regulating [481 U.S. 69, 89] subjects that "are in their nature national, or admit only of one uniform system, or plan of regulation"). The Indiana Act poses no such problem. So long as each State regulates voting rights only in the corporations it has created, each corporation will be subject to the law of only one State. No principle of corporation law and practice is more firmly established than a State's authority to regulate domestic corporations, including the authority to define the voting rights of shareholders. See Restatement (Second) of Conflict of Laws 304 (1971) (concluding that the law of the incorporating State generally should "determine the right of a shareholder to participate in the administration of the affairs of the corporation"). Accordingly, we conclude that the Indiana Act does not create an impermissible risk of inconsistent regulation by different States. </s> C </s> The Court of Appeals did not find the Act unconstitutional for either of these threshold reasons. Rather, its decision rested on its view of the Act's potential to hinder tender offers. We think the Court of Appeals failed to appreciate the significance for Commerce Clause analysis of the fact that state regulation of corporate governance is regulation of entities whose very existence and attributes are a product of state law. As Chief Justice Marshall explained: </s> "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). </s> See First National Bank of Boston v. Bellotti, 435 U.S. 765, 822 -824 (1978) (REHNQUIST, J., dissenting). Every State in this country has enacted laws regulating corporate governance. [481 U.S. 69, 90] By prohibiting certain transactions, and regulating others, such laws necessarily affect certain aspects of interstate commerce. This necessarily is true with respect to corporations with shareholders in States other than the State of incorporation. Large corporations that are listed on national exchanges, or even regional exchanges, will have shareholders in many States and shares that are traded frequently. The markets that facilitate this national and international participation in ownership of corporations are essential for providing capital not only for new enterprises but also for established companies that need to expand their businesses. This beneficial free market system depends at its core upon the fact that a corporation - except in the rarest situations - is organized under, and governed by, the law of a single jurisdiction, traditionally the corporate law of the State of its incorporation. </s> These regulatory laws may affect directly a variety of corporate transactions. Mergers are a typical example. In view of the substantial effect that a merger may have on the shareholders' interests in a corporation, many States require supermajority votes to approve mergers. See, e. g., 2 MBCA 73 (requiring approval of a merger by a majority of all shares, rather than simply a majority of votes cast); RMBCA 11.03 (same). By requiring a greater vote for mergers than is required for other transactions, these laws make it more difficult for corporations to merge. State laws also may provide for "dissenters' rights" under which minority shareholders who disagree with corporate decisions to take particular actions are entitled to sell their shares to the corporation at fair market value. See, e. g., 2 MBCA 80, 81; RMBCA 13.02. By requiring the corporation to purchase the shares of dissenting shareholders, these laws may inhibit a corporation from engaging in the specified transactions. 12 </s> [481 U.S. 69, 91] </s> It thus is an accepted part of the business landscape in this country for States to create corporations, to prescribe their powers, and to define the rights that are acquired by purchasing their shares. A State has an interest in promoting stable relationships among parties involved in the corporations it charters, as well as in ensuring that investors in such corporations have an effective voice in corporate affairs. </s> There can be no doubt that the Act reflects these concerns. The primary purpose of the Act is to protect the shareholders of Indiana corporations. It does this by affording shareholders, when a takeover offer is made, an opportunity to decide collectively whether the resulting change in voting control of the corporation, as they perceive it, would be desirable. A change of management may have important effects on the shareholders' interests; it is well within the State's role as overseer of corporate governance to offer this opportunity. The autonomy provided by allowing shareholders collectively to determine whether the takeover is advantageous to their [481 U.S. 69, 92] interests may be especially beneficial where a hostile tender offer may coerce shareholders into tendering their shares. </s> Appellee Dynamics responds to this concern by arguing that the prospect of coercive tender offers is illusory, and that tender offers generally should be favored because they reallocate corporate assets into the hands of management who can use them most effectively. 13 See generally Easterbrook & Fischel, The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv. L. Rev. 1161 (1981). As indicated supra, at 82-83, Indiana's concern with tender offers is not groundless. Indeed, the potentially coercive aspects of tender offers have been recognized by the SEC, see SEC Release No. 21079, p. 86,916, and by a number of scholarly commentators, see, e. g., Bradley & Rosenzweig, Defensive Stock Repurchases, 99 Harv. L. Rev. 1377, 1412-1413 (1986); Macey & McChesney, A Theoretical Analysis of Corporate Greenmail, 95 Yale L. J. 13, 20-22 (1985); Lowenstein, 83 Colum. L. Rev., at 307-309. The Constitution does not require the States to subscribe to any particular economic theory. We are not inclined "to secondguess the empirical judgments of lawmakers concerning the utility of legislation," Kassel v. Consolidated Freightways Corp., 450 U.S., at 679 (BRENNAN, J., concurring in judgment). In our view, the possibility of coercion in some takeover bids offers additional justification for Indiana's decision to promote the autonomy of independent shareholders. [481 U.S. 69, 93] </s> Dynamics argues in any event that the State has "`no legitimate interest in protecting the nonresident shareholders.'" Brief for Appellee 21 (quoting Edgar v. MITE Corp., 457 U.S., at 644 ). Dynamics relies heavily on the statement by the MITE Court that "[i]nsofar as the . . . law burdens out-of-state transactions, there is nothing to be weighed in the balance to sustain the law." 457 U.S., at 644 . But that comment was made in reference to an Illinois law that applied as well to out-of-state corporations as to in-state corporations. We agree that Indiana has no interest in protecting nonresident shareholders of nonresident corporations. But this Act applies only to corporations incorporated in Indiana. We reject the contention that Indiana has no interest in providing for the shareholders of its corporations the voting autonomy granted by the Act. Indiana has a substantial interest in preventing the corporate form from becoming a shield for unfair business dealing. Moreover, unlike the Illinois statute invalidated in MITE, the Indiana Act applies only to corporations that have a substantial number of shareholders in Indiana. See Ind. Code 23-1-42-4(a)(3) (Supp. 1986). Thus, every application of the Indiana Act will affect a substantial number of Indiana residents, whom Indiana indisputably has an interest in protecting. </s> D </s> Dynamics' argument that the Act is unconstitutional ultimately rests on its contention that the Act will limit the number of successful tender offers. There is little evidence that this will occur. But even if true, this result would not substantially affect our Commerce Clause analysis. We reiterate that this Act does not prohibit any entity - resident or nonresident - from offering to purchase, or from purchasing, shares in Indiana corporations, or from attempting thereby to gain control. It only provides regulatory procedures designed for the better protection of the corporations' shareholders. We have rejected the "notion that the Commerce [481 U.S. 69, 94] Clause protects the particular structure or methods of operation in a . . . market." Exxon Corp. v. Governor of Maryland, 437 U.S., at 127 . The very commodity that is traded in the securities market is one whose characteristics are defined by state law. Similarly, the very commodity that is traded in the "market for corporate control" - the corporation - is one that owes its existence and attributes to state law. Indiana need not define these commodities as other States do; it need only provide that residents and nonresidents have equal access to them. This Indiana has done. Accordingly, even if the Act should decrease the number of successful tender offers for Indiana corporations, this would not offend the Commerce Clause. 14 </s> IV </s> On its face, the Indiana Control Share Acquisitions Chapter evenhandedly determines the voting rights of shares of Indiana corporations. The Act does not conflict with the provisions or purposes of the Williams Act. To the limited extent that the Act affects interstate commerce, this is justified by the State's interests in defining the attributes of shares in its corporations and in protecting shareholders. Congress has never questioned the need for state regulation of these matters. Nor do we think such regulation offends the Constitution. Accordingly, we reverse the judgment of the Court of Appeals. </s> It is so ordered. </s> Footnotes [Footnote 1 These thresholds are much higher than the 5% threshold acquisition requirement that brings a tender offer under the coverage of the Williams Act. See 15 U.S.C. 78n(d)(1). </s> [Footnote 2 "Interested shares" are shares with respect to which the acquiror, an officer, or an inside director of the corporation "may exercise or direct the exercise of the voting power of the corporation in the election of directors." 23-1-42-3. If the record date passes before the acquiror purchases shares pursuant to the tender offer, the purchased shares will not be "interested shares" within the meaning of the Act; although the acquiror may own the shares on the date of the meeting, it will not "exercise . . . the voting power" of the shares. </s> As a practical matter, the record date usually will pass before shares change hands. Under Securities and Exchange Commission (SEC) regulations, [481 U.S. 69, 74] the shares cannot be purchased until 20 business days after the offer commences. 17 CFR 240.14e-1(a) (1986). If the acquiror seeks an early resolution of the issue - as most acquirors will - the meeting required by the Act must be held no more than 50 calendar days after the offer commences, about three weeks after the earliest date on which the shares could be purchased. See 23-1-42-7. The Act requires management to give notice of the meeting "as promptly as reasonably practicable . . . to all shareholders of record as of the record date set for the meeting." 23-1-42-8(a). It seems likely that management of the target corporation would violate this obligation if it delayed setting the record date and sending notice until after 20 business days had passed. Thus, we assume that the record date usually will be set before the date on which federal law first permits purchase of the shares. </s> [Footnote 3 The United States and appellee Dynamics Corporation suggest that 23-1-42-9(b)(1) requires a second vote by all shareholders of record. Brief for SEC and United States as Amici Curiae 5, and n. 6; Brief for Appellee 2-3, and n. 5. Indiana disputes this interpretation of its Act. Brief for Appellant in No. 86-87, p. 29, n. Section 23-1-42-9(b)(1) provides: </s> "[T]he resolution must be approved by: </s> "(1) each voting group entitled to vote separately on the proposal by a majority of all the votes entitled to be cast by that voting group, with the holders of the outstanding shares of a class being entitled to vote as a separate voting group if the proposed control share acquisition would, if fully carried out, result in any of the changes described in [Indiana Code 23-1-38-4(a) (describing fundamental changes in corporate organization)]." </s> The United States contends that this section always requires a separate vote by all shareholders and that the last clause merely specifies that the vote shall be taken by separate groups if the acquisition would result in one of the listed transactions. Indiana argues that this section requires a separate vote only if the acquisition would result in one of the listed transactions. Because it is unnecessary to our decision, we express no opinion as to the appropriate interpretation of this section. </s> [Footnote 4 An "acquiring person statement" is an information statement describing, inter alia, the identity of the acquiring person and the terms and extent of the proposed acquisition. See 23-1-42-6. </s> [Footnote 5 CTS and Dynamics have settled several of the disputes associated with Dynamics' tender offer for shares of CTS. The case is not moot, however, because the judgment of this Court still affects voting rights in the shares Dynamics purchased pursuant to the offer. If we were to affirm, Dynamics would continue to exercise the voting rights it had under the judgment of the Court of Appeals that the Act was pre-empted and unconstitutional. Because we decide today to reverse the judgment of the Court of Appeals, Dynamics will have no voting rights in its shares unless shareholders of CTS grant those rights in a meeting held pursuant to the Act. See Settlement Agreement, p. 7, par. 12, reprinted in letter from James A. Strain, Counsel for CTS, to Joseph F. Spaniol, Jr., Clerk of the United States Supreme Court (Mar. 13, 1987). </s> [Footnote 6 JUSTICE WHITE's opinion on the pre-emption issue, 457 U.S., at 630 -640, was joined only by Chief Justice Burger and by JUSTICE BLACKMUN. Two Justice disagreed with JUSTICE WHITE's conclusion. See id., at 646-647 (POWELL, J., concurring in part); id., at 655 (STEVENS, J., concurring in part and concurring in judgment). Four Justices did not address the question. See id., at 655 (O'CONNOR, J., concurring in part); id., at 664 (MARSHALL, J., with whom BRENNAN, J., joined, dissenting); id., at 667 (REHNQUIST, J., dissenting). </s> [Footnote 7 Dynamics finds evidence of an intent to favor management in several features of the Act. It argues that the provision of the Act allowing management to opt into the Act, see 23-1-17-3(b), grants management a strategic advantage because tender offerors will be reluctant to take the expensive preliminary steps of a tender offer if they do not know whether their efforts will be subjected to the Act's requirements. But this provision is only a temporary option available for the first 17 months after enactment of the Act. The Indiana Legislature reasonably could have concluded that corporations should be allowed an interim period during which the Act would not apply automatically. Because of its short duration, the potential strategic advantage offered by the opportunity to opt into the Act during this transition period is of little significance. </s> The Act also imposes some added expenses on the offeror, requiring it, inter alia, to pay the costs of special shareholder meetings to vote on the transfer of voting rights, see 23-1-42-7(a). In our view, the expenses of such a meeting fairly are charged to the offeror. A corporation pays the costs of annual meetings that it holds to discuss its affairs. If an offeror - who has no official position with the corporation - desires a special meeting solely to discuss the voting rights of the offeror, it is not unreasonable to have the offeror pay for the meeting. </s> Of course, by regulating tender offers, the Act makes them more expensive and thus deters them somewhat, but this type of reasonable regulation does not alter the balance between management and offeror in any significant way. The principal result of the Act is to grant shareholders the power to deliberate collectively about the merits of tender offers. This result is fully in accord with the purposes of the Williams Act. </s> [Footnote 8 Although the SEC does not appear to have spoken authoritatively on this point, similar transactions are not uncommon. For example, Hanson Trust recently conditioned consummation of a tender offer for shares in SCM Corporation on the removal of a "lockup option" that would have seriously diminished the value of acquiring the shares of SCM Corporation. [481 U.S. 69, 85] See Hanson Trust PLC, HSCM v. ML SCM Acquisition Inc., ML L.B.O., 781 F.2d 264, 272, and n. 7 (CA2 1986). </s> [Footnote 9 Dynamics argues that conditional tender offers are not an adequate alternative because they leave management in place for three extra weeks, with "free rein to take other defensive steps that will diminish the value of tendered shares." Brief for Appellee 37. We reject this contention. In the unlikely event that management were to take actions designed to diminish the value of the corporation's shares, it may incur liability under state law. But this problem does not control our pre-emption analysis. Neither the Act nor any other federal statute can assure that shareholders do not suffer from the mismanagement of corporate officers and directors. Cf. Cort v. Ash, 422 U.S. 66, 84 (1975). </s> [Footnote 10 Every State except Arkansas and California allows classification of directors to stagger their terms of office. See 2 Model Business Corp. Act Ann. 8.06, p. 830 (3d ed., Supp. 1986). </s> [Footnote 11 "Cumulative voting is a means devised to protect minorities by providing a method of voting which assures to a minority, if it is sufficiently purposeful and cohesive, representation on the board of directors to an extent roughly proportionate to the minority's size. This is achieved by permitting each shareholder . . . to cast the total number of his votes for a single candidate for election to the board, or to distribute such total among any number of such candidates (the total number of his votes being equal to the number of shares he is voting multiplied by the number of directors to be elected)." 1 MBCA 33, § 4 comment. Every State permits cumulative voting. See 2 Model Business Corp. Act Ann. 7.28, pp. 675-677 (3d ed., Supp. 1986). </s> [Footnote 12 Numerous other common regulations may affect both nonresident and resident shareholders of a corporation. Specified votes may be required for the sale of all of the corporation's assets. See 2 MBCA 79; RMBCA [481 U.S. 69, 91] 12.02. The election of directors may be staggered over a period of years to prevent abrupt changes in management. See 1 MBCA 37; RMBCA 8.06. Various classes of stock may be created with differences in voting rights as to dividends and on liquidation. See 1 MBCA 15; RMBCA 6.01(c). Provisions may be made for cumulative voting. See 1 MBCA 33, § 4; RMBCA 7.28; n. 9, supra. Corporations may adopt restrictions on payment of dividends to ensure that specified ratios of assets to liabilities are maintained for the benefit of the holders of corporate bonds or notes. See 1 MBCA 45 (noting that a corporation's articles of incorporation can restrict payment of dividends); RMBCA 6.40 (same). Where the shares of a corporation are held in States other than that of incorporation, actions taken pursuant to these and similar provisions of state law will affect all shareholders alike wherever they reside or are domiciled. </s> Nor is it unusual for partnership law to restrict certain transactions. For example, a purchaser of a partnership interest generally can gain a right to control the business only with the consent of other owners. See Uniform Partnership Act 27, 6 U. L. A. 353 (1969); Uniform Limited Partnership Act 19 (1916 draft), 6 U. L. A. 603 (1969); Revised Uniform Limited Partnership Act 702, 704 (1976 draft), 6 U. L. A. 259, 261 (Supp. 1986). These provisions - in force in the great majority of the States - bear a striking resemblance to the Act at issue in this case. </s> [Footnote 13 It is appropriate to note when discussing the merits and demerits of tender offers that generalizations usually require qualification. No one doubts that some successful tender offers will provide more effective management or other benefits such as needed diversification. But there is no reason to assume that the type of conglomerate corporation that may result from repetitive takeovers necessarily will result in more effective management or otherwise be beneficial to shareholders. The divergent views in the literature - and even now being debated in the Congress - reflect the reality that the type and utility of tender offers vary widely. Of course, in many situations the offer to shareholders is simply a cash price substantially higher than the market price prior to the offer. </s> [Footnote 14 CTS also contends that the Act does not violate the Commerce Clause - regardless of any burdens it may impose on interstate commerce - because a corporation's decision to be covered by the Act is purely "private" activity beyond the reach of the Commerce Clause. Because we reverse the judgment of the Court of Appeals on other grounds, we have no occasion to consider this argument. </s> JUSTICE SCALIA, concurring in part and concurring in the judgment. </s> I join Parts I, III-A, and III-B of the Court's opinion. However, having found, as those Parts do, that the Indiana [481 U.S. 69, 95] Control Share Acquisitions Chapter neither "discriminates against interstate commerce," ante, at 88, nor "create[s] an impermissible risk of inconsistent regulation by different States," ante, at 89, I would conclude without further analysis that it is not invalid under the dormant Commerce Clause. While it has become standard practice at least since Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), to consider, in addition to these factors, whether the burden on commerce imposed by a state statute "is clearly excessive in relation to the putative local benefits," id., at 142, such an inquiry is ill suited to the judicial function and should be undertaken rarely if at all. This case is a good illustration of the point. Whether the control shares statute "protects shareholders of Indiana corporations," Brief for Appellant in No. 86-97, p. 88, or protects incumbent management seems to me a highly debatable question, but it is extraordinary to think that the constitutionality of the Act should depend on the answer. Nothing in the Constitution says that the protection of entrenched management is any less important a "putative local benefit" than the protection of entrenched shareholders, and I do not know what qualifies us to make that judgment - or the related judgment as to how effective the present statute is in achieving one or the other objective - or the ultimate (and most ineffable) judgment as to whether, given importance-level x, and effectiveness-level y, the worth of the statute is "outweighed" by impact-on-commerce z. </s> One commentator has suggested that, at least much of the time, we do not in fact mean what we say when we declare that statutes which neither discriminate against commerce nor present a threat of multiple and inconsistent burdens might nonetheless be unconstitutional under a "balancing" test. See Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091 (1986). If he is not correct, he ought to be. As long as a State's corporation law governs only its own corporations and does not discriminate against out-of-state interests, it should survive this Court's scrutiny under [481 U.S. 69, 96] the Commerce Clause, whether it promotes shareholder welfare or industrial stagnation. Beyond that, it is for Congress to prescribe its invalidity. </s> I also agree with the Court that the Indiana Control Share Acquisitions Chapter is not pre-empted by the Williams Act, but I reach that conclusion without entering into the debate over the purposes of the two statutes. The Williams Act is governed by the antipre-emption provision of the Securities Exchange Act of 1934, 15 U.S.C. 78bb(a), which provides that nothing it contains "shall affect the jurisdiction of the securities commission (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder." Unless it serves no function, that language forecloses pre-emption on the basis of conflicting "purpose" as opposed to conflicting "provision." Even if it does not have literal application to the present case (because, perhaps, the Indiana agency responsible for securities matters has no enforcement responsibility with regard to this legislation), it nonetheless refutes the proposition that Congress meant the Williams Act to displace all state laws with conflicting purpose. And if any are to survive, surely the States' corporation codes are among them. It would be peculiar to hold that Indiana could have pursued the purpose at issue here through its blue-sky laws, but cannot pursue it through the State's even more sacrosanct authority over the structure of domestic corporations. Prescribing voting rights for the governance of state-chartered companies is a traditional state function with which the Federal Congress has never, to my knowledge, intentionally interfered. I would require far more evidence than is available here to find implicit pre-emption of that function by a federal statute whose provisions concededly do not conflict with the state law. </s> I do not share the Court's apparent high estimation of the beneficence of the state statute at issue here. But a law can [481 U.S. 69, 97] be both economic folly and constitutional. The Indiana Control Share Acquisitions Chapter is at least the latter. I therefore concur in the judgment of the Court. </s> JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join as to Part II, dissenting. </s> The majority today upholds Indiana's Control Share Acquisitions Chapter, a statute which will predictably foreclose completely some tender offers for stock in Indiana corporations. I disagree with the conclusion that the Chapter is neither pre-empted by the Williams Act nor in conflict with the Commerce Clause. The Chapter undermines the policy of the Williams Act by effectively preventing minority shareholders, in some circumstances, from acting in their own best interests by selling their stock. In addition, the Chapter will substantially burden the interstate market in corporate ownership, particularly if other States follow Indiana's lead as many already have done. The Chapter, therefore, directly inhibits interstate commerce, the very economic consequences the Commerce Clause was intended to prevent. The opinion of the Court of Appeals is far more persuasive than that of the majority today, and the judgment of that court should be affirmed. </s> I </s> The Williams Act expressed Congress' concern that individual investors be given sufficient information so that they could make an informed choice on whether to tender their stock in response to a tender offer. The problem with the approach the majority adopts today is that it equates protection of individual investors, the focus of the Williams Act, with the protection of shareholders as a group. Indiana's Control Share Acquisitions Chapter undoubtedly helps protect the interests of a majority of the shareholders in any corporation subject to its terms, but in many instances, it will effectively prevent an individual investor from selling his stock at a premium. Indiana's statute, therefore, does not [481 U.S. 69, 98] "furthe[r] the federal policy of investor protection," ante, at 83 (emphasis added), as the majority claims. </s> In discussing the legislative history of the Williams Act, the Court, in Piper v. Chris-Craft Industries, Inc., 430 U.S. 1 (1977), looked to the legislative history of the Williams Act and concluded that the Act was designed to protect individual investors, not management and not tender offerors: "The sponsors of this legislation were plainly sensitive to the suggestion that the measure would favor one side or the other in control contests; however, they made it clear that the legislation was designed solely to get needed information to the investor, the constant focal point of the committee hearings." Id., at 30-31. The Court specifically noted that the Williams Act's legislative history shows that Congress recognized that some "takeover bids . . . often serve a useful function." Id., at 30. As quoted by the majority, ante, at 82, the basic purpose of the Williams Act is "`plac[ing] investors on an equal footing with the takeover bidder.'" Piper, supra, at 30 (emphasis added). </s> The Control Share Acquisitions Chapter, by design, will frustrate individual investment decisions. Concededly, the Control Share Acquisitions Chapter allows the majority of a corporation's shareholders to block a tender offer and thereby thwart the desires of an individual investor to sell his stock. In the context of discussing how the Chapter can be used to deal with the coercive aspects of some tender offers, the majority states: "In such a situation under the Indiana Act, the shareholders as a group, acting in the corporation's best interest, could reject the offer, although individual shareholders might be inclined to accept it." Ante, at 83. I do not dispute that the Chapter provides additional protection for Indiana corporations, particularly in helping those corporations maintain the status quo. But it is clear to me that Indiana's scheme conflicts with the Williams Act's careful balance, which was intended to protect individual investors and permit them to decide whether it is in their best interests [481 U.S. 69, 99] to tender their stock. As noted by the plurality in MITE, "Congress . . . did not want to deny shareholders `the opportunities which result from the competitive bidding for a block of stock of a given company,' namely, the opportunity to sell shares for a premium over their market price. 113 Cong. Rec. 24666 (1967) (remarks of Sen. Javits)." Edgar v. MITE Corp., 457 U.S. 624, 633 , n. 9 (1982). </s> The majority claims that if the Williams Act pre-empts Indiana's Control Share Acquisitions Chapter, it also pre-empts a number of other corporate-control provisions such as cumulative voting or staggering the terms of directors. But this view ignores the fundamental distinction between these other corporate-control provisions and the Chapter: unlike those other provisions, the Chapter is designed to prevent certain tender offers from ever taking place. It is transactional in nature, although it is characterized by the State as involving only the voting rights of certain shares. "[T]his Court is not bound by `[t]he name, description or characterization given [a challenged statute] by the legislature or the courts of the State,' but will determine for itself the practical impact of the law." Hughes v. Oklahoma, 441 U.S. 322, 336 (1979) (quoting Lacoste v. Louisiana Dept. of Conservation, 263 U.S. 545, 550 (1924)). The Control Share Acquisitions Chapter will effectively prevent minority shareholders in some circumstances from selling their stock to a willing tender offeror. It is the practical impact of the Chapter that leads to the conclusion that it is pre-empted by the Williams Act. </s> II </s> Given the impact of the Control Share Acquisitions Chapter, it is clear that Indiana is directly regulating the purchase and sale of shares of stock in interstate commerce. Appellant CTS' stock is traded on the New York Stock Exchange, and people from all over the country buy and sell CTS' shares daily. Yet, under Indiana's scheme, any prospective purchaser will be effectively precluded from purchasing CTS' [481 U.S. 69, 100] shares if the purchaser crosses one of the Chapter's threshold ownership levels and a majority of CTS' shareholders refuse to give the purchaser voting rights. This Court should not countenance such a restraint on interstate trade. </s> The United States, as amicus curiae, argues that Indiana's Control Share Acquisitions Chapter "is written as a restraint on the transferability of voting rights in specified transactions, and it could not be written in any other way without changing its meaning. Since the restraint on the transfer of voting rights is a restraint on the transfer of shares, the Indiana Chapter, like the Illinois Act [in MITE], restrains `transfers of stock by stockholders to a third party.'" Brief for Securities and Exchange Commission and United States as Amici Curiae 26. I agree. The majority ignores the practical impact of the Chapter in concluding that the Chapter does not violate the Commerce Clause. The Chapter is characterized as merely defining "the attributes of shares in its corporations," ante, at 94. The majority sees the trees but not the forest. </s> The Commerce Clause was included in our Constitution by the Framers to prevent the very type of economic protectionism Indiana's Control Share Acquisitions Chapter represents: </s> "The few simple words of the Commerce Clause - `The Congress shall have Power . . . To regulate Commerce . . . among the several States . . .' - reflected 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, supra, at 325-326. </s> The State of Indiana, in its brief, admits that at least one of the Chapter's goals is to protect Indiana corporations. The State notes that the Chapter permits shareholders "to determine [481 U.S. 69, 101] . . . whether [a tender offeror] will liquidate the company or remove it from the State." Brief for Appellant in No. 86-97, p. 19. The State repeats this point later in its brief: "The Statute permits shareholders (who may also be community residents or employees or suppliers of the corporation) to determine the intentions of any offeror concerning the liquidation of the company or its possible removal from the State." Id., at 90. A state law which permits a majority of an Indiana corporation's stockholders to prevent individual investors, including out-of-state stockholders, from selling their stock to an out-of-state tender offeror and thereby frustrate any transfer of corporate control, is the archetype of the kind of state law that the Commerce Clause forbids. </s> Unlike state blue sky laws, Indiana's Control Share Acquisitions Chapter regulates the purchase and sale of stock of Indiana corporations in interstate commerce. Indeed, as noted above, the Chapter will inevitably be used to block interstate transactions in such stock. Because the Commerce Clause protects the "interstate market" in such securities, Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 127 (1978), and because the Control Share Acquisitions Chapter substantially interferes with this interstate market, the Chapter clearly conflicts with the Commerce Clause. </s> With all due respect, I dissent. </s> [481 U.S. 69, 102]

United States Supreme Court SCHWEIKER v. McCLURE(1982) No. 81-212 Argued: March 1, 1982Decided: April 20, 1982 </s> Part B of the Medicare program under the Social Security Act provides federally subsidized insurance against the cost of certain physician services, outpatient physical therapy, X-rays, laboratory tests, and certain other medical and health care. The Secretary of Health and Human Services is authorized to contract with private insurance carriers to administer the payment of Part B claims. If the carrier refuses on the Secretary's behalf to pay a portion of a claim, the claimant is entitled to a "review determination," based on the submission of written evidence and arguments, and, if the amount in dispute is $100 or more, a still-dissatisfied claimant then has a right to an oral hearing, at which an officer chosen by the carrier presides. The statute and regulations make no further provision for review of the hearing officer's decision. After decisions by hearing officers were rendered against them, appellee claimants sued in Federal District Court to challenge the constitutional adequacy of the hearings afforded to them. The court held that the hearing procedures violated appellees' rights to due process insofar as the final, unappealable decision regarding their claims was made by carrier appointees, that due process required additional safeguards to reduce the risk of erroneous deprivation of Part B benefits, and that appellees were entitled to a de novo hearing conducted by an administrative law judge of the Social Security Administration. </s> Held: </s> The hearing procedures in question do not violate due process requirements. Pp. 195-200. </s> (a) While due process demands impartiality on the part of those who function in a quasi-judicial capacity, such as the hearing officers involved in this case, there is a presumption that these officers are unbiased. This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. But the factual findings here disclose no disqualifying interest. The officers' connection with the private insurance carriers would be relevant only if the carriers themselves are biased or interested, and there is no basis in the record for such a conclusion. The carriers pay Part B claims from federal, not their own, funds, the hearing officers' salaries are paid by the Federal Government, and the carriers operate under contracts requiring compliance with standards prescribed by the statute and the [456 U.S. 188, 189] Secretary. In the absence of proof of financial interest on the carriers' part, there is no basis for assuming a derivative bias among their hearing officers. Pp. 195-197. </s> (b) Nor does the record support the contention that accuracy of Part B decisionmaking may suffer because the carriers appoint unqualified hearing officers and that thus additional procedures would reduce the risk of erroneous decisions. Pp. 198-200. </s> 503 F. Supp. 409, reversed and remanded. </s> POWELL, J., delivered the opinion for a unanimous court. </s> Deputy Solicitor General Geller argued the cause for appellant. With him on the briefs were Solicitor General Lee, Edwin S. Kneedler, Lynne K. Zusman, Robert P. Jaye, and Henry Eigles. </s> Harvey Sohnen argued the cause for appellees. With him on the brief were Stefan M. Rosenzweig, Clifford Sweet, Sally Hart Wilson, and Gill Deford. * </s> [Footnote * Briefs of amici curiae urging affirmance were filed by David R. Brink for the American Bar Association; and by Mary Ellen McCarthy for Coalition of Senior Citizens, Inc., et al. </s> JUSTICE POWELL delivered the opinion of the Court. </s> The question is whether Congress, consistently with the requirements of due process, may provide that hearings on disputed claims for certain Medicare payments be held by private insurance carriers, without a further right of appeal. </s> I </s> Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U.S.C. 1395 et seq. (1976 ed. and Supp. IV), commonly known as the Medicare program, is administered by the Secretary of Health and Human Services. It consists of two parts. Part A, which is not at issue in this case, provides insurance against the cost of institutional health services, such as hospital and nursing home fees. 1395c-1395i-2 (1976 ed. and Supp. IV). Part B is entitled "Supplementary [456 U.S. 188, 190] Medical Insurance Benefits for the Aged and Disabled." It covers a portion (typically 80%) of the cost of certain physician services, outpatient physical therapy, X-rays, laboratory tests, and other medical and health care. See 1395k, 1395l, and 1395x(s) (1976 ed. and Supp. IV). Only persons 65 or older or disabled may enroll, and eligibility does not depend on financial need. Part B is financed by the Federal Supplementary Medical Insurance Trust Fund. See 1395t (1976 ed. and Supp. IV). This Trust Fund in turn is funded by appropriations from the Treasury, together with monthly premiums paid by the individuals who choose voluntarily to enroll in the Part B program. See 1395j, 1395r, and 1395w (1976 ed. and Supp. IV). Part B consequently resembles a private medical insurance program that is subsidized in major part by the Federal Government. </s> Part B is a social program of substantial dimensions. More than 27 million individuals presently participate, and the Secretary pays out more than $10 billion in benefits annually. Brief for Appellant 9. In 1980, 158 million Part B claims were processed. Ibid. In order to make the administration of this sweeping program more efficient, Congress authorized the Secretary to contract with private insurance carriers to administer on his behalf the payment of qualifying Part B claims. See 42 U.S.C. 1395u (1976 ed. and Supp. IV). (In this case, for instance, the private carriers that performed these tasks in California for the Secretary were Blue Shield of California and the Occidental Insurance Co.) The congressional design was to take advantage of such insurance carriers' "great experience in reimbursing physicians." H. R. Rep. No. 213, 89th Cong., 1st Sess., 46 (1965). See also 42 U.S.C. 1395u(a); S. Rep. No. 404, 89th Cong., 1st Sess., 53 (1965). </s> The Secretary pays the participating carriers' costs of claims administration. See 42 U.S.C. 1395u(c). In return, the carriers act as the Secretary's agents. See 42 CFR 421.5(b) (1980). They review and pay Part B claims for the [456 U.S. 188, 191] Secretary according to a precisely specified process. See 42 CFR part 405, subpart H (1980). Once the carrier has been billed for a particular service, it decides initially whether the services were medically necessary, whether the charges are reasonable, and whether the claim is otherwise covered by Part B. See 42 U.S.C. 1395y(a) (1976 ed. and Supp. IV); 42 CFR 405.803(b) (1980). If it determines that the claim meets all these criteria, the carrier pays the claim out of the Government's Trust Fund - not out of its own pocket. See 42 U.S.C. 1395u(a)(1), 1395u(b)(3), and 1395u(c) (1976 ed. and Supp. IV). </s> Should the carrier refuse on behalf of the Secretary to pay a portion of the claim, the claimant has one or more opportunities to appeal. First, all claimants are entitled to a "review determination," in which they may submit written evidence and arguments of fact and law. A carrier employee, other than the initial decisionmaker, will review the written record de novo and affirm or adjust the original determination. 42 CFR 405.807-405.812 (1980); McClure v. Harris, 503 F. Supp. 409, 411 (ND Cal. 1980). If the amount in dispute is $100 or more, a still-dissatisfied claimant then has a right to an oral hearing. See 42 U.S.C. 1395u(b)(3)(C); 42 CFR 405.820-405.860 (1980). An officer chosen by the carrier presides over this hearing. 405.823. The hearing officers "do not participate personally, prior to the hearing [stage], in any case [that] they adjudicate." 503 F. Supp., at 414. See 42 CFR 405.824 (1980). </s> Hearing officers receive evidence and hear arguments pertinent to the matters at issue. 405.830. As soon as practicable thereafter, they must render written decisions based on the record. 405.834. Neither the statute nor the regulations make provision for further review of the hearing officer's decision. 1 See United States v. Erika, Inc., post, p. 201. [456 U.S. 188, 192] </s> II </s> This case arose as a result of decisions by hearing officers against three claimants. 2 The claimants, here appellees, sued to challenge the constitutional adequacy of the hearings afforded them. The District Court for the Northern District of California certified appellees as representatives of a nationwide class of individuals whose claims had been denied by carrier-appointed hearing officers. 503 F. Supp., at 412-414. On cross-motions for summary judgment, the court concluded that the Part B hearing procedures violated appellees' right to due process "insofar as the final, unappealable decision regarding claims disputes is made by carrier appointees . . . ." Id., at 418. </s> The court reached its conclusion of unconstitutionality by alternative lines of argument. The first rested upon the principle that tribunals must be impartial. The court thought that the impartiality of the carrier's hearing officers was compromised by their "prior involvement and pecuniary interest." Id., at 414. "Pecuniary interest" was shown, the District Court said, by the fact that "their incomes as hearing officers are entirely dependent upon the carrier's decisions regarding whether, and how often, to call upon their services." 3 Id., at 415. Respecting "prior involvement," the [456 U.S. 188, 193] court acknowledged that hearing officers personally had not been previously involved in the cases they decided. But it noted that hearing officers "are appointed by, and serve at the will of, the carrier [that] has not only participated in the prior stages of each case, but has twice denied the claims [that] are the subject of the hearing," and that five out of seven of Blue Shield's past and present hearing officers "are former or current Blue Shield employees." 4 Id., at 414. (Emphasis in original.) See also 42 CFR 405.824 (1980). The District Court thought these links between the carriers and their hearing officers sufficient to create a constitutionally intolerable risk of hearing officer bias against claimants. </s> The District Court's alternative reasoning assessed the costs and benefits of affording claimants a hearing before one of the Secretary's administrative law judges, "either subsequent to or substituting for the hearing conducted by a carrier appointee." 503 F. Supp., at 415. The court noted that Mathews v. Eldridge, 424 U.S. 319, 335 (1976), makes three factors relevant to such an inquiry: </s> "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, [456 U.S. 188, 194] including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." </s> Considering the first Mathews factor, the court listed three considerations tending to show that the private interest at stake was not overwhelming. 5 The court then stated, however, that "it cannot be gainsaid" that denial of a Medicare beneficiary's claim to reimbursement may impose "considerable hardship." 503 F. Supp., at 416. </s> As to the second Mathews factor of risk of erroneous deprivation and the probable value of added process, the District Court found the record "inconclusive." 503 F. Supp., at 416. The court cited statistics showing that the two available Part B appeal procedures frequently result in reversal of the carriers' original disposition. 6 But it criticized these statistics for failing to distinguish between partial and total reversals. The court stated that hearing officers were required neither to receive training nor to satisfy "threshold criteria such as having a law degree." Ibid. On this basis it held that "it must be assumed that additional safeguards would reduce the risk of erroneous deprivation of Part B benefits." Ibid. </s> On the final Mathews factor involving the Government's interest, the District Court noted that carriers processed 124 million Part B claims in 1978. 503 F. Supp., at 416. The court stated that "[o]nly a fraction of those claimants pursue their currently-available appeal remedies," and that "there is no indication that anything but an even smaller group of claimants will actually pursue [an] additional remedy" of appeal [456 U.S. 188, 195] to the Secretary. Ibid. Moreover, the court said, the Secretary already maintained an appeal procedure using administrative law judges for appeals by Part A claimants. Increasing the number of claimants who could use this Part A administrative appeal "would not be a cost-free change from the status quo, but neither should it be a costly one." Ibid. </s> Weighing the three Mathews factors, the court concluded that due process required additional procedural protection over that presently found in the Part B hearing procedure. The court ordered that the appellees were entitled to a de novo hearing of record conducted by an administrative law judge of the Social Security Administration. 7 App. to Juris. Statement 36a. We noted probable jurisdiction, 454 U.S. 890 (1981), and now reverse. </s> III </s> A </s> The hearing officers involved in this case serve in a quasi-judicial capacity, similar in many respects to that of administrative law judges. As this Court repeatedly has recognized, due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities. E. g., Marshall v. Jerrico, Inc., 446 U.S. 238, 242 -243, and n. 2 (1980). We must start, however, from the presumption that the hearing officers who decide Part B claims are unbiased. See Withrow v. Larkin, 421 U.S. 35, 47 (1975); United States v. Morgan, 313 U.S. 409, 421 (1941). This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. 8 See Gibson [456 U.S. 188, 196] v. Berryhill, 411 U.S. 564, 578 -579 (1973); Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972). See also In re Murchison, 349 U.S. 133, 136 (1955) ("to perform its high function in the best way `justice must satisfy the appearance of justice' ") (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). But the burden of establishing a disqualifying interest rests on the party making the assertion. </s> Fairly interpreted, the factual findings made in this case do not reveal any disqualifying interest under the standard of our cases. The District Court relied almost exclusively on generalized assumptions of possible interest, placing special weight on the various connections of the hearing officers with the private insurance carriers. 9 The difficulty with this reasoning is that these connections would be relevant only if the carriers themselves are biased or interested. We find no basis in the record for reaching such a conclusion. 10 As previously noted, the carriers pay all Part B claims from federal, and not their own, funds. Similarly, the salaries of the hearing officers are paid by the Federal Government. Cf. Marshall [456 U.S. 188, 197] v. Jerrico, Inc., supra, at 245, 251. Further, the carriers operate under contracts that require compliance with standards prescribed by the statute and the Secretary. See 42 U.S.C. 1395u(a)(1)(A)-(B), 1395u(b)(3), and 1395u(b) (4) (1976 ed. and Supp. IV); 42 CFR 421.200, 421.202, and 421.205(a) (1980). In the absence of proof of financial interest on the part of the carriers, there is no basis for assuming a derivative bias among their hearing officers. 11 </s> [456 U.S. 188, 198] </s> B </s> Appellees further argued, and the District Court agreed, that due process requires an additional administrative or judicial review by a Government rather than a carrier-appointed hearing officer. Specifically, the District Court ruled that "[e]xisting Part B procedures might remain intact so long as aggrieved beneficiaries would be entitled to appeal carrier appointees' decisions to Part A administrative law judges." 12 503 F. Supp., at 417. In reaching this conclusion, the District Court applied the familiar test prescribed in Mathews v. Eldridge, 424 U.S., at 335 . See supra, at 193-195. We may assume that the District Court was correct in viewing the private interest in Part B payments as "considerable," though "not quite as precious as the right to receive welfare or social security benefits." 503 F. Supp., at 416. We likewise may assume, in considering the third Mathews factor, that the additional cost and inconvenience of providing administrative law judges would not be unduly burdensome. 13 </s> We focus narrowly on the second Mathews factor that considers the risk of erroneous decision and the probable value, if any, of the additional procedure. The District Court's reasoning on this point consisted only of this sentence: </s> "In light of [appellees'] undisputed showing that carrier-appointed hearing officers receive little or no formal training and are not required to satisfy any threshold criteria [456 U.S. 188, 199] such as having a law degree, it must be assumed that additional safeguards would reduce the risk of erroneous deprivation of Part B benefits." 503 F. Supp., at 416 (footnote omitted). </s> Again, the record does not support these conclusions. The Secretary has directed carriers to select as a hearing officer </s> "`an attorney or other qualified individual with the ability to conduct formal hearings and with a general understanding of medical matters and terminology. The [hearing officer] must have a thorough knowledge of the Medicare program and the statutory authority and regulations upon which it is based, as well as rulings, policy statements, and general instructions pertinent to the Medicare Bureau.'" App. 22, quoting Dept. of HEW, Medicare Part B Carriers Manual, ch. VII, p. 12-21 (1980) (emphasis added). </s> The District Court did not identify any specific deficiencies in the Secretary's selection criteria. By definition, a "qualified" individual already possessing "ability" and "thorough knowledge" would not require further training. The court's further general concern that hearing officers "are not required to satisfy any threshold criteria" overlooks the Secretary's quoted regulation. 14 Moreover, the District Court apparently gave no weight to the qualifications of hearing officers about whom there is information in the record. Their qualifications tend to undermine rather than to support [456 U.S. 188, 200] the contention that accuracy of Part B decisionmaking may suffer by reason of carrier appointment of unqualified hearing officers. 15 </s> "[D]ue Process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). We have considered appellees' claims in light of the strong presumption in favor of the validity of congressional action and consistently with this Court's recognition of "congressional solicitude for fair procedure . . . ." Califano v. Yamasaki, 442 U.S. 682, 693 (1979). Appellees simply have not shown that the procedures prescribed by Congress and the Secretary are not fair or that different or additional procedures would reduce the risk of erroneous deprivation of Part B benefits. </s> IV </s> The judgment of the District Court is reversed, and the case is remanded for judgment to be entered for the Secretary. </s> So ordered. </s> Footnotes [Footnote 1 Hearing officers may decide to reopen proceedings under certain circumstances. See 42 CFR 405.841-405.850 (1980). </s> [Footnote 2 Appellee William McClure was denied partial reimbursement for the cost of an air ambulance to a specially equipped hospital. The hearing officer determined that the air ambulance was necessary, but that McClure could have been taken to a hospital closer to home. Appellee Charles Shields was allowed reimbursement for a cholecystectomy but was denied reimbursement for an accompanying appendectomy. The hearing officer reasoned that the appendectomy was merely incidental to the cholecystectomy. Appellee "Ann Doe" was denied reimbursement for the entire cost of a sex-change operation. The hearing officer ruled that the operation was not medically necessary. </s> [Footnote 3 The District Court recognized that hearing officer salaries are paid from a federal fund and not the carrier's resources. McClure v. Harris, 503 F. Supp. 409, 415 (1980). </s> [Footnote 4 In this connection, the court referred to the judicial canon requiring a judge to disqualify himself from cases where a "`lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.'" 503 F. Supp., at 414-415, quoting Judicial Conference of the United States, Code of Judicial Conduct, Canon 3C(1)(b). The court found that application to hearing officers of standards more lax than those applicable to the judiciary posed "a constitutionally-unacceptable risk of decisions tainted by bias." 503 F. Supp., at 415. </s> Additionally, the court thought it significant that "no meaningful, specific selection criteria govern[ed] the appointment of hearing officers" and that hearing officers were trained largely by the carriers whose decisions they were called upon to review. Ibid. </s> [Footnote 5 "Eligibility for Part B Medicare benefits is not based on financial need. Part B covers supplementary rather than primary services. Denial of a particular claim in a particular case does not deprive the claimant of reimbursement for other, covered, medical expenses." Id., at 416. </s> [Footnote 6 "[Appellant] establish[es] that between 1975 and 1978, carriers wholly or partially reversed, upon `review determination,' their initial determinations in 51-57 percent of the cases considered. Of the adverse determination decisions brought before hearing officers, 42-51 percent of the carriers' decisions were reversed in whole or in part." Ibid. </s> [Footnote 7 The court added that appellees "are not entitled to further appeal or review of the Administrative Law Judge's decision." App. to Juris. Statement 36a. </s> [Footnote 8 The Secretary's regulations provide for the disqualification of hearing officers for prejudice and other reasons. See 42 CFR 405.824 (1980); App. 23-25. Appellees neither sought to disqualify their hearing officers nor presently make claims of actual bias. Tr. of Oral Arg. 34 (argument of counsel for appellees). </s> [Footnote 9 Before this Court, appellees urge that the Secretary himself is biased in favor of inadequate Part B awards. They attempt to document this assertion - not mentioned by the District Court - by relying on the fact that the Secretary both has helped carriers identify medical providers who allegedly bill for more services than are medically necessary and has warned carriers to control overutilization of medical services. See Brief for Appellees 17-18. </s> This action by the Secretary is irrelevant. It simply shows that he takes seriously his statutory duty to ensure that only qualifying Part B claims are paid. See 42 U.S.C. 1395y(a) (1976 ed. and Supp. IV); 42 CFR 405.803(b) (1980). It does not establish that the Secretary has sought to discourage payment of Part B claims that do meet Part B requirements. Such an effort would violate Congress' direction. Absent evidence, it cannot be presumed. </s> [Footnote 10 Similarly, appellees adduced no evidence to support their assertion that, for reasons of psychology, institutional loyalty, or carrier coercion, hearing officers would be reluctant to differ with carrier determinations. Such assertions require substantiation before they can provide a foundation for invalidating an Act of Congress. </s> [Footnote 11 The District Court's analogy to judicial canons, see n. 4, supra, is not apt. The fact that a hearing officer is or was a carrier employee does not create a risk of partiality analogous to that possibly arising from the professional relationship between a judge and a former partner or associate. </s> We simply have no reason to doubt that hearing officers will do their best to obey the Secretary's instruction manual: </s> "`The individual selected to act in the capacity of [hearing officer] must not have been involved in any way with the determination in question and neither have advised nor given consultation on any request for payment which is a basis for the hearing. Since the hearings are of a nonadversary nature, be particularly responsive to the needs of unrepresented parties and protect the claimant's rights, even if the claimant is represented by counsel. The parties' interests must be safeguarded to the full extent of their rights; in like manner, the government's interest must be protected. </s> "`The [hearing officer] should conduct the hearing with dignity and exercise necessary control and order. . . . The [hearing officer] must make independent and impartial decisions, write clear and concise statements of facts and law, secure facts from individuals without causing unnecessary friction, and be objective and free of any influence which might affect impartial judgment as to the facts, while being particularly patient with older persons and those with physical or mental impairments. </s> . . . . . </s> "`The [hearing officer] must be cognizant of the informal nature of a Part B hearing . . . . The hearing is nonadversary in nature in that neither the carrier nor the Medicare Bureau is in opposition to the party but is interested only in seeing that a proper decision is made.'" App. 22, 31-32, quoting Dept. of HEW, Medicare Part B Carriers Manual, ch. XII, pp. 12-21, 12-29 (1980). Cf. Richardson v. Perales, 402 U.S. 389, 403 (1971) ("congressional plan" is that social security administrative system will operate essentially "as an adjudicator and not as an advocate or adversary"). </s> [Footnote 12 The claim determination and appeal process available for Part A claims differs from the Part B procedure. See generally 42 CFR part 405, sub-part G (1980), as amended, 45 Fed. Reg. 73932-73933 (1980). See also United States v. Erika, Inc., post, at 206-207, and nn. 8 and 9. </s> [Footnote 13 No authoritative factual findings were made, and perhaps this conclusion would have been difficult to prove. It is known that in 1980 about 158 million Part B claims - up from 124 million in 1978 - were filed. Even though the additional review would be available only for disputes in excess of $100, a small percentage of the number of claims would be large in terms of number of cases. </s> [Footnote 14 The District Court's opinion may be read as requiring that hearing officers always be attorneys. Our cases, however, make clear that due process does not make such a uniform requirement. See Vitek v. Jones, 445 U.S. 480, 499 (1980) (POWELL, J., concurring in part); Parham v. J. R., 442 U.S. 584, 607 (1979); Morrissey v. Brewer, 408 U.S. 471, 486 , 489 (1972). Cf. Goldberg v. Kelly, 397 U.S. 254, 271 (1970). Neither the District Court in its opinion nor the appellees before us make a particularized showing of the additional value of a law degree in the Part B context. </s> [Footnote 15 The record contains information on nine hearing officers. Two were retired administrative law judges with 15 to 18 years of judging experience, five had extensive experience in medicine or medical insurance, one had been a practicing attorney for 20 years, and one was an attorney with 42 years' experience in the insurance industry who was self-employed as an insurance adjuster. Record, App. to Defendants' Reply to Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment 626, 661-662, 682-685. </s> [456 U.S. 188, 201]

United States Supreme Court KIMBROUGH v. UNITED STATES(1961) No. 128 Argued: Decided: January 16, 1961 </s> Writ of certiorari dismissed because the record does not present with sufficient clarity the question whether cumulative sentences can validly be imposed upon conviction under the National Motor Vehicle Theft Act for transporting a stolen automobile in interstate commerce and for receiving, concealing and storing the same automobile, in a continuing criminal transaction. </s> Reported below: 272 F.2d 944. </s> Edward L. Barrett, Jr. argued the cause and filed a brief for petitioner. </s> Bruce J. Terris argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Robert G. Maysack. </s> PER CURIAM. </s> We brought this case here to consider whether cumulative sentences can validly be imposed upon conviction under the National Motor Vehicle Theft Act for transporting a stolen automobile in interstate commerce and for receiving, concealing, and storing the same automobile, in a continuing criminal transaction. After oral argument and a more thorough consideration of the record than was afforded when the petition for certiorari was granted, we have concluded that this question is not presented with sufficient clarity in this case. Accordingly, the writ is dismissed. </s> [364 U.S. 661, 662]

United States Supreme Court CEDRIC KUSHNER PROMOTIONS, LTD. v. KING et al.(2001) No. 00-549 Argued: April 18, 2001Decided: June 11, 2001 </s> Petitioner, a corporate promoter of boxing matches, sued Don King, the president and sole shareholder of a rival corporation, alleging that King had conducted his corporation's affairs in violation of the Racketeer Influenced and Corrupt Organizations Act, which makes it "unlawful for any person employed by or associated with any enterprise ... to conduct or participate ... in the conduct of such enterprise's affairs through a pattern of racketeering activity," 18 U.S.C. §1962(c). The District Court, citing Circuit precedent, dismissed the complaint. In affirming, the Second Circuit expressed its view that §1962(c) applies only where a plaintiff shows the existence of two separate entities, a "person" and a distinct "enterprise," the affairs of which that "person" improperly conducts. In this instance, the court noted, it was undisputed that King was an employee of his corporation and also acting within the scope of his authority. Under the court's analysis, King, in a legal sense, was part of the corporation, not a "person," distinct from the "enterprise," who allegedly improperly conducted the "enterprise's affairs." </s> Held:In the circumstances of this case, §1962(c) requires no more than the formal legal distinction between "person" and "enterprise" (namely, incorporation); hence, the provision applies when a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner--whether he conducts those affairs within the scope, or beyond the scope, of corporate authority. This Court does not quarrel with the basic principle that to establish liability under §1962(c) one must allege and prove the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. Nonetheless, the Court disagrees with the appellate court's application of that "distinctness" principle to the present circumstances, in which a corporate employee, acting within the scope of his authority, allegedly conducts the corporation's affairs in a RICO-forbidden way. The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status. The Court can find nothing in RICO that requires more "separateness" than that. Linguistically speaking, an employee who conducts his corporation's affairs through illegal acts comes within §1962(c)'s terms forbidding any "person" unlawfully to conduct an "enterprise," particularly when RICO explicitly defines "person" to include "any individual ... capable of holding a legal or beneficial interest in property," and defines "enterprise" to include a "corporation," §§1961(3), (4). And, linguistically speaking, the employee and the corporation are different "persons," even where the employee is the corporation's sole owner. Incorporation's basic purpose is to create a legal entity distinct from those natural individuals who created the corporation, who own it, or whom it employs. See, e.g., United States v. Bestfoods, 524 U.S. 51, 61-62. The precedent on which the Second Circuit relied involved significantly different circumstances from those here at issue. Further, to apply RICO in these circumstances is consistent with the statute's basic purposes of protecting both a legitimate "enterprise" from those who would use unlawful acts to victimize it, United States v. Turkette, 452 U.S. 576, 591, and the public from those who would unlawfully use an "enterprise" (whether legitimate or illegitimate) as a "vehicle" through which unlawful activity is committed, National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259. Conversely, the appellate court's critical legal distinction--between employees acting within and without the scope of corporate authority--would immunize from RICO liability many of those at whom this Court has said RICO directly aims, e.g., high-ranking individuals in an illegitimate criminal enterprise, who, seeking to further the enterprise's purposes, act within the scope of their authority, cf. Turkette, supra, at 581. Finally, nothing in the statute's history significantly favors an alternative interpretation. This Court's rule is no less consistent than is the lower court's rule with the following principles cited by King: (1) the principle that a corporation acts only through its directors, officers, and agents; (2) the principle that a corporation should not be liable for its employees' criminal acts where Congress so intends; and (3) antitrust law's intracorporate conspiracy doctrine. Pp.2-8. </s> 219 F.3d 115, reversed and remanded. </s> Breyer, J., delivered the opinion for a unanimous Court. </s> CEDRIC KUSHNER PROMOTIONS, LTD.,PETITIONER v. DON KING et al. </s> on writ of certiorari to the united states court of appeals for the second circuit </s> [June 11, 2001] </s> Justice Breyer delivered the opinion of the Court. </s> The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1961 et seq., makes it "unlawful for any person employed by or associated with any enterprise ... to conduct or participate ... in the conduct of such enterprise's affairs" through the commission of two or more statutorily defined crimes--which RICO calls "a pattern of racketeering activity." §1962(c). The language suggests, and lower courts have held, that this provision fore-sees two separate entities, a "person" and a distinct"enterprise." </s> This case focuses upon a person who is the president and sole shareholder of a closely held corporation. The plaintiff claims that the president has conducted the corporation's affairs through the forbidden "pattern," though for present purposes it is conceded that, in doing so, he acted within the scope of his authority as the corporation's employee. In these circumstances, are there two entities, a "person" and a separate "enterprise"? Assuming, as we must given the posture of this case, that the allegations in the complaint are true, we conclude that the "person" and "enterprise" here are distinct and that the RICO provision applies. </s> Petitioner, Cedric Kushner Promotions, Ltd., is a corporation that promotes boxing matches. Petitioner sued Don King, the president and sole shareholder of Don King Productions, a corporation, claiming that King had conducted the boxing-related affairs of Don King Productions in part through a RICO "pattern," i.e., through the alleged commission of at least two instances of fraud and other RICO predicate crimes. The District Court, citing Court of Appeals precedent, dismissed the complaint. Civ. No. 98-6859, 1999 WL 771366, *3-4 (SDNY, Sept. 28, 1999). And the Court of Appeals affirmed that dismissal. 219 F.3d 115 (CA2 2000) (per curiam). In the appellate court's view, §1962(c) applies only where a plaintiff shows the existence of two separate entities, a "person" and a distinct "enterprise," the affairs of which that "person" improperly conducts. Id., at 116. In this instance, "it is undisputed that King was an employee" of the corporation Don King Productions and also "acting within the scope of his authority." Id., at 117. Under the Court of Appeals' analysis, King, in a legal sense, was part of, not separate from, the corporation. There was no "person," distinct from the "enterprise," who improperly conducted the "enterprise's affairs." And thus §1962(c) did not apply. Ibid. </s> Other Circuits, applying §1962(c) in roughly similar circumstances, have reached a contrary conclusion. See, e.g., Brannon v. Boatmen's First Nat. Bank of Okla., 153 F.3d 1144, 1148, n. 4 (CA10 1998); Richmond v. Nationwide Cassel L. P., 52 F.3d 640, 647 (CA7 1995); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 265, 269 (CA3 1995); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (CA9 1992). We granted certiorari to resolve the conflict. We now agree with these Circuits and hold that the Second Circuit's interpretation of §1962(c) is erroneous. </s> We do not quarrel with the basic principle that to establish liability under §1962(c) one must allege and prove the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. The statute's language, read as ordinary English, suggests that principle. The Act says that it applies to "person[s]" who are "employed by or associated with" the "enterprise." §1962(c). In ordinary English one speaks of employing, being employed by, or associating with others, not oneself. See Webster's Third New International Dictionary 132 (1993) (defining "associate"); id., at 743 (defining "employ"). In addition, the Act's purposes are consistent with that principle. Whether the Act seeks to prevent a person from victimizing, say, a small business, S.Rep. No. 91-617, p. 77 (1969), or to prevent a person from using a corporation for criminal purposes, National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259 (1994), the person and the victim, or the person and the tool, are different entities, not the same. </s> The Acting Solicitor General reads §1962(c) "to require some distinctness between the RICO defendant and the RICO enterprise." Brief for United States as Amicus Curiae 11. And she says that this requirement is "legally sound and workable." Ibid. We agree with her assessment, particularly in light of the fact that 12 Courts of Appeals have interpreted the statute as embodying some such distinctness requirement without creating discernible mischief in the administration of RICO. See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 445 (CA5 2000); United States v. Goldin Industries, Inc., 219 F.3d 1268, 1270 (CA11) (en banc), cert. denied, 531 U.S. 1102 (2000); Begala v. PNC Bank, 214 F.3d 776, 781 (CA6 2000), cert. denied, 531 U.S. __ (2001); Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (CA1 1996); Richmond, supra, at 646-647; Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 72-73 (CA3 1994); Confederate Memorial Assn., Inc. v. Hines, 995 F.2d 295, 299-300 (CADC 1993); Board of Cty. Comm'rs, San Juan Cty. v. Liberty Group, 965 F.2d 879, 885 (CA10), cert. denied, 506 U.S. 918 (1992); River City Markets, Inc. v. Fleming Foods West, Inc., 960 F.2d 1458, 1461 (CA9 1992); Busby v. Crown Supply, Inc., 896 F.2d 833, 840 (CA4 1990); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 995 (CA8 1989); Bennett v. United States Trust Co. of New York, 770 F.2d 308, 315, and n.2 (CA2 1985), cert. denied, 474 U.S. 1058 (1986); see also Semiconductor Energy Laboratory Co., Ltd. v. Samsung Electronics Co., Ltd., 204 F.3d 1368, 1383, n.7 (CA Fed. 2000) (approving of distinctness requirement in dicta), cert. denied, 531 U.S. __ (2001). Indeed, this Court previously has said that liability "depends on showing that the defendants conducted or participated in the conduct of the `enterprise's affairs,' not just their own affairs." Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). </s> While accepting the "distinctness" principle, we nonetheless disagree with the appellate court's application of that principle to the present circumstances--circumstances in which a corporate employee, "acting within the scope of his authority," 219 F.3d, at 117, allegedly conducts the corporation's affairs in a RICO-forbidden way. The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status. And we can find nothing in the statute that requires more "separateness" than that. Cf. McCullough v. Suter, 757 F.2d 142, 144 (CA7 1985) (finding either formal or practical separateness sufficient to be distinct under §1962(c)). </s> Linguistically speaking, an employee who conducts the affairs of a corporation through illegal acts comes within the terms of a statute that forbids any "person" unlawfully to conduct an "enterprise," particularly when the statute explicitly defines "person" to include "any individual ... capable of holding a legal or beneficial interest in property," and defines "enterprise" to include a "corporation." 18 U.S.C. §§1961(3), (4). And, linguistically speaking, the employee and the corporation are different "persons," even where the employee is the corporation's sole owner. After all, incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs. See United States v. Bestfoods, 524 U.S. 51, 61-62 (1998); Burnet v. Clark, 287 U.S. 410, 415 (1932); 1 W. Fletcher, Cyclopedia of the Law of Private Corporations §§7, 14 (rev. ed. 1999). </s> We note that the Second Circuit relied on earlier Circuit precedent for its decision. But that precedent involved quite different circumstances which are not presented here. This case concerns a claim that a corporate employee is the "person" and the corporation is the "enterprise." It is natural to speak of a corporate employee as a "person employed by" the corporation. §1962(c). The earlier Second Circuit precedent concerned a claim that a corporation was the "person" and the corporation, together with all its employees and agents, were the "enterprise." See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (1994) (affirming dismissal of complaint). It is less natural to speak of a corporation as "employed by" or "associated with" this latter oddly constructed entity. And the Second Circuit's other precedent also involved significantly different allegations compared with the instant case. See Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 89 (1999) (affirming dismissal where plaintiff alleged that same bank was both "person" and "enterprise"), cert. denied, 528 U.S. 1188 (2000); Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1064 (1996) (involving complaint alleging that corporate subsidiaries were "persons" and subsidiaries, taken together as parent, were "enterprise"), vacated on other grounds, 525 U.S. 128 (1998); Bennett, supra, at 315, and n.2 (same as Anatian). We do not here consider the merits of these cases, and note only their distinction from the instant case. </s> Further, to apply the RICO statute in present circumstances is consistent with the statute's basic purposes as this Court has defined them. The Court has held that RICO both protects a legitimate "enterprise" from those who would use unlawful acts to victimize it, United States v. Turkette, 452 U.S. 576, 591 (1981), and also protects the public from those who would unlawfully use an "enterprise" (whether legitimate or illegitimate) as a "vehicle" through which "unlawful ... activity is committed," National Organization for Women, Inc., 510 U.S., at 259. A corporate employee who conducts the corporation's affairs through an unlawful RICO "pattern . . . of activity," §1962(c), uses that corporation as a "vehicle" whether he is, or is not, its sole owner. </s> Conversely, the appellate court's critical legal distinction--between employees acting within the scope of corporate authority and those acting outside that authority--is inconsistent with a basic statutory purpose. Cf. Reves, supra, at 184 (stating that an enterprise is "`operated,'" within §1962(c)'s meaning, "not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management" (emphasis added)). It would immunize from RICO liability many of those at whom this Court has said RICO directly aims--e.g., high-ranking individuals in an illegitimate criminal enterprise, who, seeking to further the purposes of that enterprise, act within the scope of their authority. Cf. Turkette, supra, at 581 (Congress "did nothing to indicate that an enterprise consisting of a group of individuals was not covered by RICO if the purpose of the enterprise was exclusively criminal"). </s> Finally, we have found nothing in the statute's history that significantly favors an alternative interpretation. That history not only refers frequently to the importance of undermining organized crime's influence upon legitimate businesses but also refers to the need to protect the public from those who would run "organization[s] in a manner detrimental to the public interest." S.Rep. No. 91-617, at 82. This latter purpose, as we have said, invites the legal principle we endorse, namely, that in present circumstances the statute requires no more than the formal legal distinction between "person" and "enterprise" (namely, incorporation) that is present here. </s> In reply, King argues that the lower court's rule is consistent with (1) the principle that a corporation acts only through its directors, officers, and agents, 1 Fletcher, supra, §30, (2) the principle that a corporation should not be liable for the criminal acts of its employees where Congress so intends, Brief for Respondents 20-21, and (3) the Sherman Act principle limiting liability under 15 U.S.C. §1 by excluding "from unlawful combinations or conspiracies the activities of a single firm," Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769-770, n.15 (1984). The alternative that we endorse, however, is no less consistent with these principles. It does not deny that a corporation acts through its employees; it says only that the corporation and its employees are not legally identical. It does not assert that ordinary respondeat superior principles make a corporation legally liable under RICO for the criminal acts of its employees; that is a matter of congressional intent not before us. See, e.g., Gasoline Sales, Inc., 39 F.3d, at 73 (holding that corporation cannot be "vicariously liable" for §1962(c) violations committed by its vice president). Neither is it inconsistent with antitrust law's intracorporate conspiracy doctrine; that doctrine turns on specific antitrust objectives. See Copperweld Corp., supra, at 770-771. Rather, we hold simply that the need for two distinct entities is satisfied; hence, the RICO provision before us applies when a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner--whether he conducts those affairs within the scope, or beyond the scope, of corporate authority. </s> For these reasons, the Court of Appeals' judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered.

United States Supreme Court POSTERS `N' THINGS, LTD. v. UNITED STATES(1994) No. 92-903 Argued: October 5, 1993Decided: May 23, 1994 </s> Upon searching petitioner Acty's residence and the premises of her business, petitioner Posters `N' Things, Ltd., officers seized, among other things, pipes, "bongs," scales, "roach clips," drug diluents, and advertisements describing various drug-related products sold by petitioners. Petitioners were indicted on, and convicted in the District Court of, a number of charges, including the use of an interstate conveyance as part of a scheme to sell drug paraphernalia in violation of former 21 U.S.C. 857(a)(1), a provision of the Mail Order Drug Paraphernalia Control Act. In affirming, the Court of Appeals held, inter alia, that 857 requires proof of scienter and that the Act is not unconstitutionally vague. </s> Held: </s> 1. Section 857 requires proof of scienter. Section 857(d) - which, among other things, defines "drug paraphernalia" as any equipment "primarily intended or designed for use" with illegal drugs - does not serve as the basis for a subjective intent requirement on the part of the defendant, but merely establishes objective standards for determining what constitutes drug paraphernalia: the "designed for use" element refers to the manufacturer's design, while the "primarily intended . . . for use" standard refers generally to an item's likely use. However, neither this conclusion nor the absence of the word "knowingly" in 857(d)'s text means that Congress intended to dispense entirely with a scienter requirement. Rather, 857(a)(1) is properly construed under this Court's decisions as requiring the Government to prove that the defendant knowingly made use of an interstate conveyance as part of a scheme to sell items that he knew were likely to be used with Page II illegal drugs. It need not prove specific knowledge that the items are "drug paraphernalia" within the statute's meaning. Pp. 3-12. </s> 2. Section 857 is not unconstitutionally vague as applied to petitioners, since 857(d) is sufficiently determinate with respect to the items it lists as constituting per se drug paraphernalia, including many of the items involved in this case; since 857(e) sets forth objective criteria for assessing whether items constitute drug paraphernalia; and since the scienter requirement herein inferred assists in avoiding any vagueness problem. Because petitioners operated a full-scale "head shop" devoted substantially to the sale of drug paraphernalia, the Court need not address 857's possible application to a legitimate merchant selling only items - such as scales, razor blades, and mirrors - that may be used for legitimate as well as illegitimate purposes. Pp. 13-14. </s> 3. Petitioner Acty's other contentions are not properly before the Court. Pp. 14-15. </s> 969 F.2d 652, affirmed. </s> BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined. </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE BLACKMUN delivered the opinion of the Court. </s> In this case, we must address the scienter requirement of the Mail Order Drug Paraphernalia Control Act, Pub. L. 99-570, Tit. I, 1822, 100 Stat. 3207-51, formerly codified, as amended at 21 U.S.C. 857, and the question whether the Act is unconstitutionally vague as applied to petitioners. </s> I </s> In 1977, petitioner Lana Christine Acty formed petitioner Posters `N' Things, Ltd. (Posters), an Iowa corporation. The corporation operated three businesses, a diet-aid store, an art gallery, and a general merchandise outlet originally called "Forbidden Fruit," but later renamed "World Wide Imports." Law enforcement authorities received complaints that the merchandise outlet was selling drug paraphernalia. Other officers investigating drug cases found drug diluents (chemicals used to "cut" or dilute illegal drugs) and other drug paraphernalia that had been purchased from Forbidden Fruit. </s> In March 1990, officers executed warrants to search petitioners' business premises and Acty's residence. </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 2] </s> They seized various items, including pipes, bongs, 1 scales, roach clips, 2 and drug diluents, including mannitol and inositol. The officers also seized cash, business records, and catalogs and advertisements describing products sold by petitioners. The advertisements offered for sale such products as "Coke Kits," "Free Base Kits," 3 and diluents sold under the names "PseudoCaine" and "Procaine." </s> Indictments on a number of charges relating to the sale of drug paraphernalia eventually were returned against petitioners and George Michael Moore, Acty's husband. A joint trial took place before a jury in the United States District Court for the Southern District of Iowa. </s> Petitioners were convicted of using an interstate conveyance as part of a scheme to sell drug paraphernalia, in violation of former 21 U.S. C 857(a)(1), and of conspiring to commit that offense, in violation of 18 U.S.C. 371. Petitioner Acty also was convicted of aiding and abetting the manufacture and distribution of cocaine, in violation of 21 U.S.C. 841(a)(1); investing income derived from a drug offense, in violation of 21 U.S.C. 854; money laundering, in violation of 18 U.S.C. 1956(a)(1); and engaging in monetary transactions with the proceeds of unlawful activity, in violation of 18 U.S.C. 1957. Acty was sentenced to imprisonment </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 3] </s> for 108 months, to be followed by a 5-year term of supervised release, and was fined $150,000. Posters was fined $75,000. </s> The United States Court of Appeals for the Eighth Circuit affirmed the convictions. 969 F.2d 652 (1992). Because of an apparent conflict among the Courts of Appeals as to the nature of the scienter requirement of former 21 U.S.C. 857, 4 we granted certiorari. ___ U.S. ___ (1993). </s> II </s> Congress enacted the Mail Order Drug Paraphernalia Control Act as part of the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207. As originally enacted, and as applicable in this case, the statute, 21 U.S.C. 857(a), 5 provides: </s> "It is unlawful for any person - </s> "(1) to make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia; </s> "(2) to offer for sale and transportation in interstate or foreign commerce drug paraphernalia; or </s> "(3) to import or export drug paraphernalia." </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 4] </s> Section 857(b) provides that anyone convicted under the statute shall be imprisoned for not more than three years and fined not more than $100,000. </s> A </s> Section 857(a) does not contain an express scienter requirement. Some courts, however, have located a scienter requirement in the statute's definitional provision, 857(d), which defines the term "drug paraphernalia" as "any equipment, product, or material of any kind which is primarily intended or designed for use" with illegal drugs. 6 Petitioners argue that the term "primarily </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 5] </s> intended" in this provision establishes a subjective intent requirement on the part of the defendant. We disagree, and instead adopt the Government's position that 857(d) establishes objective standards for determining what constitutes drug paraphernalia. </s> Section 857(d) identifies two categories of drug paraphernalia: items "primarily intended . . . for use" with controlled substances and items "designed for use" with such substances. This Court's decision in Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 500 (1982), governs the "designed for use" prong of 857(d). In that case, the Court considered an ordinance requiring a license for the sale of items "designed or marketed for use with illegal cannabis or drugs," and concluded that the alternative "designed . . . for use" standard referred to "the design of the manufacturer, not the intent of the retailer or customer." Id., at 501. An item is "designed for use," this Court explained, if it "is principally used with illegal drugs by virtue of its objective features, i. e., features designed by the manufacturer." Ibid. </s> The objective characteristics of some items establish that they are designed specifically for use with controlled substances. Such items, including bongs, cocaine freebase kits, and certain kinds of pipes, have no other use besides contrived ones (such as use of a bong as a flower vase). Items that meet the "designed for use" standard constitute drug paraphernalia irrespective of the knowledge or intent of one who sells or transports them. See United States v. Mishra, 979 F.2d 301, 308 (CA3 1992); United States v. Schneiderman, 968 F.2d 1564, 1567 (CA2 1992), cert. denied, ___ U.S. ___ </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 6] </s> (1993). Accordingly, the "designed for use" element of 857(d) does not establish a scienter requirement with respect to sellers such as petitioners. </s> The "primarily intended . . . for use" language of 857(d) presents a more difficult problem. The language might be understood to refer to the state of mind of the defendant (here, the seller), and thus to require an intent on the part of the defendant that the items at issue be used with drugs. Some Courts of Appeals have adopted this construction, see Mishra, 979 F.2d, at 307; United States v. Murphy, 977 F.2d 503, 506 (CA10 1992); Schneiderman, 968 F.2d, at 1567; United States v. 57,261 Items of Drug Paraphernalia, 869 F.2d 955, 957 (CA6), cert. denied, 493 U.S. 933 (1989), and this Court in Hoffman Estates interpreted the arguably parallel phrase "marketed for use" as describing "a retailer's intentional display and marketing of merchandise," 455 U.S., at 502 , and thus requiring scienter. On the other hand, there is greater ambiguity in the phrase "primarily intended . . . for use" than in the phrase "marketed for use." The term "primarily intended" could refer to the intent of nondefendants, including manufacturers, distributors, retailers, buyers, or users. Several considerations lead us to conclude that "primarily intended . . . for use" refers to a product's likely use, rather than to the defendant's state of mind. </s> First, the structure of the statute supports an objective interpretation of the "primarily intended . . . for use" standard. Section 857(d) states that drug paraphernalia "includes items primarily intended or designed for use in" consuming specified illegal drugs, "such as . . .," followed by a list of 15 items constituting per se drug paraphernalia. The inclusion of the "primarily intended" term along with the "designed for use" term in the introduction to the list of per se paraphernalia suggests that at least some of the per se items could be "primarily intended" for use with illegal drugs irrespective </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 7] </s> of a particular defendant's intent that is, as an objective matter. Moreover, 857(e) lists eight objective factors that may be considered "in addition to all other logically relevant factors" in "determining whether an item constitutes drug paraphernalia." 7 These factors generally focus on the actual use of the item in the community. Congress did not include among the listed factors a defendant's statements about his intent or other factors directly establishing subjective intent. This omission is significant in light of the fact that the parallel list contained in the Drug Enforcement Administration's Model Drug Paraphernalia Act, on which 857 was based, 8 includes among the relevant factors "[s]tatements by an owner . . . concerning [the object's] use" and "[d]irect or circumstantial evidence of the intent of an owner . . . to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act." 9 </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 8] </s> An objective construction of the definitional provision also finds support in 857(f), which establishes an exemption for items "traditionally intended for use with tobacco products." 10 An item's "traditional" use is not based on the subjective intent of a particular defendant. In 1988, Congress added the word "traditionally" in place of "primarily" in the 857(f) exemption in order to "clarif[y]" the meaning of the exemption. Pub. L. 100-690, Tit. VI, 6485, 102 Stat. 4384. Congress' characterization of the amendment as merely "clarifying" the law suggests that the original phrase - "primarily intended" - was not a reference to the fundamentally different concept of a defendant's subjective intent. </s> Finally, an objective construction of the phrase "primarily intended" is consistent with the natural reading of similar language in definitional provisions of other federal criminal statutes. See 18 U.S.C. 921(a)(17)(B) ("armor piercing ammunition" excludes any projectile that is "primarily intended" to be used for sporting purposes, as found by the Secretary of the Treasury); 21 U.S.C. 860(d)(2) ("youth center" means a recreational facility "intended primarily for use by persons under 18 years of age"). </s> We conclude that the term "primarily intended . . . for use" in 857(d) is to be understood objectively and refers </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 9] </s> generally to an item's likely use. 11 Rather than serving as the basis for a subjective scienter requirement, the phrase "primarily intended or designed for use" in the definitional provision establishes objective standards for determining what constitutes drug paraphernalia. 12 </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 10] </s> B </s> Neither our conclusion that Congress intended an objective construction of the "primarily intended" language in 857(d) nor the fact that Congress did not include the word "knowingly" in the text of 857 justifies the conclusion that Congress intended to dispense entirely with a scienter requirement. This Court stated in United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978): "Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." Even statutes creating public welfare offenses generally require proof that the defendant had knowledge of sufficient facts to alert him to the probability of regulation of his potentially dangerous conduct. See Staples v. United States, 511 U.S. ___, ___ (1994) (slip op., at 6-7, and n. 3); United States v. Dotterweich, 320 U.S. 277, 281 (1943). We conclude that 857 is properly construed as containing a scienter requirement. </s> We turn to the nature of that requirement in this statute. In United States v. Bailey, 444 U.S. 394, 404 (1980), this Court distinguished between the mental states of "purpose" and "knowledge," explaining, id., at 408, that, "except in narrow classes of offenses, proof that the defendant acted knowingly is sufficient to support a conviction." In Bailey, the Court read into the federal escape statute, 18 U.S.C. 751(a), a requirement that "an escapee knew his actions would result in his leaving physical confinement without permission," rejecting a heightened mens rea that would have required "an intent to avoid confinement." Id., at 408. Similarly, in United States v. United States Gypsum Co., 438 U.S. 422, 444 (1978), the Court addressed the </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 11] </s> question whether a criminal violation of the Sherman Act "requires, in addition to proof of anticompetitive effects, a demonstration that the disputed conduct was undertaken with the "conscious object" of producing such effects, or whether it is sufficient that the conduct is shown to have been undertaken with knowledge that the proscribed effects would most likely follow." The Court concluded that "action undertaken with knowledge of its probable consequences . . . can be a sufficient predicate for a finding of criminal liability under the antitrust laws." Ibid. </s> As in Bailey and United States Gypsum, we conclude that a defendant must act knowingly in order to be liable under 857. Requiring that a seller of drug paraphernalia act with the "purpose" that the items be used with illegal drugs would be inappropriate. The purpose of a seller of drug paraphernalia is to sell his product; the seller is indifferent as to whether that product ultimately is used in connection with illegal drugs or otherwise. If 857 required a purpose that the items be used with illegal drugs, individuals could avoid liability for selling bongs and cocaine freebase kits simply by establishing that they lacked the "conscious object" that the items be used with illegal drugs. </s> Further, we do not think that the knowledge standard in this context requires knowledge on the defendant's part that a particular customer actually will use an item of drug paraphernalia with illegal drugs. It is sufficient that the defendant be aware that customers in general are likely to use the merchandise with drugs. Therefore, the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs. Cf. United States Gypsum, 438 U.S., at 444 (knowledge of "probable consequences" sufficient for </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 12] </s> conviction). 13 A conviction under 857(a)(1), then, requires the Government to prove that the defendant knowingly made use of an interstate conveyance as part of a scheme to sell items that he knew were likely to be used with illegal drugs. </s> Finally, although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are "drug paraphernalia" within the meaning of the statute. Cf. Hamling v. United States, 418 U.S. 87 (1974) (statute prohibiting mailing of obscene materials does not require proof that defendant knew the materials at issue met the legal definition of "obscenity"). As in Hamling, it is sufficient for the Government to show that the defendant "knew the character and nature of the materials" with which he dealt. Id., at 123. </s> In light of the above, we conclude that the jury instructions given by the District Court adequately conveyed the legal standards for petitioners' convictions </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 13] </s> under 857. 14 </s> III </s> Petitioners argue that 857 is unconstitutionally vague as applied to them in this case. [T]he void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also Grayned v. City of Rockford, 408 U.S. 104, 108 -109 (1972). Whatever its status as a general matter, we cannot say that 857 is unconstitutionally vague as applied in this case. </s> First, the list of items in 857(d) constituting per se drug paraphernalia provides individuals and law-enforcement officers with relatively clear guidelines as to prohibited conduct. With respect to the listed items, there can be little doubt that the statute is sufficiently determinate to meet constitutional requirements. Many items involved in this case - including bongs, roach clips, and pipes designed for use with illegal drugs - are among the items specifically listed in 857(d). </s> Second, 857(e) sets forth objective criteria for assessing </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 14] </s> whether items constitute drug paraphernalia. These factors minimize the possibility of arbitrary enforcement and assist in defining the sphere of prohibited conduct under the statute. See Mishra, 979 F.2d, at 309; Schneiderman, 968 F.2d, at 1568. Section 857(f)'s exemption for tobacco-related products further limits the scope of the statute and precludes its enforcement against legitimate sellers of lawful products. </s> Finally, the scienter requirement that we have inferred in 857 assists in avoiding any vagueness problem. "[T]he Court has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice . . . that [the] conduct is proscribed. Hoffman Estates, 455 U.S., at 499 . </s> Section 857's application to multiple-use items - such as scales, razor blades, and mirrors - may raise more serious concerns. Such items may be used for legitimate as well as illegitimate purposes, and "a certain degree of ambiguity necessarily surrounds their classification." Mishra, 979 F.2d, at 309. This case, however, does not implicate vagueness or other due process concerns with respect to such items. Petitioners operated a full-scale "head shop," a business devoted substantially to the sale of products that clearly constituted drug paraphernalia. The Court stated in Hoffman Estates: The theoretical possibility that the village will enforce its ordinance against a paper clip placed next to Rolling Stone magazine . . . is of no due process significance unless the possibility ripens into a prosecution. 455 U.S., at 503 -504, n. 21. Similarly here, we need not address the possible application of 857 to a legitimate merchant engaging in the sale of only multiple-use items. </s> IV </s> Petitioner Acty's other contentions are not properly before the Court. First, she argues that she was </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 15] </s> improperly convicted of aiding and abetting the manufacture and distribution of cocaine because the jury instructions created a "presumption" that certain items of drug paraphernalia "were intended for manufacturing with a controlled substance." Brief for Petitioners 17. This argument was neither raised in nor addressed by the Court of Appeals. See Lawn v. United States, 355 U.S. 339, 362 -363, n. 16 (1958). Second, Acty asserts that her convictions for money laundering, investing income derived from a drug offense, and engaging in monetary transactions with the proceeds of unlawful activity must be reversed. These contentions were not presented in the petition for writ of certiorari, and therefore they are not properly raised here. See this Court's Rule 14.1(a). Finally, the petition presented the question whether the proof was adequate to support Acty's conviction for aiding and abetting the manufacture and distribution of cocaine; but petitioners' brief on the merits fails to address the issue and therefore abandons it. See Russell v. United States, 369 U.S. 749, 754 , n. 7 (1962). </s> Accordingly, the judgment of the Court of Appeals is affirmed. </s> It is so ordered. </s> Footnotes [Footnote 1 A "bong" is a "water pipe that consists of a bottle or a vertical tube partially filled with liquid and a smaller tube ending in a bowl, used often in smoking narcotic substances." American Heritage Dictionary 215 (3d ed. 1992). </s> [Footnote 2 The statute defines "roach clips" as "objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand." 21 U.S.C. 857(d)(5). </s> [Footnote 3 The term "freebase" means "[t]o purify (cocaine) by dissolving it in a heated solvent and separating and drying the precipitate" or "[t]o use (cocaine purified in this way) by burning it and inhaling the fumes." American Heritage Dictionary 723 (3d ed. 1992). </s> [Footnote 4 Compare the decision of the Eighth Circuit in this case with United States v. Mishra, 979 F.2d 301 (CA3 1992); United States v. Murphy, 977 F.2d 503 (CA10 1992); United States v. Schneiderman, 968 F.2d 1564 (CA2 1992), cert. denied, ___ U.S. ___ (1993); and United States v. 57,261 Items of Drug Paraphernalia, 869 F.2d 955 (CA6), cert. denied, 493 U.S. 933 (1989). </s> [Footnote 5 In 1990, Congress repealed 857 and replaced it with 21 U.S.C. 863 (1988 ed., Supp. IV). See Crime Control Act of 1990, Pub. L. 101-647, 2401, 104 Stat. 4858. The language of 863 is identical to that of former 857 except in the general description of the offense. Section 863(a) makes it unlawful for any person "(1) to sell or offer for sale drug paraphernalia; (2) to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or (3) to import or export drug paraphernalia." </s> [Footnote 6 Section 857(d) provides in full: </s> "The term "drug paraphernalia" means any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under the Controlled Substances Act (title II of Public Law 91-513) [21 U.S.C. 801 et seq.]. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, or amphetamines into the human body, such as - </s> "(1) metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; </s> "(2) water pipes; </s> "(3) carburetion tubes and devices; </s> "(4) smoking and carburetion masks; </s> "(5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; </s> "(6) miniature spoons with level capacities of one-tenth cubic centimeter or less; </s> "(7) chamber pipes; </s> "(8) carburetor pipes; </s> "(9) electric pipes; </s> "(10) air-driven pipes; </s> "(11) chillums; </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 5] </s> "(12) bongs; </s> "(13) ice pipes or chillers; </s> "(14) wired cigarette papers; or </s> "(15) cocaine freebase kits." </s> [Footnote 7 Section 857(e) provides: </s> "In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered: </s> "(1) instructions, oral or written, provided with the item concerning its use; </s> "(2) descriptive materials accompanying the item which explain or depict its use; </s> "(3) national and local advertising concerning its use; </s> "(4) the manner in which the item is displayed for sale; </s> "(5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items in the community, such as a licensed distributor or dealer of tobacco products; </s> "(6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise; </s> "(7) the existence and scope of legitimate uses of the item in the community; and </s> "(8) expert testimony concerning its use." </s> [Footnote 8 See Schneiderman, 968 F.2d, at 1566. </s> [Footnote 9 See Brief for United States 6a-7a. The Model Act lists 14 factors </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 8] </s> to be considered in addition to all other logically relevant factors in determining whether an object is drug paraphernalia. Several of the factors are similar or identical to those listed in 857(e). </s> [Footnote 10 Section 857(f) provides: </s> "This section shall not apply to - </s> "(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or </s> "(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory." </s> [Footnote 11 Although we describe the definition of "primarily intended" as "objective," we note that it is a relatively particularized definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features. Among the factors that are relevant to whether an item constitutes drug paraphernalia are "instructions, oral or written, provided with the item concerning its use," 857(e)(1), and "the manner in which the item is displayed for sale," 857(e)(4). Thus, while scales or razor blades as a general class may not be designed specifically for use with drugs, a subset of those items in a particular store may be "primarily intended" for use with drugs by virtue of the circumstances of their display and sale. </s> We disagree with JUSTICE SCALIA insofar as he would hold that a box of paper clips is converted into drug paraphernalia by the mere fact that a customer mentions to the seller that the paper clips will make excellent roach clips. Section 857(d) states that items "primarily intended" for use with drugs constitute drug paraphernalia, indicating that it is the likely use of customers generally, not any particular customer, that can render a multiple-use item drug paraphernalia. </s> [Footnote 12 The legislative history of the Mail Order Drug Paraphernalia Control Act consists of one House subcommittee hearing. See Hearing on H.R. 1625 before the Subcommittee on Crime of the House Committee on the Judiciary, 99th Cong., 2d Sess. (1986). We recognize that a colloquy with the principal House sponsor of the Act during this hearing lends some support to a subjective interpretation of the "primarily intended" language of 857(d). When asked to whose intent this language referred, Rep. Levine initially stated: "The purpose of the language . . . is to identify as clearly as possible the intent of manufacturer and the seller to market a particular item as drug paraphernalia, subject to the interpretation of a trial court." Id., at 48. When pressed further, he stated: "It would be the intent on the part of the defendant in a particular trial." Ibid. Given the language and structure of the statute, we are not persuaded that these comments of a single member at a subcommittee hearing are sufficient to show a desire on the part of Congress to </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 10] </s> locate a scienter requirement in the definitiona provision of 857. </s> [Footnote 13 The knowledge standard that we adopt parallels the standard applied by those courts that have based 857's scienter requirement on the "primarily intended" language of the definitional provision. See Mishra, 979 F.2d, at 307 (Government must prove that defendant "contemplated, or reasonably expected under the circumstances, that the item sold or offered for sale would be used with illegal drugs"); Schneiderman, 968 F.2d, at 1567 (Government must prove that defendant "knew there was a strong probability the items would be so used"); 57,261 Items of Drug Paraphernalia, 869 F.2d, at 957 (Government must prove defendant's "knowledge that there is a strong probability that the items will be used" with illegal drugs). The scienter requirement that we have inferred applies with respect to all items of drug paraphernalia, while at least some of the lower courts appear to have confined their scienter requirement to those items "primarily intended" (but not "designed") for use with illegal drugs. See, e.g., United States v. Schneiderman, 968 F.2d, at 1567. </s> [Footnote 14 The District Court instructed the jury that, in order to find petitioners guilty, it was required to find that they "made use of [an] interstate conveyance knowingly as part of a scheme to sell drug paraphernalia," that "the items in question constitute drug paraphernalia," defined as items "primarily intended or designed for use" with illegal drugs, and that petitioners "knew the nature and character of the items." The District Court elaborated on the knowledge requirement, describing it as "knowledge of the defendants as to the nature, character, and use of the items being sold or offered for sale at the store." App. 16-35. We think that the instructions adequately informed the jury that it could convict petitioners only if it found that they knew that the items at issue were likely to be used with illegal drugs. </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment. </s> I agree with the Court that the sale of items likely to be used for drug purposes, with knowledge of such likely use, violates former 21 U.S. C 857; and that a subjective intent on the part of the defendant that the items sold be used for drug purposes is not necessary for conviction. That is all the scienter analysis necessary to decide the present case. The Court goes further, however, and says, ante, at 6-9, that such a subjective intent is not only not necessary for conviction but is not sufficient for conviction - i.e., that the sale of an item with the intent that it be used for drug purposes, does not constitute a violation. I disagree. In my view, the statutory language "primarily intended . . . for use" causes a sale to be a sale of drug paraphernalia where the seller intends the item to be used for drug purposes. A rejection of that view, if consistently applied, would cause "primarily intended or designed for use" to mean nothing more than "designed for use." While redundancy is not unheard of in statutory draftsmanship, neither is it favored in statutory interpretation. Kungys v. United States, 485 U.S. 759, 778 (1988). </s> Some of the provisions of 857(e), which describes factors that may be considered in determining whether </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 2] </s> an item constitutes drug paraphernalia, clearly suggest that what is not covered paraphernalia by nature can be made such by the seller's intent. * Section 857(e)(1) lists as one of the relevant factors "instructions, oral or written, provided with the item concerning its use." This envisions, I think, that a drugstore owner who instructs the purchaser how to use the purchased drinking straw or razor blade in the ingestion of drugs converts what would otherwise be a lawful sale into a sale of drug paraphernalia. Section 857(e)(4) lists as a relevant factor "the manner in which the item is displayed for sale." That would surely not change the nature of the item, but it would cast light upon the use intended by the person who is selling and displaying it. And 857(e)(5) lists as a relevant factor "whether the owner . . . is a legitimate supplier of like or related items." Again, that casts light upon nothing but the seller's intent regarding use. </s> On first glance, the Court's claim that "primarily intended" does not refer to the defendant's state of mind seems to be supported by 857(f)(2), which exempts from the entire section the sale, "in the normal lawful course of business," of items "traditionally intended for use with tobacco products." This might be thought to suggest that the section applies only to categories of items, and not at all to items sold with a particular intent. On further consideration, however, it is apparent that 857(f)(2) militates against, rather than in favor, of the Court's view. Unless unlawful intent could have </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 3] </s> produced liability, there would have been no need for the exception. Tobacco pipes are tobacco pipes, and cigarette paper is cigarette paper; neither could possibly meet the Court's test of being "items . . . likely to be used with illegal drugs," ante, at 12. Only the criminalizing effect of an unlawful intent to sell for drug use puts tobacconists at risk. Because of the ready (though not ordinary) use of items such as cigarette paper and tobacco pipes for drug purposes, tobacconists would have been in constant danger of being accused of having an unlawful intent in their sales-so Congress gave them what amounts to a career exception. </s> Through most of the Court's opinion, an item's "likely use" seems to refer to the objective features of the item that render it usable for one purpose or another. At the very end of the relevant discussion, however, in apparent response to the difficulties presented by the factors listed in 857(e), one finds, in a footnote, the following: </s> "Although we describe the definition of `primarily intended' as `objective,' we note that it is a relatively particularized definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features. . . . Thus, while scales or razor blades as a general class may not be designed specifically for use with drugs, a subset of those items in a particular store may be "primarily intended" for use with drugs by virtue of the circumstances of their display and sale. Ante, at 9, n. 11. </s> If by the "circumstances of . . . sale" the Court means to include the circumstance that the seller says, "You will find these scales terrific for weighing drugs," or that the buyer asks, "Do you have any scales suitable for weighing drugs?" - then there is really very little if any difference between the Court's position and mine. Intent can only be known, of course, through objective manifestations. </s> [ POSTERS `N' THINGS, LTD. v. UNITED STATES, ___ U.S. ___ (1994) </s> , 4] </s> If what the Court means by "a relatively particularized objective definition" is that all objective manifestations of the seller's intent are to be considered part of the "circumstances of sale," then there is no difference whatever between us (though I persist in thinking it would be simpler to say that "intended for sale" means "intended for sale" than to invent the concept of "a relatively particularized objective intent"). If, on the other hand, only some and not all objective manifestations of the seller's intent are to be considered part of the "circumstances of sale" (manner of display, for example, but not manner of oral promotion), then the Court ought to provide some description of those that do and those that don't, and (if possible) some reason for the distinction. </s> Finally, I cannot avoid noting that the only available legislative history - statements by the very Congressman who introduced the text in question, see ante, at 9, n. 12 - unambiguously supports my view. I point that out not because I think those statements are pertinent to our analysis, but because it displays once again that our acceptance of the supposed teachings of legislative history is more sporadic than our professions of allegiance to it. See Thunder Basin Coal Co. v. Reich, 503 U.S. ___, ___ (1993) (slip op., at 1) (SCALIA, J., concurring in part and concurring in judgment); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 617 (1991) (SCALIA, J., concurring in judgment). </s> [Footnote * For purposes of the present case, all we need decide is that the seller's intent will qualify. It would also seem true, however (since the statute contains no limitation on whose intent - manufacturer's, seller's or buyer's - can qualify), that the buyer's intended use will cause an otherwise harmless item to be drug paraphernalia. To convict a seller on such a basis, of course, the scienter requirement of the statute would require that the seller have known of such intended use. Page I

United States Supreme Court DALIA v. UNITED STATES(1979) No. 77-1722 Argued: Decided: April 18, 1979 </s> Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the District Court, finding probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce, granted the Government's request for authorization to intercept all oral communications taking place in petitioner's business office. Petitioner was subsequently convicted of receiving stolen goods and conspiring to transport, receive, and possess stolen goods. At a hearing on his motion to suppress evidence obtained under the bugging order, it was shown that although such order did not explicitly authorize entry of petitioner's business office, FBI agents had entered the office secretly at midnight on the day of the bugging order and had spent three hours installing an electronic bug in the ceiling. Denying petitioner's motion to suppress, the District Court ruled that under Title III a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. Affirming petitioner's conviction, the Court of Appeals rejected his contention that separate court authorization was necessary for the covert entry of his office. </s> Held: </s> 1. The Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment. Implicit in decisions such as Irvine v. California, 347 U.S. 128 , and Silverman v. United States, 365 U.S. 505 , has been this Court's view that covert entries are constitutional in some circumstances, at least if they are made pursuant to warrant. Petitioner's argument that covert entries are unconstitutional for their lack of notice is frivolous, as was indicated in Katz v. United States, 389 U.S. 347, 355 n. 16, where this Court stated that "officers need not announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence." Pp. 246-248. </s> 2. Congress has given the courts statutory authority to approve covert entries for the purpose of installing electronic surveillance equipment. Although Title III does not refer explicitly to covert entry, the [441 U.S. 238, 239] language, structure, purpose, and history of the statute demonstrate that Congress meant to authorize courts - in certain specified circumstances - to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Congress clearly understood that it was conferring power upon the courts to authorize covert entries ancillary to their responsibility to review and approve surveillance applications under the statute. Pp. 249-254. </s> 3. The Fourth Amendment does not require that a Title III electronic surveillance order include a specific authorization to enter covertly the premises described in the order. Pp. 254-259. </s> (a) The Warrant Clause of the Fourth Amendment requires only that warrants be issued by neutral, disinterested magistrates, that those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense, and that warrants must particularly describe the things to be seized, as well as the place to be searched. Here, the bugging order was a warrant issued in full compliance with these traditional Fourth Amendment requirements. Pp. 255-256. </s> (b) Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to these requirements, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant - subject to the general Fourth Amendment protection "against unreasonable searches and seizures." Pp. 256-257. </s> (c) An interpretation of the Warrant Clause so as to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers, is unnecessary, since the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. More important, it would promote empty formalism were this Court to require magistrates to make explicit what unquestionably is implicit in bugging authorizations: that a covert entry, with its attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. Pp. 257-258. </s> 575 F.2d 1344, affirmed. </s> POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined and in Parts I and II [441 U.S. 238, 240] of which BRENNAN and STEWART, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined except as to Part I, post, p. 259. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 262. </s> Louis Ruprecht argued the cause and filed a brief for petitioner. </s> Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, William C. Bryson, Kenneth S. Geller, and Jerome M. Feit. </s> MR. JUSTICE POWELL delivered the opinion of the Court. </s> Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. 2510-2520, permits courts to authorize electronic surveillance 1 by Government officers in specified situations. We took this case by writ of [441 U.S. 238, 241] certiorari to resolve two questions concerning the implementation of Title III surveillance orders. 439 U.S. 817 . First, may courts authorize electronic surveillance that requires covert entry 2 into private premises for installation of the necessary equipment? Second, must authorization for such surveillance include a specific statement by the court that it approves of the covert entry? 3 </s> I </s> On March 14, 1973, Justice Department officials applied to the United States District Court for the District of New Jersey, seeking authorization under 18 U.S.C. 2518 to intercept telephone conversations on two telephones in petitioner's business office. After examining the affidavits submitted in support of the Government's request, the District Court authorized the wiretap for a period of 20 days or until the purpose of the interception was achieved, whichever came first. The court found probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce in violation of 18 U.S.C. 659. Moreover, the court found reason to believe that petitioner's business telephones were being used to further this conspiracy and that means of investigating the conspiracy [441 U.S. 238, 242] other than electronic surveillance would be unlikely to succeed and would be dangerous. The wiretap order carefully enumerated the telephones to be affected and the types of conversations to be intercepted. Finally, the court ordered the officials in charge of the interceptions to take all reasonable precautions "to minimize the interception of communications not otherwise subject to interception," and required the officials to make periodic progress reports. </s> At the end of the 20-day period covered by the March 14 court order, the Government requested an extension of the wiretap authorization. In addition, the Government for the first time asked the court to allow it to intercept all oral communications taking place in petitioner's office, including those not involving the telephone. On April 5, 1973, the court granted the Government's second request. Its order concerning the wiretap of petitioner's telephones closely tracked the March 14 order. Finding reasonable cause to believe that petitioner's office was being used by petitioner and others in connection with the alleged conspiracy, the court also authorized, for a maximum period of 20 days, the interception of all oral communications concerning the conspiracy at "the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey." The order included protective provisions similar to those in the March 14 wiretapping order. 4 The electronic surveillance order of April 5 was extended by court order on April 27, 1973. [441 U.S. 238, 243] </s> On November 6, 1975, petitioner was indicted in a five-count indictment charging that he had been involved in a [441 U.S. 238, 244] conspiracy to steal an interstate shipment of fabric. 5 At trial, the Government introduced evidence showing that petitioner had been approached in March 1973 and asked to store in his New Jersey warehouse "a load of merchandise." Although petitioner declined the request, he directed the requesting party to Higgins, an associate, with whom he agreed to share the $1,500 storage fee that was offered. The merchandise stored under this contract proved to be a tractor-trailer full of fabric worth $250,000 that three men stole on April 3, 1973, and transported to Higgins' warehouse. Two days after the theft, FBI agents arrested Higgins and the individuals involved in the robbery. </s> The Government introduced into evidence at petitioner's trial various conversations intercepted pursuant to the court [441 U.S. 238, 245] orders of March 14, April 5, and April 27, 1973. Intercepted telephone conversations showed that petitioner had arranged for the storage at Higgins' warehouse and had helped negotiate the terms for that storage. One telephone conversation that took place after Higgins' arrest made clear that petitioner had given advice to others involved in the robbery to "sit tight" and not to use the telephone. Finally, the Government introduced transcripts of conversations intercepted from petitioner's office under the April 5 bugging order. In these conversations, petitioner had discussed with various participants in the robbery how best to proceed after their confederates had been arrested. The unmistakable inference to be drawn from petitioner's statements in these conversations is that he was an active participant in the scheme to steal the truckload of fabric. </s> Before trial, petitioner moved to suppress evidence obtained through the interception of conversations by means of the device installed in his office. The District Court denied the suppression motion without prejudice to its being renewed following trial. After petitioner was convicted on two counts, 6 he renewed his motion and the court held an evidentiary hearing concerning the method by which the electronic device had been installed. At this hearing it was shown that, although the April 5 court order did not explicitly authorize entry of petitioner's business, the FBI agents assigned the task of implementing the order had entered petitioner's office secretly at midnight on April 5 and had spent three hours in the building installing an electronic bug in the ceiling. All electronic surveillance of petitioner ended on May 16, 1973, at which time the agents re-entered petitioner's office and removed the bug. </s> In denying a second time petitioner's motion to suppress the evidence obtained from the bug, the trial court ruled [441 U.S. 238, 246] that under Title III a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. 426 F. Supp. 862 (1977). Indeed, in the court's view, "implicit in the court's order [authorizing electronic surveillance] is concomitant authorization for agents to covertly enter the premises in question and install the necessary equipment." Id., at 866. As the court concluded that the FBI agents who had installed the electronic device were executing a lawful warrant issued by the court, the sole question was whether the method they chose for execution was reasonable. Under the circumstances, the court found the covert entry of petitioner's office to have been "the safest and most successful method of accomplishing the installation." Ibid. Indeed, noting that petitioner himself had indicated that such a device could only have been installed through such an entry, the court observed that "[i]n most cases the only form of installing such devices is through breaking and entering. The nature of the act is such that entry must be surreptitious and must not arouse suspicion, and the installation must be done without the knowledge of the residents or occupants." Ibid. </s> The Court of Appeals for the Third Circuit affirmed petitioner's conviction. 575 F.2d 1344 (1978). Agreeing with the District Court, it rejected petitioner's contention that separate court authorization was necessary for the covert entry of petitioner's office, although it noted that "the more prudent or preferable approach for government agents would be to include a statement regarding the need of a surreptitious entry in a request for the interception of oral communications when a break-in is contemplated." Id., at 1346-1347. </s> II </s> Petitioner first contends that the Fourth Amendment prohibits covert entry of private premises in all cases, irrespective of the reasonableness of the entry or the approval of a court. [441 U.S. 238, 247] He contends that Title III is unconstitutional insofar as it enables courts to authorize covert entries for the installation of electronic bugging devices. </s> In several cases this Court has implied that in some circumstances covert entry to install electronic bugging devices would be constitutionally acceptable if done pursuant to a search warrant. Thus, for example, in Irvine v. California, 347 U.S. 128 (1954), the plurality stated that in conducting electronic surveillance, state police officers had "flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment as a restriction on the Federal Government." Id., at 132. It emphasized that the bugging equipment was installed through a covert entry of the defendant's home "without a search warrant or other process." Ibid. (emphasis added). Similarly, in Silverman v. United States, 365 U.S. 505, 511 -512 (1961), it was noted that "[t]his Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard." (Emphasis added.) Implicit in decisions such as Silverman and Irvine has been the Court's view that covert entries are constitutional in some circumstances, at least if they are made pursuant to warrant. </s> Moreover, we find no basis for a constitutional rule proscribing all covert entries. It is well established that law officers constitutionally may break and enter to execute a search warrant where such entry is the only means by which the warrant effectively may be executed. See, e. g., Payne v. United States, 508 F.2d 1391, 1394 (CA5 1975); cf. Ker v. California, 374 U.S. 23, 28 , 38 (1963); 18 U.S.C. 3109. Petitioner nonetheless argues that covert entries are unconstitutional for their lack of notice. This argument is frivolous, as was indicated in Katz v. United States, 389 U.S. 347, 355 n. 16 (1967), where the Court stated that "officers need not [441 U.S. 238, 248] announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence." 7 In United States v. Donovan, 429 U.S. 413, 429 n. 19 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. 2518 (8) (d). There is no reason why the same notice is not equally sufficient with respect to electronic surveillances requiring covert entry. We make explicit, therefore, what has long been implicit in our decisions dealing with this subject: The Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment. 8 </s> [441 U.S. 238, 249] </s> III </s> Petitioner's second contention is that Congress has not given the courts statutory authority to approve covert entries for the purpose of installing electronic surveillance equipment, even if constitutionally it could have done so. Petitioner emphasizes that although Title III sets forth with meticulous care the circumstances in which electronic surveillance is permitted, there is no comparable indication in the statute that covert entry ever may be ordered. Accord, United States v. Santora, 583 F.2d 453, 457-458 (CA9 1978). </s> Title III does not refer explicitly to covert entry. The language, structure, and history of the statute, however, demonstrate that Congress meant to authorize courts - in certain specified circumstances - to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials. See 18 U.S.C. 2511, 2515, and 2518; United States v. United States District Court, 407 U.S. 297, 301 -302 (1972). Although Congress was fully aware of the distinction between bugging and wiretapping, see S. Rep. No. 1097, 90th Cong., 2d Sess., 68 (1968), Title III by its terms deals with each form of surveillance in essentially the same manner. See 18 U.S.C. 2510 (1) and (2); n. 1, supra. Orders authorizing interceptions of either wire or oral communications may be entered only after the court has made specific determinations concerning the likelihood that the interception will disclose evidence of criminal conduct. See 18 U.S.C. 2518 (3). Moreover, with respect to both wiretapping and bugging, an authorizing court must [441 U.S. 238, 250] specify the exact scope of the surveillance undertaken, enumerating the parties whose communications are to be overheard (if they are known), the place to be monitored, and the agency that will do the monitoring. See 18 U.S.C. 2518 (4). </s> The plain effect of the detailed restrictions of 2518 is to guarantee that wiretapping or bugging occurs only when there is a genuine need for it and only to the extent that it is needed. 9 Once this need has been demonstrated in accord with the requirements of 2518, the courts have broad authority to "approv[e] interception of wire or oral communications," 18 U.S.C. 2516 (1), (2), subject of course to constitutional limitations. See Part II, supra. 10 Nowhere in Title III is there any indication that the authority of courts under 2518 is to be limited to approving those methods of interception that do not require covert entry for installation of the intercepting equipment. 11 </s> [441 U.S. 238, 251] </s> The legislative history of Title III underscores Congress' understanding that courts would authorize electronic surveillance in situations where covert entry of private premises was necessary. Indeed, a close examination of that history reveals that Congress did not explicitly address the question of covert entries in the Act, only because it did not perceive surveillance requiring such entries to differ in any important way from that performed without entry. Testimony before subcommittees considering Title III and related bills indicated that covert entries were a necessary part of most electronic bugging operations. See, e. g., Anti-Crime Program: Hearings on H. R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1031 (1967). Moreover, throughout the Senate Report on Title III indiscriminate reference is made to the types of surveillance this Court reviewed in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967). See, e. g., S. Rep. No. 1097, supra, at 74-75, 97, 101-102, 105. Apparently Committee members did not find it significant that Berger involved a covert entry, whereas Katz did not. Compare Berger v. New York, supra, at 45, with Katz v. United States, supra, at 348. 12 </s> It is understandable, therefore, that by the time Title III [441 U.S. 238, 252] was discussed on the floor of Congress, those Members who referred to covert entries indicated their understanding that such entries would necessarily be a part of bugging authorized under Title III. Thus, for example, in voicing his support for Title III Senator Tydings emphasized the difficulties attendant upon installing necessary equipment: </s> "[S]urveillance is very difficult to use. Tape [sic] must be installed on telephones, and wires strung. Bugs are difficult to install in many places since surreptitious entry is often impossible. Often, more than one entry is necessary to adjust equipment." 114 Cong. Rec. 12989 (1968) (emphasis added). </s> In the face of this record, one simply cannot assume that Congress, aware that most bugging requires covert entry, nonetheless wished to except surveillance requiring such entries from the broad authorization of Title III, and that it resolved to do so by remaining silent on the subject. On the contrary, the language and history of Title III convey quite a different explanation for Congress' failure to distinguish between surveillance that requires covert entry and that which does not: Those considering the surveillance legislation understood that, by authorizing electronic interception of oral communications in addition to wire communications, they were necessarily authorizing surreptitious entries. </s> Finally, Congress' purpose in enacting the statute would be largely thwarted if we were to accept petitioner's invitation to read into Title III a limitation on the courts' authority under 2518. Congress permitted limited electronic surveillance under Title III because it concluded that both wiretapping and bugging were necessary to enable law enforcement authorities to combat successfully certain forms of crime. 13 </s> [441 U.S. 238, 253] Absent covert entry, however, almost all electronic bugging would be impossible. 14 See United States v. Ford, 414 F. Supp. 879, 882 (DC 1976), aff'd, 180 U.S. App. D.C. 1, 553 F.2d 146 (1977); McNamara, The Problem of Surreptitious Entry [441 U.S. 238, 254] to Effectuate Electronic Eavesdrops: How Do You Proceed After the Court Says "Yes"?, 15 Am. Crim. L. Rev. 1, 3 (1977). As recently as 1976, a congressional commission established to study and evaluate the effectiveness of Title III concluded that in most cases electronic surveillance cannot be performed without covert entry into the premises being monitored. See U.S. National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Electronic Surveillance 15, 43, and n. 19, 86 (1976). The same conclusion was reached by the American Bar Association committee charged with formulating standards governing use of electronic surveillance. See ABA Project on Minimum Standards for Criminal Justice, Electronic Surveillance 65 n. 175, 149 (App. Draft 1971). 15 </s> In sum, we conclude that Congress clearly understood that it was conferring power upon the courts to authorize covert entries ancillary to their responsibility to review and approve surveillance applications under the statute. To read the statute otherwise would be to deny the "respect for the policy of Congress [that] must save us from imputing to it a self-defeating, if not disingenuous purpose." Nardone v. United States, 308 U.S. 338, 341 (1939). 16 </s> IV </s> Petitioner's final contention is that, if covert entries are to be authorized under Title III, the authorizing court must [441 U.S. 238, 255] explicitly set forth its approval of such entries before the fact. In this case, as is customary, the court's order constituted the sole written authorization of the surveillance of petitioner's office. As it did not state in terms that the surveillance was to include a covert entry, petitioner insists that the entry violated his Fourth Amendment privacy rights. Accord, United States v. Ford, 180 U.S. App. D.C., at 25, 553 F.2d, at 170; Application of United States, 563 F.2d 637, 644 (CA4 1977). 17 </s> The Fourth Amendment requires that search warrants be issued only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Finding these words to be "precise and clear," Stanford v. Texas, 379 U.S. 476, 481 (1965), this Court has interpreted them to require only three things. First, warrants must be issued by neutral, disinterested magistrates. See, e. g., Connally v. Georgia, 429 U.S. 245, 250 -251 (1977) (per curiam); Shadwick v. Tampa, 407 U.S. 345, 350 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 459 -460 (1971). Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction" for a particular offense. Warden v. Hayden, 387 U.S. 294, 307 (1967). Finally, "warrants must particularly describe the `things to be seized,'" as well as the place to be searched. Stanford v. Texas, supra, at 485. [441 U.S. 238, 256] </s> In the present case, the April 5 court order authorizing the interception of oral communications occurring within petitioner's office was a warrant issued in full compliance with these traditional Fourth Amendment requirements. It was based upon a neutral magistrate's independent finding of probable cause to believe that petitioner had been and was committing specifically enumerated federal crimes, that petitioner's office was being used "in connection with the commission of [these] offenses," and that bugging the office would result in the interception of "oral communications concerning these offenses." App. 6a-7a. Moreover, the exact location and dimensions of petitioner's office were set forth, see n. 4, supra, and the extent of the search was restricted to the "[i]ntercept[ion of] oral communications of Larry Dalia and others as yet unknown, concerning the above-described offenses at the business office of Larry Dalia . . . ." App. 8a. 18 </s> Petitioner contends, nevertheless, that the April 5 order was insufficient under the Fourth Amendment for its failure to specify that it would be executed by means of a covert [441 U.S. 238, 257] entry of his office. Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant 19 - subject of course to the general Fourth Amendment protection "against unreasonable searches and seizures." </s> Recognizing that the specificity required by the Fourth Amendment does not generally extend to the means by which warrants are executed, petitioner further argues that warrants for electronic surveillance are unique because often they impinge upon two different Fourth Amendment interests: The surveillance itself interferes only with the right to hold private conversations, whereas the entry subjects the suspect's property to possible damage and personal effects to unauthorized examination. This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter [441 U.S. 238, 258] the suspect's home in order to take him into custody, and they thereby impinge on both privacy and freedom of movement. See, e. g., United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). Similarly, officers executing search warrants on occasion must damage property in order to perform their duty. See, e. g., United States v. Brown, 556 F.2d 304, 305 (CA5 1977); United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864 (1973). </s> It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held - and the Government concedes - that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. See Zurcher v. Stanford Daily, 436 U.S. 547, 559 -560 (1978). 20 More important, we would promote empty formalism were we to require magistrates to make explicit what unquestionably is implicit in bugging authorizations: 21 that a covert entry, with its attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. See United States v. London, 424 F. Supp. 556, 560 (Md. 1976). We conclude, therefore, that the Fourth Amendment does not require that a Title III electronic surveillance order include a [441 U.S. 238, 259] specific authorization to enter covertly the premises described in the order. 22 </s> The judgment of the Court of Appeals is </s> Affirmed. </s> Footnotes [Footnote 1 All types of electronic surveillance have the same purpose and effect: the secret interception of communications. As the Court set forth in Berger v. New York, 388 U.S. 41, 45 -47 (1967), however, this surveillance is performed in two quite different ways. Some surveillance is performed by "wiretapping," which is confined to the interception of communication by telephone and telegraph and generally may be performed from outside the premises to be monitored. For a detailed description, see Note, Minimization of Wire Interception: Presearch Guidelines and Postsearch Remedies, 26 Stan. L. Rev. 1411, 1414 n. 18 (1974). At issue in the present case is the form of surveillance commonly known as "bugging," which includes the interception of all oral communication in a given location. Unlike wiretapping, this interception typically is accomplished by installation of a small microphone in the room to be bugged and transmission to some nearby receiver. See McNamara, The Problem of Surreptitious Entry to Effectuate Electronic Eavesdrops: How Do You Proceed After the Court Says "Yes"?, 15 Am. Crim. L. Rev. 1, 2 (1977); Blakey, Aspects of the Evidence Gathering Process in Organized Crime Cases: A Preliminary Analysis, reprinted in the President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime, App. C, 92, 97 (1967). Both wiretapping and bugging are regulated under Title III. See 18 U.S.C. 2510 (1) and (2). </s> [Footnote 2 Every electronic surveillance necessarily is "covert" in the sense that it must be "hidden; secret; disguised" to be effective. Webster's New International Dictionary 613 (2d ed. 1953). As used here, "covert entry" refers to the physical entry by a law enforcement officer into private premises without the owner's permission or knowledge in order to install bugging equipment. Generally, such an entry will require a breaking and entering. See discussion infra, at 253-254. </s> [Footnote 3 The Federal Courts of Appeals have given conflicting answers to these questions. See United States v. Finazzo, 583 F.2d 837 (CA6 1978); United States v. Santora, 583 F.2d 453 (CA9 1978); United States v. Scafidi, 564 F.2d 633 (CA2 1977), cert. denied, 436 U.S. 903 (1978); United States v. Ford, 180 U.S. App. D.C. 1, 553 F.2d 146 (1977); United States v. Agrusa, 541 F.2d 690 (CA8 1976), cert. denied, 429 U.S. 1045 (1977). </s> [Footnote 4 In relevant part, the Title III order of April 5 provided: </s> "[T]he Court finds: </s> "(a) There is probable cause to believe that Larry Dalia and others as yet unknown, have committed and are committing offenses involving theft from interstate shipments, in violation of Title 18, United States Code, [441 U.S. 238, 243] Section 659; sale or receipt of stolen goods, in violation of Title 18, United States Code, Section 2315; and interference with commerce by threats or violence, in violation of Title 18, United States Code, Section 1951; and are conspiring to commit such offenses in violation of Section 371 of Title 18, United States Code. </s> "(b) There is probable cause to believe that particular wire and oral communications concerning these offenses will be obtained through these interceptions, authorization for which is herewith applied. In particular, these wire and oral communications will concern the theft or robbery of goods moving in interstate commerce, and the transportation, sale, receipt, storage, or distribution of these stolen goods, and the participants in the commission of said offenses. </s> "(c) Normal investigative procedures reasonably appear to be unlikely to succeed and are too dangerous to be used. </s> . . . . . </s> "(e) There is probable cause to believe that the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey, has been used, and is being used by Larry Dalia and others as yet unknown in connection with the commission of the above-described offenses. </s> "WHEREFORE, it is hereby ordered that: </s> "Special Agents of the Federal Bureau of Investigation, United States Department of Justice, are authorized . . . to: </s> . . . . . </s> "(b) Intercept oral communications of Larry Dalia, and others as yet unknown, concerning the above-described offenses at the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey. </s> "(c) Such interceptions shall not automatically terminate when the type of communication described above in paragraphs (a) and (b) have first been obtained, but shall continue until communications are intercepted which reveal the manner in which Larry Dalia and others as yet unknown [441 U.S. 238, 243] participate in theft from interstate shipments; sale or receipt of stolen goods; and interference with commerce by threats or violence; and which reveal the identities of his confederates, their places of operation, and the nature of the conspiracy involved therein, or for a period of twenty (20) days from the date of this Order, whichever is earlier. </s> . . . . . </s> "PROVIDING THAT, this authorization to intercept oral and wire communications shall be executed as soon as practicable after signing of this Order and shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under Chapter 119 of Title 18 of the United States Code, and must terminate upon attainment of the authorized objective, [or] in any event, at the end of twenty (20) days from the date of this Order. </s> "PROVIDING ALSO, that Special Attorney James M. Deichert shall provide the Court with a report on the fifth, tenth, and fifteenth day following the date of this Order showing what progress has been made toward achievement of the authorized objective and the need for continued interception." </s> [Footnote 5 Count one charged petitioner and others with conspiring to transport, receive, and possess stolen goods in violation of 18 U.S.C. 2, 2314, 2115, and 659. Count two charged petitioner and others with conspiring to obstruct interstate commerce in violation of 18 U.S.C. 1951 (b) (1). Count three charged that petitioner had transported stolen goods; count four charged that he had received stolen goods; and count five charged petitioner with possession of stolen goods. </s> [Footnote 6 Petitioner was convicted of receiving stolen goods and conspiring to transport, receive, and possess stolen goods. See n. 5, supra. </s> [Footnote 7 One authority has said that the constitutional validity of covert entries to install bugs "is plainly the consequence of [the] reasoning" of Katz v. United States. T. Taylor, Two Studies in Constitutional Interpretation 114 (1969). </s> [Footnote 8 Petitioner argues that, even if a covert entry would be constitutional in some cases, it was not in the present case, as there was no need for such entry. The District Court, however, specifically found that the "safest and most successful method of accomplishing the installation of the wiretapping device was through breaking and entering [the office]." 426 F. Supp. 862, 866 (1977). Moreover, in issuing the Title III order, the court found that "[n]ormal investigative procedures reasonably appear to be unlikely to succeed and are too dangerous to be used." App. 7a. And in his opinion denying petitioner's subsequent suppression motion, the same judge stated: </s> "The affidavits which supported the application for the warrant in question indicated that resort to electronic surveillance, to overhear meetings at Dalia's office and conversations on Dalia's telephones, was required to identify the sources of Dalia's stolen goods, those working with him to transport and store stolen property, and the scope of the conspiracy. Oral evidence of this criminal enterprise was only available inside Dalia's business premises." 426 F. Supp., at 866. </s> The District Court, therefore, concluded that the circumstances required [441 U.S. 238, 249] the approach used by the officers, and nothing in the record brings this conclusion into question. </s> [Footnote 9 It is clear that Title III serves a substantial public interest. See n. 13, infra. Congress and this Court have recognized, however, that electronic surveillance can be a threat to the "cherished privacy of law-abiding citizens" unless it is subjected to the careful supervision prescribed by Title III. See United States v. United States District Court, 407 U.S. 297, 312 (1972). </s> [Footnote 10 Congress explicitly confirmed the breadth of the power it had conferred on courts acting under Title III when it amended the Act in 1970. Pub. L. 91-358, Title II, 211 (b), 84 Stat. 654. Section 2518 (4) now empowers a court authorizing electronic surveillance to "direct that a . . . landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively . . . ." (Emphasis added.) Thus, it appears that Congress anticipated that landlords and custodians may be enlisted to aid law enforcement officials covertly to enter and place the necessary equipment in private areas. </s> [Footnote 11 The only limitation Title III places on the manner in which these court orders are to be executed is in its requirements that no order extend beyond 30 days, and that every order must include provisions that it is to be executed as soon as practicable and in a manner that will minimize the [441 U.S. 238, 251] interception of communications not within the purview of the order. See 18 U.S.C. 2518 (5). </s> [Footnote 12 Indeed, the nature of electronic surveillance involved in Berger v. New York was mentioned on the floor of the Senate, when Senator Long observed that under the New York law, police could "obtain judicial warrants authorizing them to hide bugs in the premises of criminal suspects." 114 Cong. Rec. 14708 (1968). To be sure, in his comments Senator Long did not explicitly suggest that Title III would authorize such covert entries. See post, at 272. His statement confirmed, however, what had been strongly indicated prior to the bill's consideration by the full Congress: Members of Congress simply saw no distinction between electronic surveillance which required covert entry and that which required covert tapping of one's telephone. The invasion of the privacy of conversation is the same in both situations. </s> [Footnote 13 Title 18 U.S.C. 2516 specifies that authorization for electronic surveillance may be sought only with respect to certain enumerated crimes. These include espionage, sabotage, treason, kidnaping, robbery, extortion, murder, various corrupt practices, and counterfeiting. According to the [441 U.S. 238, 253] Senate Report concerning Title III, "[e]ach offense has been chosen either because it is intrinsically serious or because it is characteristic of the operations of organized crime." S. Rep. No. 1097, 90th Cong., 2d Sess., 97 (1968). The need for use of electronic surveillance against organized crime had been thoroughly considered and documented, shortly before Congress began considering Title III, by a special organized-crime Task Force of a Presidential Commission charged with considering crime in the United States. The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime 91-104 (1967); see United States v. United States District Court, 407 U.S., at 310 n. 9. A summary of the Task Force's conclusions appeared in the Commission's report, which was repeatedly referred to during consideration of Title III. See The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 200-203 (1967). In Congress, proponents of Title III, after hearing numerous witnesses testify concerning the importance of electronic surveillance in fighting organized crime, recommended the bill to their colleagues as "[l]egislation meeting the constitutional standards set out in [Supreme Court] decisions, and granting law enforcement officers the authority to tap telephone wires and install electronic surveillance devices in the investigation of major crimes." S. Rep. No. 1097, supra, at 75; see id., at 74. Indeed, the Senate Report on Title III unequivocally stated that "[t]he major purpose of title III is to combat organized crime." Id., at 70. The rapid developments in technology available to the criminal underworld make it all the more imperative that the Government not "deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens." United States v. United States District Court, supra, at 312. </s> [Footnote 14 Although he cites no authority, MR. JUSTICE STEVENS apparently believes that a practicable alternative to covert entry would be installation of bugging devices through subterfuge. See post, at 272. Nowhere in the legislative history of Title III is there any indication that Congress wished to limit its authorization to bugs installed through subterfuge. Moreover, it is difficult to perceive why one means of gaining entry would be less intrusive than another. See, e. g., United States v. Ford, 414 F. Supp. 879 (DC 1976), aff'd, 180 U.S. App. D.C. 1, 553 F.2d 146 (1977) (bombscare ruse). </s> [Footnote 15 Those few available devices that intercept conversation from outside of a building in many cases are impractical, either because of cost, reliability, or the configuration of the area being monitored. See U.S. National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Commission Studies 168-183 (1976); see, e. g., United States v. Ford, 414 F. Supp., at 881. </s> [Footnote 16 As we have concluded that Title III authorizes courts to approve covert entries to install electronic surveillance equipment, we do not consider whether such authority also is conferred by other federal enactments, such as Fed. Rule Crim. Proc. 41 or the All Writs Act, 28 U.S.C. 1651. </s> [Footnote 17 There is no requirement in Title III that explicit authorization of covert entries be set forth in the court's order. The statutory requirement that the surveillance "should remain under the control and supervision of the authorizing court" 82 Stat. 211, 801 (d), merely emphasizes that courts acting under 18 U.S.C. 2518 should utilize their power under 2518 (6) to require periodic progress reports after the installation of the wiretap or bug. If there is a requirement of explicit judicial authorization for covert entry, therefore, it must come from the Fourth Amendment alone. </s> [Footnote 18 Because of the strict requirements of Title III, all of the indicia of a warrant necessarily are present whenever an order under Title III is issued. Accord, United States v. Scafidi, 564 F.2d, at 644 (Gurfein, J., concurring). Indeed, it was Congress' express design to create under Title III a mechanism by which search warrants valid under the Fourth Amendment would be issued for electronic surveillance. See S. Rep. No. 1097, supra n. 13, at 105; Controlling Crime Through More Effective Law Enforcement: Hearings on S. 300, etc., before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 176, 570, 919 (1967); Hearings on H. R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 917, 934 (1967). No less would be required for the court authorization of electronic surveillance under Title III to be constitutional, as electronic surveillance undeniably is a Fourth Amendment intrusion requiring a warrant. See, e. g., Katz v. United States, 389 U.S. 347, 352 -353, 356-357 (1967). And we have explicitly recognized the necessity of a warrant in cases of electronic surveillance. See United States v. United States District Court, 407 U.S., at 316 -320. </s> [Footnote 19 For example, courts have upheld the use of forceful breaking and entering where necessary to effect a warranted search, even though the warrant gave no indication that force had been contemplated. See, e. g., United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864 (1973). To be sure, often it is impossible to anticipate when these actions will be necessary. See Note, Covert Entry in Electronic Surveillance: The Fourth Amendment Requirements, 47 Ford. L. Rev. 203, 214 (1978). Nothing in the decisions of this Court, however, indicates that officers requesting a warrant would be constitutionally required to set forth the anticipated means for execution even in those cases where they know beforehand that unannounced or forced entry likely will be necessary. See 2 W. LaFave, Search and Seizure 140 (1978). </s> [Footnote 20 The District Court found that covert entry in the present case was reasonable. The officers entered petitioner's office only twice: once to install the bug and once to remove it. There is no indication that their intrusion went beyond what was necessary to install and remove the equipment. See n. 8, supra. </s> [Footnote 21 In the present case, the District Court specifically noted that its order implicitly had authorized covert entry. See supra, at 246. Thus, contrary to the suggestion of the dissent, see post, at 270 n. 20, there is no question in this case "of the Executive's authority to break and enter at will without any judicial authorization." </s> [Footnote 22 Although explicit authorization of the entry is not constitutionally required, we do agree with the Court of Appeals that the "preferable approach" would be for Government agents in the future to make explicit to the authorizing court their expectation that some form of surreptitious entry will be required to carry out the surveillance. Indeed, the Solicitor General has informed us that the Department of Justice has adopted a policy requiring its officers "[to] include [in applications for Title III orders] a request that the order providing for the interception specifically authorize surreptitious entry for the purpose of installing and removing any electronic interception devices to be utilized in accomplishing the oral interception." See Brief for United States 56. </s> MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART joins except as to Part I, concurring in part and dissenting in part. </s> I concur in Parts I and II of the Court's opinion. </s> I </s> I dissent from Part III for the reasons stated in the dissenting opinion of MR. JUSTICE STEVENS which I join. </s> II </s> I also dissent from Part IV. In my view, even reading Title III to authorize covert entries, the Justice Department's present practice of securing specific authorization for covert entries is not only preferable, see ante, this page n. 22, but also constitutionally required. </s> Breaking and entering into private premises for the purpose of planting a bug cannot be characterized as a mere mode of warrant execution to be left to the discretion of the executing officer. See ante, at 257. The practice entails an invasion [441 U.S. 238, 260] of privacy of constitutional significance distinct from that which attends nontrespassory surveillance; indeed, it is tantamount to an independent search and seizure. First, rooms may be bugged without the need for surreptitious entry and physical invasion of private premises. See Lopez v. United States, 373 U.S. 427, 467 -468 (1963) (BRENNAN, J., dissenting). Second, covert entry, a practice condemned long before we condemned unwarranted eavesdropping, see Silverman v. United States, 365 U.S. 505 (1961), breaches physical as well as conversational privacy. The home or office itself, that "inviolate place which is a man's castle," id., at 512 n. 4, is invaded. Third, the practice is particularly intrusive and susceptible to abuse since it leaves naked to the hands and eyes of government agents items beyond the reach of simple eavesdropping. </s> Because of these additional intrusions attendant to covert entries, the Constitution requires that government agents who wish to break into private premises first secure specific judicial authorization for the surreptitious entry. Authority for the physical invasion cannot be derived from a Title III order authorizing only electronic surveillance. </s> "[T]he Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant," Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 394 n. 7 (1971), in order to assure that those "searches deemed necessary [remain] as limited as possible." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). See Stanford v. Texas, 379 U.S. 476, 485 (1965); Marron v. United States, 275 U.S. 192, 196 (1927). * As a consequence, a warrant that describes [441 U.S. 238, 261] only the seizure of conversations cannot be read expansively to authorize constitutionally distinct physical invasions of privacy at the discretion of the executing officer. Rather, the Constitution demands that the necessity for home invasion be decided "by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). </s> I cannot agree that adherence to this principle would amount to "specification of the precise manner" in which Title III orders are executed. See ante, at 257. The warrant could, consistent with the command of the Fourth Amendment, leave the details of how best to proceed with the covert entry to the discretion of the executing officers. The warrant need only state, as under the present Justice Department practice, that "surreptitious entry for the purpose of installing and removing any electronic interception devices [is] to be utilized in accomplishing the oral interception." Ante, at 259 n. 22. </s> Nor can I agree that adherence to the strictures of the Warrant and Particularity Clauses of the Fourth Amendment would amount to "empty formalism." See ante, at 258. Since premises may be bugged through means less drastic than home invasion, requiring police to secure prior approval for covert entries may well prevent unnecessary and improper intrusions. In any event, that the present case may not appear particularly abusive cannot justify the Court's crabbed interpretation of the Fourth Amendment. Mr. Justice Bradley's [441 U.S. 238, 262] admonition almost a century ago has even greater cogency in today's world of ever more intrusive governmental invasions of privacy: </s> "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616, 635 (1886). </s> [Footnote * The Court's reliance upon United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing), for the opposite proposition is misplaced. In Cravero, police could not have anticipated the need to arrest the suspect at his home at the time the arrest warrant was issued. It would have been unreasonable, therefore, to require the warrant to specify a home arrest. Here, by contrast, the covert entry was easily foreseeable. There is no reason why the federal agents who secured the [441 U.S. 238, 261] warrant could not have advised the judge who issued the warrant that they contemplated covert entry. Indeed, the current Justice Department practice of securing specific prior authorization for covert entries demonstrates the practicability of a constitutional prior-authorization requirement. </s> United States v. Gervato, 474 F.2d 40, 41 (CA3 1973), is distinguishable for the same reason and also because Gervato involved a mere mode of warrant execution (forcible entry) rather than an invasion of two separate expectations of privacy. </s> MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting. </s> At midnight on the night of April 5-6, 1973, three persons pried open a window to petitioner's business office and secretly entered the premises. During the next three hours they moved freely about the building, eventually implanting a listening device in the ceiling. Several weeks later, they again broke into the office at night and removed the device. </s> The perpetrators of these break-ins were agents of the Federal Bureau of Investigation. Their office, however, carries with it no general warrant to trespass on private property. Without legislative or judicial sanction, the conduct of these agents was unquestionably "unreasonable" and therefore prohibited by the Fourth Amendment. 1 Moreover, that conduct [441 U.S. 238, 263] violated the Criminal Code of the State of New Jersey unless it was duly authorized. 2 </s> The only consideration that arguably might legitimate these "otherwise tortious and possibly criminal" invasions of petitioner's private property, 3 is the fact that a federal judge had entered an order authorizing the agents to use electronic equipment to intercept oral communications at petitioner's office. The order, however, did not describe the kind of equipment to be used and made no reference to an entry, covert or otherwise, into private property. Nor does any statute expressly permit such activity or even authorize a federal judge to enter orders granting federal agents a license to commit criminal trespass. The initial question this case raises, therefore, is whether this kind of power should be read into a statute that does not expressly grant it. </s> In my opinion, there are three reasons, each sufficient by itself, for refusing to do so. First, until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement. Second, the structural detail of this statute precludes a reading that converts silence into thunder. Third, the legislative history affirmatively demonstrates that Congress never contemplated the situation now before the Court. </s> I </s> "Congress, like this Court, has an obligation to obey the mandate of the Fourth Amendment." Marshall v. Barlow's Inc., 436 U.S. 307, 334 (STEVENS, J., dissenting). But Congress is better equipped than the Judiciary to make the empirical [441 U.S. 238, 264] judgment that a previously unauthorized investigative technique represents a "reasonable" accommodation between the privacy interests protected by the Fourth Amendment and effective law enforcement. 4 Throughout our history, therefore, it has been Congress that has taken the lead in granting new authority to invade the citizen's privacy. 5 It is appropriate to accord special deference to Congress whenever it has expressly balanced the need for a new investigatory technique against the undesirable consequences of any intrusion on constitutionally protected interests in privacy. See id., at 334-339. </s> But no comparable deference should be given federal intrusions on privacy that are not expressly authorized by Congress. 6 In my view, a proper respect for Congress' important [441 U.S. 238, 265] role in this area, as well as our tradition of interpreting statutes to avoid constitutional issues, 7 compels this conclusion. </s> The Court does not share this view. For this is the third time in as many years that it has condoned a serious intrusion on privacy that was not explicitly authorized by statute and that admittedly raised a substantial constitutional question. In United States v. Ramsey, 431 U.S. 606 , the Court upheld an Executive regulation authorizing postal inspectors to open private letters without probable cause to believe they contained contraband. 8 In United States v. New York Telephone Co., 434 U.S. 159 , the Court upheld orders authorizing the surreptitious pen-register surveillance of an individual and directing a private company to lend its assistance in that endeavor. Again, no explicit statutory authority existed for either order, despite Congress' otherwise comprehensive treatment of wire surveillance in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III). 9 </s> [441 U.S. 238, 266] </s> Today the Court has gone even further in finding an implicit grant of Executive power in Title III. That Title "does not refer explicitly to covert entry" of any kind, much less to entries that are tortious or criminal. Ante, at 249. Nevertheless, the Court holds that Congress, without having said so explicitly, has authorized the agents of a national police force in carrying out a surveillance order to break into private premises 10 in violation of state law. Moreover, the Court finds in the silent statute an open-ended authorization to effect such illegal entries without an explicit judicial determination that there is probable cause to believe they are necessary or even appropriate. In my judgment, it is most unrealistic to assume that Congress granted such broad and controversial authority to the Executive without making its intention to do so unmistakably plain. This is the paradigm case in which "the exact words of the statute provide the surest guide to determining Congress' intent." 11 I would not enlarge the coverage of the statute beyond its plain meaning. </s> II </s> The Court's conclusion that the statute implicitly authorizes breaking and entering is especially anomalous because the statutory scheme in all other respects is exhaustive and explicit. 12 </s> [441 U.S. 238, 267] "It simply does not make sense" 13 to conclude that Congress - having minutely detailed (1) the process that "[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General" must follow in authorizing federal police officers to seek an electronic surveillance order, 14 (2) the limited number of suspected offenses that will justify such an order, 15 (3) the showing that must be made to "a Federal judge" before he issues the order, 16 (4) the [441 U.S. 238, 268] standard the judge must apply in approving, and the format he must follow in preparing, the order, 17 (5) the time frame of execution and the manner of execution with respect to [441 U.S. 238, 269] minimizing the interception of communications not likely to involve criminal activity, 18 and even having more recently specified (6) certain "unobtrusive" means by which those [441 U.S. 238, 270] orders might be carried out without the awareness of the suspect 19 - was content to leave national police officers with unbounded authority to carry out the resulting orders in any unspecified and obtrusive fashion they chose "subject of course to constitutional limitations." Ante, at 250. 20 </s> [441 U.S. 238, 271] </s> In my view, it is the opposite conclusion that is true to the statutory structure. For "one simply cannot assume that Congress," see ante, at 252, wished to erect various procedural barriers against poor judgment on the part of the Attorney General and his subordinates in seeking, and on the part of federal district judges in issuing, eavesdropping orders only to commit their execution, even through illegal means, entirely to "the judgment and moderation of officers whose own interests and records are often at stake in the search." Brinegar v. United States, 338 U.S. 160, 182 (Jackson, J., dissenting). The detailed timing and minimization restrictions on the executing officer, see n. 18, supra, as well as the 1970 amendment to Title III concerning "unobtrusive" execution, see n. 19, supra, lead inescapably to the conclusion that Congress withheld authority to trespass on private property except through the limited means expressly dealt with in the statute. 21 </s> III </s> Only one relevant conclusion can be drawn from a review of the entire legislative history of Title III. The legislators never even considered the possibility that they were passing a statute that would authorize federal agents to break into private premises without any finding of necessity by a neutral and detached magistrate. </s> A </s> The meager legislative remarks that are said to demonstrate that Title III's supporters implicitly endorsed breaking and [441 U.S. 238, 272] entering in order to install listening devices actually provide no support for that conclusion. </s> The reference to "judicial warrants authorizing [police] to hide bugs in the premises of criminal suspects," see ante, at 251 n. 12, was a comment by an opponent of the bill on investigative techniques that he believed this Court had ruled illegal in Berger v. New York, 388 U.S. 41 . 22 Since neither he, nor any supporter of the bill, suggested that those techniques would be authorized by Title III, his comment is hardly indicative of a legislative endorsement of such practices. Moreover, there is a marked difference between the judicially warranted "hid[ing of] bugs in the premises of criminal suspects" and a forcible entry that has not been expressly authorized by any judge. The difference between subterfuge and forcible trespass should not be ignored. </s> That difference explains why the Court's reliance on two statements by proponents of Title III that emphasize the technological limitations on "bugs" and "taps" is misplaced. The proponents believed these limitations would discourage the frequent use and abuse of electronic surveillance. Thus, in answer to repeated charges that passage of Title III would recreate Hitler's Germany or anticipate Orwell's "1984," Senator Tydings, in a passage partially quoted by the Court, ante, at 252, argued: </s> "Contrary to what we have heard, electronic surveillance is not a lazy way to conduct an investigation. It [441 U.S. 238, 273] will not be used wholesale as a substitute for physical investigation. </s> . . . . . </s> "The reason[s] for such sparing use are simple. First, electronic surveillance is really useful only in conspiratorial activities. . . . </s> "Second, surveillance is very difficult to use. Tape must be installed on telephones and wires strung. Bugs are difficult to install in many places since surreptitious entry is often impossible. Often, more than one entry is necessary to adjust equipment. . . . </s> "Third, monitoring this equipment requires the expenditure of a great amount of law enforcement's time. . . ." 114 Cong. Rec. 12988-12989 (1968) (emphasis added). 23 </s> Read in context, this and like commentary are inconsistent with, rather than an endorsement of, unauthorized break-ins. For although it is of course true that surreptitious entry is often "impossible" when it must be accomplished without violating the law, surreptitious entry is by no means impossible (indeed, it is hardly "difficult") if it may be effected by whatever means the police - unhampered by the provisions of the criminal law - can bring to their disposal. Despite the Court's understanding of it, I read Senator Tydings' remark as only one of many expressions by Title III's supporters of their belief that authorized electronic surveillance would be "carefully circumscribed," id., at 13203 (Sen. Scott) and "rigidly controlled," id., at 14715 (Sen. Tydings), not only by technology but also by "strict court supervision," id., at 13200 (Sen. Scott), the "strictest guidelines," id., at 16076 [441 U.S. 238, 274] (Rep. Harsha), and "an elaborate system of checks and safeguards." Id., at 13204 (Sen. Scott). 24 </s> Even the opponents of Title III, in parading before Congress the various invasions of privacy that they felt would accompany the passage of the statute, never once referred to breaking and entering private property. E. g., id., at 14710 (Sen. Cooper); id., at 14732 (Sen. Yarborough); id., at 16066 (Rep. Celler). That they omitted such references while decrying far less aggravated invasions is strong evidence that they, at least, never thought about the issue that this case raises. 25 And since the sponsors of the legislation expressly stated that they had specified "every possible constitutional safeguard for the rights of individual privacy," id., at [441 U.S. 238, 275] 14469 (Sen. McClellan), 26 their omission of any significant reference to these aggravated intrusions surely demonstrates that they did not consider this issue either. </s> In sum, as far as my research reveals, during the debates on Title III neither the proponents nor the opponents of the bill directly or indirectly expressed the view that the statute would authorize uninvited forcible trespasses by police officers as a means of implanting a listening device. </s> B </s> Because the drafters of Title III made "indiscriminate reference . . . to the types of surveillance this Court reviewed" in prior cases, ante, at 251, the Court draws the conclusion that Congress meant to authorize all "types of surveillance" discussed in those cases. The premise does not support the conclusion. </s> Many of those cases, including the two specifically cited by the Court, 27 held that the police conduct involved was unlawful. Rather than endorsing all of the techniques discussed in those cases, Congress was quite clearly trying to avoid the incidents of unconstitutionality those cases had [441 U.S. 238, 276] identified. 28 Moreover, in drafting Title III, the Senate Judiciary Committee did more than merely isolate and exclude from the bill the illegal elements of the police activity involved in those cases. Thus, the Chairman of the Committee, in answer to a colleague's question whether Title III was drafted in conformity with the Fourth Amendment, stated: </s> "Completely so, let me say to my friend. Completely so, and it is even more restrictive. We have gone to every length which is proper, we think, to protect people's privacy." 114 Cong. Rec. 14470 (1968). </s> It is of greater importance, however, that although Congress was concerned with the "types of surveillance" involved in our prior cases, none of the congressional references to those cases discussed the type of entry made to effectuate the surveillance. Not a word in any of those pre-1968 opinions, save one, described an illegal entry or even implied that such an entry had occurred. Those opinions instead described situations in which a listening device had been surreptitiously placed: against an office wall in order to hear conversations in the next office, Goldman v. United States, 316 U.S. 129 ; on the person of a federal agent who recorded a conversation in the defendant's laundry, On Lee v. United States, 343 U.S. 747 ; in a cabaret, Lopez v. United States, 373 U.S. 427 ; in a law office, Osborn v. United States, 385 U.S. 323 ; against a spike inserted under a party wall, Silverman v. United States, 365 U.S. 505 ; on the outside of a public telephone booth, Katz v. United States, 389 U.S. 347 ; and inside a private office, Berger v. New York, 388 U.S. 41 . It is, of course, true that the conduct in each cited case was surreptitious, but there is a vast difference between detective work that is merely clandestine and work that involves breaking and entering into private property. Before the decisions in Katz and Berger, the former technique was considered to be lawful, warrant or [441 U.S. 238, 277] no warrant, 29 whereas the latter was considered unlawful. 30 The fact that Congress was prepared to enact a statute authorizing practices previously thought to be lawful surely does not justify the conclusion that it was equally prepared to authorize conduct that had always been made unlawful by the criminal laws of the various States. </s> Irvine v. California, 347 U.S. 128 , was the only pre-1968 case in which this Court had actually confronted the implantation of an electronic listening device by way of a "trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished." Id., at 132. 31 The plurality of four, speaking through Mr. Justice Jackson, had this to say about the police conduct in that case: </s> "That officers of the law would break and enter a home, secrete such a device even in a bedroom, and listen to the conversations of the occupants for over a month would be incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental [441 U.S. 238, 278] principle declared by the Fourth Amendment . . . ." Ibid. </s> No Member of the Court disagreed with this assessment, although a majority refused to overturn the conviction because the exclusionary rule did not then apply to the States. While it is true, as the Court points out, ante, at 247, that four Members of the Irvine Court adverted to the lack of a "search warrant or other process" to support the entry, 347 U.S., at 132 (while the other three Members who discussed the issue found the police activity "offensive" and "revolting" without relying on the lack of a warrant 32 ), it is also true that no Justice condoned a break-in absent some court order explicitly contemplating physical entry on the premises. Under any reading of the case, it cannot be taken as condoning official trespass and burglary absent specific authorization. </s> More importantly, the fact that Congress cited Irvine, without comment or explanation, when it was considering Title III cannot fairly be interpreted as an endorsement of the questionable police behavior that had been condemned so thunderously by Mr. Justice Jackson 14 years earlier. My respect for the lawmaking process forecloses the inference that Congress authorized burglarious conduct by such stealthy legislative history. </s> IV </s> Because it is not supported by either the text of the statute or the scraps of relevant legislative history, 33 I fear that the [441 U.S. 238, 279] Court's holding may reflect an unarticulated presumption that national police officers have the power to carry out a surveillance order by whatever means may be necessary unless explicitly prohibited by the statute or by the Constitution. </s> But surely the presumption should run the other way. Congressional silence should not be construed to authorize the Executive to violate state criminal laws or to encroach upon constitutionally protected privacy interests. Before confronting the serious constitutional issues raised by the Court's reading of Title III, 34 we should insist upon an unambiguous statement by Congress that this sort of police conduct may be authorized by a court and that a specific showing of necessity, or at least probable cause, must precede such an authorization. Without a legislative mandate that is both explicit and specific, I would presume that this flagrant invasion of the citizen's privacy is prohibited. Cf. United States v. New York Telephone Co., 434 U.S., at 178 -179 (STEVENS, J., dissenting [441 U.S. 238, 280] in part); United States v. Ramsey, 431 U.S., at 632 (STEVENS, J., dissenting). 35 </s> I respectfully dissent. </s> [Footnote 1 See United States v. United States District Court, 407 U.S. 297 . The Fourth Amendment provides: </s> "The right of the people to be secure in their persons, houses, papers, [441 U.S. 238, 263] and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." </s> [Footnote 2 N. J. Stat. Ann. 2A:94-1, 2A:94-3 (West 1969). </s> [Footnote 3 T. Taylor, Two Studies in Constitutional Interpretation 110 (1969). </s> [Footnote 4 Cf. G. M. Leasing Corp. v. United States, 429 U.S. 338, 353 ; United States v. Biswell, 406 U.S. 311 ; Colonnade Catering Corp. v. United States, 397 U.S. 72, 76 . </s> [Footnote 5 "Beginning with the Act of July 31, 1789, 1 Stat. 29, 43, and concluding with the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 219, 238, Congress has enacted a series of over 35 different statutes granting federal judges the power to issue search warrants of one form or another. These statutes have one characteristic in common: they are specific in their grants of authority and in their inclusion of limitations on either the places to be searched, the objects of the search, or the requirements for the issuance of a warrant." United States v. New York Telephone Co., 434 U.S. 159, 179 -180 (STEVENS, J., dissenting in part) (footnote omitted). </s> Mr. Justice Frankfurter gathered the pre-1945 statutes in his dissenting opinion in Davis v. United States, 328 U.S. 582, 616 -623. He commented that "[w]hat is significant about this legislation is the recognition by Congress of the necessity for specific Congressional authorization even for the search of vessels and other moving vehicles and the seizures of goods technically contraband." Id., at 616, n. </s> [Footnote 6 I realize that since Mapp v. Ohio, 367 U.S. 643 , the Court has applied the same Fourth Amendment principles to state and federal law enforcement officers alike. Nonetheless, I purposely limit my discussion here to the federal context. For purposes of discussing the necessity of statutory authority, it seems useful to me to treat the Fourth Amendment [441 U.S. 238, 265] concept of reasonableness as flexible enough to recognize differences between state and federal courts and police forces. Thus, because the power of the Federal Government to combat crime, like the jurisdiction of its courts, is more limited than the comparable power and jurisdiction inhering in the States, it is logical in the federal context to assume that governmental authority is lacking unless expressly mandated by legislation. See, e. g., Palmore v. United States, 411 U.S. 389, 396 ; Cheng Fan Kwok v. INS, 392 U.S. 206 ; United States v. Five Gambling Devices, 346 U.S. 441 . </s> [Footnote 7 See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 ; Machinists v. Street, 367 U.S. 740 ; Hannah v. Larche, 363 U.S. 420, 430 ; Murray v. The Charming Betsy, 2 Cranch 64. </s> [Footnote 8 It found authority for those searches in the Postal Service's recent reinterpretation of an awkwardly drawn 1866 statute that authorized certain border searches of "vessels" but that could not reasonably be read to authorize either the mail openings themselves or the regulation allowing them. Moreover, its adoption of that interpretation left it no choice but to resolve a troublesome constitutional question without any considered guidance from Congress. See 431 U.S., at 625 -632 (STEVENS, J., dissenting). </s> [Footnote 9 See 434 U.S., at 178 -190 (STEVENS, J., dissenting in part). </s> [Footnote 10 Although this case involves an office, the invasion of a home would raise precisely the same statutory issue. </s> [Footnote 11 "Congress drafted [Title III] with exacting precision. As its principal sponsor, Senator McClellan, put it: </s> "`[A] bill as controversial as this . . . requires close attention to the dotting of every "i" and the crossing of every "t" . . . .' [114 Cong. Rec. 14751 (1968).] </s> "Under these circumstances, the exact words of the statute provide the surest guide to determining Congress' intent, and we would do well to confine ourselves to that area." United States v. Donovan, 429 U.S. 413, 441 (BURGER, C. J., concurring in part and dissenting in part). </s> [Footnote 12 See ante, at 249-250; nn. 13-18, infra, and text accompanying. </s> [Footnote 13 As Judge Merritt, writing for the Sixth Circuit, cogently observed: </s> "It simply does not make sense to imply Congressional authority for official break-ins when not a single line or word of the statute even mentions the possibility, much less limits or defines the scope of the power or describes the circumstances under which such conduct, normally unlawful, may take place. As the dissents of Holmes and Brandeis in Olmstead [v. United States, 277 U.S. 438 suggest, this is a serious, if not a `dirty,' business; and we do not believe we should imply the power to break in under the statute, as the government argues, when Congress has not confronted and debated the issue and expressed such an intention clearly. </s> . . . . . </s> "In some circumstances, the installation of an electronic bug may not be possible without a forcible breaking and entering of the suspect's premises, but that does not imply that the power to break and enter is subsumed in the warrant to seize the words. The breaking and entering aggravates the search, and it intrudes upon property and privacy interests not weighed in the statutory scheme, interests which have independent social value unrelated to confidential speech. We are not inclined to give the government the right by implication to intrude upon these interests by conducting official break-ins, especially when the purpose is secretly to monitor and record private conversations, a dangerous power otherwise carefully limited and defined by statute." United States v. Finazzo, 583 F.2d 837, 841-842 (CA6 1978). See also United States v. Santora, 583 F.2d 453, 456-466 (CA9 1978). </s> [Footnote 14 18 U.S.C. 2516 (1). </s> [Footnote 15 18 U.S.C. 2516 (1) (a)-(g). </s> [Footnote 16 "Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the [441 U.S. 238, 268] applicant's authority to make such application. Each application shall include the following information: </s> "(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application; </s> "(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; </s> "(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; </s> "(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; </s> "(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and </s> "(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results." 18 U.S.C. 2518 (1). </s> [Footnote 17 "(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that - </s> "(a) there is probable cause for belief that an individual is committing, [441 U.S. 238, 269] has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; </s> "(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; </s> "(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; </s> "(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person. </s> "(4) Each order authorizing or approving the interception of any wire or oral communication shall specify - </s> "(a) the identity of the person, if known, whose communications are to be intercepted; </s> "(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted; </s> "(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; </s> "(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and </s> "(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. . . ." 18 U.S.C. 2518 (3), (4). </s> [Footnote 18 "No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise [441 U.S. 238, 270] subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days." 18 U.S.C. 2518 (5). </s> The statute also details procedures for the storage and protective custody of the resulting tapes, 18 U.S.C. 2518 (8) (a)-(c), for authorized disclosures and uses of the tapes both in and out of court, 18 U.S.C. 2517, 2518 (9), and for after-the-fact notice to persons whose conversations were overheard. 18 U.S.C. 2518 (8) (d). </s> [Footnote 19 The following provision was added to Title III in 1970: </s> "An order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier, landlord, custodian, or person is according the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant at the prevailing rates." 18 U.S.C. 2518 (4). </s> [Footnote 20 The Court analyzes this problem as simply one of Judicial authority under the statute. Ante, at 250, and n. 10. Even if I could agree that Title III afforded judges "broad" and unconfined authority with respect to break-ins, I would still be left with the problem, never mentioned by the Court, of the Executive's authority to break and enter at will without any judicial authorization. </s> Indeed, I am not at all certain that the Court puts any confines on either Judicial or Executive authority in this area, despite the lip service it pays to "constitutional limitations." For, having stated that "breaking and entering" in execution of a search warrant is constitutionally permissible "where such entry is the only means by which the warrant effectively may be executed," ante, at 247 (emphasis added), the Court then equates a surveillance order with a search warrant, but see Taylor, supra n. 3, at 84-85, and allows a break-in under the former upon a showing merely that the break-in was "the safest and most successful," rather than the "only," method of installing the device. 426 F. Supp. 862, 866. </s> [Footnote 21 A Congress that was careful to limit the temporal extent of electronic surveillance and the opportunity for it to infringe on protected (i. e., noncriminal) conversations, and one so quick to amend the statute to provide for "unobtrusive" entry through the aid of private persons (i. e., "custodians" and "landlords") who already have a degree of access to the property, surely cannot have condoned unlimited and unauthorized breaking and entering by police officers with the aid of nothing but a burglar's tools. </s> [Footnote 22 In full, the paragraph excerpted by the Court is as follows: </s> "In Berger against the State of New York, decided on June 12, 1967, the majority of the Court, speaking through Mr. Justice Clark, threw out the New York State court-approved eavesdropping statute, declaring it to be unconstitutional. The New York statute permitted the police to obtain judicial warrants authorizing them to hide bugs in the premises of criminal suspects. The Court's majority opinion outlawed this bugging statute because, it said, the procedures did not contain specific safeguards against violations of the fourth amendment, which limited police searches." 114 Cong. Rec. 14708 (1968) (Sen. Long of Missouri). </s> [Footnote 23 See also Anti-Crime Programs: Hearings on H. R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1031 (1967), cited ante, at 251. </s> [Footnote 24 "[Title III] sets forth in the most elaborate and precise detail the safeguards surrounding the application to a court of competent jurisdiction for authority to make a wiretap. I am satisfied that it is fully designed to guard against any unwarranted invasion of the precious right of privacy." 114 Cong. Rec. 16296 (1968) (Rep. MacGregor). See also id., at 14763 (Sen. Percy); id., at 16296 (Rep. Boland); S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). </s> On at least two occasions the Court has commented on the circumspection with which Title III was drafted: </s> "[Title III] sets forth the detailed and particularized application necessary to obtain such an order as well as the carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression." United States v. United States District Court, 407 U.S., at 302 (emphasis added). See also Gelbard v. United States, 408 U.S. 41, 48 . See also n. 8, supra. </s> [Footnote 25 Had Congress expressly considered the issue, I am confident that it would not have granted the Executive the broad authority to break and enter that is conferred by the Court in today's decision. Illustrative of its probable reaction to such investigative techniques are the responses of some Members to the officially sanctioned break-in committed against the office of Daniel Ellsberg's psychiatrist, and to the possibility of official participation in the Watergate break-in E. g., 119 Cong. Rec. 14607-14608 (1973) (Sen. Edwards); id., at 15332 (Rep. Sarasin). </s> [Footnote 26 The dimensions of the constitutional protection of privacy were certainly not underestimated by the supporters of Title III. Senator Lausche, for example, had this to say about the intent of the Framers of the Fourth Amendment: </s> "[T]hey also knew that the innocent individual would be protected in his home; that no one shall enter. Even though it is a hovel, to him it is a palace. So they wrote into the Constitution, regardless of how poor one's home may be, that it shall not be entered by the government without the law-enforcement official having first obtained a warrant for search and seizure issued on the basis of evidence establishing probable cause." 114 Cong. Rec. 14729 (1968). </s> [Footnote 27 Katz v. United States, 389 U.S. 347 ; Berger v. New York, 388 U.S. 41 . See also Silverman v. United States, 365 U.S. 505 ; Irvine v. California, 347 U.S. 128 . </s> [Footnote 28 See S. Rep. No. 1097, supra, at 66, 75, 101. </s> [Footnote 29 E. g., On Lee v. United States, 343 U.S. 747 ; Goldman v. United States, 316 U.S. 129 ; Olmstead v. United States, 277 U.S. 438 . </s> [Footnote 30 E. g., Silverman v. United States, supra; Irvine v. California, supra. </s> [Footnote 31 Mr. Justice Jackson described the entry as follows: </s> "On December 1, 1951, while Irvine and his wife were absent from their home, an officer arranged to have a locksmith go there and make a door key. Two days later, again in the absence of occupants, officers and a technician made entry into the home by the use of this key and installed a concealed microphone in the hall. A hole was bored in the roof of the house and wires were strung to transmit to a neighboring garage whatever sounds the microphone might pick up. Officers were posted in the garage to listen. On December 8, police again made surreptitious entry and moved the microphone, this time hiding it in the bedroom. Twenty days later, they again entered and placed the microphone in a closet, where the device remained until its purpose of enabling the officers to overhear incriminating statements was accomplished." 347 U.S., at 130 -131. </s> [Footnote 32 Id., at 145 (Frankfurter, J., dissenting, joined by Burton, J.); id., at 150 (Douglas, J., dissenting). </s> [Footnote 33 The Court argues that Congress' goals in enacting the statute would be frustrated if Title III were not read to include the authority exercised by the Government in this case. Ante, at 252-254. Of course, if Congress intended to sanction "even the most reprehensible means for securing a conviction," Irvine, 347 U.S., at 146 (Frankfurter, J., dissenting), then withholding some of those means would indeed frustrate the legislative purpose. But there is no reason to impute such an intent to Congress or to ignore its conscientious attention to the importance of safeguarding the [441 U.S. 238, 279] rights of individual privacy. See 114 Cong. Rec. 14469-14470 (1968) (Sen. McClellan); see supra, at 272-273, 276. </s> Congress quite clearly expected exterior wiretaps to provide the most effective means of electronic surveillance authorized by Title III. The unavailability of certain interior "bugs" - i. e., those implanted by means of forcible trespass - can hardly be seen as frustrating the entire law enforcement scheme. E. g., S. Rep. No. 1097, supra n. 24, at 72; 114 Cong. Rec. 12988 (1968) (Sen. Tydings); id., at 13206 (Sen. Scott); id., at 14481 (Sen. McClellan); id., at 14714 (Sen. Murphy). </s> Congress' prediction proved correct: </s> "Telephone taps apparently account for most instances of electronic surveillance, and this can be accomplished in most circumstances by placing a tap on the line outside the premises of the suspect. According to the final report of the National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, only 26 out of some 1,220 electronic surveillance orders executed between 1968 and 1973 involved a trespassory intrusion. National Wiretap Commission, Electronic Surveillance 15 (1967) . . . ." United States v. Finazzo, 583 F.2d, at 841 n. 13. </s> [Footnote 34 Compare opinion of the Court, ante, at 246-248, 254-259, with opinion of MR. JUSTICE BRENNAN, ante, at 259-262. </s> [Footnote 35 In addition to Title III, the Government claims authority for the break-ins under the federal "no-knock" statute, 18 U.S.C. 3109, and under Fed. Rule Crim. Proc. 41. Because I believe that Title III has preempted the field of electronic surveillance, it is conclusive for me that it nowhere authorizes the entries involved in this case as a means of executing an eavesdropping order. Even if Congress had never enacted Title III, however, I would nonetheless conclude that these other asserted justifications for official breaking and entering are unavailing in this case. Both provisions refer to "warrants" issued by a magistrate with the awareness that their execution would probably require the police to find some otherwise illegal means of entering the premises. No such awareness was evidenced by the District Court when it authorized electronic surveillance in this case. See generally United States v. Finazzo, supra, at 845-848. </s> [441 U.S. 238, 281]

United States Supreme Court JONES v. BOCK, WARDEN, ET AL.(2007) No. 05-7058 Argued: October 30, 2006Decided: January 22, 2007 </s> The Prison Litigation Reform Act of 1995 (PLRA), in order to address the large number of prisoner complaints filed in federal court, mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 42 U.S.C. §1997e(a). Petitioners, inmates in Michigan prisons, filed grievances using the Michigan Department of Corrections (MDOC) grievance process. After unsuccessfully seeking redress through that process, petitioner Jones filed a 42 U.S.C. §1983 suit against six prison officials. The District Court dismissed on the merits as to four of them and as to two others found that Jones had failed to adequately plead exhaustion in his complaint. Petitioner Williams also filed a §1983 suit after his two MDOC grievances were denied. The District Court found that he had not exhausted his administrative remedies with regard to one of the grievances because he had not identified any of the respondents named in the lawsuit during the grievance process. While the court found Williams's other claim properly exhausted, it dismissed the entire suit under the Sixth Circuit's total exhaustion rule for PLRA cases. Petitioner Walton's §1983 lawsuit also was dismissed under the total exhaustion rule because his MDOC grievance named only one of the six defendants in his lawsuit. The Sixth Circuit affirmed in each case, relying on its procedural rules that require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants identified in the prisoner's grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Held:The Sixth Circuit's rules are not required by the PLRA, and crafting and imposing such rules exceeds the proper limits of the judicial role. Pp.10-24. (a)Failure to exhaust is an affirmative defense under the PLRA, and inmates are not required to specially plead or demonstrate exhaustion in their complaints. There is no question that exhaustion is mandatory under the PLRA, Porter v. Nussle, 534 U.S. 516, 524, but it is less clear whether the prisoner must plead and demonstrate exhaustion in the complaint or the defendant must raise lack of exhaustion as an affirmative defense. Failure to exhaust is better viewed as an affirmative defense. Federal Rule of Civil Procedure 8(a) requires simply a "short and plain statement of the claim" in a complaint, and PLRA claims are typically brought under 42 U.S.C. §1983, which does not require exhaustion at all. The fact that the PLRA dealt extensively with exhaustion, but is silent on the issue whether exhaustion must be pleaded or is an affirmative defense, is strong evidence that the usual practice should be followed, and the practice under the Federal Rules is to regard exhaustion as an affirmative defense, including in the similar statutory scheme governing habeas corpus, Day v. McDonough, 547 U.S. ___, ___. Courts should generally not depart from the Federal Rules' usual practice based on perceived policy concerns. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 Those courts that require prisoners to plead and demonstrate exhaustion contend that prisoner complaints must be treated outside of the typical framework if the PLRA's screening requirement is to function effectively. But the screening requirement does not--explicitly or implicitly--justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself. Although exhaustion was a "centerpiece" of the PLRA, Woodford v. Ngo, 548 U.S. ___, ___, failure to exhaust was notably not added in terms to the enumerated grounds justifying dismissal upon early screening. Section1997e(g)--which allows defendants to waive their right to reply to a prisoner complaint without being deemed to have admitted the complaint's allegations--shows that when Congress meant to depart from the usual procedural requirements, it did so expressly. Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a result "must be obtained by ... amending the Federal Rules, and not by judicial interpretation." Leatherman, supra, at 168. Pp.10-16. </s> (b)Exhaustion is not per se inadequate under the PLRA when an individual later sued was not named in the grievance. Nothing in the MDOC policy supports the conclusion that the grievance process was improperly invoked because an individual later named as a defendant was not named at the first step of the process; at the time each grievance was filed here, the MDOC policy did not specifically require a prisoner to name anyone in the grievance. Nor does the PLRA impose such a requirement. The "applicable procedural rules" that a prisoner must properly exhaust, Woodford, supra, at ___, are defined not by the PLRA, but by the prison grievance process itself. As the MDOC's procedures make no mention of naming particular officials, the Sixth Circuit's rule imposing such a prerequisite to proper exhaustion is unwarranted. The Circuit's rule may promote early notice to those who might later be sued, but that has not been thought to be one of the leading purposes of the exhaustion requirement. The court below should determine in the first instance whether petitioners' grievances otherwise satisfied the exhaustion requirement. Pp.16-19. </s> (c)The PLRA does not require dismissal of the entire complaint when a prisoner has failed to exhaust some, but not all, of the claims included in the complaint. Respondents argue that had Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, it would have used the word "claim" instead of "action" in §1997e(a), which provides that "[n]o action shall be brought" unless administrative procedures are exhausted. That boilerplate language is used in many instances in the Federal Code, and statutory references to an "action" have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the "action" may proceed. If a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. Respondents note that the total exhaustion requirement in habeas corpus is an exception to this general rule, but a court presented with a mixed habeas petition typically "allow[s] the petitioner to delete the unexhausted claims and to proceed with the exhausted claims," Rhines v. Weber, 544 U.S. 269, 278, which is the opposite of the rule the Sixth Circuit adopted, and precisely the rule that respondents argue against. Although other PLRA sections distinguish between actions and claims, respondents' reading of §1997e(a) creates its own inconsistencies, and their policy arguments are also unpersuasive. Pp.19-23. No. 05-7058, 135 Fed. Appx. 837; No. 05-7142, 136 Fed. Appx. 846 (second judgment) and 859 (first judgment), reversed and remanded. Roberts, C.J., delivered the opinion for a unanimous Court. </s> LORENZO L. JONES, PETITIONER </s> 05-7058v. </s> BARBARA BOCK, WARDEN, etal. </s> TIMOTHY WILLIAMS, PETITIONER </s> 05-7142v. </s> WILLIAM S. OVERTON etal. JOHN H. WALTON v. BARBARA BOUCHARD etal. </s> on writs of certiorari to the united states court of appeals for the sixth circuit [January 22, 2007] </s> Chief Justice Roberts delivered the opinion of the Court. </s> In an effort to address the large number of prisoner complaints filed in federal court, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-71, as amended, 42 U.S.C. §1997e et seq. Among other reforms, the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 28 U.S.C. §1915A; 42 U.S.C. §1997e(a). The Sixth Circuit, along with some other lower courts, adopted several procedural rules designed to implement this exhaustion requirement and facilitate early judicial screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such rules. We granted certiorari to resolve the conflict and now conclude that these rules are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role. I </s> Prisoner litigation continues to "account for an outsized share of filings" in federal district courts. Woodford v. Ngo, 548 U.S. ___, ___, n.4 (2006) (slip op., at 12, n.4). In 2005, nearly 10 percent of all civil cases filed in federal courts nationwide were prisoner complaints challenging prison conditions or claiming civil rights violations.1 Most of these cases have no merit; many are frivolous. Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit. See Neitzke v. Williams, 490 U.S. 319, 327 (1989). Congress addressed that challenge in the PLRA. What this country needs, Congress decided, is fewer and better prisoner suits. See Porter v. Nussle, 534 U.S. 516, 524 (2002) (PLRA intended to "reduce the quantity and improve the quality of prisoner suits"). To that end, Congress enacted a variety of reforms designed to filter out the bad claims and facilitate consideration of the good. Key among these was the requirement that inmates complaining about prison conditions exhaust prison grievance remedies before initiating a lawsuit. </s> The exhaustion provision of the PLRA states: "No action shall be brought with respect to prison conditions under [42 U.S.C. §1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. §1997e(a). </s> Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record. Woodford, supra, at ___ (slip op., at 12). In an attempt to implement the exhaustion requirement, some lower courts have imposed procedural rules that have become the subject of varying levels of disagreement among the federal courts of appeals. </s> The first question presented centers on a conflict over whether exhaustion under the PLRA is a pleading requirement the prisoner must satisfy in his complaint or an affirmative defense the defendant must plead and prove.2 The Sixth Circuit, adopting the former view, requires prisoners to attach proof of exhaustion--typically copies of the grievances--to their complaints to avoid dismissal. If no written record of the grievance is available, the inmate must plead with specificity how and when he exhausted the grievance procedures. Knuckles El v. Toombs, 215 F.3d 640, 642 (2000). </s> The next issue concerns how courts determine whether a prisoner has properly exhausted administrative remedies--specifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim. The Sixth Circuit requires that a prisoner have identified, in the first step of the grievance process, each individual later named in the lawsuit to properly exhaust administrative remedies. Burton v. Jones, 321 F.3d 569, 575 (2003). Other circuits have taken varying approaches to this question, see, e.g., Butler v. Adams, 397 F.3d 1181, 1183 (CA9 2005) (proper exhaustion requires use of the administrative process provided by the State; if that process does not require identification of specific persons, neither does the PLRA); Johnson v. Johnson, 385 F. 3d 503, 522 (CA5 2004) ("[T]he grievance must provide administrators with a fair opportunity under the circumstances to address the problem that will later form the basis of the suit"); Riccardo v. Rausch, 375 F. 3d 521, 524 (CA7 2004) (exhaustion satisfied if grievance "served its function of alerting the state and inviting corrective action"), none going as far as the Sixth Circuit in requiring in every case that the defendants have been named from the beginning of the grievance process. </s> Finally, the circuits are divided over what the PLRA requires when both exhausted and unexhausted claims are included in a complaint.3 Some circuits, including the Sixth Circuit, apply a "total exhaustion" rule, under which no part of the suit may proceed if any single claim in the action is not properly exhausted. See, e.g., Jones Bey v. Johnson, 407 F.3d 801, 805 (CA6 2005). Among circuits requiring total exhaustion there is further disagreement over what to do if the requirement is not met. Most courts allow the prisoner to amend his complaint to include only exhausted claims, e.g., Kozohorsky v. Harmon, 332 F. 3d 1141, 1144 (CA8 2003), but the Sixth Circuit denies leave to amend, dismisses the action, and requires that it be filed anew with only unexhausted claims, Baxter v. Rose, 305 F.3d 486, 488 (2002); Jones Bey, supra, at 807. See also McGore v. Wrigglesworth, 114 F.3d 601, 612 (1997). Other circuits reject total exhaustion altogether, instead dismissing only unexhausted claims and considering the rest on the merits. See, e.g., Ortiz v. McBride, 380 F. 3d 649, 663 (CA2 2004). A </s> Petitioners are inmates in the custody of the Michigan Department of Corrections (MDOC). At the time petitioners filed their grievances, MDOC Policy Directive 03.02.130 (Nov. 1, 2000) set forth the applicable grievance procedures. 1 App. 138-157.4 The policy directive describes what issues are grievable and contains instructions for filing and processing grievances. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue. Id., at 147. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process, and submit a completed grievance form within five business days of the attempted oral resolution. Id., at 147, 149-150. The Step I grievance form provided by MDOC (a one-page form on which the inmate fills out identifying information and is given space to describe the complaint) advises inmates to be "brief and concise in describing your grievance issue." 2 id., at 1. The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent--generally the supervisor of the person being grieved. 1 id., at 150. </s> If the inmate is dissatisfied with the Step I response, he may appeal to Step II by obtaining an appeal form within five business days of the response, and submitting the appeal within five business days of obtaining the form. Id., at 152. The respondent at Step II is designated by the policy, id., at 152-153 (e.g., the regional health administrator for medical care grievances). If still dissatisfied after Step II, the inmate may further appeal to Step III using the same appeal form; the MDOC director is designated as respondent for all Step III appeals. Id., at 154. Lorenzo Jones </s> Petitioner Lorenzo Jones is incarcerated at the MDOC's Saginaw Correctional Facility. In November 2000, while in MDOC's custody, Jones was involved in a vehicle accident and suffered significant injuries to his neck and back. Several months later Jones was given a work assignment he allegedly could not perform in light of his injuries. According to Jones, respondent Paul Morrison--in charge of work assignments at the prison--made the inappropriate assignment, even though he knew of Jones's injuries. When Jones reported to the assignment, he informed the staff member in charge--respondent Michael Opanasenko--that he could not perform the work; Opanasenko allegedly told him to do the work or "'suffer the consequences.'" Id., at 20. Jones performed the required tasks and allegedly aggravated his injuries. After unsuccessfully seeking redress through the MDOC's grievance process, Jones filed a complaint in the Eastern District of Michigan under 42 U.S.C. §1983 for deliberate indifference to medical needs, retaliation, and harassment. Jones named as defendants, in addition to Morrison and Opanasenko, respondents Barbara Bock (the warden), Valerie Chaplin (a deputy warden), Janet Konkle (a registered nurse), and Ahmad Aldabaugh (a physician). A Magistrate recommended dismissal for failure to state a claim with respect to Bock, Chaplin, Konkle, and Aldabaugh, and the District Court agreed. 1 App. 41. With respect to Morrison and Opanasenko, however, the Magistrate recommended that the suit proceed, finding that Jones had exhausted his administrative remedies as to those two. Id., at 18-29. The District Court disagreed. In his complaint, Jones provided the dates on which his claims were filed at various steps of the MDOC grievance procedures. Id., at 41. He did not, however, attach copies of the grievance forms or describe the proceedings with specificity. Respondents attached copies of all of Jones's grievances to their own motion to dismiss, but the District Judge ruled that Jones's failure to meet his burden to plead exhaustion in his complaint could not be cured by respondents. Id., at 42. The Sixth Circuit agreed, holding both that Jones failed to comply with the specific pleading requirements applied to PLRA suits, 135 Fed. Appx. 837, 839 (2005) (per curiam) (citing Knuckles El, 215 F.3d, at 642), and that, even if Jones had shown that he exhausted the claims against Morrison and Opanasenko, dismissal was still required under the total exhaustion rule, 135 Fed. Appx., at 839 (citing Jones Bey, 407 F.3d, at 806). Timothy Williams </s> Petitioner Timothy Williams is incarcerated at the MDOC's Adrian Correctional Facility. He suffers from noninvoluting cavernous hemangiomas in his right arm, a medical condition that causes pain, immobility, and disfigurement of the limb, and for which he has undergone several surgeries. An MDOC physician recommended further surgery to provide pain relief, but MDOC's Correctional Medical Services denied the recommendation (and subsequent appeals by the doctor) on the ground that the danger of surgery outweighed the benefits, which it viewed as cosmetic. The MDOC Medical Services Advisory Committee upheld this decision. After Correctional Medical Services indicated that it would take the request under advisement, Williams filed a grievance objecting to the quality of his medical care and seeking authorization for the surgery. He later filed another grievance complaining that he was denied a single-occupancy handicapped cell, allegedly necessary to accommodate his medical condition. After both grievances were denied at all stages, Williams filed a complaint in the Eastern District of Michigan under §1983, naming as respondents William Overton (former director of MDOC), David Jamrog (the warden), Mary Jo Pass and Paul Klee (assistant deputy wardens), Chad Markwell (corrections officer), Bonnie Peterson (health unit manager), and Dr. George Pramstaller (chief medical officer for MDOC). The District Judge found that Williams had failed to exhaust his administrative remedies with regard to his medical care claim because he had not identified any of the respondents named in his lawsuit during the grievance process.5 Although Williams's claim concerning the handicapped cell had been properly exhausted, the District Judge--applying the total exhaustion rule--dismissed the entire suit. The Sixth Circuit affirmed. 136 Fed. Appx. 859, 861-863 (2005) (citing Burton, 321 F.3d, at 574, Curry v. Scott, 249 F.3d 493, 504-505 (CA6 2001), and Jones Bey, 407 F.3d, at 805). John Walton </s> Petitioner John Walton is incarcerated at the MDOC's Alger Maximum Correctional Facility. After assaulting a guard, he was sanctioned with an indefinite "upper slot" restriction.6 Several months later, upon learning that other prisoners had been given upper slot restrictions of only three months for the same infraction, he filed a grievance claiming that this disparity was the result of racial discrimination (Walton is black, the two other prisoners he identified in his grievances are white). After the grievance was denied, Walton filed a complaint in the Western District of Michigan under §1983, claiming race discrimination. He named as respondents Barbara Bouchard (former warden), Ken Gearin, David Bergh, and Ron Bobo (assistant deputy wardens), Catherine Bauman (resident unit manager), and Denise Gerth (assistant resident unit supervisor). The District Judge dismissed the lawsuit because Walton had not named any respondent other than Bobo in his grievance. His claims against the other respondents were thus not properly exhausted, and the court dismissed the entire action under the total exhaustion rule. The Sixth Circuit affirmed, reiterating its requirement that a prisoner must "file a grievance against the person he ultimately seeks to sue," Curry, supra, at 505, and that this requirement can only be satisfied by naming each defendant at Step I of the MDOC grievance process. Because Walton had exhausted prison remedies only as to respondent Bobo, the Sixth Circuit affirmed the District Court's dismissal of the entire action. 136 Fed. Appx. 846, 848-849 (2005). B </s> Jones sought review in a petition for certiorari, arguing that the Sixth Circuit's heightened pleading requirement and total exhaustion rule contravene the clear language of the Federal Rules of Civil Procedure and the PLRA. Williams and Walton filed a joint petition under this Court's Rule 12.4, contending that the rule requiring every defendant to be named during the grievance process is not required by the PLRA, and also challenging the total exhaustion rule. We granted both petitions for certiorari, 547 U.S. ___ (2006), and consolidated the cases for our review. II </s> There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court. Porter, 534 U.S., at 524. What is less clear is whether it falls to the prisoner to plead and demonstrate exhaustion in the complaint, or to the defendant to raise lack of exhaustion as an affirmative defense. The minority rule, adopted by the Sixth Circuit, places the burden of pleading exhaustion in a case covered by the PLRA on the prisoner; most courts view failure to exhaust as an affirmative defense. See n.2, supra. We think petitioners, and the majority of courts to consider the question, have the better of the argument. Federal Rule of Civil Procedure 8(a) requires simply a "short and plain statement of the claim" in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner's claim; claims covered by the PLRA are typically brought under 42 U.S.C. §1983, which does not require exhaustion at all, see Patsy v. Board of Regents of Fla., 457 U.S. 496, 516 (1982). Petitioners assert that courts typically regard exhaustion as an affirmative defense in other contexts, see Brief for Petitioners 34-36, and nn. 12-13 (citing cases), and respondents do not seriously dispute the general proposition. We have referred to exhaustion in these terms, see, e.g., Wright v. Universal Maritime Service Corp., 525 U.S. 70, 75 (1998) (referring to "failure to exhaust" as an "affirmative defens[e]"), including in the similar statutory scheme governing habeas corpus, Day v. McDonough, 547 U.S. ___, ___ (2006) (slip op., at 8) (referring to exhaustion as a "defense"). The PLRA dealt extensively with the subject of exhaustion, see 42 U.S.C. §§1997e(a), (c)(2), but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. This is strong evidence that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense. </s> In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Thus, in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993), we unanimously reversed the court of appeals for imposing a heightened pleading standard in §1983 suits against municipalities. We explained that "[p]erhaps if [the] Rules ... were rewritten today, claims against municipalities under §1983 might be subjected to the added specificity requirement .... But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Id., at 168. </s> In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), we unanimously reversed the court of appeals for requiring employment discrimination plaintiffs to specifically allege the elements of a prima facie case of discrimination. We explained that "the Federal Rules do not contain a heightened pleading standard for employment discrimination suits," and a "requirement of greater specificity for particular claims" must be obtained by amending the Federal Rules. Id., at 515 (citing Leatherman). And just last Term, in Hill v. McDonough, 547 U.S. ___ (2006), we unanimously rejected a proposal that §1983 suits challenging a method of execution must identify an acceptable alternative: "Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal courts." Id., at ___ (slip op., at 8) (citing Swierkiewicz). </s> The Sixth Circuit and other courts requiring prisoners to plead and demonstrate exhaustion in their complaints contend that if the "new regime" mandated by the PLRA for prisoner complaints is to function effectively, prisoner complaints must be treated outside of this typical framework. See Baxter, 305 F.3d, at 489. These courts explain that the PLRA not only imposed a new mandatory exhaustion requirement, but also departed in a fundamental way from the usual procedural ground rules by requiring judicial screening to filter out nonmeritorious claims: Courts are to screen inmate complaints "before docketing, if feasible, or ... as soon as practicable after docketing," and dismiss the complaint if it is "frivolous, malicious, ... fails to state a claim upon which relief may be granted[,] or ... seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §§1915A(a), (b). All this may take place before any responsive pleading is filed--unlike in the typical civil case, defendants do not have to respond to a complaint covered by the PLRA until required to do so by the court, and waiving the right to reply does not constitute an admission of the allegations in the complaint. See 42 U.S.C. §1997e(g)(1), (2). According to respondents, these departures from the normal litigation framework of complaint and response mandate a different pleading requirement for prisoner complaints, if the screening is to serve its intended purpose. See, e.g., Baxter, supra, at 489 ("This court's heightened pleading standards for complaints covered by the PLRA are designed to facilitate the Act's screening requirements ..."); Knuckles El, 215 F.3d, at 642. See also Brief for Respondents 17. </s> We think that the PLRA's screening requirement does not--explicitly or implicitly--justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself. Before the PLRA, the in forma pauperis provision of §1915, applicable to most prisoner litigation, permitted sua sponte dismissal only if an action was frivolous or malicious. 28 U.S.C. §1915(d) (1994 ed.); see also Neitzke, 490 U.S., at 320 (concluding that a complaint that fails to state a claim was not frivolous under §1915(d) and thus could not be dismissed sua sponte). In the PLRA, Congress added failure to state a claim and seeking monetary relief from a defendant immune from such relief as grounds for sua sponte dismissal of in forma pauperis cases, §1915(e)(2)(B) (2000 ed.), and provided for judicial screening and suasponte dismissal of prisoner suits on the same four grounds, §1915A(b); 42 U.S.C. §1997e(c)(1). Although exhaustion was a "centerpiece" of the PLRA, Woodford, 548 U.S., at ___ (slip op., at 1-2), failure to exhaust was notably not added in terms to this enumeration. There is thus no reason to suppose that the normal pleading rules have to be altered to facilitate judicial screening of complaints specifically for failure to exhaust. </s> Some courts have found that exhaustion is subsumed under the PLRA's enumerated ground authorizing early dismissal for "fail[ure] to state a claim upon which relief may be granted." 28 U.S.C. §§1915A(b)(1), 1915(e)(2)(B); 42 U.S.C. §1997e(c)(1). See Baxter, supra, at 489; Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1210 (CA10 2003); Rivera v. Allin, 144 F.3d 719, 731 (CA11 1998). The point is a bit of a red herring. A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract. See Leveto v. Lapina, 258 F.3d 156, 161 (CA3 2001) ("[A] complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense ... appears on its face" (internal quotation marks omitted)). See also Lopez-Gonzalez v. Municipality of Comerio, 404 F.3d 548, 551 (CA1 2005) (dismissing a complaint barred by the statute of limitations under Rule 12(b)(6)); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (CA2 1998) (dismissing a complaint barred by official immunity under Rule 12(b)(6)). See also 5B C. Wright & A. Miller, Federal Practice and Procedure §1357, pp.708-710, 721-729 (3d ed. 2004). Determining that Congress meant to include failure to exhaust under the rubric of "failure to state a claim" in the screening provisions of the PLRA would thus not support treating exhaustion as a pleading requirement rather than an affirmative defense. </s> The argument that screening would be more effective if exhaustion had to be shown in the complaint proves too much; the same could be said with respect to any affirmative defense. The rejoinder that the PLRA focused on exhaustion rather than other defenses simply highlights the failure of Congress to include exhaustion in terms among the enumerated grounds justifying dismissal upon early screening. As noted, that is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim. It is to say that there is no basis for concluding that Congress implicitly meant to transform exhaustion from an affirmative defense to a pleading requirement by the curiously indirect route of specifying that courts should screen PLRA complaints and dismiss those that fail to state a claim. </s> Respondents point to 42 U.S.C. §1997e(g) as confirming that the usual pleading rules should not apply to PLRA suits, but we think that provision supports petitioners. It specifies that defendants can waive their right to reply to a prisoner complaint without the usual consequence of being deemed to have admitted the allegations in the complaint. See §1997e(g)(1) (allowing defendants to waive their response without admitting the allegations "[n]otwithstanding any other law or rule of procedure"). This shows that when Congress meant to depart from the usual procedural requirements, it did so expressly. </s> We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints. We understand the reasons behind the decisions of some lower courts to impose a pleading requirement on plaintiffs in this context, but that effort cannot fairly be viewed as an interpretation of the PLRA. "Whatever temptations the statesmanship of policy-making might wisely suggest," the judge's job is to construe the statute--not to make it better. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 533 (1947). The judge "must not read in by way of creation," but instead abide by the "duty of restraint, th[e] humility of function as merely the translator of another's command." Id., at 533-534. See United States v. Goldenberg, 168 U.S. 95, 103 (1897) ("No mere omission ... which it may seem wise to have specifically provided for, justif[ies] any judicial addition to the language of the statute"). Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a result "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Leatherman, 507 U.S., at 168. III </s> The Sixth Circuit threw out the Williams and Walton suits because those prisoners had not identified in their initial grievances each defendant they later sued. 136 Fed. Appx., at 862-863; id., at 848-849. See Burton, 321 F.3d, at 575.7 Here again the lower court's procedural rule lacks a textual basis in the PLRA. The PLRA requires exhaustion of "such administrative remedies as are available," 42 U.S.C. §1997e(a), but nothing in the statute imposes a "name all defendants" requirement along the lines of the Sixth Circuit's judicially created rule. Respondents argue that without such a rule the exhaustion requirement would become a "'useless appendage,'" Brief for Respondents 44 (quoting Woodford, 548 U.S., at ___ (slip op., at 11)), but the assertion is hyperbole, and the citation of Woodford misplaced. Woodford held that "proper exhaustion" was required under the PLRA, and that this requirement was not satisfied when grievances were dismissed because prisoners had missed deadlines set by the grievance policy. Id., at ___ (slip op., at 11-13). At the time each of the grievances at issue here was filed, in contrast, the MDOC policy did not contain any provision specifying who must be named in a grievance. MDOC's policy required only that prisoners "be as specific as possible" in their grievances, 1 App. 148, while at the same time the required forms advised them to "[b]e brief and concise." 2 id., at 1. The MDOC grievance form does not require a prisoner to identify a particular responsible party, and the respondent is not necessarily the allegedly culpable prison official, but rather an administrative official designated in the policy to respond to particular types of grievances at different levels. Supra, at 6. The grievance policy specifically provides that the grievant at Step I "shall have the opportunity to explain the grievance more completely at [an] interview, enabling the Step I respondent to gather any additional information needed to respond to the grievance." 1 App. 151. Nothing in the MDOC policy itself supports the conclusion that the grievance process was improperly invoked simply because an individual later named as a defendant was not named at the first step of the grievance process. </s> Nor does the PLRA impose such a requirement. In Woodford, we held that to properly exhaust administrative remedies prisoners must "complete the administrative review process in accordance with the applicable procedural rules," 548 U.S., at __ (slip op., at 5)--rules that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to "properly exhaust." The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion. As the MDOC's procedures make no mention of naming particular officials, the Sixth Circuit's rule imposing such a prerequisite to proper exhaustion is unwarranted. </s> We have identified the benefits of exhaustion to include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record. See id., at ___ (slip op., at 6-8); Porter, 534 U.S., at 524-525. The Sixth Circuit rule may promote early notice to those who might later be sued, but that has not been thought to be one of the leading purposes of the exhaustion requirement. See Johnson, 385 F.3d, at 522 ("We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation"); see also Brief for American Civil Liberties Union etal. as Amici Curiae 8-9, and n.6 (collecting grievance procedures and noting that the majority do not require prisoners to identify specific individuals). </s> We do not determine whether the grievances filed by petitioners satisfied the requirement of "proper exhaustion," Woodford, supra, at ___ (slip op., at 11), but simply conclude that exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances. We leave it to the court below in the first instance to determine the sufficiency of the exhaustion in these cases. IV </s> The final issue concerns how courts should address complaints in which the prisoner has failed to exhaust some, but not all, of the claims asserted in the complaint.8 All agree that no unexhausted claim may be considered. The issue is whether the court should proceed with the exhausted claims, or instead--as the Sixth Circuit has held--dismiss the entire action if any one claim is not properly exhausted. See Jones Bey, 407 F.3d, at 807.9 Here the Sixth Circuit can point to language in the PLRA in support of its rule. Section 1997e(a) provides that "[n]o action shall be brought" unless administrative procedures are exhausted. Respondents argue that if Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, the word "claim" rather than "action" would have been used in this provision. </s> This statutory phrasing--"no action shall be brought"--is boilerplate language. There are many instances in the Federal Code where similar language is used, but such language has not been thought to lead to the dismissal of an entire action if a single claim fails to meet the pertinent standards. Statutes of limitations, for example, are often introduced by a variant of the phrase "no action shall be brought," see, e.g., Beach v. Ocwen Fed. Bank, 523 U.S. 410, 416 (1998); 18 U.S.C. §1030(g) (2000 ed., Supp. IV), but we have never heard of an entire complaint being thrown out simply because one of several discrete claims was barred by the statute of limitations, and it is hard to imagine what purpose such a rule would serve. The same is true with respect to other uses of the "no action shall be brought" phrasing. See, e.g., Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F. 3d 461, 471 (CA3 1997) (dismissing only claims that fail to comply with the citizen suit notification requirement of 16 U.S.C. §1540(g)(2), which states that "[n]o action may be commenced" until an agency has declined to act after being given written notice). </s> More generally, statutory references to an "action" have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the "action" may proceed. See, e.g., Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 560-563 (2005) (District Court had jurisdiction over a "civil action" under 28 U.S.C. §1367(a), even if it might not have jurisdiction over each separate claim comprising the action); Chicago v. International College of Surgeons, 522 U.S. 156, 166 (1997) (District Court had jurisdiction over removed "civil action" even if every claim did not satisfy jurisdictional prerequisites). </s> As a general matter, if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. "[O]nly the bad claims are dismissed; the complaint as a whole is not. If Congress meant to depart from this norm, we would expect some indication of that, and we find none." Robinson v. Page, 170 F.3d 747, 748-749 (CA7 1999) (considering §1997e(e)). </s> Respondents note an exception to this general rule, the total exhaustion rule in habeas corpus. In Rose v. Lundy, 455 U.S. 509, 522 (1982), we held that "mixed" habeas petitions--containing both exhausted and unexhausted claims--cannot be adjudicated. This total exhaustion rule applied in habeas was initially derived from considerations of "comity and federalism," not any statutory command. Rhines v. Weber, 544 U.S. 269, 273 (2005); id., at 274 (noting that Congress "preserved Lundy's total exhaustion requirement" in 28 U.S.C. §2254(b)(1)(A)). Separate claims in a single habeas petition generally seek the same relief from custody, and success on one is often as good as success on another. In such a case it makes sense to require exhaustion of all claims in state court before allowing the federal action to proceed. A typical PLRA suit with multiple claims, on the other hand, may combine a wide variety of discrete complaints, about interactions with guards, prison conditions, generally applicable rules, and so on, seeking different relief on each claim. There is no reason failure to exhaust on one necessarily affects any other. In any event, even if the habeas total exhaustion rule is pertinent, it does not in fact depart from the usual practice--as we recently held, a court presented with a mixed habeas petition "should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims ...." Rhines, supra, at 278. This is the opposite of the rule the Sixth Circuit adopted, and precisely the rule that respondents argue against. </s> Respondents' reading of 42 U.S.C. §1997e(a) to contain a total exhaustion rule is bolstered by the fact that other sections of the PLRA distinguish between actions and claims. Section 1997e(c)(1), for example, provides that a court shall dismiss an action for one of four enumerated deficiencies, while §1997e(c)(2) allows a court to dismiss a claim for one of these reasons without first determining whether the claim is exhausted. Similarly, 28 U.S.C. §1915A(b) directs district courts to dismiss "the complaint, or any portion of the complaint" before docketing under certain circumstances. This demonstrates that Congress knew how to differentiate between the entire action and particular claims when it wanted to, and suggests that its use of "action" rather than "claim" in 42 U.S.C. §1997e(a) should be given effect. </s> But the interpretation respondents advocate creates its own inconsistencies. Section 1997e(e) contains similar language, "[n]o ... action may be brought ... for mental or emotional injury suffered while in custody without a prior showing of physical injury," yet respondents cite no case interpreting this provision to require dismissal of the entire lawsuit if only one claim does not comply, and again we see little reason for such an approach. Accord, Cassidy v. Indiana Dept. of Corrections, 199 F.3d 374, 376-377 (CA7 2000) (dismissing only the portions of the complaint barred by §1997e(e)); see also Williams v. Ollis, 230 F.3d 1361 (CA6 2000) (unpublished table decision) (same). Interpreting the phrase "no action shall be brought" to require dismissal of the entire case under §1997e(a) but not §1997e(e) would contravene our normal rules of statutory construction. National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 501-502 (1998). </s> In pressing the total exhaustion argument, respondents also marshal the policy and purpose underlying the PLRA--this time in a supporting rather than lead role. The invigorated exhaustion requirement is a "centerpiece" of the statute, Woodford, 548 U.S., at ___ (slip op., at 1-2), and if the exhaustion requirement of §1997e(a) is not effectuated by a total exhaustion rule, they argue, inmates will have little incentive to ensure that they have exhausted all available administrative remedies before proceeding to court. The PLRA mandated early judicial screening to reduce the burden of prisoner litigation on the courts; a total exhaustion rule allows courts promptly to dismiss an action upon identifying an unexhausted claim. The alternative approach turns judges into editors of prisoner complaints, rather than creating an incentive for prisoners to exhaust properly. See Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (CA10 2004). </s> We are not persuaded by these policy arguments. In fact, the effect of a total exhaustion rule could be that inmates will file various claims in separate suits, to avoid the possibility of an unexhausted claim tainting the others. That would certainly not comport with the purpose of the PLRA to reduce the quantity of inmate suits. Additionally, district judges who delve into a prisoner complaint only to realize it contains an unexhausted claim, requiring dismissal of the entire complaint under the total exhaustion rule, will often have to begin the process all over again when the prisoner refiles. In light of typically short prison grievance time limits, prisoners' refiled complaints will often be identical to what the district court would have considered had it simply dismissed unexhausted claims as it encountered them and proceeded with the exhausted ones. Perhaps filing fees and concerns about the applicability of the "three strikes" rule, 28 U.S.C. §1915(g), would mitigate these effects, but the debate about consequences is close enough that there is no clear reason to depart from the more typical claim-by-claim approach. *  *  * </s> We are not insensitive to the challenges faced by the lower federal courts in managing their dockets and attempting to separate, when it comes to prisoner suits, not so much wheat from chaff as needles from haystacks. We once again reiterate, however--as we did unanimously in Leatherman, Swierkiewicz, and Hill--that adopting different and more onerous pleading rules to deal with particular categories of cases should be done through established rulemaking procedures, and not on a case-by-case basis by the courts. The judgments of the United States Court of Appeals for the Sixth Circuit are reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. </s> FOOTNOTESFootnote *Together with No. 05-7142, Williams v. Overton etal., and Walton v. Bouchard etal. (see this Court's Rule 12.4), also on certiorari to the same court. FOOTNOTESFootnote 1See Administrative Office of the United States Courts, Judicial Facts and Figures, Tables 4.4, 4.6, http://www.uscourts.gov/ judicialfactsfigures/contents.html (as visited Jan. 17, 2007, and available in Clerk of Court's case file). That number excludes habeas corpus petitions and motions to vacate a sentence. If these filing are included, prisoner complaints constituted 24 percent of all civil filings in 2005. Footnote 2 </s> Compare Steele v. Federal Bureau of Prisons, 355 F. 3d 1204, 1210 (CA10 2003) (pleading requirement); Brown v. Toombs, 139 F.3d 1102, 1104 (CA6 1998) (per curiam) (same); Rivera v. Allin, 144 F. 3d 719, 731 (CA11 1998) (same), with Anderson v. XYZ Correctional Health Servs., Inc., 407 F. 3d 674, 681 (CA4 2005) (affirmative defense); Wyatt v. Terhune, 315 F. 3d 1108, 1119 (CA9 2003) (same); Casanova v. Dubois, 304 F. 3d 75, 77, n.3 (CA1 2002) (same); Ray v. Kertes, 285 F. 3d 287, 295 (CA3 2002) (same); Foulk v. Charrier, 262 F. 3d 687, 697 (CA8 2001) (same); Massey v. Helman, 196 F. 3d 727, 735 (CA7 1999) (same); Jenkins v. Haubert, 179 F. 3d 19, 28-29 (CA2 1999) (same). See also Johnson v. Johnson, 385 F. 3d 503, 516, n.7 (CA5 2004) (noting the conflict but not deciding the question); Jackson v. District of Columbia, 254 F.3d 262, 267 (CADC 2001) (treating exhaustion as an affirmative defense). Footnote 3Compare Jones Bey v. Johnson, 407 F. 3d 801, 805 (CA6 2005) (requiring dismissal of the entire action if one unexhausted claim is present); Ross v. County of Bernalillo, 365 F. 3d 1181, 1189 (CA10 2004) (same); Vazquez v. Ragonese, 142 Fed. Appx. 606, 607 (CA3 2005) (per curiam) (same); Kozohorsky v. Harmon, 332 F. 3d 1141, 1144 (CA8 2003) (same), with Lira v. Herrera, 427 F. 3d 1164, 1175 (CA9 2005) (allowing dismissal of only unexhausted claims); Ortiz v. McBride, 380 F. 3d 649, 663 (CA2 2004) (same); Lewis v. Washington, 300 F. 3d 829, 835 (CA7 2002) (same). See also Johnson, supra, at 523, n.5 (suggesting that total exhaustion is an open question in the Fifth Circuit). Footnote 4MDOC has since revised its policy. See Policy Directive 03.02.130 (effective Dec. 19, 2003), App. to Brief for Respondents 1b. The new policy is not at issue in these cases. Footnote 5Dr. Pramstaller was mentioned at Step III of the grievance process, but was apparently never served with the complaint initiating the lawsuit. The Magistrate stated that even if the claims against Pramstaller had been properly exhausted they nonetheless were subject to dismissal under the total exhaustion rule. 1 App. 86, 101. It also appears that under the Sixth Circuit's rule requiring a defendant to be named at Step I of the grievance process, the claims against Pramstaller, who was not mentioned until Step III, would not have been exhausted. See supra, at 4; n.7, infra. Because Pramstaller was never served, he is not a respondent in this Court. Footnote 6An upper slot restriction limits the inmate to receiving food and paperwork via the lower slot of the cell door. Brief for Respondents 5-6. Presumably, this is less desirable than access through the upper slot; the record does not reveal how effective this particular sanction is in discouraging assaults on staff. Footnote 7 </s> This "name all defendants" rule apparently applies even when a prisoner does not learn the identity of the responsible party until a later step of the grievance process. Upon learning the identity of the responsible party, the prisoner is required to bring an entirely new grievance to properly exhaust. 136 Fed. Appx. 846, 849 (CA6 2005) ("At that point [after he learned, in response to a Step I grievance, that Gearin was responsible for the upper slot restriction], Walton was armed with all of the information that he needed to file a Step I grievance against ... Gearin--and a federal complaint against Gearin once the claim had been exhausted--but he simply chose not to follow this route"). At oral argument, Michigan admitted that it did not agree with at least this application of the rule. Tr. of Oral Arg. 44-45. Footnote 8Although we reverse the Sixth Circuit's rulings on the substantive exhaustion requirements as to all three petitioners, the question whether a total exhaustion rule is contemplated by the PLRA is not moot. In Jones's case, the Sixth Circuit ruled in the alternative that total exhaustion required dismissal. 135 Fed. Appx. 837, 839 (CA6 2005) (per curiam) ("[E]ven if Jones had shown he had exhausted some of his claims, the district court properly dismissed the complaint because Jones did not show that he had exhausted all of his claims"). Footnote 9After we granted certiorari, the Sixth Circuit suggested that the adoption of a total exhaustion rule in that Circuit in Jones Bey ran contrary to previous panel decisions and was therefore not controlling. Spencer v. Bouchard, 449 F.3d 721, 726 (2006). See also Rule 206(c) (CA6 2006). As total exhaustion was applied in the cases under review, and the Sixth Circuit is not the only court to apply this rule, we do not concern ourselves with this possible intracircuit split.

United States Supreme Court MOBIL OIL CORP. v. FPC(1974) No. 73-437 Argued: April 17, 1974Decided: June 10, 1974 </s> [Footnote * Together with No. 73-457, Public Service Commission of New York v. Federal Power Commission et al., and No. 73-464, Municipal Distributors Group v. Federal Power Commission et al., also on certiorari to the same court. </s> The Federal Power Commission (FPC) instituted a proceeding in 1961 to establish an area rate structure for interstate sales of natural gas produced in the Southern Louisiana area. After extensive hearings the FPC in 1968 issued an order establishing ceiling rates for gas sold by producers in the area and ordering refunds of rates in excess of the maximum that had been collected prior to the order. The Court of Appeals upheld the order, but declared that the affirmance was not to be interpreted to foreclose the FPC from making such changes in its order, as to both past and future rates, as it found to be in the public interest. In response to petitions for rehearing urging that the FPC's authority to modify its order, after affirmance by the court, could be exercised only prospectively, the Court of Appeals stated that "[w]e wish to make crystal clear the authority of the Commission in this case to reopen any part of its order that circumstances require be opened," that "[t]he Commission can make retrospective as well as prospective adjustments in this case if it finds that it is in the public interest to do so," and that if "the refunds are too burdensome in light of new evidence to be in the public interest . . . the Commission shall have the power and the duty to remedy the situation by changing its orders." The FPC thereupon reopened the 1961 proceeding, and after considering a settlement proposal that had been agreed to by a large majority of the parties, issued an order in 1971 establishing a new rate structure for the Southern Louisiana area superseding the 1968 order. This 1971 order established, inter alia, (1) higher ceiling rates for both "flowing" or "first vintage" gas (gas delivered after the order's effective date under contracts dated prior to [417 U.S. 283, 284] October 1, 1968), and "new" or "second vintage" gas (gas delivered after the order's effective date under contracts dated after October 1, 1968); (2) two incentive programs, one providing for refund workoff credits based on a refund obligor's commitment of additional gas reserves to the interstate market (the producer being required to offer at least 50% of the new reserves to the purchaser to whom the refund would otherwise be payable), and the other providing for contingent escalation of rates based on new dedications of gas to the market; (3) minimum rates to be paid by producers to pipelines for transportation of liquids and liquefiable hydrocarbons; and (4) a moratorium upon the filing of rate increases for flowing gas until October 1, 1976, and for new gas until October 1, 1977. The Court of Appeals upheld this order as an appropriate exercise of administrative discretion supported by substantial evidence on the authority of Permian Basin Area Rate Cases, 390 U.S. 747 . Held: </s> 1. The FPC had the statutory authority to adopt the 1971 order, notwithstanding the Court of Appeals' affirmance of the 1968 order. Pp. 310-315. </s> (a) Under circumstances where the Court of Appeals' affirmance of the 1968 order was not "unqualified" or final, and such order had not been made effective but was stayed until withdrawn in the 1971 order, the Court of Appeals' action in authorizing the FPC to reopen the 1968 order did not exceed the court's powers under 19 (b) of the Natural Gas Act "to affirm, modify, or set aside [an] order in whole or in part," or constitute an improper exercise of the court's equity powers with which it is vested in reviewing FPC orders. Pp. 310-312. </s> (b) The fact that the settlement proposal lacked unanimous agreement of the parties did not preclude the FPC from adopting the proposal as an order establishing just and reasonable rates, since the FPC clearly had the power to admit the agreement into the record, and indeed was obliged to consider it. Pp. 312-314. </s> (c) The fact that the Court of Appeals' opinion on rehearing regarding the 1968 order authorized modification of the 1968 refund provisions if the refunds "are too burdensome in light of new evidence to be in the public interest," did not require the FPC, before revising the refund terms, to find, based on substantial new evidence, that the refunds "would substantially and adversely affect the producers' ability to meet the continuing gas needs of the interstate market," since the opinion on rehearing was explicit [417 U.S. 283, 285] that the FPC was to have "great flexibility" and could make retrospective as well as prospective adjustments; moreover, the Court of Appeals flatly rejected "the notion that the label `affirmance' could possibly impair FPC's ability to alter or modify any of the provisions, particularly the refund provisions" of the 1968 order. Pp. 314-315. </s> 2. Petitioners' challenges to the established price levels under the 1971 order are without merit. Pp. 315-321. </s> (a) Mobil's attack on the FPC's evidence of costs is clearly frivolous, since the FPC took extensive evidence of costs in its 1968 order hearings for flowing gas and in both its 1968 and 1971 hearings for new gas, and since the fragments of the record cited by Mobil do not sustain its heavy burden of showing that the FPC's choice was outside what the Court of Appeals could have found to be within the FPC's authority. P. 316. </s> (b) With respect to Mobil's argument that inclusion of refund workoff credits and contingent escalations in the just and reasonable rates indicates that producers unable to gain part or all of their share of such payments will receive merely their "bare-bones" costs, which constitute illegally low prices, the Court of Appeals did not err in deciding that it was within the FPC's discretion and expertise to conclude that the refund workoff credits and contingent escalations could provide an opportunity for increased prices that would help in generating capital funds and in meeting rising costs, while assuring that such increases will not be levied upon consumers unless accompanied by increased supplies of gas. Pp. 316-319. </s> (c) New York's contention that the 1971 order rates for flowing gas are excessive is predicated on an erroneously limited view of the permissible range of the FPC's authority. Where the FPC's justification for increasing the price of flowing gas was the necessity for increased revenues to expand future production, rather than new evidence of differing production conditions, the Court of Appeals, against the background of a serious and growing domestic gas shortage, could properly conclude that the FPC might reasonably decide that, as compared with adjustments in rate ceilings to induce more exploration and production, its responsibility to maintain adequate supplies at the lowest reasonable rate could better be discharged by means of contingent escalation and refund credits. Pp. 319-321. </s> 3. The claims of all three petitioners, with respect to both the contingent escalations on flowing gas and the refund credits, that [417 U.S. 283, 286] even if the 1971 rates are sufficient to satisfy the Natural Gas Act's minimum requirements as to amount and, on the basis of the FPC's chosen methodology, are supported by substantial evidence, they are nevertheless unduly discriminatory and therefore unlawful under 4 and 5 of the Act, are also without merit. Pp. 321-327. </s> (a) Concerning Mobil's argument that undue discrimination results because producers who had not settled their refund obligations will receive advantages from the contingent escalations and refund credits that producers like Mobil, which did settle its obligations, will not receive, it cannot be said that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard in concluding that the FPC's assessment of the need for refund credits, compared to the costs and benefits of some other scheme, was adequately supported. Pp. 321-325. </s> (b) Though New York and MDG argue that the refund credit formula discriminates against pipeline purchasers because it permits producers to work off refunds by offering 50%, rather than 100%, of the new reserves to pipeline purchasers other than those owed the refunds, the Court of Appeals did not err in holding that the refund credit provision, the purpose of which was to increase the supply of gas, was within the FPC's discretion, since the FPC could reasonably conclude that the producers' incentive to explore for and produce new gas in the area, could result in their dedication of new reserves that would exceed in benefit the amount of the refunds. P. 325. </s> (c) With respect to New York's argument that some producers might abandon their normal business of exploring for and developing new reserves and yet enjoy the increase in their prices for flowing gas if other producers contribute substantial additional reserves, the FPC's belief that producers already operating in the area will continue to do so is at least an equally tenable judgment, and New York offered nothing to overcome the presumption of validity attaching to the exercise of the FPC's expertise. Pp. 326-327. </s> 4. The Court of Appeals' conclusion, contrary to Mobil's contention, that the FPC's fixing of moratoria on new rate filings was supported by required findings of fact and by substantial evidence, did not misapprehend or grossly misapply the substantial-evidence standard. Pp. 327-328. </s> 5. Mobil's argument that the FPC improperly failed to provide automatic adjustments in area rates to compensate for anticipated [417 U.S. 283, 287] higher royalty costs, is hypothetical at this stage and in any event an affected producer is entitled to seek individualized relief. P. 328. </s> 6. The Court of Appeals did not err in concluding that the FPC "acted within the bounds of administrative propriety in abandoning" as a pragmatic adjustment the distinction in maximum permissible rates between casinghead gas and gas-well gas so far as new dedications are concerned, even though casinghead gas was formerly treated as a byproduct of oil and therefore costed and priced lower than gas-well gas. Pp. 328-330. </s> 7. In arguing that the minimum rates provided by the 1971 order to be paid by producers to pipelines for transportation of liquids and liquefiable hydrocarbons are not supported by substantial evidence, Mobil has not met its burden of demonstrating that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard. P. 330. </s> 483 F.2d 880, affirmed. </s> BRENNAN, J., delivered the opinion of the Court, in which all Members joined except STEWART and POWELL, JJ., who took no part in the consideration or decision of the cases. </s> Carroll L. Gilliam argued the cause for petitioner in No. 73-437. With him on the briefs were Tom P. Hamill, Robert D. Haworth, and Philip R. Ehrenkranz. George E. Morrow argued the cause for petitioners in Nos. 73-457 and 73-464. With him on the briefs for petitioner in No. 73-464 were Ruben Goldberg and Charles F. Wheatley, Jr. Michael H. Rosenbloom filed briefs for petitioner in No. 73-457. </s> Leo E. Forquer argued the cause for respondent Federal Power Commission in all cases. With him on the brief were Solicitor General Bork, Mark L. Evans, and George W. McHenry, Jr. John R. Rebman argued the cause for producer respondents in all cases. With him on the brief for respondents Exxon Corp. et al. were Martin N. Erck, David G. Stevenson, Richard F. Generelly, Edward J. Kremer, Charles E. McGee, Cecil N. Cook, Thomas H. [417 U.S. 283, 288] Burton, W. J. Stark, Warren M. Sparks, B. James McGraw, Robert W. Henderson, William A. Sackmann, John L. Williford, Paul W. Hicks, Oliver L. Stone, Ronald J. Jacobs, Richard F. Remmers, Stanley M. Morley, Louis Flax, H. W. Varner, Pat Timmons, Scott P. Anger, Kirk W. Weinert, C. Fielding Early, Jr., and George C. Bond. Raymond N. Shibley filed a brief for respondent Pipeline Purchaser Group in all cases. Francis R. Kirkham, James B. Atkin, Woollen H. Walshe, Justin R. Wolf, and David B. Ward filed a brief for respondent The California Company, a Division of Chevron Oil Co., in all cases. John E. Holtzinger, Jr., and Frederick Moring filed a brief for respondent Associated Gas Distributors in all cases. C. William Cooper, Tilford A. Jones, Edward H. Gerstenfield, Robert Corp, Norman A. Flaningam, Lauman Martin, Richard M. Merriman, Elmer Nafziger, Jon D. Noland, James O'Malley, Jr., Richard A. Rosan, William W. Ross, Thomas C. Matthews, Arthur R. Seder, Jr., Charles V. Shannon, Justin A. Stanley, and J. Stanley Stroud filed a brief for respondents United Distribution Companies in all cases. </s> MR. JUSTICE BRENNAN delivered the opinion of the Court. </s> We review here the affirmance by the Court of Appeals for the Fifth Circuit of a 1971 order of the Federal Power Commission 1 that established an area rate structure for interstate sales 2 of natural gas produced in the Southern [417 U.S. 283, 289] Louisiana area. The Southern Louisiana area is one of seven geographical areas defined by the Commission for the purpose of prescribing areawide price ceilings. 3 This [417 U.S. 283, 290] is the second area rate case to reach this Court. The first was the Permian Basin Area Rate Cases, 390 U.S. 747 (1968), in which the Court sustained the constitutional [417 U.S. 283, 291] and statutory authority of the Commission to adopt a system of area regulation and to impose supplementary requirements in the discharge of its responsibilities under 4 and 5 of the Natural Gas Act 4 to determine whether producers' rates are just and reasonable. </s> The Court of Appeals affirmed the 1971 order in its [417 U.S. 283, 292] entirety as an appropriate exercise of administrative discretion supported by substantial evidence on the record as a whole. Placid Oil Co. v. FPC, 483 F.2d 880 (1973). We granted the petitions for certiorari in these three cases 5 to review the correctness of the Court of Appeals' holding sustaining the 1971 order as in all respects within the Commission's statutory powers, and to determine whether the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard. 414 U.S. 1142 (1974). We affirm. </s> I </s> The Commission first instituted proceedings to establish an area rate structure for the Southern Louisiana area on May 10, 1961. 25 F. P. C. 942. The area consists of the southern portion of the State of Louisiana and the federal and state areas of the Gulf of Mexico off the Louisiana coast. The area accounts for about one-third of the Nation's domestic natural gas production [417 U.S. 283, 293] and has been described as "the most important gas-producing area in the country." Southern Louisiana Area Rate Cases, 428 F.2d 407, 418 (CA5 1970) (hereafter SoLa I). Proceedings continued over seven years. 6 On September 25, 1968, the Commission issued an order establishing an area rate structure, 40 F. P. C. 530, and, on March 20, 1969, a modified order on rehearing, 41 F. P. C. 301. 7 Refunds under this structure for overcharges during the pendency of the proceeding amounted to some $375 million. 8 </s> An appeal was taken to the Court of Appeals for the Fifth Circuit. On March 19, 1970, the Court of Appeals [417 U.S. 283, 294] affirmed the FPC orders but with "serious misgivings," SoLa I, supra, at 439. Noting that "[a] serious shortage, in fact, may already be unavoidable . . .," id., at 437, the Court of Appeals was critical of the Commission's failure adequately to assess "supply and demand in either a semi-quantitative or qualitative way," id., at 436. It was reinforced in this view by the evidence, including an FPC Staff Report, issued while the appeal was pending, 9 that the Nation was faced with "a severe gas shortage, with disastrous effects on consumers and the economy alike." Id., at 435 n. 87. </s> Therefore, although determining "that affirmance is the best course," id., at 439, the Court of Appeals declared that the judgment was not in any wise to foreclose the Commission from making such changes in its orders, as to both past and future rates, as it found to be in the public interest. The court noticed the fact that, while the appeal was pending, the Commission, in March 1969, had instituted proceedings to reconsider rates for the offshore portion of Southern Louisiana, see 41 F. P. C. 378, and later that year expanded the procedure to include the entire area, 42 F. P. C. 1110. Thus, it stated: </s> "The mandate of this Court should not, however, be interpreted to interfere with Commission action that would change the rates we have approved here. We [417 U.S. 283, 295] specifically and emphatically reject the contention advanced . . . that the Commission has no power to set aside rates once determined by it to be just and reasonable when it has reason to believe its determinations may have been erroneous. In fact, the existence of the new proceedings, which as we understand them will take into account many of the issues whose absence has concerned us here, has been one of the factors we have considered in deciding to affirm the Commission's decisions." 428 F.2d, at 444-445. </s> Pending decision on petitions for rehearing, however, the Commission advised the Court of Appeals, in a letter requested by the court, that, unless that court otherwise directed, it did not believe that it had authority to modify, rescind, or set aside a rate order or moratorium affirmed by the court. The Court of Appeals answered in its opinion denying rehearing, 444 F.2d 125, 126-127 (1970): </s> "We wish to make crystal clear the authority of the Commission in this case to reopen any part of its order that circumstances require be reopened. Under section 19 (b) of the Natural Gas Act, this Court has the broad remedial powers that inhere in a court of equity, and pursuant to our equitable powers we make it part of the remedy in this case that the authority of the Commission to reopen any part of its orders, including those affecting revenues from gas already delivered, is left intact. The Commission can make retrospective as well as prospective adjustments in this case if it finds that it is in the public interest to do so. </s> "At the same time, we emphasize that our judgment is an affirmance and not a remand. The appropriate place for originally considering what [417 U.S. 283, 296] parts of the orders must be reopened in light of new evidence is before the Commission. It may be that the Commission will decide that the refunds it has ordered are just and reasonable or at least that their significance to the public interest is outweighed by the confusion and delay that would result from their reopening. In this event, the Commission will allow its refund orders to stand as they are. Or it may be that the refunds are too burdensome in light of new evidence to be in the public interest. In that case, it is our judgment that the Commission shall have the power and the duty to remedy the situation by changing its orders." </s> The Commission thereupon formally reopened the 1961 proceeding and consolidated it with the new proceeding, 44 F. P. C. 1638 (1970). 10 An extensive record of many thousands of pages of testimony and more than a hundred exhibits was compiled between April 1970 and March 1971. 11 Pursuant to the instructions of the Court of Appeals, much of the evidence focused on the gas shortage, projected levels of demand, and estimates of new supply needed to alleviate the problem. Evidence was also adduced bearing upon rate levels needed to induce additional supply, the potential industry consequences of any new order, and new cost trends based on data unavailable at the time of the earlier proceedings. </s> Contemporaneously with the hearings, settlement conferences were instituted, on motion, by the Presiding Examiner, 46 F. P. C. 86, 103 (1971), and those conferences were attended by producers, pipelines, distributors, [417 U.S. 283, 297] state commissions, municipally owned utilities, and the Commission staff. Eventually, a settlement proposal was submitted by one of the parties, 12 and, after being placed on the record for comments, it was agreed to by a large majority of all interests. 13 An intermediate decision of the Presiding Examiner was waived, and the Commission took up the case. </s> At the outset, the Commission stated that it believed that adoption of the settlement proposal was precluded unless the Commission found the terms to be in the public interest and supported by substantial evidence. 14 </s> [417 U.S. 283, 298] Accordingly, the Commission evaluated the proposal in the light of the massive record that had been compiled in the decade since 1961, including the additional year of hearings directed in large part to the terms of the settlement proposal and the nature of the supply shortage. The Commission concluded that the terms of the proposed settlement were just and reasonable, and found them to be supported by substantial evidence in the record. 15 The ceiling rates established in the 1968 orders, which because of Commission and court stays had never gone into effect, were held "now [to] perform no office," 46 F. P. C., at 102. </s> The effective date of the 1971 order was August 1, 1971. By the terms of this order "flowing gas," i. e., gas delivered after August 1, 1971, under contracts dated prior to October 1, 1968, receives treatment different from "new gas," i. e., gas delivered after August 1, 1971, under contracts dated after October 1, 1968. The established flowing gas price ceilings are 22.275 per thousand cubic feet (Mcf) for gas produced onshore and 21.375 per Mcf for gas produced offshore. The established new gas price ceilings are 26 for both onshore and offshore gas. </s> Flowing gas ceilings automatically increased 0.5 per Mcf on October 1, 1973, and, as a further incentive for increasing the gas supply, the Commission also established increases up to 1.5 per Mcf, contingent upon the industry's finding and dedicating new gas reserves. 16 New [417 U.S. 283, 299] gas rates automatically increase 1 per Mcf on October 1, 1974. A moratorium is imposed upon the filing of producer rate increases for flowing gas until October 1, 1976, and for new gas until October 1, 1977. </s> The Commission also established minimal pipeline rates to be charged producers by pipelines for the transportation of certain liquid and liquefiable hydrocarbons, and eliminated the price differential between casinghead gas (gas dissolved in or associated with the production of oil) and new gas-well gas that it had imposed in earlier cases. 46 F. P. C., at 144. See Permian Basin, 390 U.S., at 760 -761. </s> The problem of refunds concerns deliveries of flowing gas prior to August 1, 1971. The rates established by the 1971 order were higher than those that would have been established under the 1968 order had they been put into effect. 17 If refunds had been calculated on the basis of the 1968 order, they would have aggregated over $375 million. If they had been calculated upon the basis of the 1971 flowing gas ceiling rates, refunds would have aggregated less than $150 million. However, the proposed settlement stipulated a refund obligation of $150 million, with a proviso that this could be worked off by the commitment by a refund obligor of additional gas reserves to the interstate market. 18 The Commission [417 U.S. 283, 300] adopted this proposal as an integral part of the 1961-1971 rate structure and established a schedule aggregating $150 million of refunds from those that were owed but not yet paid by producers who had collected rates in excess of certain prescribed levels lower than the established flowing gas rates. 19 </s> II </s> Before addressing petitioners' arguments, we must consider briefly the situation in which the Commission has found itself in its attempts to regulate the natural gas market; the teachings of Permian Basin and other decisions of this Court as to the extent of the Commission's [417 U.S. 283, 301] statutory authority in this area; the limitations upon review by the Court of Appeals of the Commission's order; and the limitations upon review by this Court of the Court of Appeals' affirmance of the order. </s> The history of the Commission's early experience with the Natural Gas Act, 15 U.S.C. 717 et seq., has been fully developed in our first area rate opinion, Permian Basin, supra, at 755-759, and may be merely summarized here. With the passage of the Act in 1938, 52 Stat. 821, Congress gave the Commission authority to determine and fix "just and reasonable rate[s]," 5 (a), 15 U.S.C. 717d (a), 20 for the "sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use . . . ." 1 (b), 15 U.S.C. 717 (b). 21 The Act was patterned after earlier regulatory statutes that applied to traditional public utilities and transportation companies, and that provided for setting rates equal to such companies' costs of service plus a reasonable rate of return. 22 </s> [417 U.S. 283, 302] </s> Until 1954, the Commission construed its mandate as requiring that it regulate the chain of distribution of natural gas only from the point where an interstate pipeline acquired it. 23 Because such pipelines were relatively [417 U.S. 283, 303] few in number 24 and fell within the transportation company model, the Commission was able to apply a traditional regulatory approach, using individualized costs of service as a basis for determining price. 25 </s> In 1954, however, this Court ruled in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 , that independent producers are "[n]atural-gas compan[ies]" within the meaning of 2 (6) of the Act, 15 U.S.C. 717a (6). 26 In response, the Commission at first attempted to extend to this new industry its old regulatory methods, including establishment of individual rates based on each producer's costs of service. 27 The effort foundered on the sheer [417 U.S. 283, 304] size of the task - thousands of independent producers being engaged in jurisdictional sales of gas at that time. 28 </s> In the early 1960's the Commission discontinued its attempts to deal with individual companies, 29 and turned to the area rate method. The Commission established a number of discrete geographical areas within which it believed that costs and general operating conditions were reasonably similar, 30 and set out to establish, by convening hearings and compiling massive records, uniform rate schedules that would govern all producers within each area. Upon the conclusion of the first of these undertakings, we reviewed the Commission's efforts and found no reversible error. Permian Basin Area Rate Cases, 390 U.S. 747 (1968). See Wisconsin v. FPC, 373 U.S. 294 (1963). </s> But, the Commission was soon confronted with indications, both from data available to it, 31 and from criticism of its effort, 32 that its cost emphasis in rate determination was being accompanied by a severe shortage in the supply of natural gas being dedicated to the interstate market. Since the Commission's subsequent area rate orders, 33 including both its 1968 and 1971 orders, are adapted from the initial Permian Basin model and are governed by the same statutory provisions concerning [417 U.S. 283, 305] ratemaking and judicial review, we will preface our discussion of the Commission's response to these difficulties with a brief review of the Permian Basin order and the applicable rules laid down in our opinion sustaining that order. </s> Subsequent to its establishment of geographical areas in 1961, 34 the Commission consolidated three of those areas to form the Permian Basin area. The rate structure devised for this area set two ceiling prices, the higher one for gas produced from gas wells and dedicated to interstate commerce after January 1, 1961, and the other for gas-well gas dedicated to interstate commerce before January 1, 1961, and all gas produced from oil wells (casinghead gas) either associated with the production of the oil or dissolved in it. 35 The Commission derived the higher rate for the newer "vintage" gas-well gas from composite cost data obtained both from answers to producer questionnaires and from published data said to reflect the national costs of finding and producing gas-well gas in 1960. 36 It derived the lower rate from Permian Basin historical cost data for the older vintage gas-well gas, and applied that rate to both that and casinghead gas without distinction. 37 To these composite costs, the Commission added a return of 12% 38 on the producers' average production investment, 39 obtained by examining the cost data, imputing a rate base, and assuming that gas wells deplete at a constant rate beginning one year after investment and ending 20 [417 U.S. 283, 306] years later. 40 Finally, an adjustment up or down from the area ceiling rates was specified for gas of higher or lower quality and energy content than set by a selected standard. 41 The resulting ceiling rates, including allowances for state taxes, were 14.5 per Mcf for first vintage and casinghead gas, and 16.5 for second vintage gas. For those producers who individually might suffer hardship under this rate schedule, the Commission indicated that it would on rare occasions provide special relief, but it declined to specify what circumstances would justify such action. 42 </s> On review, the Court of Appeals refused to approve the Commission's order, holding that certain determinations of the ultimate effects of the order had not been made as required by FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944), that more precise delineation of the requirements for relief from the order must be set forth, and that the Commission could not require that producers refund excess charges during the pendency of the proceeding unless it concluded that aggregate actual area revenues exceeded aggregate permissible area revenues, and then apportioned only the excess among producers on an equitable basis. 375 F.2d 6, 36 (1967). </s> On certiorari, this Court initially noted that judicial review of the Commission's orders is extremely limited: </s> "Section 19 (b) of the Natural Gas Act provides without qualification that the `finding of the Commission as to the facts, if supported by substantial [417 U.S. 283, 307] evidence, shall be conclusive.' More important, we have heretofore emphasized that Congress has entrusted the regulation of the natural gas industry to the informed judgment of the Commission, and not to the preferences of reviewing courts. A presumption of validity therefore attaches to each exercise of the Commission's expertise, and those who would overturn the Commission's judgment undertake `the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.' FPC v. Hope Natural Gas Co., supra, at 602. We are not obliged to examine each detail of the Commission's decision; if the `total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end.' Ibid. </s> "Moreover, this Court has often acknowledged that the Commission is not required by the Constitution or the Natural Gas Act to adopt as just and reasonable any particular rate level; rather, courts are without authority to set aside any rate selected by the Commission which is within a `zone of reasonableness.' FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585 . No other rule would be consonant with the broad responsibilities given to the Commission by Congress; it must be free, within the limitations imposed by pertinent constitutional and statutory commands, to devise methods of regulation capable of equitably reconciling diverse and conflicting interests." Permian Basin, 390 U.S., at 767 . </s> Applying these limitations in the context of review of area rate regulation, Permian Basin defined the criteria governing the scope of judicial review as follows: </s> "First, [the reviewing court] must determine whether the Commission's order, viewed in light of [417 U.S. 283, 308] the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. Second, the court must examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Third, the court must determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors." Id., at 791-792 (emphasis supplied). </s> Where application of these criteria discloses no infirmities in the Commission's order, the order cannot be said to produce an "arbitrary result," and must be sustained. FPC v. Hope Natural Gas Co., 320 U.S., at 602 . </s> Applying these criteria, Permian reversed the Court of Appeals and sustained the Commission's order, although noting that the Commission had not adhered rigidly to a cost-based determination of rates, much less to one that based each producer's rates on his own costs. 43 Each deviation from cost-based pricing was found not to be unreasonable and to be consistent with the Commission's responsibility to consider not merely [417 U.S. 283, 309] the interests of the producers in "maintain[ing] financial integrity, attract[ing] necessary capital, and fairly compensat[ing] investors for the risks they have assumed," but also "the relevant public interests, both existing and foreseeable." 390 U.S., at 792 . "The Commission's responsibilities necessarily oblige it," the Court said, "to give continuing attention to values that may be reflected only imperfectly by producers' costs; a regulatory method that excluded as immaterial all but current or projected costs could not properly serve the consumer interests placed under the Commission's protection." Id., at 815. </s> Permian Basin teaches that application of the three criteria of judicial review of Commission orders is primarily the task of the courts of appeals. For "this [the Supreme] Court's authority is essentially narrow and circumscribed." Id., at 766. The responsibility to assess the record to determine whether agency findings are supported by substantial evidence is not ours. Section 19 (b) of the Act 44 provides that "[t]he judgment [417 U.S. 283, 310] and decree of the [Court of Appeals] affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court . . . upon certiorari . . . ." We have held as to a like provision in the National Labor Relations Act, 29 U.S.C. 160 (e), that thus "[w]hether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied." Universal Camera Corp. v. NLRB, 340 U.S. 474, 491 (1951). </s> III </s> Before reviewing the Court of Appeals' affirmance of the Commission's 1971 order for compliance with Permian's requirements, we address contentions that challenge the statutory authority of the Commission to adopt the order, rather than the terms of the order itself. The first of these challenges, made by New York and MDG, is that the Commission had no statutory authority to change rates and refund obligations fixed in the Commission's 1968 order after that order was affirmed by the Court of Appeals in SoLa I. Brief for MDG 18; Brief for New York 15. The argument is that the affirmance was "unqualified" and therefore exhausted the Court of Appeals' powers of review under 19 (b), thus rendering its authorization to the Commission to reopen its 1968 orders without legal effect. But the affirmance of the 1968 order was not "unqualified." Although the Commission could not have reopened the order on its own, see Montana-Dakota Utilities Co. v. Northwestern [417 U.S. 283, 311] Public Service Co., 341 U.S. 246, 254 (1951); FPC v. Hope Natural Gas Co., 320 U.S., at 618 , the Court of Appeals' opinion on rehearing made it "crystal clear" that, despite the form of the court's judgment, the Commission was fully authorized to reopen any part of the 1968 order that seemed appropriate and necessary if evidence as to the future supply problem indicated that this should be done. </s> The Court of Appeals properly took this step in light of new information, unavailable at the time of the 1968 order, that suggested the possible inadequacy of the 1968 determination, although not necessarily an inadequacy that justified setting aside the order. See Baldwin v. Scott County Milling Co., 307 U.S. 478 (1939). Moreover, the 1968 order had not been made effective, being continuously stayed until withdrawn by the 1971 order. See 46 F. P. C., at 101. In these circumstances, we cannot say that the action of the Court of Appeals exceeded its powers under 19 (b) "to affirm, modify, or set aside [an] order in whole or in part." </s> This jurisdiction to review the orders of the Commission is vested in a court with equity powers, Natural Gas Pipeline Co. v. FPC, 128 F.2d 481 (CA7 1942), see Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939), and we cannot say that the Court improperly exercised those powers in the circumstances. Dolcin Corp. v. FTC, 94 U.S. App. D.C. 247, 255-258, 219 F.2d 742, 750-752 (1954). 45 Indeed, 19 (b) provides that the Court of [417 U.S. 283, 312] Appeals may authorize the Commission in proper cases to take new evidence, upon which the Commission may modify its findings of fact and make recommendations concerning the disposition of its original order. Under the Court of Appeals disposition, the 1968 order was therefore not final and thus it was within the power of the Commission to reconsider and change it. See United Gas Improvement Co. v. Callery Properties, 382 U.S. 223, 229 (1965). </s> Only New York presses the second challenge to the Commission's statutory authority to adopt the 1971 order. New York contends that the Commission is without power to adopt as a rate order a settlement proposal that lacks unanimous agreement of the parties to the proceeding. That contention has no merit. </s> The Commission clearly had the power to admit the agreement into the record - indeed, it was obliged to consider it. 46 That it was admitted for the record did [417 U.S. 283, 313] not, of course, establish without more the justness and reasonableness of its terms. But the Commission did not treat it as such. As we have noted, 47 the Commission weighed its terms by reference to the entire record in the Southern Louisiana area proceeding since 1961, and further supplemented that record with extensive testimony and exhibits directed at the proposal's terms. 48 We think that the Court of Appeals correctly analyzed the situation and stated the correct legal principles: </s> "No one seriously doubts the power - indeed, the duty - of FPC to consider the terms of a proposed settlement which fails to receive unanimous support as a decision on the merits. We agree with the D.C. Circuit that even `assuming that under the Commission's rules [a party's] rejection of the settlement rendered the proposal ineffective as a settlement, it could not, and we believe should not, [417 U.S. 283, 314] have precluded the Commission from considering the proposal on its merits.' Michigan Consolidated Gas Co. v. FPC, 1960, 108 U.S. App. D.C. 409, 283 F.2d 204, 224 . . . . </s> . . . . . </s> "As it should FPC is employing its settlement power under the APA, 5 U.S.C.A. 554 (c), and its own rules 18 C. F. R. 1.18 (a), to further the resolution of area rate proceedings. If a proposal enjoys unanimous support from all of the immediate parties, it could certainly be adopted as a settlement agreement if approved in the general interest of the public. But even if there is a lack of unanimity, it may be adopted as a resolution on the merits, if FPC makes an independent finding supported by `substantial evidence on the record as a whole' that the proposal will establish `just and reasonable' rates for the area." 483 F.2d, at 893. (Emphasis in original.) </s> The choice of an appropriate structure for the rate order is a matter of Commission discretion, to be tested by its effects. The choice is not the less appropriate because the Commission did not conceive of the structure independently. </s> New York presents a final argument against the Commission's authority. It contends that the Court of Appeals' opinion on rehearing in SoLa I authorized modification of the 1968 refund provisions only if the 1968 refunds "are too burdensome in light of new evidence to be in the public interest." 444 F.2d, at 127. It argues that this means the Commission was required first to find, based on substantial new evidence, that refunds "would substantially and adversely affect the producers' ability to meet the continuing gas needs of the interstate market," Brief for New York 18, and contends that the [417 U.S. 283, 315] revision of the refund terms is therefore unauthorized because the Commission made no such finding. New York's premise is unsupportable. The opinion on rehearing is explicit that the Commission was to have "great flexibility," and could "make retrospective as well as prospective adjustments in this case if it finds that it is in the public interest to do so." 444 F.2d, at 126-127. Moreover, in the opinion under review, the Court of Appeals flatly rejected the argument New York has repeated in this Court. "[W]e categorically rejected [in SoLa I] the notion that the label `affirmance' could possibly impair FPC's ability to alter or modify any of the provisions, particularly the refund provisions, of its SoLa I rate scheme if it believed that the exigencies of the gas industry required more effective remedial measures." 483 F.2d, at 904 (emphasis in original). </s> IV </s> We turn now to petitioners' challenges to the rate order itself. We treat these contentions in three groups: challenges to the established price levels, challenges to the Commission's allocation of gas and receipts among pipelines and producers through the refund credits and contingent escalations, and, finally, claims that certain specific provisions of the rate order lack substantial evidence. </s> A </s> Petitioner Mobil contends that the rates fixed for both flowing or first vintage gas and new or second vintage gas are too low. New York and MDG attack the rates for flowing gas as too high, but do not attack the new-gas rates. Each of the arguments is premised on a common error: that certain provisions of the order can be isolated and viewed without regard to the total effect the order is designed to achieve. [417 U.S. 283, 316] </s> Mobil's attack on the Commission's evidence of costs is clearly frivolous. The Commission took extensive evidence of costs in its 1968-order hearings for flowing gas, and in both its 1968-order and 1971-order hearings for new gas. In response to the Commission's rates, selected from the final cost "range" it found to be justifiable on the basis of the entire record, Mobil points to selected fragments of the record. We have examined the testimony cited and do not think that it sustains Mobil's heavy burden of showing that the final Commission choice was outside what the Court of Appeals could have found to lie within the Commission's authority. FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585 (1942). </s> Mobil further contends that the inclusion of refund workoff credits and contingent escalations in the Commission's just and reasonable rates indicates that producers unable to gain part or all of their share of such payments will receive merely their "bare-bones" costs, which constitute illegally low prices. We do not question that such producers may receive less per unit of gas than will others. But that hardly invalidates the Commission's order. See Permian Basin, 390 U.S., at 818 -819. Mobil's argument assumes that there is only one just and reasonable rate possible for each vintage of gas, and that this rate must be based entirely on some concept of cost plus a reasonable rate of return. We rejected this argument in Permian Basin and we reject it again here. The Commission explicitly based its additional "non-cost" incentives on the evidence of a need for increased supplies. Obviously a price sufficient to maintain a producer, while not itself necessarily required by the Act, 49 may not be sufficient also to encourage an increase [417 U.S. 283, 317] in production. As we said in Permian Basin, supra, at 796-798: </s> "The supply of gas-well gas is therefore relatively elastic, and its price can meaningfully be employed by the Commission to encourage exploration and production. . . . </s> ". . . We have emphasized that courts are without authority to set aside any rate adopted by the Commission which is within a `zone of reasonableness.' . . . The Commission may, within this zone, employ price functionally in order to achieve relevant regulatory purposes; it may, in particular, take fully into account the probable consequences of a given price level for future programs of exploration and production. Nothing in the purposes or history of the Act forbids the Commission to require different prices for different sales, even if the distinctions are unrelated to quality, if these arrangements are `necessary or appropriate to carry out the provisions of this Act.' . . . We hold that the statutory `just and reasonable' standard permits the Commission to require differences in price for simultaneous sales of gas of identical quality, if it has permissibly found that such differences will effectively serve the regulatory purposes contemplated by Congress." </s> Plainly the Court of Appeals did not err in deciding that it was well within Commission discretion and expertise [417 U.S. 283, 318] to conclude that the refund workoff credits and contingent escalations could provide opportunity for increased prices that would help in generating capital funds and in meeting rising costs, while assuring that such increases would not be levied upon consumers unless accompanied by increased supplies of gas. It is true that the Commission concluded that it could not determine the precise amount of additional gas supply that would be found and dedicated to interstate sales as a result of this formula. But this was also true of any change it might have made in gas prices. The Commission took massive evidence on supply, demand, and the relation between the two. 50 Its difficulties, while not minor, 51 did not stem from any failure to seek answers. [417 U.S. 283, 319] Rather, the Commission pointed out that the results of exploratory activity are by nature dependent to some extent on chance, and the level of exploratory activity in turn may be influenced by many other factors besides price, including, the Commission said, "monetary inflation, changes in real cost of input resources, availability of input resources, changes in alternative investment opportunities, development of new producing areas, size of prospective reservoirs, changes in business confidence, degree of directionality of exploratory effort [toward gas or oil], changes in industry technology, and other factors influencing business decisions." 52 We think the record sufficiently supports the Commission's conclusion: </s> "Summarizing, there exists a positive relationship between gas contract price levels and exploratory effort; no reliable quantitative forecasts may be made by increments of additional gas supply resulting from specific increased gas prices; increases in ceiling prices which yield increases in producer revenues will result in expanded gas exploration activity; and the adequacy of expanded gas exploratory activity in terms of sufficiency of gas supply in relation to gas demands must be determined by continued Commission observation of the results of our decisions." 46 F. P. C., at 124. </s> New York's contention that the rates on flowing or first vintage gas are not supported by substantial evidence is also predicated on an erroneously limited view of the permissible range of the Commission's authority to employ price to encourage exploration or production. Reduced to simplest form, New York's contention is that the 1968 order set just and reasonable rates for first vintage gas, that no new evidence was introduced as to the [417 U.S. 283, 320] cost of that gas, and that the 1971-order prices for that gas are consequently excessive. Again, as we said in Permian, the Commission is not so limited in its construction of rate formulae. Its justification here for increasing the price of flowing or first vintage gas was not that new evidence showed that the conditions of producing that gas differed from the conditions found in the 1968 opinion, but, as the Commission frankly acknowledged, new revenues were deemed necessary to expand future production. As between placing the burden of that expansion on new or second vintage gas alone or spreading it over both old and new gas, it judged the latter more equitable and more likely to lead to the immediately increased capital necessary in the face of a crisis. We see nothing in New York's argument to suggest that the Commission could not - in view of its finding that increased revenues were necessary - place the burden of those payments on all users rather than on those alone who purchased gas in the future. Indeed, it is worth noting that the Commission's rate orders in Permian included in the cost components of gas a noncost price element for future expansion of exploratory effort. 53 </s> In this situation, the Commission could reasonably choose its formula as an appropriate mechanism for protecting the public interest. And, against the background of a serious and growing domestic gas shortage, the Court [417 U.S. 283, 321] of Appeals could certainly conclude that the Commission might reasonably decide that, as compared with adjustments in the rate ceilings for gas producers to induce more exploration and production, its responsibility to maintain adequate supplies at the lowest reasonable rate could better be discharged by means of the contingent escalation and refund credit provisions. We therefore agree with the Court of Appeals' holding that "these periodic escalations were a proper subject for the exercise of administrative discretion and clearly fall within that `zone of reasonableness' which we allow FPC on review." 483 F.2d, at 908. </s> B </s> Mobil, New York, and MDG all raise claims that even if the Commission's rates are sufficient to satisfy the Act's minimum requirements as to amount and, on the basis of the Commission's chosen methodology, are supported by substantial evidence, they are nonetheless unduly discriminatory and therefore unlawful under 4 and 5 of the Act. This attack is directed both to the contingent escalations on flowing or first vintage gas and to the refund credits. </s> The background to Mobil's argument is a Commission program inaugurated after promulgation in 1960 of guidelines for area rate regulation. Statement of General Policy No. 61-1, 24 F. P. C. 818 (1960); Fourth Amendment to Statement of General Policy No. 61-1, 26 F. P. C. 661 (1961). That program was aimed at disposing of claims arising from rates that exceeded guideline levels. The program encouraged settlement of contested rate dockets and resulted in substantial producer refunds, reduction of producer rates to guideline levels, and moratoria on producer rate increases for substantial periods. Major producers like Mobil that cooperated with the program thus had little if any refund obligation to "work [417 U.S. 283, 322] off" among the $150 million refunds directed by the 1971 order, whereas producers who for over a decade had not cooperated with FPC but had continued collection of higher rates, had high refund liabilities, and thus enjoyed the benefits of the refund credit formula. Mobil contends undue discrimination results because these producers earn refund credits by dedicating new natural gas reserves which are not counted toward industry escalations, yet also receive all escalations in flowing gas ceiling rates earned by dedication of new natural gas reserves by other producers. Moreover, Mobil's argument continues, the refund credits provide the noncooperating producers with working capital they may use, for example, in competitive lease biddings and other corporate activities, while cooperating producers like Mobil are not allowed comparable allowances in the revenues to be realized from the area rates. </s> The Commission squarely faced up to the Mobil argument as follows, 46 F. P. C., at 109-110: </s> "The substance of their argument is that the rate design in the settlement proposal unlawfully discriminates against producers who in the past cooperated with the Commission and consumer and distributor interests by executing companywide settlements, and made refunds which reduced their revenues to the general level of the Commission's Section 7 guideline level, and in favor of producers who did not enter into such rate settlements or otherwise reduce their contested Section 4 and Section 7 rates. The latter . . . in the meantime have collected rates considerably higher than those realized by the group which settled. Under the proposed settlement, as Mobil points out, one group is in effect rewarded for their relative intransigence - they will be able to retain revenues collected up to the agreed 22.375 [417 U.S. 283, 323] (where their contracts permit) and achieve a favored revenue position. </s> . . . . . </s> "The logic of this [Mobil's] position cannot be assailed. Candor requires us to admit that some of the predicted inequities as among producers will surely occur, and those who have attempted to work `within the system' are comparatively disadvantaged. We have chosen to go the route of the alternative rate design suggested in the [settlement] proposal. The inequitable consequences which might flow from it have to be compared with its advantages, and . . . no scheme can be free of some inequities. The broader acceptability of the [settlement] proposal with the distributor group impels us to act as we do." </s> In other words, it was the Commission's judgment that even though the refund credit device does not operate as favorably for producers who paid refunds and lowered rates, the advantages in the public interest that could result from encouraging exploration and increased production overrode such possible inequitable consequences. The Court of Appeals held that in thus striking the balance, the Commission acted within its statutory authority upon substantial evidence. The Court of Appeals stated, 483 F.2d, at 905: </s> "FPC concluded that the overall structure would stimulate greater exploration and development and have a general pro-competitive effect. We will not reject an administrative decision merely because one producer's piece of cake is iced and another's is not. The crucial factor, in total alignment with both Permian and SoLa I, is that both get some cake. Given the wisdom of the administrative desire [417 U.S. 283, 324] to elicit new supply, and accepting the proposition that the incalculable relationship between rate and supply is positive, we refuse to tamper with an overall program which effectively exploits that relationship. FPC's order setting the total refund obligation of all gas producers in [the Southern Louisiana area] is therefore fully sustained." </s> The question ultimately becomes whether this degree of discrimination in some of the provisions of the rate order renders the order unjust and unreasonable as a whole, despite its overall balance of effects and purposes. Obviously, some discrimination arises from the mere fact of area, rather than individual-producer, regulation, but Permian held such effects justified. Similarly, departure from cost basing in setting rates can, on Mobil's theory of the meaning of "discrimination," be said to be discriminatory, but Permian held that this too may be justified by other regulatory concerns. Here, although the impact on Mobil exists, the size of that impact will depend on the fortuity of other producers' success in future exploratory efforts, and, of course, the favorable terms of its settlement would have to be considered in mitigation of that impact. </s> We cannot say that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard in concluding that the Commission's assessment of the need for the refund credits, compared to the costs and benefits of some other scheme, was adequately supported. Mobil voluntarily exercised a business judgment in deciding early in the course of the proceedings to compromise in advance refund liabilities that might be imposed upon it at the conclusion of the various rate proceedings. In a sense, therefore, the claimed discrimination arises solely from its voluntary decision. This was part of the Commission's answer to Mobil's contention, [417 U.S. 283, 325] 46 F. P. C., at 135, "Parties who enter into settlements or those who refuse to do so, always run the risk that the ultimate Commission determination may be higher or lower than the settlement levels." And the Court of Appeals pointed out, 483 F.2d, at 906 n. 31: "If the 1971. rates were lower than those established in these agreements, the private settlements would have been worthwhile. As it turns out, FPC was more generous in 1971. than was anticipated. But this clearly furnishes no basis for attack." Moreover, it is a matter of speculation whether Mobil's gain from its settlement actually might be less advantageous than its hypothetical gains from refund credits. </s> New York and MDG argue that the refund credit formula is discriminatory against pipeline purchasers because it permits producers to work off refunds by offering 50%, rather than 100%, of the new reserves to pipeline purchasers other than those owed the refunds. It may suffice to answer that the pipeline purchasers affected make no complaint. In any event, since the purpose of the device is to increase supply, we cannot say that the Court of Appeals erred in holding that the provision was within Commission discretion. The record shows that two-thirds of the refund obligations are owed to three of the 14 pipeline companies serving the area. 54 The Commission could reasonably conclude that in guaranteeing that 50% of the new reserves must be offered to these three companies, their producers' incentive to explore for and produce new gas anywhere in the area, could result in their dedication of new reserves that would exceed in benefit the amount of the refunds. </s> It is also contended that, because the work-off provision of the order applies entirely to present producers, the [417 U.S. 283, 326] work-off provision "imperil[s] the entry of new producer entrants and [gives] a competitive advantage to producers who had charged the most unreasonable rates in the past." Brief for MDG 47. The 0.5 per Mcf incentive increases on flowing gas are attacked on the same ground. Brief for New York 37. The Court of Appeals, addressing this attack upon both the contingent escalation provisions and the refund work-offs, sufficiently answered these arguments: </s> "And for that unnamed new market entrant, for whom much concern is expressed, we fail to see why he would be in the least bit dissuaded from committing new reserves at 26/Mcf by the fact that it might allow some of his competitors to raise their 22.375/Mcf flowing gas price by a half-penny." 483 F.2d, at 908. </s> Finally, New York argues that some producers might abandon their normal business of exploring for and developing new reserves and yet enjoy the 0.5 per Mcf increase in their prices for flowing gas if other producers go ahead and contribute substantial additional reserves. We are not persuaded. The Commission's belief that producers already operating in the area will continue to do so is certainly at least an equally tenable judgment. </s> The Commission's purpose is to obtain increasing production of gas, and its targets are not so demonstrably unrelated as to justify acceptance of New York's fears that contingent escalations will have a negative effect on overall exploratory effort. In any event, other than the expressed fears, New York offered nothing to overcome the "presumption of validity [that] attaches to each exercise of the Commission's expertise. . . . [T]hose who would overturn the Commission's judgment undertake `the heavy burden of making a convincing showing [417 U.S. 283, 327] that it is invalid because it is unjust and unreasonable in its consequences.'" Permian Basin, 390 U.S., at 767 . </s> C </s> We come last in our consideration of the Commission's order to a series of more narrowly drawn objections raised by the various parties. Mobil objects to the Commission's fixing of moratoria on new rate filings - until October 1, 1976, for flowing or first vintage gas contracts, and until October 1, 1977, for new or second vintage gas contracts. It contends that those provisions are unsupported by required findings of fact and by substantial evidence. The Court of Appeals reached a contrary conclusion and we are not able to say that this conclusion misapprehended or grossly misapplied the substantial-evidence standard. We pointed out in Permian Basin that, unless raised as an attack on the viability of the entire order, such claims are, at best, premature. It is true, as Mobil argues, that the underlying conditions of stability justifying the moratorium in Permian have been found by the Commission to be no longer true. But the Commission has responsively shifted from reliance upon stable prices to reliance upon automatic escalations together with refund credits and contingent escalations. Even as to producers like Mobil that settled (for a yet-unknown financial benefit) their refund obligations, the contingent escalations and automatic escalations introduced for the purpose of both encouraging increased exploratory activity and covering inflation costs offer adequate assurances of keeping those producers above that line where a moratorium might run afoul of the minimum return required under the Act and the Constitution. See Permian Basin, supra, at 769-771. </s> In addition, as the Court of Appeals said: </s> "[T]here are several alternative methods by which [417 U.S. 283, 328] a single aggrieved producer may establish higher rates as his circumstances warrant. . . . Thus, the system is so structured that FPC can retain industry and area wide rate stability for a period of at least five years while simultaneously protecting the financial integrity of the individual producer. And if the change in circumstances is so widespread that the area rate is no longer economically feasible as set, FPC has the power to lift its moratorium or establish new area rates, or both." 483 F.2d, at 909. </s> Mobil also complains that the Commission failed to provide automatic adjustments in area rates to compensate for anticipated higher royalty costs. It relies on Mobil Oil Corp. v. FPC, 149 U.S. App. D.C. 310, 463 F.2d 256 (1972), where the Court of Appeals for the District of Columbia Circuit reversed a Commission holding that subjected royalties to FPC administrative ceilings. Mobil argues that under that decision the 1971 rate schedules must take into account the possibility of higher royalty obligations. We agree with the Court of Appeals that Mobil's argument is hypothetical at this stage and that in any event an affected producer is entitled to seek individualized relief. The Court of Appeals said: </s> "[W]e are not willing to alter or stay the implementation of area wide rates for the entire industry merely on the basis of what might happen to some producers' costs if [the District of Columbia Circuit's] statement of the law prevails. </s> "If, as subsequent events develop, the producers are put in a bind by their royalty obligations, they may certainly petition FPC for individualized relief. Permian contemplated it." 483 F.2d, at 911 (emphasis in original). </s> New York objects to the Commission's elimination of [417 U.S. 283, 329] the distinction in maximum permissible rates between casinghead gas and gas-well gas so far as new dedications are concerned. Casinghead gas has traditionally been treated as a byproduct of oil and therefore costed and priced lower than gas-well gas. The Court of Appeals held that "FPC acted within the bounds of administrative propriety in abandoning any such distinction." Id., at 910. We cannot say that this conclusion, supported by the following reasoning, was error: </s> "We believe that several considerations support this course of action: (i) `the exigencies of administration demand the smallest possible number of separate area rates,' Permian, supra, 390 U.S. at 761, . . . (ii) there is a serious problem of allocating the proper amount of exploration and development expenses between oil and gas, see SoLa I: 428 F.2d 422 n. 30, (iii) imposing a lower price on casinghead gas might `"invite the divergence of such gas to the intrastate market,"' Op: 598, § 167, and (iv) making the production of casinghead gas economically unfeasible might encourage profit-minded producers to flare it rather than market it - thus making natural gas in [the Southern Louisiana area] not merely a wasting but a wasted, asset. . . ." 483 F.2d, at 909 (emphasis in original). 55 </s> Such pragmatic adjustments were used in Permian Basin as a way of equating first vintage gas and all casinghead gas, new and old. All that the Commission has done [417 U.S. 283, 330] here is to equate all new casinghead gas with all new gas just as old casinghead gas has always been equated with old gas-well gas. </s> Mobil complains of the provision of the order that established minimum rates to be paid by producers to pipelines for transportation of liquids and liquefiable hydrocarbons. Mobil argues that these minimum rates are not supported by substantial evidence. The Court of Appeals disagreed. "We have examined the testimony regarding this matter and conclude that FPC had a substantial evidentiary basis from which it could conclude that the particular rates which it established should supply a reasonable floor on these charges. This answers Mobil's objection." Id., at 911. Mobil has not met its burden of demonstrating that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard. </s> V </s> The overriding objective of the Commission was, as the Court of Appeals observed, to adopt "a total rate structure to motivate private producers to fully develop [the Southern Louisiana area's] resources." Id., at 891. The Commission's findings, 46 F. P. C., at 102, emphasize that goal: </s> "Our duty is to take all the action we believe necessary to reverse a downtrend of the exploration and development effort, thereby to increase the likelihood of augmenting the national inventory of proved reserves of natural gas. We would be derelict - we can think of no softer word - if we were to be guided by the legalisms of the past in seeking solutions to the problems which have grown like [417 U.S. 283, 331] barnacles as this case has aged and its size has mounted." </s> Features of the 1971 order designed to increase supplies of natural gas may strike some as novel but we have emphasized that the Commission "must be free . . . to devise methods of regulation capable of equitably reconciling diverse and conflicting interests." Permian, 390 U.S., at 767 . That principle has obvious applicability in this time of acute energy shortage. This accents the observation, apparently still the case, that "area regulation of producer prices is avowedly still experimental in its terms and uncertain in its ultimate consequences." Id., at 772. For, as the Court of Appeals said: </s> "Cast in the perspective of the human travail, some might say that the dozen year experience with area rate regulation should arguably justify a holding that the experimental phase has passed. In 1971, . . . however, FPC had only twice been the beneficiary of the judicial function to declare `what the law is'. No one can honestly say that judges have been any more sure than commissioners, as all struggle with a problem that grows out of the peculiar mixture of a simultaneous service and exhaustion of a depletable asset. All have been groping. The day for groping is not yet over. And it does not denigrate what FPC has done to say that much may yet be imperfect and much remains to be done or redone. So we can find that FPC has conscientiously attempted to establish `just and reasonable' rates within the framework allowed by judicial precedent, yet, it is still experimenting." 483 F.2d, at 889. </s> We cannot now hold that, in these circumstances, the Court of Appeals erred in deciding that the Commission's [417 U.S. 283, 332] 1971 order was an appropriate exercise of administrative discretion supported by substantial evidence. </s> Affirmed. </s> MR. JUSTICE STEWART and MR. JUSTICE POWELL took no part in the consideration or decision of these cases. </s> Footnotes [Footnote 1 Opinion No. 598, 46 F. P. C. 86 (1971), together with the Commission's order correcting certain errors and denying rehearing as to all other issues, Opinion No. 598-A, 46 F. P. C. 633 (1971). </s> [Footnote 2 As in Permian Basin Area Rate Cases, 390 U.S. 747, 754 n. 2 (1968), sales within the Commission's jurisdiction will, for convenience, be termed "jurisdictional" or "interstate" sales. See n. 17, infra. </s> [Footnote 3 The Court of Appeals reported the status of area rate proceedings in 483 F.2d 880, 886 n. 3. The Commission has updated that information as follows: </s> "1. Permian Basin Area </s> "Opinion Nos. 468 and 468-A, 34 FPC 159, and 1068, respectively (1965), affirmed Permian Basin Area Rate Cases, 390 U.S. 747 (1968) </s> "New rates for this area were established in: </s> "Opinion Nos. 662 and 662-A (Area Rate Proceeding, Permian Basin Area), ___ FPC ___, ___, (Docket No. AR70-1 (Phase I), issued August 7, 1973, and September 28, 1973, respectively); pending review sub nom. Chevron Oil Co., Western Division, et al. v. F. P. C. (9th Cir. Nos. 73-2861, et al., filed September 28, 1973) </s> "2. Southern Louisiana Area </s> "Opinion Nos. 546 and 546-A, 40 FPC 530, 41 FPC 301, respectively (1968), affirmed sub nom. Austral Oil Co., et al. v. F. P. C., 428 F.2d 407 (5th Cir. 1970), on rehearing, 444 F.2d 125 (1970); certiorari denied sub nom. Municipal Distributors Group v. F. P. C., 400 U.S. 950 (1970) </s> "New rates for this area were established in: </s> "Opinion Nos. 598 and 598-A, 46 FPC 86 and 633, respectively (1971), affirmed sub nom. Placid Oil Co., et al. v. F. P. C., 483 F.2d 880 (1973) [the instant case]. </s> "3. Texas Gulf Coast Area </s> "Opinion Nos. 595 and 595-A, 45 FPC 674 and 46 FPC 827, respectively (1971), reversed and remanded sub nom. Public Service Commission of the State of New York, et al. v. F. P. C., 487 F.2d 1043 (D.C. Cir. 1973), certiorari pending sub nom. Shell Oil Co., et al. v. Public Service Commission of the State of New York, et al. (Sup. Ct. Nos. 73-966, et al., filed December 22, 1973). </s> "4. Hugoton-Anadarko Area </s> "Opinion No. 586, 44 FPC 761 (1970), affirmed sub nom. People of the State of California, et al. v. F. P. C., 466 F.2d 974 (9th Cir. 1972). </s> "5. Other Southwest Area </s> "Opinion Nos. 607 and 607-A, 46 FPC 900 and 47 FPC 99, respectively (1971), affirmed sub nom. Shell Oil Co., et al. v. F. P. C., [417 U.S. 283, 290] 484 F.2d 469 (5th Cir. 1973), certiorari pending sub nom. Mobil Oil Corp. v. F. P. C. (Sup. Ct. No. 73-438, filed September 6, 1973). </s> "6. Appalachian and Illinois Basin </s> "Order Nos. 411, 411-A and 411-B, 44 FPC 1112, 1334 and 1487, respectively (1970) (these orders were never appealed). </s> "The Commission declined to establish new area rates for this area in Opinion No. 639, 48 FPC 1299 (1972), affirmed sub nom. Shell Oil Co., et al. v. F. P. C., ___ F.2d ___ (5th Cir. Nos. 73-1369, et al., decided March 14, 1974). </s> "7. Rocky Mountain Area </s> "Opinion Nos. 658 and 658-A, 49 FPC 924 and ___ FPC ___, respectively (1973), petition for review filed and dismissed on motion of petitioner sub nom. Exxon Corporation v. F. P. C. (D.C. Cir. No. 73-1854, dismissed February 22, 1974). </s> "Opinion Nos. 658 and 658-A prescribed just and reasonable rates for gas produced in this area from wells commenced prior to January 1, 1973 and sold under contracts dated prior to October 1, 1968. Sales from this area which are not covered by the rates established in Opinion Nos. 658 and 658-A will be governed by the rates prescribed in the Commission's pending nationwide rate proceedings (see below). Pending completion of the nationwide proceedings, such sales are being permanently certified under Section 7 of the Natural Gas Act, 15 U.S.C. 717f, at the initial rates prescribed in Order No. 435, 46 FPC 68 (1971) sub nom. American Public Gas Association, et al. v. F. P. C. (D.C. Cir. Nos. 72-1812, et al., May 23, 1974)." </s> The Commission further advises that "[p]roceedings to establish uniform nationwide rates for all jurisdictional producer sales have been instituted at the Commission. When these proceedings are completed, the rates prescribed therein will supersede all area rates. As to gas from wells commenced on or after January 1, 1973, see; </s> "Notice of Proposed Rulemaking and Order Prescribing Procedures, 38 Fed. Reg. 10014 (Docket No. R-389-B, issued April 11, 1973). </s> "As to gas from wells commenced prior to January 1, 1973, see; </s> "Notice of Proposed Rulemaking and Order Prescribing Procedures, [417 U.S. 283, 291] 38 Fed. Reg. 14295 (Docket No. R-478, issued May 23, 1973)." Memorandum from General Counsel, FPC (May 17, 1974). </s> As to the Commission's shift from individual ratemaking through an adjudicative procedure to area ratemaking through a rulemaking procedure, see Dakin, Ratemaking as Rulemaking - The New Approach at the FPC: Ad Hoc Rulemaking in the Ratemaking Process, 1973 Duke L. J. 41. </s> [Footnote 4 Sections 4 (a) and 5 (a), 15 U.S.C. 717c (a) and 717d (a), respectively provide: </s> 4 (a) "All rates and charges made, demanded, or received by any natural-gas company for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges, shall be just and reasonable, and any such rate or charge that is not just and reasonable is declared to be unlawful." </s> 5 (a) "Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates." </s> [Footnote 5 Petitioner in No. 73-437, Mobil Oil Corp., is a major producer of natural gas in the Southern Louisiana area. Petitioner in No. 73-457, Public Service Commission of the State of New York and petitioner in No. 73-464, Municipal Distributors Group - a group of approximately 200 municipally owned gas distributors - represent major consumer interests. Hereafter in this opinion they will be referred to respectively as "Mobil," "New York," and "MDG." Although all three attack at times the same provisions of the 1971 order, the attacks make different arguments as best serve the self-interest of the particular petitioner. Thus, the ceiling rate for flowing gas established by the Commission includes a noncost factor designed to facilitate investment by producers in exploration and development of new gas reserves. Mobil, understandably concerned with higher prices, argues that the noncost addition is not enough; indeed, that the rates fixed both for flowing gas and for new gas are too low. New York and MDG, on the other hand, concerned with lower prices, object that the rates for flowing gas are too high and reduce the level of refund obligations. </s> [Footnote 6 Approximately five years were consumed by hearings, and the trial examiner's opinion issued on December 30, 1966, 40 F. P. C. 703. </s> [Footnote 7 Pursuant to its authority, upheld in Permian, to use price flexibly, the Commission established three "vintages" for onshore gas delivered under contracts made, respectively, (1) before 1961, (2) between January 1, 1961, and October 1, 1968, and (3) after October 1, 1968. It set price ceilings for the three vintages, respectively, at 18.5 per thousand cubic feet (Mcf), 19.5 per Mcf, and 20 per Mcf. For offshore gas in the federal domain, which is not subject to the Louisiana severance tax, the ceilings were 1.5 per Mcf below onshore levels. The Commission also ordered refunds aggregating approximately $375 million for gas sold and delivered between the initiation of the proceedings and the effective date of its opinion, October 1, 1968, at prices above the established pre-October 1 ceilings. Finally, it established, subject to the right of individual producers to petition for exceptions, an indefinite moratorium on rate increases above the pre-October 1 ceilings, and a moratorium until January 1, 1974 (over five years), on rate increases above the post-October 1 maximum. Such moratoria provide for automatic suspension of any rate filing, without determination of justness and reasonableness. See, e. g., United Gas v. Callery Properties, 382 U.S. 223 (1965). </s> [Footnote 8 As of the end of 1970, the precise amount of these refunds was $376,428,000, see 5 App. 237e, but they were accruing interest under terms of the Commission's order. Opinion No. 546, 40 F. P. C. 530 (1968). </s> [Footnote 9 See SoLa I, 428 F.2d 407, 435 n. 87 (CA5 1970). This report was updated by FPC Staff Report No. 2, National Gas Supply and Demand 1971-1990 (1972), which states in part: "`The emergence of a natural gas shortage during the past two years marks a historic turning point - the end of natural gas industry growth uninhibited by supply considerations. . . . For practical short-term purposes we are confronted with the fact that current proven reserves in the lower 48 states . . . have dropped from 289.3 trillion cubic feet [Tcf] in 1967 to 259.6 in 1970, a 10.3 percent drop within a three-year period. . . .'" FPC v. Louisiana Power & Light Co., 406 U.S. 621, 626 n. 2 (1972). </s> [Footnote 10 On January 26, 1971, the consolidated proceeding was expanded to include all rate certification proceedings that had been, or would have been, initiated in the Southern Louisiana area during the pendency of the case. Pet. for Cert. of New York 9. </s> [Footnote 11 46 F. P. C., at 101. </s> [Footnote 12 United Distribution Companies, a group of 32 major distribution companies. Id., at 103 n. 25. </s> [Footnote 13 The Commission's tabulation stated: </s> "In support of the settlement proposal are 32 major distribution companies representing 25 percent of the gas distribution operations in the United States, serving about 10.3 million customers at retail; 55 gas distribution companies which supply gas service to more than 10 million customers; all interstate pipelines purchasing gas from the Southern Louisiana area; and 46 natural gas producers, comprising 80 percent of the total gas production flowing from the area. . . . The Commission staff likewise supported the settlement proposal." Id., at 103. </s> [Footnote 14 The Commission opinion states: </s> "We have more than a settlement proposal before us. We have the entire record made in the original Southern Louisiana proceedings, plus the record opened with the institution of Docket No. AR 69-1 and concluded after Docket No. AR 61-2 was consolidated with it. The settlement proposal was obviously heavily influenced by the teachings of [SoLa I], as the parties perceived those teachings, and so was the record made in conjunction with it. It is our duty to review that record and to make findings thereon, and to come to conclusions therefrom. Only if substantial evidence supports it can we approve the settlement proposal, and this means that we must analyze supply and demand, supply-cost relationships, and costing methodology. Rate design, incentives, refunds, and economic considerations, as the record permits insight into these matters, must also be discussed." Id., at 106. </s> [Footnote 15 The Commission's conclusion that the rates were just and reasonable is to be found in 46 F. P. C., at 110. Conclusions that they were supported by substantial evidence appear throughout the opinion following appropriate examination of the record evidence. See, e. g., id., at 131, 137-138, 142. </s> [Footnote 16 Under the formula if, before October 1, 1977, the industry as a whole finds and dedicates to the interstate market new gas reserves in the Southern Louisiana area of seven and one half Tcf, the rate [417 U.S. 283, 299] for flowing gas will escalate by 0.5 if, prior to that date, such reserves equal eleven and one quarter Tcf, the rate will increase by an additional 0.5 if, prior to the same date, such reserves equal 15 Tcf, a final 0.5 escalation will become effective. Id., at 143. </s> [Footnote 17 The rates that would have been established had the 1968 orders become effective ranged from 17 per Mcf to 20 per Mcf. </s> [Footnote 18 The Commission's formula works thus: Any company with a "refund obligation" to any natural gas pipeline company is allowed to reduce the refund obligation by one cent for each Mcf of new gas reserves committed to the interstate market in the Southern Louisiana area during the period ending October 1, 1977. Any portion of the [417 U.S. 283, 300] "refund obligation" not so discharged is payable in cash with interest, subject to certain special relief provisions for producers who either achieve 65% of their obligations by August 1, 1976, or who have nonetheless made a "sincere and diligent effort" to discharge them. Opinion No. 598-A, 46 F. P. C. 633, 641 (1971). The producer is required to commit, or give right of first refusal to, at least 50% of the new reserves to the purchaser to whom the refund would otherwise be payable. The reserves committed to reduce the refund obligation may not be counted by the producer committing those reserves as a part of the industry reserves required to trigger the escalated prices for flowing gas referred to in n. 16 above. </s> [Footnote 19 The rate levels for refund purposes are as follows: </s> (a) For deliveries prior to January 1, 1965, 20.625 per Mcf for onshore gas and 19.625 per Mcf for offshore gas. </s> (b) For deliveries from January 1, 1965, to September 30, 1968, 21.25 per Mcf for onshore gas and 20.25 per Mcf for offshore gas. </s> (c) For deliveries from October 1, 1968, to January 1, 1971, 30.5% of the difference between revenues during this period based on rates prior to October 1, 1970, and the revenues that would have resulted during this period through the application of rates established in SoLa I, as modified. This percentage factor of 30.5 may be increased to as high as 33% to produce the $150 million refund total. </s> (d) For deliveries after January 1, 1971, base area rates prescribed in the 1971 order, see 46 F. P. C., at 140. </s> [Footnote 20 See n. 4, supra. </s> [Footnote 21 Section 717 (b) provides: </s> "The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas." </s> [Footnote 22 See, e. g., Interstate Commerce Act, 49 U.S.C. 1 et seq. See Kitch, Regulation of the Field Market for Natural Gas by the Federal Power Commission, 11 J. Law and Econ. 243 (1968); Note, Legislative History of the Natural Gas Act, 44 Geo. L. J. 695, 702, 704 (1956). </s> The contention was early made that in regulating the ultimate source of a production, here the natural-gas producer, the problem is not to ensure a reasonable rate of return, but to use prices functionally [417 U.S. 283, 302] to produce a supply that will satisfy a socially selected level of demand, and efficiently to allocate that supply. See FPC v. Hope Natural Gas Co., 320 U.S. 591, 629 (1944) (separate opinion of Jackson, J.): </s> "The heart of this problem is the elusive, exhaustible, and irreplaceable nature of natural gas itself. Given sufficient money, we can produce any desired amount of railroad, bus, or steamship transportation, or communications facilities, or capacity for generation of electric energy, or for the manufacture of gas of a kind. In the service of such utilities one customer has little concern with the amount taken by another, one's waste will not deprive another, a volume of service can be created equal to demand, and today's demands will not exhaust or lessen capacity to serve tomorrow. But the wealth of Midas and the wit of man cannot produce or reproduce a natural gas field." </s> Compare, for a review of the possible purposes of natural gas regulation and the arguments for and against the scheme of the Natural Gas Act, Breyer & MacAvoy, The Natural Gas Shortage and the Regulation of Natural Gas Producers, 86 Harv. L. Rev. 941, especially 944-952 (1973). </s> [Footnote 23 See Columbian Fuel Corp., 2 F. P. C. 200 (1940); cases cited in Permian Basin, 390 U.S., at 756 n. 7. Section 1 (b), 15 U.S.C. 717 (b), exempts "the production or gathering of natural gas" from the Act. </s> Both the reason for the Commission's view and the logical infirmity in it appear in the legislative history of the Act. The growing concentration of natural gas pipelines had led to traditional abuses associated with monopoly power - limitation of supply, discriminatory pricing, and barriers to entry. Hearings on H. R. 4008 before the House Committee on Interstate and Foreign Commerce, 75th Cong., 1st Sess., 47, 70-73, 89-91, 101-103 (1937). The States first proved incapable of combating these foreign corporations, id., at 50, 93, and then were barred by decisions of this Court holding that such regulation violated the Interstate Commerce Clause. See, e. g., Peoples Natural Gas Co. v. Public Service Comm'n, 270 U.S. 550 (1926). </s> Congress' response was to take over where the States' power ceased, following the chain of distribution back into the interstate market, [417 U.S. 283, 303] and it quite naturally used a public utility model. But, once begun, prevention of the circumvention of such regulation virtually compelled extension of control to the source. </s> Although the debate continues today as to whether the production of natural gas is, or has the potential to be, competitive, compare Diener, Area Price Regulation in the Natural Gas Industry of Southern Louisiana, 46 Tul. L. Rev. 695 (1972) (not competitive), with Breyer & MacAvoy, The Natural Gas Shortage and the Regulation of Natural Gas Producers, 86 Harv. L. Rev. 941 (1973) (competitive), revision of the regulation required by the Act is a matter for consideration by the Congress, not by this Court. See FPC v. Texaco, post, at 400-401. </s> [Footnote 24 Prior to the Phillips case there were fewer than 200 pipeline companies subject to Commission regulation. Statement of General Policy No. 61-1, 24 F. P. C. 818 (1960). Immediately prior to passage of the Act, four holding company groups controlled over 55% of the Nation's pipeline mileage. Hearings on H. R. 11662 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 74th Cong., 2d Sess., 12, 52 (1936). </s> [Footnote 25 See Phillips Petroleum Co., 24 F. P. C. 537, 542 (1960). </s> [Footnote 26 Section 717a provides: </s> "When used in this chapter, unless the context otherwise requires - </s> . . . . . </s> "(6) `Natural-gas company' means a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale." </s> [Footnote 27 See Phillips Petroleum Co., supra, at 542. </s> [Footnote 28 Various statistics presented by the Commission in its Phillips opinion on remand indicated a total of 3,372 independent producers with rates on file and an estimated backlog so large that, if the staff of the Commission were tripled, it would take over 82 years to reach current status. 24 F. P. C., at 545-546. </s> [Footnote 29 Statement of General Policy No. 61-1, 24 F. P. C. 818 (1960). </s> [Footnote 30 Ibid. </s> [Footnote 31 See Opinion No. 598, 46 F. P. C., at 112-114 (American Gas Association, Committee on Natural Gas Reserves, Annual Reports). </s> [Footnote 32 See, e. g., Kitch, supra, n. 22, at 276-280. See also Permian Basin, 390 U.S., at 816 -817. </s> [Footnote 33 See n. 3, supra. </s> [Footnote 34 Statement of General Policy No. 61-1, supra. </s> [Footnote 35 Permian Basin, supra, at 759-760. </s> [Footnote 36 Id., at 761. </s> [Footnote 37 Ibid.; cf. infra, at 329-330. </s> [Footnote 38 The Commission has raised the rate of return to 15% in the instant case. 46 F. P. C., at 131. </s> [Footnote 39 Cf. ibid. </s> [Footnote 40 Cf. ibid. </s> [Footnote 41 See 46 F. P. C., at 143: "The maximum standard will be 1050 Btu's per cubic foot of gas, . . . and the minimum standard will be 1000 Btu's per cubic foot of gas." Adjustments outside this range are to be on a proportional basis. This was the standard used in Permian Basin, see 390 U.S., at 762 -763. </s> [Footnote 42 Id., at 770-771. </s> [Footnote 43 Indeed, in addition to its general approval of such an approach, see 390 U.S., at 814 -815, the Court in Permian Basin listed each of the noncost factors used by the Commission and approved them. See id., at 815 n. 98. </s> [Footnote 44 Section 19 (b), 15 U.S.C. 717r (b), states: </s> "(b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. . . . Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part. . . . The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. . . . The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, [417 U.S. 283, 310] subject to review by the Supreme Court of the United States upon certiorari . . . ." </s> [Footnote 45 New York asserts (Brief 17-18) that the Court of Appeals "does not sit as a court of equity in reviewing actions of an administrative agency . . . ." We agree with and adopt the Commission's answer to that contention, Brief for Federal Power Commission 24 n. 20: "But the case it cites for that proposition, Federal Radio Commission v. General Electric Co., 281 U.S. 464 , is wholly inapposite. The issue there was whether [the Supreme] Court had jurisdiction to review a decision of the Court of Appeals for the District of Columbia setting [417 U.S. 283, 312] aside an order of the Federal Radio Commission. [The] Court held that it did not have jurisdiction, because under the pertinent statute the court of appeals, as a legislative court, was in effect `a superior and revising agency' ( 281 U.S., at 467 ). The proceeding in the court of appeals thus `was not a case or controversy in the sense of the judiciary article, but was an administrative proceeding, and therefore . . . the decision therein is not reviewable by [the Supreme] Court' (id., at 470). </s> "[The Supreme] Court's statement that the court of appeals in such cases does not exercise `ordinary jurisdiction at law or in equity' (id., at 468) refers only to that court's former special role as a legislative court. It does not mean, as New York mistakenly infers, that reviewing courts exercising judicial rather than administrative jurisdiction do not sit as courts of equity. As [that] Court stated, the jurisdiction of reviewing courts under statutes similar to the Natural Gas Act is `quite unlike the jurisdiction exercised on appeals from the Radio Commission' (id., at 470)." </s> [Footnote 46 Title 18 CFR 1.18 (a) provides: </s> "(a) To adjust or settle proceedings. In order to provide opportunity for the submission and consideration of facts, arguments, offers [417 U.S. 283, 313] of settlement, or proposals of adjustment, for settlement of a proceeding, or any of the issues therein, or consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited, conferences between the parties to the proceeding and staff for such purposes may be held at any time prior to or during such hearings before the Commission or the officer designated to preside thereat as time, the nature of the proceeding, and the public interest may permit." </s> [Footnote 47 See text accompanying nn. 7-8, supra. </s> [Footnote 48 The Appendix filed in this Court, and containing only those portions of the record designated by the parties, includes over 800 pages of testimony and over 300 pages of exhibits from the reopened proceedings. We note that four different cost studies were presented. These studies estimated costs of production ranging from 18.2 to 24.03 per Mcf for gas flowing under contracts dated prior to October 1, 1968. With respect to gas sold under contracts dated on or after October 1, 1968, the cost estimates based on a 1969 test year ranged from 19.39 to 38.02. The rates ultimately fixed by the Commission, even including incentive increments, were within the range of cost estimates. </s> [Footnote 49 See Permian Basin, 390 U.S., at 769 -770. We said there: </s> "[T]he just and reasonable standard of the Natural Gas Act `coincides' with the applicable constitutional standards, FPC v. Natural [417 U.S. 283, 317] Gas Pipeline Co., [315 U.S. 575 ,] 586, and any rate selected by the Commission from the broad zone of reasonableness permitted by the Act cannot properly be attacked as confiscatory." Id., at 770. </s> The Court then refused to invalidate, without reference to particular cases, a Commission plan to provide "`appropriate relief' if [a producer] establishes that its `out-of-pocket expenses in connection with the operation of a particular well' exceed its revenue from the well under the applicable area price." Id., at 770-771. </s> [Footnote 50 See n. 48, supra. The evidence is set out at length and discussed in 46 F. P. C., at 110-123. </s> [Footnote 51 This is well exemplified by the problems arising from the fact that many costs are jointly incurred in the production of oil, gas, and other hydrocarbons. One witness testified that any number of accounting methods may be used to allocate such costs, and listed 10 of them. 4 App. 635-637. He further testified that these methods would produce a widely varying range of results, and that a choice of one of them was largely a matter of preference. The Commission's determination to use a "modified Btu" approach, whereby a Btu of natural gas is assumed to be "worth" only a selected fraction of a Btu of oil, is a policy choice having significant consequences for the industry. The same witness testified that switching from the Commission's assumption in its 1968 opinion that a Btu of oil is worth 3.5 times a Btu of natural gas to a 2.34 factor would make several cents' difference in the ceiling rates. Id., at 550. An assumption of equality would thus appear likely to have a large impact. Yet no market price comparison of the values of oil and gas is available for the interstate market since the Commission sets the price of natural gas. </s> Moreover, another witness testified that, since natural gas competes with oil in many markets, producers of both harm themselves when they expand their production of natural gas under the restraint of price ceilings. Id., at 476-481. Cf. n. 23, supra. </s> [Footnote 52 46 F. P. C., at 121. </s> [Footnote 53 See Permian Basin, 390 U.S., at 815 n. 98. With the introduction of the formula used in this case, the Commission stated: </s> "Adjustment for Exploration in Excess of Production. This adjustment was designed, in prior cases, to continue to provide findings in excess of production. At the present time, findings of non-associated gas are substantially less than production . . . . As we indicated in Texas Gulf Coast, our concept of economic costing includes the costs of eliciting the required exploratory and drilling effort. Thus, there is no reason to consider special allowance categories." 46 F. P. C., at 133. </s> [Footnote 54 See 5 App. 266e. </s> [Footnote 55 In its opinion on rehearing the Commission stated, 46 F. P. C., at 636-637: </s> "We note, again, that the Btu content of casinghead and gas-well gas is about the same, and the record shows that substantial volumes of casinghead gas are being flared in Southern Louisiana - reason in itself for eliminating the price discrimination." </s> [417 U.S. 283, 333]

United States Supreme Court ARSENAULT v. MASSACHUSETTS(1968) No. 187 Argued: Decided: October 14, 1968 </s> Petitioner pleaded guilty to murder at a probable-cause hearing when he had no counsel. He testified at his trial (when he had counsel), and denied guilt. On cross-examination his prior plea was introduced. Petitioner was convicted and the State's highest court affirmed over his contention that admission of the prior plea was error. Based on White v. Maryland, 373 U.S. 59 , decided after petitioner's trial, petitioner sought post-conviction relief, which that court denied on the ground that White was not retroactive. Held: White v. Maryland, which is indistinguishable in principle from the present case, applies retroactively. </s> Certiorari granted; 353 Mass. 575, 233 N. E. 2d 730, reversed. </s> F. Lee Bailey for petitioner. </s> Elliot L. Richardson, Attorney General of Massachusetts, Howard M. Miller, Assistant Attorney General, and Richard L. Levine, Deputy Assistant Attorney General, for respondent. </s> PER CURIAM. </s> In February 1955 petitioner was arrested in connection with a recent homicide and attempted robbery. The next morning at a probable-cause hearing, but unassisted by counsel, he pleaded guilty to counts of murder and assault with intent to rob. Six days later at his arraignment, and again unaided by counsel, he pleaded not guilty to an indictment charging him with first-degree murder. After being assigned counsel for trial he took the stand in his own defense and again pleaded not guilty to the indictment, asserting instead that he lacked the premeditation necessary for first-degree murder. On cross-examination, the district attorney questioned him about his prior statements at the preliminary hearing and introduced his plea of guilty for the purpose of refreshing [393 U.S. 5, 6] his memory. The jury then returned a verdict of guilty and imposed a sentence of death, since commuted to life imprisonment. On direct review by the Massachusetts Supreme Judicial Court, he assigned as error the admission at trial of his prior plea. The court rejected his claim by affirming the conviction. </s> In 1966 petitioner sought post-conviction relief from the Massachusetts Supreme Judicial Court on the ground that our supervening decision in White v. Maryland, 373 U.S. 59 , rendered his conviction void. While recognizing a "close similarity" between his case and White, that court nonetheless reaffirmed the judgment below on the ground that White was not retroactive. Petitioner comes here by petition for a writ of certiorari. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. </s> In White v. Maryland an accused pleaded guilty when arraigned at a preliminary hearing, and at that time had no counsel to represent him. We held that Hamilton v. Alabama, 368 U.S. 52 , was applicable, as only the aid of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently. White v. Maryland is indistinguishable in principle from the present case; and we hold that it is applicable here although it was not decided until after the arraignment and trial in the instant case. </s> The right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335 ); on appeal (Douglas v. California, 372 U.S. 353 ); and at the other "critical" stages of the criminal proceedings (Hamilton v. Alabama, supra) have all been made retroactive, since the "denial of the right must almost invariably deny a fair trial." * See Stovall v. Denno, 388 U.S. 293, 297 . </s> Reversed. </s> [Footnote * For the distinction drawn between the right-to-counsel cases and those arising under the Fourth and Fifth Amendments, see also Tehan v. Shott, 382 U.S. 406, 416 . </s> [393 U.S. 5, 7]

United States Supreme Court WHITFIELD v. UNITED STATES(2005) No. 03-1293 Argued: November 30, 2004Decided: January 11, 2005 </s> Counsel of Record </s> For Petitioner Whitfield: </s> David Whitfield, pro se Coleman, FL For Petitioner Hall: </s> Thomas C. Goldstein Goldstein & Howe, P.C. Washington, DC For Respondent United States: </s> Paul D. Clement Acting U.S. Solicitor General Washington, DC </s> Petitioners were convicted of conspiracy to launder money in violation of 18 U.S.C. §1956(h) after the District Court denied their request to instruct the jury that the Government was required to prove beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act in furtherance of the conspiracy. The Court of Appeals affirmed the convictions, holding, in relevant part, that the jury instructions were proper because §1956(h) does not require proof of an overt act. Held:Conviction for conspiracy to commit money laundering, in violation of §1956(h), does not require proof of an overt act in furtherance of the conspiracy. Pp. 3-10. (a)Section 1956(h) provides: "Any person who conspires to commit any offense defined in [§1956] or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." In United States v. Shabani, 513 U.S. 10, this Court held that the nearly identical language of the drug conspiracy statute, 21 U.S.C. §846, does not require proof of an over act. The Shabani Court found instructive the distinction between §846 and the general conspiracy statute, 18 U.S.C. §371, which supersedes the common law rule by expressly including an overt-act requirement. Shabani distilled the governing rule for conspiracy statutes: Nash v. United States, 229 U.S. 373, and Singer v. United States, 323 U.S. 338, "'give Congress a formulary:by choosing a text modeled on §371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 U.S.C. §1 [which, like 21 U.S.C. §846, omits any express overt-act requirement], it dispenses with such a requirement.'" 513 U.S., at 14. This rule dictates the outcome here as well: Because §1956(h)'s text does not expressly make the commission of an overt act an element of the conspiracy offense, the Government need not prove an overt act to obtain a conviction. Pp. 3-5. </s> (b)Petitioners' argument that Shabani is inapplicable because §1956(h) does not establish a new conspiracy offense, but merely increases the penalty for conviction of a money laundering conspiracy under §371, is untenable for two reasons: Section §1956(h)'s text is sufficient to establish an offense and fails to provide any cross-reference to §371. Had Congress intended to create the scheme petitioners envision, it would have done so in clearer terms. Because §1956(h)'s text is plain and unambiguous, the Court need not consider petitioners' argument that the provision's legislative history supports their construction by virtue of its failure to indicate that Congress meant to create a new offense or to eliminate §371's overt-act requirement for money laundering conspiracies. In any event, mere silence in the legislative history cannot justify reading an overt-act requirement into §1956(h). See, e.g., United States v. Wells, 519 U.S. 482, 496-497. Petitioners' legislative history argument is particularly inapt here because Congress is presumed to have had knowledge of Nash and Singer when it enacted §1956(h). Petitioners' arguments as to §1956's text and structure as a whole--(1) that had Congress intended §1956(h) to create a new conspiracy offense, it would have placed that offense with the three substantive money laundering offenses set forth in §1956(a); and (2) that by providing that "[a] prosecution for [a money laundering] conspiracy offense ... may be brought in the district where venue would lie for the completed offense under [§1956(i)(1)], or in any other district where an act in furtherance of the ... conspiracy took place," §1956(i)(2), Congress confirmed that proof of an overt act was required under §1956(h)--are not persuasive. Pp. 5-9. 349 F.3d 1320, affirmed. O'Connor, J., delivered the opinion for a unanimous Court. </s> DAVID WHITFIELD, PETITIONER </s> 03-1293v. </s> UNITED STATES </s> HAYWOOD EUDON HALL, aka DON HALL,PETITIONER </s> 03-1294v. </s> UNITED STATES on writs of certiorari to the united states court ofappeals for the eleventh circuit [January 11, 2005] </s> Justice O'Connor delivered the opinion of the Court. </s> These cases present the question whether conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h), requires proof of an overt act in furtherance of the conspiracy. We hold that it does not. I </s> In March 1999, a federal grand jury returned a 20-count indictment against petitioners and five codefendants. As relevant here, Count II of the indictment charged petitioners with conspiracy to launder money, in violation of §1956(h). The indictment described, in general terms, the "manner and means" used to accomplish the objects of the money laundering conspiracy, but it did not charge the defendants with the commission of any overt act in furtherance thereof. At trial, the Government presented evidence that petitioners were members of the executive board of an entity known as Greater Ministries International Church (GMIC). GMIC operated a "gifting" program that took in more than $400 million between 1996 and 1999. Under that program, petitioners and others induced unwary investors to give money to GMIC with promises that investors would receive double their money back within a year and a half. Petitioners marketed the program throughout the country, claiming that GMIC would generate returns on investors' "gifts" through overseas investments in gold and diamond mining, commodities, and offshore banks. Investors were told that GMIC would use some of the profits for philanthropic purposes. Most of these claims were false. GMIC made none of the promised investments, had no assets, and gave virtually nothing to charity. Many participants in GMIC's program received little or no return on their money, and their investments indeed largely turned out to be "gifts" to GMIC representatives. Petitioners together allegedly received more than $1.2 million in commissions on the money they solicited. </s> At the close of the evidence, petitioners asked the District Court to instruct the jury that the Government was required to prove beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act in furtherance of the money laundering conspiracy. The court denied that request, and the jury returned a verdict of guilty on the money laundering conspiracy charge. </s> The Eleventh Circuit affirmed petitioners' convictions, holding, in relevant part, that the jury instructions approved by the District Court were proper because §1956(h) does not require proof of an overt act. 349 F.3d 1320, 1324 (2003). The Court of Appeals noted that some of its sister Circuits had taken the opposite position. Id., at 1323 (citing United States v. Wilson, 249 F.3d 366, 379 (CA5 2001); United States v. Hildebrand, 152 F.3d 756, 762 (CA8 1998)). It concluded, however, that those decisions were erroneously based on case law interpreting the general conspiracy statute, 18 U.S.C. §371, which, unlike §1956(h), expressly includes an overt-act requirement. 349 F.3d, at 1323. The Eleventh Circuit instead relied upon United States v. Shabani, 513 U.S. 10 (1994), where we held that the drug conspiracy statute, 21 U.S.C. §846, does not require proof of an overt act. Because the language of 18 U.S.C. §1956(h) and 21 U.S.C. §846 is "nearly identical," the Eleventh Circuit found itself compelled to follow the reasoning of Shabani in holding that §1956(h), too, requires no proof of an overt act. 349 F.3d, at 1323-1324. We granted certiorari to resolve the conflict among the Circuits on the question presented, 542 U.S. ___ (2004), and we now affirm the decision below. II </s> Congress enacted 18 U.S.C. §§1956 and 1957 (2000 ed. and Supp. II) as part of the Money Laundering Control Act of 1986, Pub. L. 99-570, 100 Stat. 3207-18. Section 1956 penalizes the knowing and intentional transportation or transfer of monetary proceeds from specified unlawful activities, while §1957 addresses transactions involving criminally derived property exceeding $10,000 in value. As originally enacted, neither section included a conspiracy provision. Accordingly, the Government relied on the general conspiracy statute, 18 U.S.C. §371, to prosecute conspiracies to commit the offenses set forth in §§1956 and 1957. In 1992, however, Congress enacted the money laundering conspiracy provision at issue in these cases, now codified at 18 U.S.C. §1956(h). See Annunzio-Wylie Anti-Money Laundering Act, Pub. L. 102-550, §1530, 106 Stat. 4066. Section 1956(h) provides: "Any person who conspires to commit any offense defined in [§1956] or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." In Shabani, we addressed whether the nearly identical language of the drug conspiracy statute, 21 U.S.C. §846, requires proof of an overt act. See ibid. ("Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy"). We held that it does not, relying principally upon our earlier decisions in Nash v. United States, 229 U.S. 373 (1913), and Singer v. United States, 323 U.S. 338 (1945). See Shabani, supra, at 13-14. In each of those cases, the Court held that, where Congress had omitted from the relevant conspiracy provision any language expressly requiring an overt act, the Court would not read such a requirement into the statute. See Singer, supra, at 340 (Selective Training and Service Act of 1940); Nash, supra, at 378 (Sherman Act). </s> As we explained in Shabani, these decisions "follow the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. See Molzof v. United States, 502 U.S. 301, 307-308 (1992). We have consistently held that the common law understanding of conspiracy 'does not make the doing of any act other than the act of conspiring a condition of liability.'" 513 U.S., at 13-14 (quoting Nash, supra, at 378). In concluding that the drug conspiracy statute in Shabani did not require proof of an overt act, we found instructive the distinction between that statute and the general conspiracy statute, §371, which supersedes the common law rule by expressly including an overt-act requirement. 513 U.S., at 14. See 18 U.S.C. §371 ("If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both" (emphasis added)). </s> Shabani distilled the governing rule for conspiracy statutes as follows: "'Nash and Singer give Congress a formulary: by choosing a text modeled on §371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 U.S.C. §1 [which, like 21 U.S.C. §846, omits any express overt-act requirement], it dispenses with such a requirement.'" 513 U.S., at 14 (quoting United States v. Sassi, 966 F.2d 283, 284 (CA7 1992)). This rule dictates the outcome in the instant cases as well: Because the text of §1956(h) does not expressly make the commission of an overt act an element of the conspiracy offense, the Government need not prove an overt act to obtain a conviction. III </s> Petitioners argue that the rule that governed Shabani is inapplicable here, because §1956(h) does not establish a new conspiracy offense; rather, they say, it merely increases the penalty for conviction of a money laundering conspiracy under §371. In other words, as we understand their argument, petitioners contend that the Government must continue to prosecute money laundering conspiracies under §371, but that §1956(h) now provides enhanced penalties for conviction. Since §371 contains an overt act requirement, the argument goes, the Government must prove an overt act in prosecutions ostensibly brought under §1956(h). This reading of §1956(h) is untenable for two principal reasons. First, petitioners concede--as they must--that §1956(h)'s text is sufficient to establish an offense. Indeed, its language is nearly identical to the drug conspiracy statute at issue in Shabani, which indisputably created an offense. Second, petitioners apparently read §1956(h) to supply an enhanced penalty for violation of §371 in cases where the object of the conspiracy is to violate the substantive money laundering offenses in §§1956(a) and 1957. But the text of §1956(h) fails to provide any cross-reference to §371. Mere use of the word "conspires" surely is not enough to establish the necessary link between these two separate statutes. In short, if Congress had intended to create the scheme petitioners envision, it would have done so in clearer terms. Petitioners seek support for their construction of §1956(h) in the provision's legislative history. They contend that this history contains no indication that Congress meant to create a new offense or to eliminate the pre-existing overt-act requirement for money laundering conspiracy prosecutions that hitherto had been brought under §371. They say that the history instead shows that §1956(h) was intended only to raise the penalty for money laundering conspiracy from the 5-year maximum sentence under §371 to the greater maximums available for substantive money laundering offenses under §§1956(a) and 1957. Petitioners also point out that, when Congress enacted §1956(h), it did so under the title "Penalty for Money Laundering Conspiracies," 106 Stat., at 4066 (emphasis added). Had Congress wanted to enact an "offense" provision, they argue, it would have titled it accordingly. </s> Because the meaning of §1956(h)'s text is plain and unambiguous, we need not accept petitioners' invitation to consider the legislative history. But even were we to do so, we would reach the same conclusion. It is undisputed that Congress intended §1956(h) to increase the penalties for money laundering conspiracies. The provision's text makes clear that Congress did so precisely by establishing a new offense. Given the clarity of the text, mere silence in the legislative history cannot justify reading an overt-act requirement, or a cross-reference to §371, into §1956(h). See, e.g., United States v. Wells, 519 U.S. 482, 496-497 (1997) (refusing to read a materiality element into the statute at issue based on silence in the legislative history); Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980) ("[I]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute"). Nor do we find it significant that Congress chose to label §1956(h) a "penalty" rather than an "offense" provision. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) ("'[t]he title of a statute ... cannot limit the plain meaning of the text'"); Castillo v. United States, 530 U.S. 120, 125 (2000) (although "[t]he title of the entirety of §924 is 'Penalties' ... at least some portion of §924 ... creates, not penalty enhancements, but entirely new crimes"). </s> Petitioners' legislative history argument is particularly inapt here, we might add, because Congress is presumed to have knowledge of the governing rule described in Shabani. While Shabani was decided two years after §1956(h) was enacted, the rule it articulated was established decades earlier in Nash and Singer. These decisions establish a "formulary" that provides clear and predictable guidance to Congress. As the Government points out, Congress has included an express overt-act requirement in at least 22 other current conspiracy statutes, clearly demonstrating that it knows how to impose such a requirement when it wishes to do so. See Brief for United States 11, and n.5 (citing statutes). Where Congress has chosen not to do so, we will not override that choice based on vague and ambiguous signals from legislative history. </s> We conclude by addressing two arguments raised by petitioners relating to the text and structure of §1956 as a whole. First, petitioners note that Congress placed each of the three substantive money laundering offenses in §1956 under subsection (a). Had the drafters intended §1956(h) to create a new offense, petitioners contend, they would have placed it with the other offenses in subsection (a) instead of in its own separate subsection. We fail to see why that should be so. The three offenses placed in subsection (a) share a common feature: All are substantive money-laundering crimes. We find nothing remarkable in Congress' decision to place a qualitatively different conspiracy offense provision in a separate subsection. </s> Petitioners' second textual argument is based on §1956(i) (2000 ed., Supp. II), a venue provision added to the statute in 2001. See USA PATRIOT ACT, Pub. L. 107-56, §1004, 115 Stat. 392. Section 1956(i)(2) (2000 ed., Supp. II) provides that "[a] prosecution for an attempt or conspiracy offense under [§1956 or §1957] may be brought in the district where venue would lie for the completed offense under [§1956(i)(1)], or in any other district where an act in furtherance of the attempt or conspiracy took place." Petitioners contend that, by setting venue in the district where an overt act took place, Congress confirmed what (petitioners say) was the majority view of the Courts of Appeals at the time of §1956(i)'s enactment: that proof of an overt act was required under §1956(h). Moreover, petitioners argue, setting venue where an overt act took place makes little sense if such an act is not an element of the offense. </s> This argument fails for several reasons. As a preliminary matter, petitioners assume that §1956(i) is the sole provision setting venue in money laundering conspiracy prosecutions. Although we need not definitively construe that provision here, we note that its language appears permissive rather than exclusive--§1956(i) says a conspiracy prosecution "may be brought" in a district meeting the specified criteria. (Emphasis added.) This suggests that the provision serves to supplement, rather than supplant, the default venue rule: "Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed." Fed. Rule Crim. Proc.18. For a conspiracy prosecution under the common law rule, the district in which the unlawful agreement was reached would satisfy this default venue rule. See Hyde v. Shine, 199 U.S. 62, 76 (1905). </s> But even if we assume, for the sake of argument, that §1956(i) is an exclusive venue provision, petitioners' argument still fails. The provision authorizes two alternative venues for money laundering conspiracy prosecutions: (1) the district in which venue would lie if the completed substantive money laundering offense had been accomplished, or (2) any district in which an overt act in furtherance of the conspiracy was committed. The first venue option clearly does not require that any overt act have been committed, and the Government therefore need not allege or prove such an act for venue to be properly established under this portion of §1956(i). As to the second venue option, this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252 (1940); United States v. Trenton Potteries Co., 273 U.S. 392, 402-404 (1927). In light of this longstanding rule, §1956(i)(2)'s authorization of venue in a district where an overt act took place cannot be taken to indicate that Congress deemed such an act necessary for conviction under §1956(h). Instead, Congress appears merely to have confirmed the availability of this alternative venue option in money laundering conspiracy cases. * * * </s> For the reasons set forth above, we hold that conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h), does not require proof of an overt act in furtherance of the conspiracy. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. </s> FOOTNOTESFootnote *Together with No. 03-1294, Hall v. United States, also on certiorari to the same court.

United States Supreme Court FEA v. ALGONQUIN SNG, INC.(1976) No. 75-382 Argued: April 20, 1976Decided: June 17, 1976 </s> Section 232 (b) of the Trade Expansion Act of 1962, as amended by the Trade Act of 1974, provides that if the Secretary of the Treasury finds that an "article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security," the President is authorized to "take such action, and for such time, as he deems necessary to adjust the imports of [the] article and its derivatives so that . . . imports [of the article] will not threaten to impair the national security." When it appeared that a prior program established under 232 (b) for adjusting oil imports was not fulfilling its objectives, the Secretary of the Treasury initiated an investigation. On the basis of this investigation the Secretary found that crude oil and its derivatives and related products were being imported into the United States in such quantities and under such circumstances as to threaten to impair the national security, and accordingly recommended to the President that appropriate action be taken to reduce the imports. Following this recommendation, the President promptly issued a Proclamation, inter alia, raising the license fees on imported oil. Thereafter, respondents - eight States and their Governors, 10 utility companies, and a Congressman - brought suits against petitioners challenging the license fees on the ground, inter alia, that they were beyond the President's authority under 232 (b). The District Court denied relief, holding that 232 (b) is a valid delegation to the President of the power to impose license fees on imports, and that the procedures followed by the President and the Secretary in imposing the fees fully complied with the statute. The Court of Appeals reversed, holding that 232 (b) does not authorize the President to impose a license fee scheme as a method of adjusting imports, but encompasses only the use of "direct" controls such as quotas. Held: Section 232 (b) authorizes the action taken by the President. Pp. 558-571. </s> (a) Section 232 (b) does not constitute an improper delegation [426 U.S. 548, 549] of power, since it establishes clear preconditions to Presidential action, including a finding by the Secretary of the Treasury that an article is being imported in such quantities or under such circumstances as to threaten to impair the national security. Moreover, even if these preconditions are met, the President can act only to the extent he deems necessary to adjust the imports so that they will not threaten to impair the national security, and 232 (c) sets forth specific factors for him to consider in exercising his authority. Pp. 558-560. </s> (b) In authorizing the President to "take such action and for such time, as he deems necessary to adjust the imports of [an] article and its derivatives," 232 (b)'s language clearly grants him a measure of discretion in determining the method used to adjust imports, and there is no support in the statute's language that the authorization to the President to "adjust" imports should be read to encompass only quantitative methods, i. e., quotas, as opposed to monetary methods, i. e., license fees, of effecting such adjustments; so to limit the word "adjust" would not comport with the range of factors that can trigger the President's authority under 232 (b)'s language. Pp. 561-562. </s> (c) Furthermore, 232 (b)'s legislative history amply indicates that the President's authority extends to the imposition of monetary exactions, i. e., license fees and duties, and belies any suggestion that Congress, despite its use of broad language in the statute itself, intended to confine the President's authority to the imposition of quotas and to bar him from imposing a license fee system such as the one in question. Pp. 562-571. </s> 171 U.S. App. D.C. 113, 518 F.2d 1051, reversed and remanded. </s> MARSHALL, J., delivered the opinion for a unanimous Court. </s> Solicitor General Bork argued the cause for petitioners. With him on the briefs were Assistant Attorney General Lee, Mark L. Evans, Leonard Schaitman, and David M. Cohen. </s> Francis X. Bellotti, Attorney General of Massachusetts, and Harold B. Dondis argued the cause for respondents. With them on the brief were S. Stephen Rosenfeld and Thomas R. Kiley, Assistant Attorneys [426 U.S. 548, 550] General, James S. Hostetler, William F. Griffin, Jr., and William R. Connole. * </s> [Footnote * Peter Buck Feller, John D. Heckert, and David M. Repass filed a brief for McClure & Trotter as amicus curiae urging affirmance. </s> MR. JUSTICE MARSHALL delivered the opinion of the Court. </s> Section 232 (b) of the Trade Expansion Act of 1962, 76 Stat. 877, as amended by 127 (d) of the Trade Act of 1974, 88 Stat. 1993, 19 U.S.C. 1862 (b) (1970 ed., Supp. IV), provides that if the Secretary of the Treasury finds that an "article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security," the President is authorized to </s> "take such action, and for such time, as he deems necessary to adjust the imports of [the] article and its derivatives so that . . . imports [of the article] will not threaten to impair the national security." 1 </s> [426 U.S. 548, 551] </s> All parties to this case agree that 232 (b) authorizes the President to adjust the imports of petroleum and petroleum products by imposing quotas on such imports. What we must decide is whether 232 (b) also authorizes [426 U.S. 548, 552] the President to control such imports by imposing on them a system of monetary exactions in the form of license fees. </s> I </s> The predecessor statute to 232 (b) was originally enacted by Congress as 7 of the Trade Agreements Extension Act of 1955, c. 169, 69 Stat. 166 (see n. 21, infra), and amended by 8 of the Trade Agreements Extension Act of 1958, Pub. L. 85-686, 72 Stat. 678. The advisory function currently performed under 232 (b) by the Secretary of the Treasury was performed by the Director of the Office of Defense Mobilization (ODM) under the 1955 and 1958 statutes. But, like 232 (b), those statutes allowed the President, on a finding that imports of an article were threatening "to impair the national security," to "take such action as he deem[ed] necessary to adjust the imports of [the] article . . . ." In 1959, President Eisenhower, having been advised by the Director of ODM that "`crude oil and the principal crude oil derivatives and products are being imported in such quantities and under such circumstances as to threaten to impair the national security,'" invoked the 1958 version of the provision and established the Mandatory Oil Import Program (MOIP). Presidential Proclamation No. 3279, 3 CFR 11 (1959-1963 Comp.). The MOIP, designed to reduce the gap between domestic supply and demand by encouraging the development of domestic production and refinery capacity, imposed a system of quotas on the importation of petroleum and petroleum products. The program was not wholly successful, however, and in the face of domestic consumption which continued to grow faster than domestic production, Presidents Kennedy, Johnson, and Nixon each felt compelled to amend it by raising the permissible quota levels. App. 211-212. [426 U.S. 548, 553] </s> In light of a Cabinet task force conclusion that the MOIP, as then constituted, was not fulfilling its objectives, 2 President Nixon, acting pursuant to 232 (b), radically amended the program in 1973. Presidential Proclamation No. 4210, 3 CFR 31 (1974). The President suspended existing tariffs on oil imports and provided "for a gradual transition from the existing quota method of adjusting imports of petroleum and petroleum products to a long-term program for adjustment of imports of petroleum and petroleum products through . . . the institution of a system of fees applicable to imports of crude oil, unfinished oils, and finished products . . . ." Id., at 32. This amended program established a gradually increasing schedule of license fees for importers. With respect to crude oil, the fee was scheduled to increase from an initial 10 1/2 cents per barrel on May 1, 1973, to 21 cents per barrel on May 1, 1975. With respect to most finished petroleum products, the fee was to rise gradually from 15 cents per barrel on May 1, 1973, to 63 cents per barrel on November 1, 1975. 3 Id., at 36. While initially some oil imports were exempted from the license fee requirements, the exemption levels were scheduled to decrease annually so that by 1980 the fees would be applicable to all oil imports. </s> President Nixon's 1973 program apparently did not wholly fulfill the objectives to which it was directed. Accordingly, the Secretary of the Treasury, acting pursuant to 232 (b), see n. 1, supra, initiated an investigation on January 4, 1975, "to determine the effects on the national security of imports of petroleum and petroleum products." Memorandum from Secretary of the Treasury Simon to Assistant Secretary of the Treasury [426 U.S. 548, 554] MacDonald (Simon Memorandum), App. 154. While 232 (b) directs the Secretary "if it is appropriate [to do so, to] hold public hearings or otherwise afford interested parties an opportunity to present information and advice" as part of such an investigation, 19 U.S.C. 1862 (b) (1970 ed., Supp. IV), the Secretary found that such procedures would interfere with "national security interests" and were "inappropriate" in this case. Simon Memorandum, App. 154. The investigation therefore proceeded without any public hearing or call for submissions from interested nongovernmental parties. </s> The Secretary submitted a report on his investigation to President Ford on January 14, 1975. Intimating that the measures then in force under 232 (b) had indeed not solved the problems to which they were directed, the Secretary indicated that the United States' dependence on foreign oil had continued to increase since 1966 and that foreign sources currently accounted for well over a third of domestic consumption. The Secretary concluded that </s> "crude oil, principal crude oil derivatives and products, and related products derived from natural gas and coal tar are being imported into the United States in such quantities as to threaten to impair the national security [and] the foregoing products are being imported into the United States under such circumstances as to threaten to impair the national security." App. 133. </s> On the basis of these findings, the Secretary recommended to the President that </s> "appropriate action be taken to reduce imports of crude oil, principal crude oil derivatives and products, and related products derived from natural gas and coal tar into the United States . . . ." Ibid. [426 U.S. 548, 555] </s> The President agreed with the findings of the Secretary's investigation and concluded that it was "necessary and consistent with the national security to further discourage importation into the United States of petroleum, petroleum products, and related products . . . ." Presidential Proclamation No. 4341, 3A CFR 2 (1975). Invoking 232 (b), he issued a Proclamation on January 23, 1975, which, effective immediately, raised the so-called "first-tier" license fees that were imposed in 1973, see supra, at 553, to the maximum levels previously scheduled to be reached only some months later. 4 Presidential Proclamation No. 4341, supra. The Proclamation also imposed on all imported oil, whether covered by the first-tier fees or not, a supplemental fee of $1 per barrel for oil entering the United States on or after February 1, 1975. The supplemental fee was scheduled to rise to $2 a barrel for oil entering after March 1, 1975, and to $3 per barrel for oil entering after April 1, 1975. 5 Finally, the Proclamation reinstated the tariffs that had been suspended in April 1973. Soon after issuance of the Proclamation, the Federal Energy Administration (FEA) amended its oil import regulations in order to implement the new program. 40 Fed. Reg. 4771-4776 (1975). </s> Four days after the Proclamation was issued, respondents [426 U.S. 548, 556] - eight States and their Governors, 6 10 utility companies, 7 and Congressman Robert F. Drinan of Massachusetts - challenged the license fees in two suits filed against the Secretary of the Treasury, the Administrator of the FEA, and the Treasurer of the United States in the United States District Court for the District of Columbia. Seeking declaratory and injunctive relief, they alleged that the imposition of the fees was beyond the President's constitutional and statutory authority, that the fees were imposed without necessary procedural steps having been taken, and that petitioners (hereinafter the Government) violated the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. 4321 et seq., by failing to prepare an environmental impact statement prior to the imposition of the fees. </s> The District Court denied respondents' motions for preliminary injunctions and filed findings of fact and conclusions of law which, at the request of respondents, it later declared to be final. See 171 U.S. App. D.C. 113, 124, 126, 518 F.2d 1051, 1062, 1064 (1975) (appendix to dissenting opinion in Court of Appeals). The court found that 232 (b) is a valid delegation to the President of the power to impose license fees on oil imports. Id., at 128-129, 518 F.2d, at 1066-1067. It further ruled that the procedures followed by the President [426 U.S. 548, 557] and the Secretary of the Treasury in imposing the license fees fully conformed to the requirements of the statute. Id., at 130, 518 F.2d, at 1068. Finally, the court held that "in view of the emergency nature of the problem and the need for prompt action," id., at 131, 518 F.2d, at 1069, the Government was not required to file an environmental impact statement prior to imposition of the fees and hence was not in violation of the NEPA. Ibid. </s> Respondents' appeals from these judgments were consolidated with their petitions to the Court of Appeals for the District of Columbia Circuit for review of the FEA regulations implementing the license fee program. The allegations in the challenges to the regulations were substantially the same as those raised in the District Court actions, adding only a contention that the FEA had failed to follow certain procedural provisions of the Federal Energy Administration Act, 88 Stat. 97, 15 U.S.C. 761 et seq. (1970 ed., Supp. IV). The Court of Appeals, with one judge dissenting, held that 232 (b) does not authorize the President to impose a license fee scheme as a method of adjusting imports. 171 U.S. App. D.C. 113, 518 F.2d 1051 (1975). According to the court, reading the statute to authorize the action taken by the President "would be an anomalous departure" from "the consistently explicit, well-defined manner in which Congress has delegated control over foreign trade and tariffs." Id., at 117, 518 F.2d, at 1055. In the court's view, 232 (b)'s legislative history indicated that Congress' authorization of the President to "adjust the imports of [an] article" encompassed only the use of "direct" controls such as quotas and did not encompass the use of license fees. Id., at 121, 518 F.2d, at 1059. Finding no need to address any of the other issues that were raised, the court reversed the judgment of the District Court instructed [426 U.S. 548, 558] that court to enter appropriate relief for respondents, and set aside the challenged FEA regulations. </s> We granted the Government's petition for certiorari, 423 U.S. 923 (1975), 8 and now reverse. Both the language of 232 (b) and its legislative history lead us to conclude that it authorizes the action taken by the President in this case. 9 </s> II </s> A </s> Preliminarily, we reject respondents' suggestion that we must construe 232 (b) narrowly in order to avoid [426 U.S. 548, 559] "a serious question of unconstitutional delegation of legislative power." Brief for Respondents 42. Even if 232 (b) is read to authorize the imposition of a license fee system, the standards that it provides the President in its implementation are clearly sufficient to meet any delegation doctrine attack. </s> In Hampton & Co. v. United States, 276 U.S. 394 (1928), this Court upheld the constitutionality of a provision empowering the President to increase or decrease import duties in order to equalize the differences between foreign and domestic production costs for similar articles. There, the Court stated: </s> "If Congress shall lay down by legislative act an intelligible principle to which the [President] is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id., at 409. </s> Section 232 (b) easily fulfills that test. It establishes clear preconditions to Presidential action - inter alia, a finding by the Secretary of the Treasury that an "article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security." Moreover, the leeway that the statute gives the President in deciding what action to take in the event the preconditions are fulfilled is far from unbounded. The President can act only to the extent "he deems necessary to adjust the imports of such article and its derivatives so that such imports will not threaten to impair the national security." And 232 (c), see n. 1, supra, articulates a series of specific factors to be considered by the President in exercising his authority under 232 (b). 10 In light of these factors and [426 U.S. 548, 560] our recognition that "[n]ecessity . . . fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules . . .," American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946), we see no looming problem of improper delegation 11 that should affect our reading of 232 (b). [426 U.S. 548, 561] </s> B </s> In authorizing the President to "take such action, and for such time, as he deems necessary to adjust the imports of [an] article and its derivatives," the language of 232 (b) seems clearly to grant him a measure of discretion in determining the method to be used to adjust imports. We find no support in the language of the statute for respondents' contention that the authorization to the President to "adjust" imports should be read to encompass only quantitative methods - i. e., quotas - as opposed to monetary methods - i. e., license fees - of effecting such adjustments. </s> Indeed, reading respondents' suggested limitation into the word "adjust" would be inconsistent with the range of factors that can trigger the President's authority under 232 (b)'s language. Section 232 (b) authorizes the President to act after a finding by the Secretary of the Treasury that a given article is being imported "in such quantities or under such circumstances as to threaten to impair the national security." (Emphasis added.) The emphasized language reflects Congress' judgment that "not only the quantity of imports . . . but also the circumstances under which they are coming in: their use, their availability, their character" could endanger the national security and hence should be a potential basis for Presidential action. 104 Cong. Rec. 10542-10543 (1958) (remarks of Rep. Mills). It is most unlikely that Congress would have provided that dangers posed by factors other than the strict quantitative level of imports can justify Presidential action, but that that action must be confined to the imposition of quotas. Unless one assumes, and we do not, that quotas will always be a feasible method of dealing directly with national security threats posed by the "circumstances" under which imports are entering the country, limiting the President to the use of quotas would effectively [426 U.S. 548, 562] and artificially prohibit him from directly dealing with some of the very problems against which 232 (b) is directed. </s> Turning from 232's language to its legislative history, again there is much to suggest that the President's authority extends to the imposition of monetary exactions - i. e., license fees and duties. The original enactment of the provision in 1955 as well as Congress' periodic reconsideration of it in subsequent years gives us substantial grounds on which to conclude that its authorization extends beyond the imposition of quotas to the type of action challenged here. </s> During congressional hearings on the Trade Agreements Extension Act of 1955, there was substantial testimony that increased imports were threatening to damage various domestic industries whose viability was perceived to be critical to the national security. 12 In an effort to deal with the problem, the Senate Committee on Finance considered several proposals designed to supplement the existing statutory provision, known as the Symington Amendment, 13 that barred reductions in duties "on any article if the President finds that such reduction would threaten domestic production needed for projected national defense requirements." Act of July 1, 1954, Pub. L. 464, 2, 68 Stat. 360. 14 Among these amendments [426 U.S. 548, 563] was one proposed by Senator Neely which provided in relevant part: </s> "[T]he President shall take such action as is necessary to restrict imports of commodities whenever such imports threaten to retard the domestic development and expansion or maintenance of domestic production of natural resource commodities or any other commodities which he determines to be essential to the national security. . . ." Hearings on H. R. 1 before the Senate Committee on Finance, 84th Cong., 1st Sess., 1033 (1955) (emphasis added). 15 </s> In explaining what action would be authorized under the Neely Amendment, Senator Martin, one of its co-sponsors, explained that it authorized the President "to take such action as is necessary, including the imposition of import quotas or the increase in duties, to protect the domestic industry concerned." Id., at 2097 (emphasis added). Thus, the Neely Amendment clearly would have given the President the authority to impose monetary exactions as a method of restricting imports. </s> While the Neely Amendment was not reported out of committee, it is strikingly similar in language to the Byrd-Millikin Amendment - the substitute provision that was reported out and eventually enacted into law. The Byrd-Millikin Amendment authorized the President, after appropriate recommendations had been made by the Director of the ODM, to "take such action as he deems necessary to adjust the imports of [an] article to a level that will not threaten to impair the national security." S. Rep. No. 232, 84th Cong., 1st Sess., 14 [426 U.S. 548, 564] (1955). 16 Given the similarity in the operative language of the two proposals, it is fair to infer that if, as Senator Martin stated, the Neely Amendment was intended to authorize the imposition of monetary exactions, so too was the Byrd-Millikin Amendment. </s> The debate on the Senate floor lends further support to this reading of the Byrd-Millikin Amendment. Senator Millikin himself stated without contradiction that the Amendment authorized the President "to take whatever action he deems necessary to adjust imports . . . [including the use of] tariffs, quotas, import taxes or other methods of import restriction." 101 Cong. Rec. 5299 (1955). As a statement of one of the legislation's sponsors, this explanation deserves to be accorded substantial weight in interpreting the statute. National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 640 (1967); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394 -395 (1951). 17 </s> Senator Millikin's statement does not stand alone. Senator Byrd, another of the Amendment's sponsors, explained in colloquy with Senator Saltonstall that the Amendment put all commodities "on the same basis as agricultural commodities. It simply leaves to the President the power, in his discretion, to decide whether to impose a quota or to reduce the imports." 101 Cong. [426 U.S. 548, 565] Rec. 5297 (1955) (emphasis added). The reference in the emphasized phrase is to 22 of the Agricultural Adjustment Act, the subject of an earlier exchange between Senator Byrd and Senator Thye. 101 Cong. Rec. 5296 (1955). Section 22 allows the President under certain circumstances to "impose such fees . . . or such quantitative limitations" as he finds necessary to protect the domestic production of an agricultural commodity. 49 Stat. 773, as amended, 7 U.S.C. 624 (b) (emphasis added). Senator Byrd's comparison of 22 and the Byrd-Millikin Amendment thus appears to reflect his understanding that Presidential authority under the Amendment extended to the imposition of fees. 18 </s> Finally, we note two other statements on the floor of the Senate which lend direct support to the Government's reading of the Byrd-Millikin Amendment. Senator Bennett stated that it was his understanding that the amendment would authorize use of "the entire scope of tariffs, quotas, restrictions, stockpiling, and any other variation of these programs in order to protect a particular industry." 101 Cong. Rec. 5588 (1955). 19 And Senator Barkley, a member of the Senate Committee on Finance, expressed his understanding that the Amendment would allow the President to "impose such quotas or take such other steps as he may believe to be desirable in order to [426 U.S. 548, 566] maintain the national security." Id., at 5298 (emphasis added). </s> In the House debate following Senate passage of the Byrd-Milliken Amendment, id., at 5655, and its acceptance with a minor modification by the House conferees, H. R. Conf. Rep. No. 745, 84th Cong., 1st Sess., 2, 6-7 (1955), we find further indications that the Amendment authorized the imposition of monetary exactions. In explaining the provisions of the Amendment, Congressman Cooper, chairman of the House Ways and Means Committee and a member of the Conference Committee, indicated his concern that "any modification of a duty on imports or a quota would [because of retaliation from abroad] inevitably result in a curtailment of exports by the United States." 101 Cong. Rec. 8161 (1955) (emphasis added). Furthermore, as part of his explanation of the Amendment, Cooper presented a letter he had received from Gerald D. Morgan, Special Counsel to the President, which expressed the administration's understanding that under the Amendment, the President's action to adjust imports "could take any form that was appropriate to the situation." Id., at 8162. 20 Thus, when Congress finally enacted the Byrd-Millikin Amendment's national security provision, 69 Stat. 166, 21 as part of the [426 U.S. 548, 567] Trade Agreement Extension Act of 1955, not only had Members of both Houses indicated that the provision authorized the imposition of monetary exactions, but the Executive Branch, too, had advised the Congress of its understanding of the broad scope of the authority granted by the Amendment. 22 </s> Three years later, in the context of its consideration of the Trade Agreements Extension Act of 1958, Congress re-examined the Byrd-Millikin national security provision. In the course of its deliberations, the Subcommittee on Foreign Trade Policy of the House Ways and Means Committee had before it a 1957 report submitted to it by the ODM, expressing the views of the Executive Branch that "the imposition of new or increased tariff duties on imports . . . [was] authorized by the language adopted." 23 Fully aware that the Executive [426 U.S. 548, 568] Branch then, as in 1955, understood the provision as authorizing the imposition of monetary exactions, the Committee did not recommend any change in its wording to confine more narrowly the bounds of its authorization. On the contrary, the Committee in its report indicated with approval its own understanding that the statute provided "those best able to judge national security needs . . . [with] a way of taking whatever action is needed to avoid a threat to the national security through imports." H. R. Rep. No. 1761, 85th Cong., 2d Sess., 13 (1958) (emphasis added). </s> While Congress in 1958 made several procedural changes in the statute and established criteria to guide the President's determination as to whether action under the provision might be necessary, it added no limitations with respect to the type of action that the President was authorized to take. 24 8, 72 Stat. 678. The 1958 re-enactment, like the 1955 provision, authorized the President under appropriate conditions to "take such action" "as he deems necessary to adjust the imports . . . ." Ibid. </s> When the national security provision next came up for re-examination, it was re-enacted without material change as 232 (b) of the Trade Expansion Act of 1962. In its analysis the Court of Appeals placed great emphasis on the fact that in the course of Congress' deliberations the Senate passed and the Conference Committee deleted, H. R. Conf. Rep. No. 2518, 87th Cong., 2d Sess., 13 (1962), an amendment which provided: </s> "Notwithstanding any other provision of law, the [426 U.S. 548, 569] President may, when he finds it in the national interest, proclaim with respect to any article imported into the United States - </s> "(1) the increase of any existing duty on such article to such rate as he finds necessary; </s> "(2) the imposition of a duty on such article (if it is not otherwise subject to duty) at such rate as he finds necessary, and </s> "(3) the imposition of such other import restrictions as he finds necessary." 108 Cong. Rec. 19573 (1962). </s> The Court of Appeals inferred from the rejection of this amendment that Congress understood the then existing grant of authority to be limited to the imposition of quotas. According to the court, the amendment would have "explicitly [given] the President the same authority he claims derives implicitly from [232 (b),]" 171 U.S. App. D.C., at 121, 518 F.2d, at 1059, and Congress' refusal to enact the amendment was tantamount to a rejection of the Government's interpretation of the statute. </s> We disagree, however, with the Court of Appeals' assessment of the proposed amendment. The amendment was in reality far more than an articulation of the authority that the Government finds to be contained in 232 (b). Unlike 232 (b), the rejected proposal would not have required a prior investigation and findings by an executive department as a prerequisite to Presidential action. Moreover, the broad "national interest" language of the proposal, together with its lack of any standards for implementing that language, stands in stark contrast with 232 (b)'s narrower criterion of "national security" and 232 (c)'s articulation of standards to guide the invocation of the President's powers under 232 (b). In light of these clear differences between [426 U.S. 548, 570] the rejected proposal and 232 (b), we decline to infer from the fact that the Senate amendment was proposed, or from the fact that it was rejected, that Congress felt that the President had no power to impose monetary exactions under 232 (b). </s> Only a few months after President Nixon invoked the provision to initiate the import license fee system challenged here, Congress once again re-enacted the Presidential authorization encompassed in 232 (b) without material change. Trade Act of 1974, Pub. L. 93-618, 88 Stat. 1993. Making no mention of the President's action, both the Senate Committee report and the conference report recited the language of the statute itself to reaffirm that under 232 (b) the President "may . . . take such action, and for such time, as he deems necessary, to adjust imports so as to prevent impairment of the national security." H. R. Conf. Rep. No. 93-1644, p. 29 (1974); S. Rep. No. 93-1298, pp. 96-97 (1974). The congressional acquiescence in President Nixon's action manifested by the re-enactment of 232 (b) provides yet further corroboration that 232 (b) was understood and intended to authorize the imposition of monetary exactions as a means of adjusting imports. </s> Taken as a whole then, the legislative history of 232 (b) belies any suggestion that Congress, despite its use of broad language in the statute itself, intended to limit the President's authority to the imposition of quotas and to bar the President from imposing a license fee system like the one challenged here. To the contrary, the provision's original enactment, and its subsequent re-enactment in 1958, 1962, and 1974 in the face of repeated expressions from Members of Congress and the Executive Branch as to their broad understanding of its language, all lead to the conclusion that 232 (b) does in fact [426 U.S. 548, 571] authorize the actions of the President challenged here. Accordingly, the judgment of the Court of Appeals to the contrary cannot stand. </s> C </s> A final word is in order. Our holding today is a limited one. As respondents themselves acknowledge, a license fee as much as a quota has its initial and direct impact on imports, albeit on their price as opposed to their quantity. Brief for Respondents 26. As a consequence, our conclusion here, fully supported by the relevant legislative history, that the imposition of a license fee is authorized by 232 (b) in no way compels the further conclusion that any action the President might take, as long as it has even a remote impact on imports, is also so authorized. </s> The judgment of the Court of Appeals is reversed, and this case is remanded to that court for proceedings consistent with this opinion. </s> So ordered. </s> Footnotes [Footnote 1 Section 232 (b) provides in full: </s> "Upon request of the head of any department or agency, upon application of an interested party, or upon his own motion, the Secretary of the Treasury (hereinafter referred to as the `Secretary') shall immediately make an appropriate investigation, in the course of which he shall seek information and advice from, and shall consult with, the Secretary of Defense, the Secretary of Commerce, and other appropriate officers of the United States, to determine the effects on the national security of imports of the article which is the subject of such request, application, or motion. The Secretary shall, if it is appropriate and after reasonable notice, hold public hearings or otherwise afford interested parties an opportunity to present information and advice relevant to such investigation. The Secretary shall report the findings of his investigation under this subsection with respect to the effect of the importation of such article in such quantities or under such circumstances upon the national security and, based on such findings, his recommendation for action or inaction under this section to the President within one year after receiving an application from an interested party or [426 U.S. 548, 551] otherwise beginning an investigation under this subsection. If the Secretary finds that such article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, he shall so advise the President and the President shall take such action, and for such time, as he deems necessary to adjust the imports of such article and its derivatives so that such imports will not threaten to impair the national security, unless the President determines that the article is not being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security." </s> Section 232 (c) of the Act, 19 U.S.C. 1862 (c) 1970 ed., Supp. IV) provides the President and the Secretary of the Treasury with guidance as to some of the factors to be considered in implementing 232 (b). It provides: </s> "For the purposes of this section, the Secretary and the President shall, in the light of the requirements of national security and without excluding other relevant factors, give consideration to domestic production needed for projected national defense requirements, the capacity of domestic industries to meet such requirements, existing and anticipated availabilities of the human resources, products, raw materials, and other supplies and services essential to the national defense, the requirements of growth of such industries and such supplies and services including the investment, exploration, and development necessary to assure such growth, and the importation of goods in terms of their quantities, availabilities, character, and use as those affect such industries and the capacity of the United States to meet national security requirements. In the administration of this section, the Secretary and the President shall further recognize the close relation of the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual domestic industries; and any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair the national security." </s> [Footnote 2 See Cabinet Task Force on Oil Import Control, The Oil Import Question 128 (1970). </s> [Footnote 3 Under President Nixon's plan, the fee for motor gasoline was scheduled to reach its maximum of 63 cents on May 1, 1975. App. 97. </s> [Footnote 4 The Proclamation did not alter the schedule by which exemptions from the first-tier fees were not to be eliminated until 1980. </s> [Footnote 5 The supplemental fee increases scheduled to go into effect in March and April were twice deferred. See Presidential Proclamation No. 4335, 3A CFR 26 (1975); Presidential Proclamation No. 4370, 3A CFR 45 (1975). While the $2 fee finally went into effect on June 1, 1975, Presidential Proclamation No. 4377, 3A CFR 53 (1975), it was never increased to $3. Indeed, on January 3, 1976, President Ford eliminated the $2 fee. Presidential Proclamation No. 4412, 3 CFR 3 (1977). See n. 8, infra. </s> [Footnote 6 The States joining in the suit together with their Governors were Connecticut, Maine, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont. The State of Minnesota intervened as a plaintiff after the complaint was filed and is also a respondent here. </s> [Footnote 7 The 10 utility companies are Algonquin SNG, Inc., New England Power Co., New Bedford Gas and Edison Light Co., Cambridge Electric Light Co., Canal Electric Co., Montaup Electric Co., Connecticut Light and Power Co., Hartford Electric Light Co., Western Massachusetts Electric Light Co., and Holyoke Water Power Co. </s> [Footnote 8 Subsequent to our granting certiorari, the President signed the Energy Policy and Conservation Act of 1975, 89 Stat. 871, 42 U.S.C. 6201 et seq. (1970 ed., Supp. V). That Act is aimed at encouraging domestic oil production by gradually decontrolling the price of domestically produced crude oil. On January 3, 1976, indicating that "the purposes of the supplemental [oil import license] fee" will be served by the Act, the President announced the elimination of the supplemental fees imposed by Presidential Proclamation No. 4341, 3A CFR 2 (1975). Presidential Proclamation No. 4412, 3 CFR 3 (1977). He did not, however, eliminate the "first-tier" fees originally imposed by Presidential Proclamation No. 4210, 3 CFR 31 (1974). Since respondents seek to enjoin the first-tier as well as the supplemental fees, the question here whether 232 (b) grants the President authority to impose license fees remains a live controversy. </s> [Footnote 9 Respondents' suits are not barred by the Anti-Injunction Act, 26 U.S.C. 7421 (a), which in relevant part provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person . . . ." The Anti-Injunction Act applies to suits brought to restrain assessment of taxes assessable under the Internal Revenue Codes of 1954 and 1939. 26 U.S.C. 7421 (a), 7851 (a) (6) (A), 7851 (a) (6) (C) (iv). The license fees in this case are assessed under neither Code but rather under the authority conferred on the President by the Trade Expansion Act of 1962, as amended by the Trade Act of 1974. The fees are therefore not "taxes" within the scope of the Anti-Injunction Act. </s> [Footnote 10 Respondents rely on our decision in National Cable Television Assn. v. United States, 415 U.S. 336 (1974), to support their delegation doctrine argument. But we find that case clearly distinguishable [426 U.S. 548, 560] from the one before us today. In National Cable Television, we held that the fees to be imposed on community antenna television systems should be measured by the "value to the recipient" even though the language of the general statute allowing fee setting by federal agencies, 31 U.S.C. 483a, permits consideration not only of "value to the recipient" but also of "public policy or interest served, and other pertinent facts." The Court's conclusion that the words of the last-quoted phrase were not relevant to the CATV situation was apparently motivated by a desire to avoid any delegation doctrine problem that might have been presented by a contrary conclusion. 415 U.S., at 342 . But what might be considered the open-ended nature of the phrase "public policy or interest served, and other pertinent facts" stands in contrast to 232 (b)'s more limited authorization of the President to act only to the extent necessary to eliminate a threat of impairment to the national security, and 232 (c)'s articulation of standards to guide the President in making the decision whether to act. See n. 1, supra. </s> [Footnote 11 The amount of oil exempted from the "first-tier" license fees, see supra, at 553, imposed in 1973 varies among five geographical districts within the Nation. See Presidential Proclamation No. 4341, 3A CFR 2 (1975); Presidential Proclamation No. 4210, 3 CFR 31 (1974). Respondents seize on this fact to argue that the "first-tier" fee schedule contravenes Art. I, 8, cl. 1, of the Constitution which requires that import duties be uniform throughout the United States. But that issue is not properly before the Court. Sustaining respondents' Uniformity Clause argument would call, not for invalidation of the entire license fee scheme, but only for elimination of the geographical differences in the exemptions allowed under it. This would represent not an affirmance of the judgments below, which effectively invalidated the entire scheme and its implementing regulations, but rather a modification of those judgments. But since respondents filed no cross-petition for certiorari, they are at this point precluded from seeking such modification. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 381 n. 4 (1970). </s> [Footnote 12 See, e. g., Hearings on H. R. 1 before the House Committee on Ways and Means, 84th Cong., 1st Sess., 1006 (analytical balance industry), 1264 (petroleum industry) (1955); Hearings on H. R. 1 before the Senate Committee on Finance, 84th Cong., 1st Sess., 602 (lead and zinc mining industry), 721 (coal mining industry) (1955). </s> [Footnote 13 The Symington Amendment is currently codified in somewhat modified form at 19 U.S.C. 1862 (a). </s> [Footnote 14 In contrast to the Senate Committee on Finance, the House Committee on Ways and Means concluded that the Symington Amendment was adequate to deal with any potential threats to the [426 U.S. 548, 563] national security posed by foreign imports. H. R. Rep. No. 50, 84th Cong., 1st Sess., 44 (1955). </s> [Footnote 15 A separate portion of the Neely Amendment would have placed quotas on petroleum imports. </s> [Footnote 16 Unlike the Neely Amendment, see n. 15, supra, the Byrd-Millikin Amendment did not single out any named industries for protection by quotas. </s> [Footnote 17 Differing with the Court of Appeals, we do not believe that the fact that Senator Millikin represented a State that might have benefited from an expansive reading of the statute "blur[s] [the] probative value," 171 U.S. App. D.C. 113, 120, 518 F.2d 1051, 1058 (1975), of his explanation. Many if not most pieces of legislation are sponsored by Members of Congress whose constituents have a special interest in their passage, but we have never let this fact diminish the weight we give a sponsor's statements. </s> [Footnote 18 Moreover, Senator Byrd's reference in the above-quoted exchange to the power of the President under the Amendment "to impose a quota or to reduce the imports," 101 Cong. Rec. 5297 (1955), also suggests that he understood that power to extend beyond the imposition of quotas. See Note, 89 Harv. L. Rev. 432, 435 n. 31 (1975). </s> [Footnote 19 The Court of Appeals characterized Senator Bennett's remarks as going to "the entire bill and other existing laws." 171 U.S. App. D.C., at 119, 518 F.2d, at 1057. Our examination of the context of his remarks persuades us, however, that they were more probably made with specific reference to the Byrd-Millikin Amendment. </s> [Footnote 20 A copy of the Morgan letter was also sent to Senator Byrd, Chairman of the Senate Committee on Finance. See 101 Cong. Rec. 8162 (1955). </s> [Footnote 21 As finally enacted the Amendment provided: </s> "In order to further the policy and purpose of this section, whenever the Director of the Office of Defense Mobilization has reason to believe that any article is being imported into the United States in such quantities as to threaten to impair the national security, he shall so advise the President, and if the President agrees that there is reason for such belief, the President shall cause an immediate investigation to be made to determine the facts. If, [426 U.S. 548, 567] on the basis of such investigation, and the report to him of the findings and recommendations made in connection therewith, the President finds that the article is being imported into the United States in such quantities as to threaten to impair the national security, he shall take such action as he deems necessary to adjust the imports of such article to a level that will not threaten to impair the national security." </s> [Footnote 22 We are not unmindful that, as respondents point out, much of the congressional debate referred to the Byrd-Millikin Amendment in the context of giving the President the power to impose import quotas. See, e. g., 101 Cong. Rec. 5572 (1955) (remarks of Sen. Humphrey); id., at 5582, 5584 (remarks of Sen. Douglas); id., at 5593 (remarks of Sen. Monroney). But nowhere do the congressional debates reflect an understanding that under the Amendment the President's authority was to be limited to the imposition of quotas. In light of this fact, we feel fortified in attaching substantial weight to the positive indications discussed above that the authority was not so limited. </s> [Footnote 23 Foreign Trade Policy, Compendium of Papers on United States Foreign Trade Policy Collected by the Staff for the Subcommittee on Foreign Trade Policy of the House Ways and Means Committee 643 (1958). </s> [Footnote 24 Indeed, while under the 1955 provision the President was authorized to act only on a finding that "quantities" of imports threatened to impair the national security, the 1958 provision also authorized Presidential action on a finding that an article is being imported "under such circumstances" as to threaten to impair the national security. 72 Stat. 678. See supra, at 561. </s> [426 U.S. 548, 572]

United States Supreme Court DEPT. OF REVENUE v. JAMES BEAM CO.(1964) No. 389 Argued: March 23, 1964Decided: June 1, 1964 </s> Respondent is a distributor of whisky produced in Scotland and shipped through United States ports directly to bonded warehouses in Kentucky. State law provided for a tax of ten cents per gallon on the importation of whisky into the State, which tax was collected while the Scotch whisky was in unbroken packages in the importer's possession. Respondent's claim for refund of the taxes on the basis of violation of the Export-Import Clause of the Constitution was upheld by the highest state court. Held: A tax on the whisky, which retained its character as an import in the original package, was clearly proscribed by the Export-Import Clause, which was not, insofar as intoxicants are concerned, repealed by the Twenty-first Amendment. Pp. 341-346. </s> 367 S. W. 2d 267, affirmed. </s> William S. Riley, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the brief were John B. Breckinridge, Attorney General of Kentucky, Francis D. Burke and Hal O. Williams. </s> Millard Cox argued the cause and filed a brief for respondent. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> This case requires consideration of the relationship between the Export-Import Clause 1 and the Twenty-first Amendment 2 of the Constitution. [377 U.S. 341, 342] </s> The respondent, a Kentucky producer of distilled spirits, is also the sole distributor in the United States of "Gilbey's Spey Royal" Scotch whisky. This whisky is produced in Scotland and is shipped via the ports of Chicago or New Orleans directly to the respondent's bonded warehouses in Kentucky. It is subsequently sold by the respondent to customers in domestic markets throughout the United States. </s> A Kentucky law provides: </s> "No person shall ship or transport or cause to be shipped or transported into the state any distilled spirits from points without the state without first obtaining a permit from the department and paying a tax of ten cents on each proof gallon contained in the shipment." KRS 243.680 (2) (a). </s> Under the authority of this statute the Kentucky Department of Revenue, petitioner, required the respondent to pay a tax of 10 cents on each proof gallon of whisky which it thus imported from Scotland. It is not disputed that, as stated by the Kentucky Court of Appeals, "the tax was collected while the whisky remained in unbroken packages in the hands of the original importer and prior to resale or use by the importer." The respondent filed a claim for refund of the taxes, upon the ground that their imposition violated the Export-Import Clause of the Constitution. The Kentucky Tax Commission and a Kentucky Circuit Court denied the claim, but on appeal the Kentucky Court of Appeals upheld it. 367 S. W. 2d 267. We granted certiorari to consider the [377 U.S. 341, 343] constitutional issue which the case presents. 375 U.S. 811 . </s> The Kentucky Court of Appeals held that the tax in question, although an occupational or license tax in form, is a tax on imports in fact. "[T]he incidence of the tax is the act of transporting or shipping the distilled spirits under consideration into this state." 367 S. W. 2d, at 270. The court further held that the tax cannot be characterized as an inspection measure, in view of the fact that neither the statute nor the regulations implementing it provide for any actual inspection. Concluding, therefore, that the tax falls squarely within the interdiction of the Export-Import Clause, the court held that this provision of the Constitution has not been repealed, insofar as intoxicants are concerned, by the Twenty-first Amendment. 3 Accordingly, the court ruled that the respondent was entitled to a refund of the taxes it had paid. We agree with the Kentucky Court of Appeals and affirm the judgment before us. </s> The tax here in question is clearly of a kind prohibited by the Export-Import Clause. Brown v. Maryland, 12 Wheat. 419. As this Court stated almost a century ago in Low v. Austin, 13 Wall. 29, a case involving a California ad valorem tax on wine imported from France and stored in original cases in a San Francisco warehouse, "the goods imported do not lose their character as imports, . . . until they have passed from the control of the importer or been broken up by him from their original cases. Whilst retaining their character as imports, a tax upon them, in any shape, is within the constitutional prohibition." Id., at 34. See Hooven & Allison Co. v. Evatt, 324 U.S. 652 . [377 U.S. 341, 344] </s> As we noted in Hostetter v. Idlewild Liquor Corp., ante, p. 330, "[t]his Court made clear in the early years following adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders." 4 What is involved in the present case, however, is not the generalized authority given to Congress by the Commerce Clause, but a constitutional provision which flatly prohibits any State from imposing a tax upon imports from abroad. "We have often indicated the difference in this respect between the local taxation of imports in the original package and the like taxation of goods, either before or after their shipment in interstate commerce. In the one case the immunity derives from the prohibition upon taxation of the imported merchandise itself. In the other the immunity is only from such local regulation by taxation as interferes with the constitutional power of Congress to regulate the commerce, whether the taxed merchandise is in the original package or not." Hooven & Allison Co. v. Evatt, 324 U.S. 652, 665 -666. </s> This Court has never so much as intimated that the Twenty-first Amendment has operated to permit what the Export-Import Clause precisely and explicitly forbids. In State Board v. Young's Market Co., 299 U.S. 59, 62 , the Court said that the Twenty-first Amendment "abrogated the right to import free [from Missouri or Wisconsin, under the Commerce Clause] so far as concerns intoxicating liquors." In that case the appellee had argued in its brief that such a holding would imply an invalidation of the Export-Import Clause as well, 5 but [377 U.S. 341, 345] the Court's opinion was careful to note, "[t]he plaintiffs insist that to sustain the exaction of the importer's license-fee would involve a declaration that the Amendment has, in respect to liquor, freed the States from all restrictions upon the police power to be found in other provisions of the Constitution. The question for decision requires no such generalization." Id., at 64. In Gordon v. Texas, 355 U.S. 369 , the Court in a brief per curiam affirmed a Texas conviction for illegal possession of 11 bottles of rum which had been imported without a permit and to which the required Texas tax stamps were not affixed. The state tax in that case had been held to be not a tax on imports. 6 It is clear that the gravamen of the offense in Gordon was the failure to obtain, or even apply for, a permit as required by state law. Such permits, in addition to other functions, serve to channelize the traffic in liquor and thus to prevent diversion of that traffic into unauthorized channels. In the present case the respondent has both applied for and obtained the requisite permit. The relief it requests is not the abrogation of that requirement, but simply a refund of the import tax. </s> To sustain the tax which Kentucky has imposed in this case would require nothing short of squarely holding that the Twenty-first Amendment has completely repealed the Export-Import Clause so far as intoxicants are concerned. 7 Nothing in the language of the Amendment nor [377 U.S. 341, 346] in its history leads to such an extraordinary conclusion. This Court has never intimated such a view, and now that the claim for the first time is squarely presented, we expressly reject it. </s> We have no doubt that under the Twenty-first Amendment Kentucky could not only regulate, but could completely prohibit the importation of some intoxicants, or of all intoxicants, destined for distribution, use, or consumption within its borders. There can surely be no doubt, either, of Kentucky's plenary power to regulate and control, by taxation or otherwise, the distribution, use, or consumption of intoxicants within her territory after they have been imported. All we decide today is that, because of the explicit and precise words of the Export-Import Clause of the Constitution, Kentucky may not lay this impost on these imports from abroad. </s> Affirmed. </s> MR. JUSTICE BRENNAN took no part in the disposition of this case. </s> Footnotes [Footnote 1 "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports [377 U.S. 341, 342] or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress." U.S. Const., Art. I, 10, cl. 2. </s> [Footnote 2 "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." U.S. Const., Amend. XXI, 2. </s> [Footnote 3 As the Kentucky Court of Appeals noted, two other state courts have reached the same conclusion. Parrott & Co. v. San Francisco, 131 Cal. App. 2d 332, 280 P.2d 881; State v. Board of Review, 15 Wis. 2d 330, 112 N. W. 2d 914. </s> [Footnote 4 See State Board v. Young's Market Co., 299 U.S. 59 ; Brewing Co. v. Liquor Comm'n, 305 U.S. 391 ; Finch & Co. v. McKittrick, 305 U.S. 395 . </s> [Footnote 5 See brief for appellees, No. 22, 1936 Term, pp. 24-25. </s> [Footnote 6 "It is apparent that the tax involved is not an import tax nor a tax upon an importation. In fact, the instant tax could not become an import tax because the importation must have been completed before the tax here levied attached." Gordon v. State, 166 Tex. Cr. R. 24, 27, 310 S. W. 2d 328, 330. </s> [Footnote 7 Prior to the Eighteenth Amendment Congress passed the Webb-Kenyon Act and the Wilson Act, giving the States a large degree of autonomy in regulating the importation and distribution of intoxicants. Those laws are still in force. 27 U.S.C. 121, 122. In De Bary v. Louisiana, 227 U.S. 108 , the Court upheld under the Wilson Act a Louisiana license tax imposed on the business of selling in their original packages wines and liquors imported from abroad. There is nothing in that decision, nor in the language of either the [377 U.S. 341, 346] Wilson Act or the Webb-Kenyon Act, to support the view that Congress intended by those laws to consent to state taxation upon importation of liquor. </s> MR. JUSTICE BLACK, with whom MR. JUSTICE GOLDBERG joins, dissenting. </s> This case, like Hostetter v. Idlewild Bon Voyage Liquor Corp., also decided today, ante, p. 324, deprives the States of a large part of the power which I think the Twenty-first Amendment gives them to regulate the liquor business by taxation or otherwise. That Amendment provides in part that "The transportation or importation into any State . . . for delivery or use therein of intoxicating [377 U.S. 341, 347] liquors, in violation of the laws thereof, is hereby prohibited." Kentucky requires persons transporting distilled spirits into the State from without the State to obtain a permit and pay a tax of 10 cents per gallon. This Kentucky tax as applied to liquors imported into Kentucky from another State is, since the Twenty-first Amendment, unquestionably valid against objections based on either the Commerce or Equal Protection Clauses. Such was the holding of this Court, soon after the Amendment's adoption, in State Board v. Young's Market Co., 299 U.S. 59 (1936), where the Court held that a State is free under the Twenty-first Amendment to levy a "heavy importation fee" on beer brought into the State. In that case, the beer was imported from Missouri and Wisconsin, but there is nothing in the Court's opinion to suggest that the holding would have been different if the beer had come from, say, Canada. See Indianapolis Brewing Co. v. Liquor Control Comm'n, 305 U.S. 391 (1939); Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395 (1939). Yet here, because the liquors Kentucky has taxed are imports from Scotland rather than imports from another part of the United States, the Court holds that the Kentucky tax is barred because Art. I, 10, cl. 2, of the Constitution provides that "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws . . . ." I think this clause forbidding a State to tax imports from abroad no more limits a State's right to tax intoxicating liquors than does the Commerce Clause. In the first place, the Commerce Clause applies to foreign and interstate commerce alike. Further, the clause against taxing imports is general like the Commerce Clause itself. Section 2 of the Twenty-first Amendment, by contrast, is not general in its application. It was adopted with one specific object: to give the States unfettered [377 U.S. 341, 348] power to regulate intoxicating liquors. State Board v. Young's Market Co., supra, and our other cases expressly held the State's power not to be limited either by the Commerce Clause or by the Equal Protection Clause. Surely the Export-Import Clause is no more exalted and no more worthy to be excepted from the Twenty-first Amendment than are the Commerce and Equal Protection Clauses. It seems a trifle odd to hold that an Amendment adopted in 1933 in specific terms to meet a specific twentieth-century problem must yield to a provision written in 1787 to meet a more general, although no less important, problem. Since the Twenty-first Amendment was designed to empower the States to tax "intoxicating liquors" imported into the States, I cannot take it upon myself to say that a State can tax liquors made in this country but not those made in Scotland - a distinction not suggested by the Amendment's language or its history. The Amendment, after all, does not talk about "foreign" liquors or "domestic" liquors; it simply speaks of "liquors" - all liquors, whatever their origin. The purpose of the Amendment was to give States power to regulate, by taxation or otherwise, all liquors within their boundaries. To free from state taxation liquors imported from abroad is to place States at the mercy of liquor importers who want to use a State as a storage place for distribution of their imports. It deprives a State of the power the Twenty-first Amendment gives each State - that is, plenary power to decide which liquors shall be admitted into the State for storage, sale, or distribution within the State. A State may choose to have wine only, beer only, Scotch only, bourbon only, or none of these. As the Court said in State Board v. Young's Market Co., supra, at 63, a State can "either prohibit all competing importations, or discourage importation by laying a heavy impost, or channelize desired importations . . . ." Although I was brought up to believe [377 U.S. 341, 349] that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon, I never understood the Constitution to require a State to give such preference. (My dissenting Brother asks me to say that this statement does not necessarily represent his views on the respective merits of Scotch and bourbon.) </s> As recently as 1958, this Court reviewed the Texas conviction of a man who had brought some bottles of rum into Texas from Mexico on his way to his home in North Carolina, and had refused to pay Texas alcoholic beverage taxes when asked to do so. Over objections that this tax violated both the Export-Import Clause and the Commerce Clause, this Court, in a three-line per curiam opinion, unanimously affirmed the conviction. Gordon v. Texas, 355 U.S. 369 (1958). Briefs filed by Texas in that case had argued that the tax was really one on "possession," not on "importation," but these labels cannot obscure the fact that both in Gordon and in this case the same conduct was involved: the physical importation of liquor from abroad into the State, at which point the State's interest in regulating or taxing the liquor came into play. Gordon did not - just as the Twenty-first Amendment does not - draw nice distinctions about where imported liquor comes from. Nor is there one word in the debates in Congress preceding the adoption of the Amendment to suggest that the backers of the Amendment, in seeking to give the States full and unhampered power over liquor traffic, thought liquor coming from abroad was less of a problem than domestic liquor or should be treated at all differently. </s> A final word concerning the Court's statement that "To sustain the tax which Kentucky has imposed in this case would require nothing short of squarely holding that the Twenty-first Amendment has completely repealed the Export-Import Clause so far as intoxicants are concerned." Ante, p. 345. This, I think, is not correct. What the [377 U.S. 341, 350] Twenty-first Amendment does mean, I believe, is that whenever liquor imported from anywhere outside the State, including foreign countries, is transported physically into a State, there to come to rest to be stored for sale and distribution, it then and there becomes a state problem and like all other liquors is subject to state laws of all kinds. It cannot be treated as if it were liquor passing straight through the State - although even then the State would have the power to impose regulations to prevent diversions or other possible evils. See Carter v. Virginia, 321 U.S. 131 (1944). Whatever may have been the virtue or the constitutional soundness of the fiction that articles imported from abroad are "imports" so long as they remain "in their original packages," see Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945), and dissent at 686-691, that doctrine was expressly attacked in the Senate debate on the Twenty-first Amendment as rendering the States "powerless to protect themselves against the importation of liquor into the States." * 76 Cong. Rec. 4171 (1933). The Amendment was meant to bury that obstacle to state power over liquor, and the doctrine of "original package," which the Senate consciously rejected, should not be revived after 30 years' interment, once again to be used to deprive States of power the Senate so clearly wanted them to have and the people so clearly granted them. Section 2 of the Amendment, born of long and bitter experience in the field of liquor regulation, should not be frustrated by us. </s> I would uphold the Kentucky tax. </s> [Footnote * "The State of Iowa passed a prohibition law prohibiting the manufacture or sale of intoxicating liquors, except under certain specifications made. The Supreme Court in the case of Leisy v. Hardin ( 135 U.S. 100 ) held the law unconstitutional, in so far as it applied to the sale by the importer in the original package or keg. . . . </s> "The States therefore were powerless to protect themselves against the importation of liquor into the States." 76 Cong. Rec. 4171 (1933) (Senator Borah). </s> [377 U.S. 341, 351]

United States Supreme Court MOSELEY v. ELECTRONIC FACILITIES(1963) No. 401 Argued: Decided: June 17, 1963 </s> A plumbing and heating subcontractor brought suit under the Miller Act in a Federal District Court in Georgia against a prime contractor under contracts with the United States for construction work at two Air Force bases in Georgia seeking (1) recovery of amounts alleged to be due under the subcontracts, or (2) rescission of the subcontracts on grounds of fraud and recovery on a quantum meruit basis, or (3) recovery of the reasonable value of the labor and materials furnished, and (4) to enjoin the prime contractor from pursuing litigation which it had instituted in a New York State Court seeking arbitration proceedings in New York under provisions of the subcontracts, which the subcontractor claimed to be fraudulent. The District Court held that (1) the Miller Act gave the subcontractor the right to sue in the District where the subcontracts were performed and (2) the arbitration clause, if induced by fraud, would be vitiated; and it enjoined the arbitration proceedings in New York. The Court of Appeals reversed, holding that the subcontractor must arbitrate in New York under New York law. Held: The issue of fraud must first be determined by the District Court, since a determination that the subcontracts or their arbitration provisions were fraudulent would eliminate any conflict between them, the United States Arbitration Act and the Miller Act. Pp. 168-172. </s> 306 F.2d 554, reversed. </s> George C. Grant argued the cause for petitioner. With him on the brief was T. Baldwin Martin. </s> Newell Edenfield argued the cause for respondents. With him on the brief were William H. Major and Lamar W. Sizemore. [374 U.S. 167, 168] </s> MR. JUSTICE CLARK delivered the opinion of the Court. </s> The primary issue in this case is whether a claim under the Miller Act, 40 U.S.C. 270a-270d, as amended, based upon arbitration clauses in two subcontracts providing for arbitration of any dispute arising thereunder, is enforceable under the provisions of the United States Arbitration Act. 9 U.S.C. 1, 2 and 3. The institution of this suit was directed toward the recovery of compensation alleged to be due under two subcontracts between the petitioner, a plumbing and heating contractor, and the respondent Electronic & Missile Facilities, Inc., who was the prime contractor under a contract with the United States Corps of Engineers, Savannah District, covering certain Nike Hercules missile installations at Robins Air Force Base Defense Area and Turner Air Force Base Defense Area, both of which are located in the State of Georgia. The subcontracts provided for arbitration in New York, and, disputes having arisen thereunder, the respondent filed suit in the Supreme Court of New York seeking an order directing arbitration in accordance with the arbitration provisions. Petitioner then filed this suit in the Middle District of Georgia, where the work under the subcontracts was performed, seeking (1) recovery of the amounts alleged to be due under the subcontracts; (2) rescission of the subcontracts - on grounds of fraud - and recovery on a quantum meruit basis; (3) in the alternative, failing in both of these claims, recovery of the reasonable value of the labor and materials furnished; and (4) an injunction enjoining the respondent from proceeding with its arbitration efforts in New York. Neither party sought to compel specific performance of the arbitration agreement. The District Court, holding (1) that the Miller Act gave petitioner the right to sue in the District Court where [374 U.S. 167, 169] the subcontracts were performed and (2) that the arbitration clause, if induced by fraud on the part of respondent, would be vitiated, made permanent its prior restraining order directed at the arbitration proceedings in New York. The Court of Appeals reversed, holding that petitioner must arbitrate in New York under New York law. 306 F.2d 554. We granted certiorari. 371 U.S. 919 . Petitioner attacks the subcontracts, as well as the arbitration agreement, as being fraudulent, and this issue, we conclude, must be first determined by the District Court. We therefore reverse the judgment and remand the case to the Court of Appeals with directions to remand to the District Court for further proceedings not inconsistent with this opinion. </s> I. </s> We need not elaborate at length on the involved factual situation since it is detailed in the opinions of the Court of Appeals and the District Court. As we have said, petitioner filed suit in the United States District Court for the Middle District of Georgia, the district in which the subcontracts were performed, alleging breach of contract for refusal to pay and seeking recovery for work which had been performed and, alternatively, rescission of the subcontracts on grounds of fraud. The suit was brought under the provisions of the Miller Act, which provides in pertinent part: </s> "Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy . . . ." 40 U.S.C. 270b (b). [374 U.S. 167, 170] </s> It further provides that parties included within the Act "shall have the right to sue . . . and to prosecute said action to final execution and judgment . . . ." Id., at 270b (a). Respondent moved to dismiss the suit or stay the same so that the New York arbitration suit might proceed under the terms of both subcontracts, each of which provided that "[a]ny controversy or claim arising out of or relating to" the subcontracts or their breach would be submitted to arbitration in New York City under New York law. In denying these motions the District Court held that the Arbitration Act did not apply here since any other holding would nullify the provisions of the Miller Act. It also concluded that the allegations of fraud, if sustained, would, under Georgia law, rescind the subcontracts, including the agreement for arbitration. </s> The Court of Appeals, with one judge dissenting, reversed on the theory that the Miller Act was not enacted for the benefit of plaintiffs in the selection of a forum, but rather for the convenience of the defendant, and that this is the type of dispute that is and should be subject to arbitration. As to the issue of fraud, it held that federal law controls in determining whether an allegation of fraud precludes arbitration of a dispute arising under the subcontracts and concluded that, in order to bar arbitration under federal law, the allegation of fraud must be specifically directed to the arbitration clause rather than to the entire contract. Thus, it reversed the District Court on both points. </s> II. </s> At the outset we note, as we have indicated, that no request has been made here for the enforcement of the arbitration agreement included within the subcontracts. Indeed, the petitioner has attacked not only the subcontracts, but also the arbitration clauses contained therein, [374 U.S. 167, 171] as having been procured through fraud. With the pleadings in this posture, we are obliged to pass upon the priority in determination of that issue in the trial of the case. In essence, petitioner alleges that the subcontracts with him, as well as other subcontractors, were a fraudulent scheme to obtain a great amount of work and material from petitioner and the other subcontractors without making payment therefor and to "browbeat" petitioner and his fellow subcontractors into accepting much less than the value of their claims. One of the means used to effect such scheme was alleged to be the insertion in the subcontracts of an arbitration clause requiring arbitration of disputes in New York. Under either the Miller Act or the Arbitration Act, it seems clear that the issue of fraud should first be adjudicated before the rights of the parties under the subcontracts can be determined. It appears necessary, therefore, that the District Court proceed first to trial of this issue. In considering the question of the sufficiency of the pleadings with reference to the allegation of fraud, we believe that, as alleged here, the issue goes to the arbitration clause itself, since it is contended that it was to be used to effect the fraudulent scheme. If this issue is determined favorably to the petitioner, there can be no arbitration under the subcontracts. </s> In view of our holding here, it is not necessary to reach the issues relating to arbitrability of disputes arising under these subcontracts. In fact, disposition of the fraud issue may dispose of the entire suit. In the event the fraud issue is decided favorably to the respondent, and the United States District Court for the Middle District of Georgia should be called upon to decide the question of arbitrability of such disputes and related problems in Miller Act cases, its decision on that point would then, of course, be subject to review. [374 U.S. 167, 172] </s> We therefore reverse the judgment of the Court of Appeals and remand the case to it with instructions that it remand the same to the District Court for further proceedings not inconsistent with this opinion. </s> It is so ordered. </s> MR. JUSTICE STEWART would affirm the judgment substantially for the reasons stated in Chief Judge Tuttle's opinion for the Court of Appeals. 306 F.2d 554. </s> THE CHIEF JUSTICE and MR. JUSTICE BLACK, concurring. </s> We agree with the Court that fraud in the procurement of an arbitration contract, like fraud in the procurement of any contract, makes it void and unenforceable and that this question of fraud is a judicial one, which must be determined by a court. To allow this question to be decided by arbitrators would be to that extent to enforce the arbitration agreement even though steeped in the grossest kind of fraud. Compare Robert Lawrence Co. v. Devonshire Fabrics, 271 F.2d 402 (C. A. 2d Cir. 1959). For this reason we acquiesce in the Court's present disposition of the case on this single issue. But we point out that this disposition leaves open questions of great importance to laborers and materialmen who under the Miller Act are entitled to have their controversies settled in independent courts of law: </s> (1) Can a member of the special class of laborers and materialmen which Congress, in the public interest, has protected by fixing the venue for their claims under the Miller Act in a particular federal court deprive himself of that kind of remedy as a condition of his obtaining the employment or the purchase of his materials? </s> (2) Can any person, before any dispute has arisen, agree to arbitrate all future disputes he may have and [374 U.S. 167, 173] thereby lose his right to go into court to try his claim according to due process of law? </s> (3) Can the Arbitration Act, in light of its language and legislative history, be applied to laborers and materialmen or to construction projects subject to the Miller Act? </s> (4) Is a construction project, like the one in this case, one "involving commerce" so as to come within the restricted scope of the Arbitration Act? </s> [374 U.S. 167, 174]

United States Supreme Court SCHEIDLER et al. v. NATIONAL ORGANIZATION FOR WOMEN, INC., et al.(2003) No. 01-1118 Argued: December 4, 2002Decided: February 26, 2003 </s> Respondents, an organization that supports the legal availability of abortion and two facilities that perform abortions, filed a class action alleging that petitioners, individuals and organizations that oppose legal abortion, violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1962(a), (c), and (d), by engaging in a nationwide conspiracy to shut down abortion clinics through "a pattern of racketeering activity" that included acts of extortion in violation of the Hobbs Act, §1951. In concluding that petitioners violated RICO's civil provisions, the jury found, among other things, that petitioners' alleged pattern of racketeering activity included violations of, or attempts or conspiracy to violate, the Hobbs Act, state extortion law, and the Travel Act, §1952. The jury awarded damages, and the District Court entered a permanent nationwide injunction against petitioners. Affirming in relevant part, the Seventh Circuit held, inter alia, that the things respondents claimed were extorted from them--the class women's right to seek medical services from the clinics, the clinic doctors' rights to perform their jobs, and the clinics' rights to conduct their business--constituted "property" for purposes of the Hobbs Act. The Court of Appeals further held that petitioners "obtained" that property, as §1951(b)(2) requires. The court also upheld the issuance of the nationwide injunction, finding that private plaintiffs are entitled to obtain injunctive relief under §1964(c). Held: 1.Because all of the predicate acts supporting the jury's finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Pp.4-15. </s> (a)Petitioners did not commit extortion within the Hobbs Act's meaning because they did not "obtain" property from respondents. Both of the sources Congress used as models in formulating the Hobbs Act--the New York Penal Code and the Field Code, a 19th-century model penal code--defined extortion as, inter alia, the "obtaining" of property from another. This Court has recognized that New York's "obtaining" requirement entailed both a deprivation and acquisition of property, see United States v. Enmons, 410 U.S. 396, 406, n.16, and has construed the Hobbs Act provision at issue to require both features, see, e.g., id., at 400. It is undisputed that petitioners interfered with, disrupted, and in some instances completely deprived respondents of their ability to exercise their property rights. Likewise, petitioners' counsel has acknowledged that aspects of his clients' conduct were criminal. But even when their acts of interference and disruption achieved their ultimate goal of shutting down an abortion clinic, such acts did not constitute extortion because petitioners did not "obtain" respondents' property. Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. They neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. United States v. Nardello, 393 U.S. 286, 290. To conclude that their actions constituted extortion would effectively discard the statutory "obtaining" requirement and eliminate the recognized distinction between extortion and the separate crime of coercion. The latter crime, which more accurately describes the nature of petitioners' actions, involves the use of force or threat of force to restrict another's freedom of action. It was clearly defined in the New York Penal Code as a separate, and lesser offense than extortion when Congress turned to New York law in drafting the Hobbs Act. Congress' decision to include extortion as a violation of the Hobbs Act and omit coercion is significant here, as is the fact that the Anti-Racketeering Act, the predecessor to the Hobbs Act, contained sections explicitly prohibiting both. The Hobbs Act omission is particularly significant because a paramount congressional concern in drafting that Act was to be clear about what conduct was prohibited, United States v. Culbert, 435 U.S. 371, 378, and to carefully define the Act's key terms, including "extortion," id., at 373. Thus, while coercion and extortion overlap to the extent that extortion necessarily involves the use of coercive conduct to obtain property, there has been and continues to be a recognized difference between these two crimes. Because the Hobbs Act is a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity. Enmons, supra, at 411. Culbert, supra, at 373, distinguished. If the distinction between extortion and coercion, which controls these cases, is to be abandoned, such a significant expansion of the law's coverage must come from Congress, not from the courts. Pp.4-14. </s> (b) This Court's determination as to Hobbs Act extortion renders insufficient the other bases or predicate acts of racketeering supporting the jury's conclusion that petitioners violated RICO. In accordance with this Court's decisions in Nardello and Taylor v. United States, 495 U.S. 575 (1990), where as here the Model Penal Code and a majority of Sates recognize the crime of extortion as requiring a party to obtain or to seek to obtain property, as the Hobbs Act requires, a state extortion offense for RICO purposes must have a similar requirement. Thus, because petitioners did not obtain or attempt to obtain respondents' property, both the state extortion claims and the claim of attempting or conspiring to commit state extortion were fatally flawed. The violations of the Travel Act and attempts to violate that Act also fail. These acts were committed in furtherance of allegedly extortionate conduct, but petitioners did not commit or attempt to commit extortion. Pp. 14-15. </s> 2.Without an underlying RICO violation, the District Court's injunction must necessarily be vacated. The Court therefore need not address the second question presented--whether a private plaintiff in a civil RICO action is entitled to injunctive relief under §1964(c). Pp.15-16. 267 F.3d 687, reversed. Rehnquist, C.J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a concurring opinion, in which Breyer, J., joined. Stevens, J., filed a dissenting opinion. </s> JOSEPH SCHEIDLER, ANDREW SCHOLBERG,TIMOTHY MURPHY, and THE PRO-LIFEACTION LEAGUE, INC., PETITIONERS </s> 01-1118v. </s> NATIONAL ORGANIZATION FORWOMEN, INC., etal. </s> OPERATION RESCUE, PETITIONER </s> 01-1119v. </s> NATIONAL ORGANIZATION FORWOMEN, INC., etal. on writs of certiorari to the united states court ofappeals for the seventh circuit [February 26, 2003] </s> Chief Justice Rehnquist delivered the opinion of the Court. </s> We granted certiorari in these cases to answer two questions. First, whether petitioners committed extortion within the meaning of the Hobbs Act, 18 U.S.C. §1951. Second, whether respondents, as private litigants, may obtain injunctive relief in a civil action pursuant to 18 U.S.C. §1964 of the Racketeer Influenced and Corrupt Organizations Act (RICO). We hold that petitioners did not commit extortion because they did not "obtain" property from respondents as required by the Hobbs Act. We further hold that our determination with respect to extortion under the Hobbs Act renders insufficient the other bases or predicate acts of racketeering supporting the jury's conclusion that petitioners violated RICO. Therefore, we reverse without reaching the question of the availability of private injunctive relief under §1964(c) of RICO. </s> We once again address questions arising from litigation between petitioners, a coalition of antiabortion groups called the Pro-Life Action Network (PLAN), Joseph Scheidler and other individuals and organizations that oppose legal abortion,1 and respondents, the National Organization for Women, Inc. (NOW), a national nonprofit organization that supports the legal availability of abortion, and two health care centers that perform abortions.2 Our earlier decision provides a substantial description of the factual and procedural history of this litigation, see National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994), and so we recount only those details necessary to address the questions here presented. </s> In 1986, respondents sued in the United States District Court for the Northern District of Illinois alleging, inter alia, that petitioners violated RICO's §§1962(a), (c), and (d). They claimed that petitioners, all of whom were associated with PLAN, the alleged racketeering enterprise, were members of a nationwide conspiracy to "shut down" abortion clinics through a pattern of racketeering activity that included acts of extortion in violation of the Hobbs Act.3 </s> The District Court dismissed respondents' RICO claims for failure to allege that the predicate acts of racketeering or the racketeering enterprise were economically motivated. See National Organization for Women, Inc. v. Scheidler, 765 F.Supp. 937 (ND Ill. 1991). The Court of Appeals for the Seventh Circuit affirmed that dismissal. See National Organization for Women, Inc. v. Scheidler, 968 F.2d 612 (1992). We granted certiorari and reversed, concluding that RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose. See Scheidler, 510 U.S., at 256-262. The case was remanded to the District Court for further proceedings. </s> After a 7-week trial, a six-member jury concluded that petitioners violated the civil provisions of RICO. By answering a series of special interrogatory questions, the jury found, inter alia, that petitioners' alleged "pattern of racketeering activity" included 21 violations of the Hobbs Act, 18 U.S.C. §1951; 25 violations of state extortion law; 25 instances of attempting or conspiring to commit either federal or state extortion; 23 violations of the Travel Act, 18 U.S.C. §1952; and 23 instances of attempting to violate the Travel Act. The jury awarded $31,455.64 to respondent, the National Women's Health Organization of Delaware, Inc., and $54,471.28 to the National Women's Health Organization of Summit, Inc. These damages were trebled pursuant to §1964(c). Additionally, the District Court entered a permanent nationwide injunction prohibiting petitioners from obstructing access to the clinics, trespassing on clinic property, damaging clinic property, or using violence or threats of violence against the clinics, their employees, or their patients. </s> The Court of Appeals for the Seventh Circuit affirmed in relevant part. The Court of Appeals rejected petitioners' contention that the things respondents claimed were "obtained"--the class women's right to seek medical services from the clinics, the clinic doctors' rights to perform their jobs, and the clinics' rights to provide medical services and otherwise conduct their business--were not "property" for purposes of the Hobbs Act. The court explained that it had "repeatedly held that intangible property such as the right to conduct a business can be considered 'property' under the Hobbs Act." 267 F.3d 687, 709 (2001). Likewise, the Court of Appeals dismissed petitioners' claim that even if "property" was involved, petitioners did not "obtain" that property; they merely forced respondents to part with it. Again relying on Circuit precedent, the court held that "'as a legal matter, an extortionist can violate the Hobbs Act without either seeking or receiving money or anything else. A loss to, or interference with the rights of, the victim is all that is required.'" Ibid. (quoting United States v. Stillo, 57 F.3d 553, 559 (CA7 1995)). Finally, the Court of Appeals upheld the issuance of the nationwide injunction, finding that private plaintiffs are entitled to obtain injunctive relief under §1964(c) of RICO. We granted certiorari, 535 U.S. 1016 (2002), and now reverse. </s> We first address the question whether petitioners' actions constituted extortion in violation of the Hobbs Act. That Act defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. §1951(b)(2). Petitioners allege that the jury's verdict and the Court of Appeals' decision upholding the verdict represent a vast and unwarranted expansion of extortion under the Hobbs Act. They say that the decisions below "rea[d] the requirement of 'obtaining' completely out of the statute" and conflict with the proper understanding of property for purposes of the Hobbs Act. Brief for Petitioners Joseph Scheidler etal. in No. 01-1118, pp. 11-13. </s> Respondents, throughout the course of this litigation, have asserted, as the jury instructions at the trial reflected,4 that petitioners committed extortion under the Hobbs Act by using or threatening to use force, violence, or fear to cause respondents "to give up" property rights, namely, "a woman's right to seek medical services from a clinic, the right of the doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion and fear." Jury Instruction No. 24, App. 136. Perhaps recognizing the apparent difficulty in reconciling either its position that "giv[ing] up" these alleged property rights or the Court of Appeals' holding that "interfer[ing] with such rights" with the requirement that petitioners "obtain[ed] ... property from" them, respondents have shifted the thrust of their theory. 267 F.3d, at 267. Respondents now assert that petitioners violated the Hobbs Act by "seeking to get control of the use and disposition of respondents' property." Brief for Respondents 24. They argue that because the right to control the use and disposition of an asset is property, petitioners, who interfered with, and in some instances completely disrupted, the ability of the clinics to function, obtained or attempted to obtain respondents' property. </s> The United States offers a view similar to that of respondents, asserting that "where the property at issue is a business's intangible right to exercise exclusive control over the use of its assets, [a] defendant obtains that property by obtaining control over the use of those assets." Brief for United States as Amicus Curiae 22. Although the Government acknowledges that the jury's finding of extortion may have been improperly based on the conclusion that petitioners deprived respondents of a liberty interest,5 it maintains that under its theory of liability, petitioners committed extortion. </s> We need not now trace what are the outer boundaries of extortion liability under the Hobbs Act, so that liability might be based on obtaining something as intangible as another's right to exercise exclusive control over the use of a party's business assets.6 Our decisions in United States v. Green, 350 U.S. 415, 420 (1956) (explaining that "extortion ... in no way depends upon having a direct benefit conferred on the person who obtains the property"), and Carpenter v. United States, 484 U.S. 19, 27 (1987) (finding that confidential business information constitutes "property" for purposes of the federal mail fraud statute), do not require such a result. Whatever the outer boundaries may be, the effort to characterize petitioners' actions here as an "obtaining of property from" respondents is well beyond them. Such a result would be an unwarranted expansion of the meaning of that phrase. </s> Absent contrary direction from Congress, we begin our interpretation of statutory language with the general presumption that a statutory term has its common-law meaning. See Taylor v. United States, 495 U.S. 575, 592 (1990); Morissette v. United States, 342 U.S. 246, 263 (1952). At common law, extortion was a property offense committed by a public official who took "any money or thing of value" that was not due to him under the pretense that he was entitled to such property by virtue of his office. 4 William Blackstone, Commentaries on the Laws of England 141 (1765); 3 R. Anderson, Wharton's Criminal Law and Procedure §1393, pp. 790-791 (1957). In 1946, Congress enacted the Hobbs Act, which explicitly "expanded the common-law definition of extortion to include acts by private individuals." Evans v. United States, 504 U.S. 255, 261 (1992). While the Hobbs Act expanded the scope of common-law extortion to include private individuals, the statutory language retained the requirement that property must be "obtained." See 18 U.S.C. §1951(b)(2). </s> Congress used two sources of law as models in formulating the Hobbs Act: the Penal Code of New York and the Field Code, a 19th-century model penal code. See Evans, supra, at 262.7 Both the New York statute and the Field Code defined extortion as "the obtaining of property from another with his consent, induced by a wrongful use of force or fear or under color of official right." 4 Report of the Commissioners of the Code, Proposed Penal Code of the State of New York §613 (1865) (reprint 1998) (Field Code); N.Y. Penal Law §850 (1909). The Field Code explained that extortion was one of four property crimes, along with robbery, larceny, and embezzlement that included "the criminal acquisition of ... property." §584 note, p.210. New York case law before the enactment of the Hobbs Act demonstrates that this "obtaining of property" requirement included both a deprivation and acquisition of property. See, e.g., People v. Ryan, 232 N.Y. 234, 236, 133 N.E. 572, 573 (1921) (explaining that an intent "to extort" requires an accompanying intent to "gain money or property"); People v. Weinseimer, 117 App. Div. 603, 616, 102 N.Y.S. 579, 588 (1907) (noting that inan extortion prosecution, the issue that must be decidedis whether the accused "receive[d] [money] from thecomplainant").8 </s> We too have recognized that the "obtaining" requirement of extortion under New York law entailed both a deprivation and acquisition of property. See United States v. Enmons, 410 U.S. 396, 406, n.16 (1973) (noting that "[j]udicial construction of the New York statute" demonstrated that "extortion requires an intent 'to obtain that which in justice and equity the party is not entitled to receive'") (quoting People v. Cuddihy, 151 Misc. 318, 324, 271 N.Y. S. 450, 456 (1934)). Most importantly, we have construed the extortion provision of the Hobbs Act at issue in this case to require not only the deprivation but also the acquisition of property. See, e.g., Enmons, supra, at 400. (Extortion under the Hobbs Act requires a "'wrongful' taking of ... property" (emphasis added)). With this understanding of the Hobbs Act's requirement that a person must "obtain" property from another party to commit extortion, we turn to the facts of these cases. </s> There is no dispute in these cases that petitioners interfered with, disrupted, and in some instances completely deprived respondents of their ability to exercise their property rights. Likewise, petitioners' counsel readily acknowledged at oral argument that aspects of his clients' conduct were criminal.9 But even when their acts of interference and disruption achieved their ultimate goal of "shutting down" a clinic that performed abortions, such acts did not constitute extortion because petitioners did not "obtain" respondents' property. Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. United States v. Nardello, 393 U.S. 286, 290 (1969). To conclude that such actions constituted extortion would effectively discard the statutory requirement that property must be obtained from another, replacing it instead with the notion that merely interfering with or depriving someone of property is sufficient to constitute extortion. </s> Eliminating the requirement that property must be obtained to constitute extortion would not only conflict with the express requirement of the Hobbs Act, it would also eliminate the recognized distinction between extortion and the separate crime of coercion--a distinction that is implicated in these cases. The crime of coercion, which more accurately describes the nature of petitioners' actions, involves the use of force or threat of force to restrict another's freedom of action. Coercion's origin is statutory, and it was clearly defined in the New York Penal Code as a separate, and lesser offense than extortion when Congress turned to New York law in drafting the Hobbs Act.10 New York case law applying the coercion statute before the passage of the Hobbs Act involved the prosecution of individuals who, like petitioners, employed threats and acts of force and violence to dictate and restrict the actions and decisions of businesses. See, e.g., People v. Ginsberg, 262 N.Y. 556, 188 N.E. 62 (1933) (affirming convictions for coercion where defendant used threatened and actual property damage to compel the owner of a drug store to become a member of a local trade association and to remove price advertisements for specific merchandise from his store's windows); People v. Scotti, 266 N.Y. 480, 195 N.E. 162 (1934) (affirming conviction for coercion where defendants used threatened and actual force to compel a manufacturer to enter into an agreement with a labor union of which the defendants were members); People v. Kaplan, 240 App. Div. 72, 269 N.Y.S. 161 (1934) (affirming convictions for coercion where defendants, members of a labor union, used threatened and actual physical violence to compel other members of the union to drop lawsuits challenging the manner in which defendants were handling the union's finances). </s> With this distinction between extortion and coercion clearly drawn in New York law prior to 1946, Congress' decision to include extortion as a violation of the Hobbs Act and omit coercion is significant assistance to our interpretation of the breadth of the extortion provision. This assistance is amplified by other evidence of Congress' awareness of the difference between these two distinct crimes. In 1934, Congress formulated the Anti-Racketeering Act, ch. 569, 48 Stat. 979. This Act, which was the predecessor to the Hobbs Act, targeted, as its name suggests, racketeering activities that affected interstate commerce, including both extortion and coercion as defined under New York law.11 Accordingly, the Act contained both a section explicitly prohibiting coercion and a section prohibiting the offense of extortion as defined by the Field Code and New York Penal Code. See ch. 569, §§2(a) and 2(b). </s> Several years after the enactment of the Anti-Racketeering Act, this Court decided United States v. Teamsters, 315 U.S. 521 (1942). In Teamsters, this Court construed an exception provided in the Anti-Racketeering Act for the payment of wages by a bona fide employer to a bona fide employee to find that the Act "did not cover the actions of union truckdrivers who exacted money by threats or violence from out-of-town drivers in return for undesired and often unutilized services." United States v. Culbert, 435 U.S. 371, 377 (1978) (citing Teamsters, supra). "Congressional disapproval of this decision was swift," and the Hobbs Act was subsequently enacted to supersede the Anti-Racketeering Act and reverse the result in Teamsters. Enmons, 410 U.S., at 402, and n.8. The Act prohibited interference with commerce, by "robbery or extortion" but, as explained above, did not mention coercion. </s> This omission of coercion is particularly significant in light of the fact that after Teamsters, a "paramount congressional concern" in drafting the Hobbs Act, "was to be clear about what conduct was prohibited." Culbert, supra, at 378.12 Accordingly, the Act "carefully defines its key terms, such as 'robbery,' 'extortion,' and 'commerce.'" Id., at 373. Thus, while coercion and extortion certainly overlap to the extent that extortion necessarily involves the use of coercive conduct to obtain property, there has been and continues to be a recognized difference between these two crimes, see, e.g., ALI, Model Penal Code and Commentaries §§212.5, 223.4 (1980) (hereinafter Model Penal Code),13 and we find it evident that this distinction was not lost on Congress in formulating the Hobbs Act. </s> We have said that the words of the Hobbs Act "do not lend themselves to restrictive interpretation" because they "'manifest ... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.'" Culbert, supra, at 373 (quoting Stirone v. United States, 361 U.S. 212, 215 (1960)). We have also said, construing the Hobbs Act in Enmons, supra, at 411: "Even if the language and history of the Act were less clear than we have found them to be, the Act could not properly be expanded as the Government suggests--for two related reasons. First, this being a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity (citations omitted)." </s> We think that these two seemingly antithetical statements can be reconciled. Culbert refused to adopt the view that Congress had not exercised the full extent of its commerce power in prohibiting extortion which "affects commerce or the movement of any article or commodity in commerce." But there is no contention by petitioners here that their acts did not affect interstate commerce. Their argument is that their acts did not amount to the crime of extortion as set forth in the Act, so the rule of lenity referred to in Enmons may apply to their case quite consistently with the statement in Culbert. "[W]hen there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language." McNally v. United States, 483 U.S. 350, 359-360 (1987). If the distinction between extortion and coercion, which we find controls these cases, is to be abandoned, such a significant expansion of the law's coverage must come from Congress, and not from the courts. </s> Because we find that petitioners did not obtain or attempt to obtain property from respondents, we conclude that there was no basis upon which to find that they committed extortion under the Hobbs Act. </s> The jury also found that petitioners had committed extortion under various state-law extortion statutes, a separate RICO predicate offense. Petitioners challenged the jury instructions as to these on appeal, but the Court of Appeals held that any error was harmless, because the Hobbs Act verdicts were sufficient to support the relief awarded. Respondents argue in this Court that state extortion offenses do not have to be identical to Hobbs Act extortion to be predicate offenses supporting a RICO violation. They concede, however, that for a state offense to be an "act or threat involving ... extortion, ... which is chargeable under State law," as RICO requires, see 18 U.S.C. §1961(1), the conduct must be capable of being generically classified as extortionate. Brief for Respondents 33-34. They further agree that such "generic" extortion is defined as "'obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.'" Id., at 34 (quoting Nardello, 393 U.S., at 290). </s> This concession is in accord with our decisions in Nardello and Taylor v. United States, 495 U.S. 575 (1990). In Nardello, we held that the Travel Act's prohibition, 18 U.S.C. §1952(b)(2), against "extortion ... in violation of the laws of the State in which committed or of the United States" applies to extortionate conduct classified by a state penal code as blackmail rather than extortion. We determined that if an act prohibited under state law fell within a generic definition of extortion, for which we relied on the Model Penal Code's definition of "obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats," it would constitute a violation of the Travel Act's prohibition regardless of the State's label for that unlawful act. See Nardello, supra, at 296 (explaining that regardless of Pennsylvania's labeling defendants' acts as blackmail and not extortion, defendants violated the Travel Act because "the indictment encompasses a type of activity generally known as extortionate since money was to be obtained from the victim by virtue of fear and threats of exposure"). In Taylor, relying in part on Nardello, we concluded that in including "burglary" as a violent crime in 18 U.S.C. §924(e)'s sentencing enhancement provision for felons' possessing firearms, Congress meant "burglary" in "the generic sense in which the term is now used in the criminal codes of most States." 495 U.S., at 598. Accordingly, where as here the Model Penal Code and a majority of States recognize the crime of extortion as requiring a party to obtain or to seek to obtain property, as the Hobbs Act requires, the state extortion offense for purposes of RICO must have a similar requirement. </s> Because petitioners did not obtain or attempt to obtain respondents' property, both the state extortion claims and the claim of attempting or conspiring to commit state extortion were fatally flawed. The 23 violations of the Travel Act and 23 acts of attempting to violate the Travel Act also fail. These acts were committed in furtherance of allegedly extortionate conduct. But we have already determined that petitioners did not commit or attempt to commit extortion. </s> Because all of the predicate acts supporting the jury's finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated. We therefore need not address the second question presented--whether a private plaintiff in a civil RICO action is entitled to injunctive relief under 18 U.S.C. §1964. </s> The judgment of the Court of Appeals is accordingly Reversed. </s> JOSEPH SCHEIDLER, ANDREW SCHOLBERG,TIMOTHY MURPHY, and THE PRO-LIFEACTION LEAGUE, INC., PETITIONERS </s> 01-1118v. </s> NATIONAL ORGANIZATION FORWOMEN, INC., etal. </s> OPERATION RESCUE, PETITIONER </s> 01-1119v. </s> NATIONAL ORGANIZATION FORWOMEN, INC., etal. on writs of certiorari to the united states court ofappeals for the seventh circuit [February 26, 2003] </s> Justice Ginsburg, with whom Justice Breyer joins, concurring. </s> I join the Court's opinion, persuaded that the Seventh Circuit's decision accords undue breadth to the Racketeer Influenced and Corrupt Organizations Act (RICO or Act). As Justice Stevens recognizes, "Congress has enacted specific legislation responsive to the concerns that gave rise to these cases." Post, at 6 (dissenting opinion). In the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. §248, Congress crafted a statutory response that homes in on the problem of criminal activity at health care facilities. See ante, at 9-10, and n. 9 (noting petitioners' acknowledgment that at least some of the protesters' conduct was criminal, and observing that "[t]he crime of coercion [a separate, and lesser offense than extortion] more accurately describes the nature of petitioners' actions"). Thus, the principal effect of a decision against petitioners here would have been on other cases pursued under RICO.** </s> RICO, which empowers both prosecutors and private enforcers, imposes severe criminal penalties and hefty civil liability on those engaged in conduct within the Act's compass. See, e.g., §1963(a) (up to 20 years' imprisonment and wide-ranging forfeiture for a single criminal violation); §1964(a) (broad civil injunctive relief); §1964(c) (treble damages and attorneys' fees for private plaintiffs). It has already "evolv[ed] into something quite different from the original conception of its enactors," Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479, 500 (1985), warranting "concern[s] over the consequences of an unbridled reading of the statute," id., at 481. The Court is rightly reluctant, as I see it, to extend RICO's domain further by endorsing the expansive definition of "extortion" adopted by the Seventh Circuit. </s> JOSEPH SCHEIDLER, ANDREW SCHOLBERG,TIMOTHY MURPHY, and THE PRO-LIFEACTION LEAGUE, INC., PETITIONERS </s> 01-1118v. </s> NATIONAL ORGANIZATION FORWOMEN, INC., etal. </s> OPERATION RESCUE, PETITIONER </s> 01-1119v. </s> NATIONAL ORGANIZATION FORWOMEN, INC., etal. on writs of certiorari to the united states court ofappeals for the seventh circuit [February 26, 2003] </s> Justice Stevens, dissenting. </s> The term "extortion" as defined in the Hobbs Act refers to "the obtaining of property from another." 18 U. S.C. §1951(b)(2). The Court's murky opinion seems to hold that this phrase covers nothing more than the acquisition of tangible property. No other federal court has ever construed this statute so narrowly. </s> For decades federal judges have uniformly given the term "property" an expansive construction that encompasses the intangible right to exercise exclusive control over the lawful use of business assets. The right to serve customers or to solicit new business is thus a protected property right. The use of violence or threats of violence to persuade the owner of a business to surrender control of such an intangible right is an appropriation of control embraced by the term "obtaining." That is the commonsense reading of the statute that other federal judges have consistently and wisely embraced in numerous cases that the Court does not discuss or even cite. Recognizing this settled definition of property, as I believe one must, the conclusion that petitioners obtained this property from respondents is amply supported by the evidence in the record. </s> Because this construction of the Hobbs Act has been so uniform, I only discuss a few of the more significant cases. For example, in United States v. Tropiano, 418 F.2d 1069 (1969), the Second Circuit held that threats of physical violence to persuade the owners of a competing trash removal company to refrain from soliciting customers in certain areas violated the Hobbs Act. The court's reasoning is directly applicable to these cases: "The application of the Hobbs Act to the present facts of this case has been seriously challenged by the appellants upon the ground that the Government's evidence indicates that no 'property' was extorted and that there was no interference or attempted interference with interstate commerce. They assert that nothing more than 'the right to do business' in the Milford area was surrendered by Caron and that such a right was not 'property' 'obtained' by the appellants, as those terms are used in the Act. While they concede that rubbish removal accounts which are purchased and sold are probably property, they argue that the right to solicit business is amorphous and cannot be squared with the Congressional expression in the Act of 'obtaining property.' The Hobbs Act 'speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.' Stirone v. United States, 361 U. S. 212, 215 (1960). The concept of property under the Hobbs Act, as devolved from its legislative history and numerous decisions, is not limited to physical or tangible property or things (United States v. Provenzano, 334 F. 2d 678 (3d Cir. 1964); United States v. Nedley, 255 F. 2d 350 (3d Cir. 1958)), but includes, in a broad sense, any valuable right considered as a source or element of wealth (Bianchi v. United States, 219 F. 2d 182 (8th Cir. 1955)), and does not depend upon a direct benefit being conferred on the person who obtains the property (United States v. Green, 350 U. S. 415 (1956)). </s> "Obviously, Caron had a right to solicit business from anyone in any area without any territorial restrictions by the appellants and only by the exercise of such a right could Caron obtain customers whose accounts were admittedly valuable.... The right to pursue a lawful business including the solicitation of customers necessary to the conduct of such business has long been recognized as a property right within the protection of the Fifth and Fourteenth Amendments of the Constitution (Louis K. Ligget Co. v. Baldridge, 278 U. S. 105 (1928); cf., Duplex Printing Press Co. v. Deering, 254 U. S. 443, 465 (1921) . . . . Caron's right to solicit accounts in Milford, Connecticut constituted property within the Hobbs Act definition." Id., at 1075-1076 (some citations omitted). </s> The Tropiano case's discussion of obtaining property has been cited with approval by federal courts in virtually every circuit in the country. See, e.g., United States v. Hathaway, 534 F.2d 386, 396 (CA1 1976); United States v. Arena, 180 F.3d 380, 392 (CA2 1999); Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1350 (CA3 1989); United States v. Santoni, 585 F. 2d 667, 673 (CA4 1978); United States v. Nadaline, 471 F.2d 340, 344 (CA5 1973); United States v. Debs, 949 F.2d 199, 201 (CA6 1991); United States v. Lewis, 797 F.2d 358, 364 (CA7 1986); United States v. Zemek, 634 F. 2d 1159, 1174 (CA9 1980).1 Its interpretation of the term "property" is consistent with pre-Hobbs Act decisions of this Court, see Buchanan v. Warley, 245 U.S. 60, 74 (1917) (property "consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution"), the New York Court of Appeals, see People v. Barondess, 133 N.Y. 649, 31 N.E. 240 (1892), the California Supreme Court, People v. Cadman, 57 Cal. 562 (1881), and with our recent decision in Carpenter v. United States, 484 U.S. 19 (1987). </s> The courts that have considered the applicability of the Hobbs Act to attempts to disrupt the operations of abortion clinics have uniformly adhered to the holdings of cases like Tropiano. See, e.g., Libertad v. Welch, 53 F.3d 428, 438, n.6 (CA1 1995); Northeast Women's Center, Inc. v. McMonagle, 868 F.2d, at 1350); United States v. Anderson, 716 F.2d 446, 447-450 (CA7 1983). Judge Kearse's endorsement of the Government's position in United States v. Arena, 180 F.3d 380 (CA2 1999), followed this consistent line of cases. The jury had found that the defendants had engaged in "an overall strategy to cause abortion providers, particularly Planned Parenthood and Yoffa, to give up their property rights to engage in the business of providing abortion services for fear of future attacks." Id., at 393. Judge Kearse described how this behavior fell well within the reach of the Hobbs Act: "[P]roperty may be tangible or intangible, and the property at issue here was the intangible right to conduct business free from threats of violence and physical harm.... A perpetrator plainly may 'obtai[n]' property without receiving anything, for obtaining includes 'attain[ing] ... disposal of,' Webster's Third New International Dictionary 1559 (1976); and 'disposal' includes 'the regulation of the fate ... of something,' id. at 655. Thus, even when an extortionist has not taken possession of the property that the victim has relinquished, she has nonetheless 'obtain[ed]' that property if she has used violence to force her victim to abandon it. The fact that the target of a threat or attack may have refused to relinquish his property does not lessen the extortionist's liability under the Hobbs Act, for the Act, by its terms, also reaches attempts. See 18 U. S. C. §1951(a); McLaughlin v. Anderson, 962 F. 2d 187, 194 (2d Cir. 1992). </s> "In sum, where the property in question is the victim's right to conduct a business free from threats of violence and physical harm, a person who has committed or threatened violence or physical harm in order to induce abandonment of that right has obtained, or attempted to obtain, property within the meaning of the Hobbs Act." Id., at 394. In my opinion Judge Kearse's analysis of the issue is manifestly correct. Even if the issue were close, however, three additional considerations provide strong support for her conclusion. First, the uniform construction of the statute that has prevailed throughout the country for decades should remain the law unless and until Congress decides to amend the statute. See Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (Stevens, J., concurring); Chesapeake & Ohio R. Co. v. Schwalb, 493 U.S. 40, 51 (1989) (Stevens, J., concurring in judgment); McNally v. United States, 483 U.S. 350, 376-377 (1987) (Stevens, J., dissenting);2 Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 268-269 (1987) (Stevens, J., concurring in part and dissenting in part). Second, both this Court and all other federal courts have consistently identified the Hobbs Act as a statute that Congress intended to be given a broad construction. See, e.g., Stirone v. United States, 361 U.S. 212 (1960); United States v. Staszcuk, 517 F. 2d 53 (CA7 1975). Third, given the fact that Congress has enacted specific legislation responsive to the concerns that gave rise to these cases,3 the principal beneficiaries of the Court's dramatic retreat from the position that federal prosecutors and federal courts have maintained throughout the history of this important statute will certainly be the class of professional criminals whose conduct persuaded Congress that the public needed federal protection from extortion.4 </s> I respectfully dissent. </s> FOOTNOTESFootnote *Together with No. 01-1119, Operation Rescue v. National Organization for Women, Inc., etal., also on certiorari to the same court. FOOTNOTESFootnote 1The other petitioners include Andrew Scholberg, Timothy Murphy, and Operation Rescue. Footnote 2NOW represents a certified class of all NOW members and non-members who have used or would use the services of an abortion clinic in the United States. The two clinics, the National Women's Health Organization of Summit, Inc., and the National Women's Health Organization of Delaware, Inc., represent a class of all clinics in the United States at which abortions are provided. Footnote 3The Hobbs Act, 18 U.S.C. §1951(a), provides that "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both." Footnote 4The instruction given to the jury regarding extortion under the Hobbs Act provided that "[p]laintiffs have alleged that the defendant and others associated with PLAN committed acts that violate federal law prohibiting extortion. In order to show that extortion has been committed in violation of federal law, the plaintiffs must show that the defendant or someone else associated with PLAN knowingly, willfully, and wrongfully used actual or threatened force, violence or fear to cause women, clinic doctors, nurses or other staff, or the clinics themselves to give up a 'property right.'" Jury Instruction No. 24, App. 136. Footnote 5The Solicitor General agreed at oral argument that even if we accept the Government's view as to extortion under the Hobbs Act, the case must be remanded because the generalized jury instruction regarding federal extortion included a woman's right to seek medical services as a property right petitioners' could extort from respondents; a right he acknowledged is more accurately characterized as an individual liberty interest. See Tr. of Oral Arg. 30-31. Footnote 6Accordingly, the dissent is mistaken to suggest that our decision reaches, much less rejects, lower court decisions such as United States v. Tropiano, 418 F.2d 1069, 1076 (1969), in which the Second Circuit concluded that the intangible right to solicit refuse collection accounts "constituted property within the Hobbs Act definition." Footnote 7Representative Hobbs explicitly stated that the term extortion was "based on the New York law." 89 Cong. Rec. 3227 (1943). Footnote 8The dissent endorses the opinion of the Court of Appeals in United States v. Arena, 180 F.3d 380 (CA2 1999), to reach a more expansive definition of "obtain" than is found in the cases just cited. The Court of Appeals quoted part of a dictionary definition of the word "obtain" in Webster's Third New International Dictionary, 180 F.3d, at 394. The full text of the definition reads "to gain or attain possession or disposal of." That court then resorted to the dictionary definition of "disposal," which includes "the regulation of the fate ... of something." Surely if the rule of lenity, which we have held applicable to the Hobbs Act, see infra, at 13-14, means anything, it means that the familiar meaning of the word "obtain"--to gain possession of--should be preferred to the vague and obscure "to attain regulation of the fate of." Footnote 9"Question: But are we talking about actions that constitute the commission of some kind of criminal offense in the process? . . . . . "Mr. Englert: Oh, yes. Trespass. </s> "Question: Yes, and other things, destruction of property and so forth, I suppose. </s> "Mr. Englert: Oh, yes.... . . . . . "Question: I mean, we're not talking about conduct that is lawful here. </s> "Mr. Englert: We are not talking about extortion, but we are talking about some things that could be punished much less severely. It has never been disputed in this case ... that there were trespasses." Tr. of Oral Arg. 8-9. Footnote 10New York Penal Law §530 (1909), Coercing another person a misdemeanor, provided: "A person who with a view to compel another person to do or to abstain from doing an act which such other person has a legal right to do or to abstain from doing, wrongfully and unlawfully, </s> "1. Uses violence or inflicts injury upon such other person or his family, or a member thereof, or upon his property or threatens such violence or injury; or, </s> "2. Deprives any such person of any tool, implement or clothing or hinders him in the use thereof; or, </s> "3. Uses or attempts the intimidation of such person by threats or force, </s> "Is guilty of a misdemeanor." Footnote 11A subcommittee of the Commerce Committee, known as the Copeland Subcommittee, employed a working definition of "racketeering," which included organized conspiracies to "commit the crimes of extortion or coercion, or attempts to commit extortion or coercion, within the definition of these crimes found in the penal law of the State of New York and other jurisdictions." S.Rep. No. 1189, 75th Cong., 1st Sess., 3 (1937); United States v. Culbert, 435 U.S. 371, 375-376 (1978). Footnote 12As we reported in Culbert, supra, at 378: "Indeed, many Congressmen praised the [Hobbs Act] because it set out with more precision the conduct that was being made criminal. As Representative Hobbs noted, the words robbery and extortion 'have been construed a thousand times by the courts. Everybody knows what they mean'" (quoting 91 Cong. Rec. 11912 (1945)). Footnote 13Under the Model Penal Code §223.4, Comment 1, pp. 201-202, extortion requires that one "obtains [the] property of another" using threat as "the method employed to deprive the victim of his property." This "obtaining" is further explained as "'bring[ing] about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another.'" Id., §223.3, Comment 2, at 182, Coercion, on the other hand, is defined as making "specified categories of threats ... with the purpose of unlawfully restricting another's freedom of action to his detriment." Id., §212.5, Comment 2, at 264. FOOTNOTESFootnote **At oral argument, the Government was asked: "[D]o you agree that your interpretation would have been applicable to the civil rights sit-ins?" Tr. of Oral Arg. 25. The Solicitor General responded: "Under some circumstances, it could have if illegal force or threats were used to prevent a business from operating." Ibid. FOOTNOTESFootnote 1Indeed, the Ninth Circuit's discussion of the nature of property under the Hobbs Act illustrates just how settled this issue was in the Courts of Appeals: </s> "The concept of property under the Hobbs Act has not been limited to physical or tangible 'things.' The right to make business decisions and to solicit business free from wrongful coercion is a protected property right. See, e. g., United States v. Santoni, 585 F. 2d 667 (4th Cir. 1978) (right to make business decisions free from outside pressure wrongfully imposed); United States v. Nadaline, 471 F. 2d 340 (5th Cir.) (right to business accounts and unrealized profits) .... Cf. United States v. Hathaway, 534 F. 2d 386, 395 (1st Cir.) (rejection of narrow perception of 'property'); Battaglia v. United States, 383 F. 2d 303 (9th Cir. 1967) (right to lease space in bowling alley free from threats).... Chase's right to solicit business free from threatened destruction and physical harm falls within the scope of protected property rights under the Hobbs Act. </s> . . . . . </s> "Evidence of the previously described acts of intimidation and violence suffices. Appellants' objective was to induce Chase to give up a lucrative business. The fact that their threats were unsuccessful does not preclude conviction." United States v. Zemek, 634 F. 2d, at 1174 (some citations omitted). </s> None of the cases following United States v. Tropiano, 418 F.2d 1069 (CA2 1969), even considered the novel suggestion that this method of obtaining control of intangible property amounted to nothing more than the nonfederal misdemeanor of "coercion," see ante, at 9-10 (majority opinion); ante, at 1 (Ginsburg, J. concurring). Footnote 2Congress corrected the Court's narrow reading of the mail fraud statute in McNally by passing 18 U.S.C. §1346, which overruled McNally. See, e.g., United States v. Bortnovsky, 879 F.2d 30, 39 (CA2 1989) ("Section 1346 ... overrules McNally") Of course, Congress remains free to correct the Court's error in these cases as well. Footnote 3See Freedom of Access to Clinic Entrances Act of 1994, 108 Stat. 694. Footnote 4The concern expressed by Justice Ginsburg, ante, at 1, is misguided because an affirmance in these cases would not expand the coverage of the Racketeer Influenced and Corrupt Organizations Act but would preserve the Federal Government's ability to bring criminal prosecutions for violent conduct that was, until today, prohibited by the Hobbs Act.

United States Supreme Court SMITH v. UNITED STATES(1977) No. 75-1439 Argued: December 8, 1976Decided: May 23, 1977 </s> Petitioner, who had been indicted in the Southern District of Iowa for mailing obscene materials in violation of 18 U.S.C. 1461, unavailingly sought to propound questions to the jury panel on voir dire relating to the panel members' knowledge of the contemporary community standards in that District with regard to the depiction of sex and nudity. The case proceeded to trial and at the close of the Government's case and later, petitioner unsuccessfully moved for a directed verdict of acquittal on the grounds, inter alia, that the Iowa obscenity statute in effect at the time of petitioner's conduct, which proscribed only the dissemination of obscene materials to minors, set forth the applicable community standard, and that the prosecution had not proved that the materials at issue had offended that standard. Petitioner was convicted. The Court of Appeals affirmed, concluding (1) that petitioner's proposed community standards questions were impermissible since they concerned the ultimate question of guilt or innocence rather than juror qualifications, and (2) that the issue of offense to contemporary community standards was a federal question and was not to be determined on the basis of the state obscenity law. Held: </s> 1. State law cannot define the contemporary community standards for appeal to the prurient interest and patent offensiveness that under Miller v. California, 413 U.S. 15 , are applied in determining whether or not material is obscene, and the Iowa obscenity statute is therefore not conclusive as to those standards. In federal prosecutions, such as this for violation of 1461, those issues are fact questions for the jury, to be judged in light of its understanding of contemporary community standards. Pp. 229-308. </s> (a) Though state legislatures are not completely foreclosed from setting substantive limitations for obscenity cases, they cannot declare what community standards shall be, any more than they could undertake to define "reasonableness." Cf. Hamling v. United States, 418 U.S. 87, 104 -105. Pp. 301-303. </s> (b) The community standards aspects of 1461 implicate federal, not state, law. It is not material that the mailings here were solely intrastate, since 1461 was enacted under Congress' constitutional postal power, not the commerce power. Pp. 303-305. [431 U.S. 291, 292] </s> (c) Obscenity convictions remain reviewable on various grounds. Pp. 305-306. </s> (d) This Court's holding that the Iowa statute (which was properly admitted into evidence) is not conclusive on the issue of contemporary community standards does not nullify state law, but a State's right not to regulate in the obscenity field cannot correlatively compel the Federal Government to allow the mails to be used to send obscene materials into that State. Pp. 306-307. </s> 2. The District Court did not abuse its discretion in refusing to ask the questions tendered by petitioner for voir dire about the jurors' understanding of community standards, which were no more appropriate than a request for a description of the meaning of "reasonableness" would have been. P. 308. </s> 3. Section 1461 is not unconstitutionally vague as applied here since the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Cf. Hamling v. United States, supra. Pp. 308-309. </s> Affirmed. </s> BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 309. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 310. STEVENS, J., filed a dissenting opinion, post, p. 311. </s> Tefft W. Smith argued the cause and filed briefs for petitioner. </s> Howard E. Shapiro argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Jerome M. Feit. * </s> [Footnote * Briefs of amici curiae urging reversal were filed by William D. North for the American Library Assn. et al.; and by Henry R. Kaufman and Ira M. Millstein for the Association of American Publishers, Inc., et al. Charles H. Keating, Jr., and James J. Clancy filed a brief for Citizens for Decency Through Law, Inc., as amicus curiae urging affirmance. </s> MR. JUSTICE BLACKMUN delivered the opinion of the Court. </s> In Miller v. California, 413 U.S. 15 (1973), this Court rejected a plea for a uniform national standard as to what [431 U.S. 291, 293] appeals to the prurient interest and as to what is patently offensive; the Court held, instead, that these essentially were questions of fact to be measured by contemporary standards of the community. Id., at 30-34. The instant case presents the issue of the constitutional effect of state law that leaves unregulated the distribution of obscene material to adults, on the determination of contemporary community standards in a prosecution under 18 U.S.C. 1461 for a mailing that is wholly intrastate. The case also raises the question whether 1461 is unconstitutionally vague as applied in these circumstances, and the question whether the trial court, during the voir dire of prospective jurors, correctly refused to ask proffered questions relating to community standards. </s> I </s> Between February and October 1974 petitioner, Jerry Lee Smith, knowingly caused to be mailed various materials from Des Moines, Iowa, to post office box addresses in Mount Ayr and Guthrie Center, two communities in southern Iowa. This was done at the written request of postal inspectors using fictitious names. The materials so mailed were delivered through the United States postal system to the respective postmasters serving the addresses. The mailings consisted of (1) issues of "Intrigue" magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled "Lovelace," depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse; and (3) a film entitled "Terrorized Virgin," depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse. </s> II </s> For many years prior to 1974 the statutes of Iowa made it a misdemeanor to sell or offer to sell or to give away "any obscene, lewd, indecent, lascivious, or filthy book, pamphlet, [431 U.S. 291, 294] paper, . . . picture, photograph, writing . . ." or to deposit in any post office within Iowa any article of that kind. Iowa Code 725.5 and 725.6 (1973). </s> In 1973, however, the Supreme Court of Iowa, in response to the standards enunciated in Miller v. California, supra, unanimously held that a related and companion Iowa statute, 725.3 of the 1973 Code, prohibiting the presentation of any obscene or immoral drama, play, exhibition, or entertainment, was unconstitutionally vague and overbroad. State v. Wedelstedt, 213 N. W. 2d 652. 1 Wedelstedt, at least by implication - and we so assume - invalidated 725.5 and 725.6 as well. </s> On July 1, 1974, Laws of Iowa 1974, cc. 1267 and 1268, became effective. These specifically repealed 725.3, 725.5, and 725.6 of the 1973 Code. In addition, however, c. 1267 (thereafter codified as the first 10 sections of c. 725 of the 1975 Iowa Code) defined, among other things, "obscene material," and made it "a public offense" to disseminate obscene material to minors (defined as persons "under the age of eighteen"). Dissemination of obscene material to adults was not made criminal or even proscribed. Section 9 2 of c. 1267 (now 725.9 of the 1975 Code) insured that the law would be applied uniformly throughout the State, and that no lesser [431 U.S. 291, 295] governmental unit would impose more stringent regulations on obscene material. </s> In 1976, the Iowa Legislature enacted a "complete revision" of the State's "substantive criminal laws." This is entitled the "Iowa Criminal Code" and is generally effective January 1, 1978. The existing definition of "obscene material" remains unchanged, but a new provision, 2804 of the Criminal Code, Iowa Code Ann. (Spec. Pamphlet 1977), although limited in scope, applies by its terms to adults. It reads: </s> "Any person who knowingly sells or offers for sale material depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality which the average adult taking the material as a whole in applying contemporary community standards would find that it appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value shall, upon conviction be guilty of a simple misdemeanor." </s> In summary, therefore, we have in Iowa (1) until 1973 state statutes that proscribed generally the dissemination of obscene writings and pictures; (2) the judicial nullification of some of those statutory provisions in that year for reasons of overbreadth and vagueness; (3) the enactment, effective July 1, 1974, of replacement obscenity statutes restricted in their application to dissemination to minors; and (4) the enactment in 1976 of a new Code, effective in 1978, with obscenity provisions, somewhat limited in scope, but not restricted in application to dissemination to minors. </s> Petitioner's mailings, described above and forming the basis of his federal prosecution, took place in 1974, after the theretofore existing Iowa statutes relating to obscene material had been nullified by Wedelstedt, but obviously before the 1976 legislation imposing misdemeanor liability with respect to certain transactions with adults becomes effective. Because [431 U.S. 291, 296] there is no contention that the materials petitioner mailed went to any minor, the 1974 legislation has no application to his case. And the 1976 legislation, of course, has no effect on petitioner's criminal liability. Cf. Marks v. United States, 430 U.S. 188 (1977). </s> Thus, what petitioner did clearly was not a violation of state law at the time he did it. It is to be observed, also, that there is no suggestion that petitioner's mailings went to any nonconsenting adult or that they were interstate. </s> III </s> Petitioner was indicted on seven counts of violating 18 U.S.C. 1461, which prohibits the mailing of obscene materials. 3 He pleaded not guilty. At the start of his trial petitioner proposed and submitted six questions for voir dire. 4 </s> [431 U.S. 291, 297] </s> The court accepted in substance and utilized the first question; this was designed to reveal whether any juror was connected with an organization devoted to regulating or banning obscene materials. The court declined to ask the other five. One of the questions made inquiry as to whether the jurors had any knowledge of contemporary community standards in the Southern District of Iowa with regard to the depiction of sex and nudity. Two sought to isolate the source of the jurors' knowledge and their understanding of those standards. The remaining two would have explored the jurors' knowledge of Iowa law on the subject. </s> At the trial the Government introduced into evidence the actual materials covered by the indictment. It offered nothing else on the issue of obscenity vel non. Petitioner did not testify. Instead, in defense, he introduced numerous sexually explicit materials that were available for purchase at "adult" bookstores in Des Moines and Davenport, Iowa, several advertisements from the Des Moines Register and Tribune, and a copy of what was then c. 725 of the Iowa Code, prohibiting the dissemination of "obscene material" only to minors. At the close of the Government's case, and again at the close of all the evidence, petitioner moved for a directed verdict of acquittal on the grounds, inter alia, that the Iowa obscenity statute, proscribing only the dissemination of obscene materials to minors, set forth the applicable community standard, and that the prosecution had not proved that the materials at issue offended that standard. </s> The District Court denied those motions and submitted the case to the jury. The court instructed the jury that contemporary community standards were set by what is in fact [431 U.S. 291, 298] accepted in the community as a whole. In making that determination, the jurors were entitled to draw on their own knowledge of the views of the average person in the community as well as the evidence presented as to the state law on obscenity and as to materials available for purchase. App. 22-23. </s> The jury found petitioner guilty on all seven counts. He was sentenced to concurrent three-year terms of imprisonment, all but three months of which were suspended, and three years' probation. </s> In his motion for a new trial, petitioner again asserted that Iowa law defined the community standard in a 1461 prosecution. In denying this motion, the District Court held that 1461 was "a federal law which neither incorporates nor depends upon the laws of the states," App. 33; the federal policy was simply different in this area. Furthermore, the court observed, Iowa's decision not to regulate distribution of obscene material did not mean that the people of Iowa necessarily "approve[d] of the permitted conduct," ibid.; whether they did was a question of fact for the jury. The court rejected petitioner's argument that it was error not to ask the jurors the question about the extent of their knowledge of contemporary community standards. It held that the jurors were entitled to draw on their own knowledge; voir dire on community standards would be no more appropriate than voir dire on the jurors' concept of "reasonableness." The court refused to hold that the Government was required to introduce evidence on a community standard in order to sustain its burden of proof. The materials introduced "can and do speak for themselves." Id., at 34. The court did not address petitioner's vagueness point. 5 </s> The United States Court of Appeals for the Eighth Circuit, [431 U.S. 291, 299] by per curiam opinion, agreed with the District Court that the questions submitted by petitioner on community standards, except for the first, were impermissible, since they concerned the ultimate question of guilt or innocence rather than juror qualification. The court noted, however, that it was not holding that no questions whatsoever could be asked in that area. With respect to the effect of state law, the court held that the issue of offense to contemporary community standards was a federal question, and was to be determined by the jury in a federal prosecution. The court noted the admission of Iowa's obscenity statute into evidence but stated that this was designed to give the jury knowledge of the State's policy on obscenity when it determined the contemporary community standard. The state policy was not controlling, since the determination was for the jury. The conviction, therefore, was affirmed. </s> We granted certiorari in order to review the relationship between state legislation regulating or refusing to regulate the distribution of obscene material, and the determination of contemporary community standards in a federal prosecution. 426 U.S. 946 (1976). </s> IV </s> The "basic guidelines" for the trier of fact in a state obscenity prosecution were set out in Miller v. California in the form of a three-part test: </s> "(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 413 U.S., at 24 (citations omitted). </s> In two companion cases, the Court held that the Miller standards were equally applicable to federal legislation. United [431 U.S. 291, 300] States v. 12 200-ft. Reels of Film, 413 U.S. 123, 129 -130 (1973) (importation of obscene material, 19 U.S.C. 1305 (a)); United States v. Orito, 413 U.S. 139, 145 (1973) (movement of obscene material in interstate commerce, 18 U.S.C. 1462). In Hamling v. United States, 418 U.S. 87 (1974), it held, specifically, that the Miller standards applied in a 1461 prosecution. </s> The phrasing of the Miller test makes clear that contemporary community standards take on meaning only when they are considered with reference to the underlying questions of fact that must be resolved in an obscenity case. 6 The test [431 U.S. 291, 301] itself shows that appeal to the prurient interest is one such question of fact for the jury to resolve. The Miller opinion indicates that patent offensiveness is to be treated in the same way. 413 U.S., at 26 , 30. See Hamling v. United States, 418 U.S., at 104 -105. 7 The fact that the jury must measure patent offensiveness against contemporary community standards does not mean, however, that juror discretion in this area is to go unchecked. Both in Hamling and in Jenkins v. Georgia, 418 U.S. 153 (1974), the Court noted that part (b) of the Miller test contained a substantive component as well. The kinds of conduct that a jury would be permitted to label as "patently offensive" in a 1461 prosecution are the "hard core" types of conduct suggested by the examples given in Miller. 8 See Hamling v. United States, 418 U.S., at 114 ; cf. Jenkins v. Georgia, 418 U.S., at 160 -161. Literary, artistic, political, or scientific value, on the other hand, is not discussed in Miller in terms of contemporary community standards. See generally F. Schauer, The Law of Obscenity 123-124 (1976). </s> The issue we must resolve is whether the jury's discretion to determine what appeals to the prurient interest and what is patently offensive is circumscribed in any way by a state statute such as c. 725 of the Iowa Code. Put another way, [431 U.S. 291, 302] we must decide whether the jury is entitled to rely on its own knowledge of community standards, or whether a state legislature (or a smaller legislative body) may declare what the community standards shall be, and, if such a declaration has been made, whether it is binding in a federal prosecution under 1461. </s> Obviously, a state legislature would not be able to define contemporary community standards in a vacuum. Rather, community standards simply provide the measure against which the jury decides the questions of appeal to prurient interest and patent offensiveness. In Hamling v. United States, the Court recognized the close analogy between the function of "contemporary community standards" in obscenity cases and "reasonableness" in other cases: </s> "A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a `reasonable' person in other areas of the law." 418 U.S., at 104 -105. </s> It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition of reasonableness as it would be for a legislature to try to define the contemporary community standard of appeal to prurient interest or patent offensiveness, if it were even possible for such a definition to be formulated. </s> This is not to say that state legislatures are completely foreclosed from enacting laws setting substantive limitations for obscenity cases. On the contrary, we have indicated on several occasions that legislation of this kind is permissible. See Hamling v. United States, 418 U.S., at 114 ; Miller v. California, 413 U.S., at 25 . State legislation must still define the kinds of conduct that will be regulated by the State. For example, the Iowa law in effect at the time this prosecution was instituted was to the effect that no conduct aimed at [431 U.S. 291, 303] adults was regulated. 9 At the other extreme, a State might seek to regulate all the hard-core pornography that it constitutionally could. The new Iowa law, which will regulate only material "depicting a sex act involving sado-masochistic abuse, excretory functions, a child, or bestiality," provides an example of an intermediate approach. Iowa Criminal Code 2804. </s> If a State wished to adopt a slightly different approach to obscenity regulation, it might impose a geographic limit on the determination of community standards by defining the area from which the jury could be selected in an obscenity case, or by legislating with respect to the instructions that must be given to the jurors in such cases. In addition, the State might add a geographic dimension to its regulation of obscenity through the device of zoning laws. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). It is evident that ample room is left for state legislation even though the question of the community standard to apply, when appeal to prurient interest and patent offensiveness are considered, is not one that can be defined legislatively. </s> An even stronger reason for holding that a state law regulating distribution of obscene material cannot define contemporary community standards in the case before us is the simple fact that this is a federal prosecution under 1461. The Court already has held, in Hamling, that the substantive conduct encompassed by 1461 is confined to "the sort of `patently offensive representations or descriptions of that specific "hard core" sexual conduct given as examples in Miller v. California.'" 418 U.S., at 114 . The community standards aspects of 1461 likewise present issues of federal law, upon which a state statute such as Iowa's cannot have conclusive [431 U.S. 291, 304] effect. 10 The kinds of instructions that should be given to the jury are likewise a federal question. For example, the Court has held that 1461 embodies a requirement that local rather than national standards should be applied. 11 Hamling v. United States, supra. Similarly, obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant. Hamling v. United States, supra; Miller v. California, supra; Roth v. United States, 354 U.S. 476 (1957). Both of these substantive limitations are passed on to the jury in the form of instructions. [431 U.S. 291, 305] </s> The fact that the mailings in this case were wholly intrastate is immaterial for a prosecution under 1461. That statute was one enacted under Congress' postal power, granted in Art. I, 8, cl. 7, of the Constitution, and the Postal Power Clause does not distinguish between interstate and intrastate matters. This Court consistently has upheld Congress' exercise of that power to exclude from the mails materials that are judged to be obscene. See, e. g., Ex parte Jackson, 96 U.S. 727, 736 (1878); Public Clearing House v. Coyne, 194 U.S. 497, 507 -508 (1904) (power to exclude from the mail "information of a character calculated to debauch the public morality"); Roth v. United States, supra; United States v. Reidel, 402 U.S. 351 (1971). See also In re Rapier, 143 U.S. 110 (1892). 12 </s> Our decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewable. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority. See Miller v. California, 413 U.S., at 30 . The type of conduct depicted must fall within the substantive limitations suggested in Miller and adopted in Hamling with respect to 1461. Cf. Jenkins v. Georgia, 418 U.S. 153 (1974). The work also must lack serious literary, artistic, political, or scientific value before a conviction will be upheld; this determination is particularly amenable to appellate review. Finally, it [431 U.S. 291, 306] is always appropriate for the appellate court to review the sufficiency of the evidence. Cf. Ginzburg v. United States, 383 U.S. 463 (1966). </s> Petitioner argues that a decision to ignore the Iowa law will have the practical effect of nullifying that law. We do not agree. In the first place, the significance of Iowa's decision in 1974 not to regulate the distribution of obscene materials to adults is open to question. Iowa may have decided that the resources of its prosecutors' offices should be devoted to matters deemed to have greater priority than the enforcement of obscenity statutes. Such a decision would not mean that Iowa affirmatively desired free distribution of those materials; on the contrary, it would be consistent with a hope or expectation on the State's part that the Federal Government's prosecutions under statutes such as 1461 would be sufficient for the State's purposes. The State might also view distribution over the counter as different from distribution through the mails. It might conclude that it is easier to keep obscene materials out of the hands of minors and unconsenting adults in retail establishments than it is when a letter or package arrives at a private residence. Furthermore, the history of the Iowa law suggests that the State may have left distribution to consenting adults unregulated simply because it was not then able to arrive at a compromise statute for the regulation of obscenity. </s> Arguments similar to petitioner's "nullification" thesis were made in cases that followed Stanley v. Georgia, 394 U.S. 557 (1969). In United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), the question was whether the United States constitutionally might prohibit the importation of obscene material that was intended solely for private, personal use and possession. See 19 U.S.C. 1305 (a). Stanley had upheld the individual's right to possess obscene material in the home, and the argument was made that this right would be virtually meaningless if the Government could prevent importation [431 U.S. 291, 307] of, and hence access to, the obscene material. 413 U.S., at 126 -127. The Court held that Stanley had been based on the privacy of the home, and that it represented a considered line of demarcation in the obscenity area. Id., at 127. Consequently, despite the incidental effect that the importation prohibition had on the privacy right to possess obscene material in the home, the Court upheld the statute. A similar result was reached, in the face of similar argument, in United States v. Orito, 413 U.S. 139 (1973). There, 18 U.S.C. 1462, the statute prohibiting knowing transportation of obscene material in interstate commerce, was at issue. The Court held that Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home. 413 U.S., at 141 . See also United States v. Reidel, supra. </s> In this case, petitioner argues that the Court has recognized the right of States to adopt a laissez-faire attitude toward regulation of pornography, and that a holding that 1461 permits a federal prosecution will render the States' right meaningless. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 64 (1973); United States v. Reidel, 402 U.S., at 357 . Just as the individual's right to possess obscene material in the privacy of his home, however, did not create a correlative right to receive, transport, or distribute the material, the State's right to abolish all regulation of obscene material does not create a correlative right to force the Federal Government to allow the mails or the channels of interstate or foreign commerce to be used for the purpose of sending obscene material into the permissive State. </s> Even though the State's law is not conclusive with regard to the attitudes of the local community on obscenity, nothing we have said is designed to imply that the Iowa statute should not have been introduced into evidence at petitioner's trial. On the contrary, the local statute on obscenity provides relevant [431 U.S. 291, 308] evidence of the mores of the community whose legislative body enacted the law. It is quite appropriate, therefore, for the jury to be told of the law and to give such weight to the expression of the State's policy on distribution as the jury feels it deserves. We hold only that the Iowa statute is not conclusive as to the issues of contemporary community standards for appeal to the prurient interest and patent offensiveness. Those are questions for the jury to decide, in its traditional role as factfinder. United States v. Danley, 523 F.2d 369 (CA9 1975), cert. denied, 424 U.S. 929 (1976). </s> V </s> A. We also reject petitioner's arguments that the prospective jurors should have been asked about their understanding of Iowa's community standards and Iowa law, and that 1461 was unconstitutionally vague as applied to him. The particular inquiries requested by petitioner would not have elicited useful information about the jurors' qualifications to apply contemporary community standards in an objective way. A request for the jurors' description of their understanding of community standards would have been no more appropriate than a request for a description of the meaning of "reasonableness." Neither term lends itself to precise definition. This is not to preclude other more specific and less conclusory questions for voir dire. For example, it might be helpful to know how long a juror has been a member of the community, how heavily the juror has been involved in the community, and with what organizations having an interest in the regulation of obscenity the juror has been affiliated. The propriety of a particular question is a decision for the trial court to make in the first instance. In this case, however, we cannot say that the District Court abused its discretion in refusing to ask the specific questions tendered by petitioner. </s> B. Neither do we find 1461 unconstitutionally vague as applied here. Our construction of the statute flows directly [431 U.S. 291, 309] from the decisions in Hamling, Miller, Reidel, and Roth. As construed in Hamling, the type of conduct covered by the statute can be ascertained with sufficient ease to avoid due process pitfalls. Similarly, the possibility that different juries might reach different conclusions as to the same material does not render the statute unconstitutional. Roth v. United States, 354 U.S., at 492 n. 30; Miller v. California, 413 U.S., at 26 n. 9. We find no vagueness defect in the statute attributable to the fact that federal policy with regard to distribution of obscene material through the mail was different from Iowa policy with regard to the intrastate sale of like material. </s> VI </s> Since the Iowa law on obscenity was introduced into evidence, and the jurors were told that they could consider it as evidence of the community standard, petitioner received everything to which he was entitled. To go further, and to make the state law conclusive on the issues of appeal to prurient interest and patent offensiveness, in a federal prosecution under 1461, would be inconsistent with our prior cases. We hold that those issues are fact questions for the jury, to be judged in light of the jurors' understanding of contemporary community standards. We also hold that 1461 is not unconstitutionally vague as so applied, and that petitioner's proposed voir dire questions were not improperly refused. </s> The judgment of the Court of Appeals is affirmed. </s> It is so ordered. </s> Footnotes [Footnote 1 See also State ex rel. Faches v. N. D. D., Inc., 228 N. W. 2d 191 (Iowa 1975) (State cannot enjoin the showing of certain movies under a statute relating to the use of premises "for the purpose of lewdness," when "lewdness" is not statutorily defined). </s> [Footnote 2 "SEC. 9. . . . In order to provide for the uniform application of the provisions of this Act relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this Act, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials. All such laws, ordinances or regulations, whether enacted before or after this Act, shall be or become void, unenforceable and of no effect upon the effective date of this Act" (July 1, 1974). </s> [Footnote 3 Section 1461 provides, in relevant part: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; . . . . . . . . "Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. "Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section . . . to be non-mailable, or knowingly causes to be delivered by mail according to the direction thereon . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter." </s> [Footnote 4 Petitioner's proposed questions were: "1. Are any members of the panel a member of or are in sympathy with any organization which has for its purpose the regulating or banning of alleged obscene materials? "2. Will those jurors raise their hands who have any knowledge of the contemporary community standards existing in this federal judicial district relative to the depiction of sex and nudity in magazines and books? "(The following individual questions are requested for each juror who answers the above question in the affirmative.) [431 U.S. 291, 297] "3. Where did you acquire such information? "4. State what your understanding of those contemporary community standards are? "5. In arriving at this understanding, did you take into consideration the laws of the State of Iowa which regulate obscenity? "6. State what your understanding of those laws are?" App. 8. </s> [Footnote 5 Despite the District Court's failure to discuss this point, we are satisfied that petitioner adequately preserved it for appellate review. See § 7 of his motion for a new trial. App. 30. </s> [Footnote 6 The phrase "contemporary community standards" was first used in Roth v. United States, 354 U.S. 476 (1957). See generally F. Schauer, The Law of Obscenity 116-135 (1976). The Roth Court explained the derivation and importance of the community standards test as follows: "The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin, 1868. L. R. 3 Q. B. 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity." 354 U.S., at 488 -489 (footnotes omitted). Although expressions in opinions vacillated somewhat before coming to the position that a national community standard was not constitutionally mandated, compare Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 , and n. 10 (1962) (opinion of Harlan, J.), and Jacobellis v. Ohio, 378 U.S. 184, 195 (1964) (opinion of BRENNAN, J.), with Miller v. California, 413 U.S., at 30 , the Court has never varied from the Roth position that the community as a whole should be the judge of obscenity, and not a small, atypical segment of the community. The only exception to this rule that has been recognized is for material aimed at a clearly defined deviant sexual group. Mishkin v. New York, 383 U.S. 502, 508 (1966). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n. 6 (1973). </s> [Footnote 7 See also Jacobellis v. Ohio, 378 U.S., at 191 -192 (opinion of BRENNAN, J.); Roth v. United States, 354 U.S., at 487 n. 20; United States v. Kennerley, 209 F. 119, 121 (SDNY 1913) (L. Hand, J.) (obscenity should be determined in accordance with the "present critical point in the compromise between candor and shame at which the community may have arrived here and now"). Cf. Manual Enterprises, Inc. v. Day, 370 U.S., at 486 (opinion of Harlan, J.) (usually the elements of prurient interest and patent offensiveness will coalesce for this kind of material). </s> [Footnote 8 The Court in Miller gave two "plain examples" of what a state statute could define for regulation: "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. "(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." 413 U.S., at 25 . </s> [Footnote 9 See also Paris Adult Theatre I v. Slaton, 413 U.S., at 64 (the States are free to adopt a "laissez-faire" policy "and drop all controls on commercialized obscenity, if that is what they prefer"); United States v. Reidel, 402 U.S. 351, 357 (1971) (nonregulation of obscenity for adults "may prove to be the desirable and eventual legislative course"). </s> [Footnote 10 The language of 1461 gives no indication that Congress intended to adopt state laws relating to distribution of obscene material for purposes of the federal statute, nor does its history. See n. 12, infra. Furthermore, none of the usual reasons advanced in favor of such adoption are present here. The regulation of the mails is a matter of particular federal concern, and the nationwide character of the postal system argues in favor of a nationally uniform construction of 1461. The Constitution itself recognizes this fact, in the specific grant to Congress of power over the postal system. Art. I, 8, cl. 7. Obscenity in general has been a matter of both national and local concern. To the extent that local concern is relevant, however, the jurors' application of contemporary community standards fully satisfies that interest. Finally, to the extent that the state law and the federal law conflict, traditional principles of federal supremacy require us to follow the federal policy. See Clearfield Trust Co. v. United States, 318 U.S. 363 (1943); United States v. Standard Oil Co., 332 U.S. 301 (1947); DeSylva v. Ballentine, 351 U.S. 570 (1956); United States v. Little Lake Misere Land Co., 412 U.S. 580 (1973). See generally Comment, Adopting State Law as the Federal Rule of Decision: A Proposed Test, 43 U. Chi. L. Rev. 823 (1976). We therefore decline petitioner's invitation to adopt state law relating to distribution for purposes of the federal statute regulating use of the mails. </s> [Footnote 11 It is to be noted that Miller held only that the States could not be compelled to adopt a national standard. 413 U.S., at 30 . If a state legislature decided that it wanted a national community standard for purposes of instructing state juries, or if Congress amended the federal legislation in such a way as to require reference to a national standard, a different question would be presented. We express no view upon any such question. </s> [Footnote 12 For a detailed summary of the history of 1461, see generally Manual Enterprises, Inc. v. Day, 370 U.S., at 500 -511 (opinion of BRENNAN, J.); Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009, 1010-1011, n. 2 (1962); Paul, The Post Office and Non-Mailability of Obscenity: An Historical Note, 8 UCLA L. Rev. 44 (1961); Schauer, supra, n. 6, at 8-29. </s> MR. JUSTICE POWELL, concurring. </s> I join the Court's opinion and write to express my understanding of the relative narrowness of the questions presented. </s> At the time petitioner engaged in the conduct at issue here, Iowa law placed no limits on the distribution of obscene materials to adults. If Iowa law governs in this federal [431 U.S. 291, 310] prosecution, petitioner's conviction must be reversed. Our decision therefore turns on the answers to two questions, one requiring interpretation of a federal statute, the other calling for application of the constitutional standards announced in Miller v. California, 413 U.S. 15 (1973). </s> The first question, easily answered, is whether Congress intended to incorporate state obscenity statutes into 18 U.S.C. 1461. I agree with the Court's opinion, ante, at 303-304, and n. 10, that no such intent existed. </s> The federal statute goes to the constitutional limit, reaching all pornographic materials not protected under the First Amendment. See Marks v. United States, 430 U.S. 188, 195 (1977). Under Miller local community standards play an important role in defining that limit. The second question, therefore, is whether "community standards," as that concept is used in Miller, necessarily follow changes in a State's statutory law. Again, I agree with the Court's conclusion that they do not. A community may still judge that materials are patently offensive and that they appeal to the prurient interest even though its legislature has chosen, for whatever reason, not to apply state criminal sanctions to those who distribute them. The state statute is relevant evidence of evolving community standards, and it was properly brought to the attention of the jury here. But it is not controlling in a prosecution under federal law. </s> I emphasize, however, that this case presents no question concerning the limits on a State's power to design its obscenity statutes as it sees fit or to define community standards as it chooses for purposes of applying its own laws. Within the boundaries staked out by Miller, the States retain broad latitude in this respect. </s> MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. </s> Petitioner was convicted after a jury trial in the United States District Court for the Southern District of Iowa of [431 U.S. 291, 311] mailing obscene material in violation of 18 U.S.C. 1461. The Court of Appeals for the Eighth Circuit affirmed. </s> I would reverse. I have previously stated my view that this statute is "`clearly overbroad and unconstitutional on its face,'" see, e. g., Millican v. United States, 418 U.S. 947, 948 (1974) (dissenting from denial of certiorari), quoting United States v. Orito, 413 U.S. 139, 148 (1973) (dissenting opinion). </s> MR. JUSTICE STEVENS, dissenting. </s> Petitioner has been sentenced to prison for violating a federal statute enacted in 1873. 1 In response to a request, he mailed certain pictures and writings from one place in Iowa to another. The transaction itself offended no one 2 and violated no Iowa law. Nevertheless, because the materials proved "offensive" to third parties who were not intended to see them, a federal crime was committed. </s> Although the Court's affirmance of this conviction represents a logical extension of recent developments in this area of the law, it sharply points up the need for a principled re-examination of the premises on which it rests. Because so much has already been written in this area. I shall merely endeavor to identify certain weaknesses in the Court's "offensiveness" touchstone 3 and then to explain why I believe [431 U.S. 291, 312] criminal prosecutions are an unacceptable method of abating a public nuisance which is entitled to at least a modicum of First Amendment protection. </s> I </s> A federal statute defining a criminal offense should prescribe a uniform standard applicable throughout the country. This proposition is so obvious that it was not even questioned during the first 90 years of enforcement of the Comstock Act under which petitioner was prosecuted. 4 When the reach of the statute is limited by a constitutional provision, it is even more certain that national uniformity is appropriate. 5 Nevertheless, in 1963, when Mr. Chief Justice Warren concluded that [431 U.S. 291, 313] a national standard for judging obscenity was not provable, he suggested the substitution of community standards as an acceptable alternative. 6 He thereby planted the seed which eventually blossomed into holdings such as Miller, 7 Hamling, 8 and today's pronouncement that the relevant standard "is not one than can be defined legislatively." Ante, at 303. </s> The conclusion that a uniformly administered national standard is incapable of definition or administration is an insufficient reason for authorizing the federal courts to engage in ad hoc adjudication of criminal cases. Quite the contrary, it is a reason for questioning the suitability of criminal prosecution as the mechanism for regulating the distribution of erotic material. </s> The most significant reasons for the failure to define a national standard for obscenity apply with equal force to the use of local standards. Even the most articulate craftsman finds it easier to rely on subjective reaction rather than concrete descriptive criteria as a primary definitional source. 9 The diversity within the Nation which makes a single standard of offensiveness impossible to identify is also present within each of the so-called local communities in which litigation of this [431 U.S. 291, 314] kind is prosecuted. 10 Indeed, in Miller itself, the jury was asked to apply the contemporary community standard of California. A more culturally diverse State of the Union hardly can exist, and yet its standard for judging obscenity was assumed to be more readily ascertainable than a national standard. </s> Indeed, in some ways the community standard concept is even more objectionable than a national standard. As we have seen in prior cases, the geographic boundaries of the relevant community are not easily defined, and sometimes appear to be subject to elastic adjustment to suit the needs of the [431 U.S. 291, 315] prosecutor. 11 Moreover, although a substantial body of evidence and decisional law concerning the content of a national standard could have evolved through its consistent use, the derivation of the relevant community standard for each of our countless communities is necessarily dependent on the perceptions of the individuals who happen to compose the jury in a given case. </s> The question of offensiveness to community standards, whether national or local, is not one that the average juror can be expected to answer with evenhanded consistency. The average juror may well have one reaction to sexually oriented materials in a completely private setting and an entirely different reaction in a social context. Studies have shown that an opinion held by a large majority of a group concerning a neutral and objective subject has a significant impact in distorting the perceptions of group members who would normally take a different position. 12 Since obscenity is by no means a neutral subject, and since the ascertainment of a community standard is such a subjective task, the expression of individual jurors' sentiments will inevitably influence the perceptions of other jurors, particularly those who would normally be in the minority. 13 Moreover, because the record [431 U.S. 291, 316] never discloses the obscenity standards which the jurors actually apply, their decisions in these cases are effectively unreviewable by an appellate court. 14 In the final analysis, the guilt or innocence of a criminal defendant in an obscenity trial is determined primarily by individual jurors' subjective reactions to the materials in question rather than by the predictable application of rules of law. </s> This conclusion is especially troubling because the same image - whether created by words, sounds, or pictures - may produce such a wide variety of reactions. As Mr. Justice Harlan noted: "[It is] often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because government officials [or jurors] cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." Cohen v. California, 403 U.S. 15, 25 . In my judgment, the line between communications which "offend" and those which do not is too blurred to identify criminal conduct. It is also too blurred to delimit the protections of the First Amendment. [431 U.S. 291, 317] </s> II </s> Although the variable nature of a standard dependent on local community attitudes is critically defective when used to define a federal crime, that very flexibility is a desirable feature of a civil rule designed to protect the individual's right to select the kind of environment in which he wants to live. </s> In his dissent in Jacobellis v. Ohio, 378 U.S. 184 , Mr. Chief Justice Warren reminded us that obscene material "may be proscribed in a number of ways," id., at 201, and that a lesser standard of review is required in civil cases than in criminal. Moreover, he identified a third dimension in the obscenity determination that is ignored in the Court's current formulation of the standard: </s> "In my opinion, the use to which various materials are put - not just the words and pictures themselves - must be considered in determining whether or not the materials are obscene. A technical or legal treatise on pornography may well be inoffensive under most circumstances but, at the same time. `obscene' in the extreme when sold or displayed to children." Ibid. (footnote omitted). </s> The standard now applied by the Court focuses its attention on the content of the materials and their impact on the average person in the community. But that impact is not a constant; it may vary widely with the use to which the materials are put. As Mr. Justice Sutherland wrote in a different context, a "nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard." 15 Whether a pig or a picture is offensive is a question that cannot be answered in the abstract. </s> In Roth v. United States, 354 U.S. 476, 485 , the Court held "that obscenity is not within the area of constitutionally protected speech or press." That holding rests, in part, on [431 U.S. 291, 318] the assumed premise that all communications within the protected area are equally immune from governmental restraint, whereas those outside that area are utterly without social value and, hence, deserving of no protection. Last Term the Court expressly rejected that premise. Young v. American Mini Theatres, Inc., 427 U.S. 50, 66 -71; Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 771 -773. The fact that speech is protected by the First Amendment does not mean that it is wholly immune from state regulation. Although offensive or misleading statements in a political oration cannot be censored, offensive language in a courtroom 16 or misleading representations in a securities prospectus may surely be regulated. Nuisances such as sound trucks 17 and erotic displays in a residential area may be abated under appropriately flexible civil standards even though the First Amendment provides a shield against criminal prosecution. </s> As long as the government does not totally suppress protected speech and is faithful to its paramount obligation of complete neutrality with respect to the point of view expressed in a protected communication, I see no reason why regulation of certain types of communication may not take into account obvious differences in subject matter. See Lehman v. City of Shaker Heights, 418 U.S. 298 . It seems to me ridiculous to assume that no regulation of the display of sexually oriented material is permissible unless the same regulation [431 U.S. 291, 319] could be applied to political comment. 18 On the other hand, I am not prepared to rely on either the average citizen's understanding of an amorphous community standard or on my fellow judges' appraisal of what has serious artistic merit as a basis for deciding what one citizen may communicate to another by appropriate means. 19 </s> I do not know whether the ugly 20 pictures in this record have any beneficial value. The fact that there is a large demand for comparable materials indicates that they do provide [431 U.S. 291, 320] amusement or information, or at least satisfy the curiosity of interested persons. 21 Moreover, there are serious well-intentioned people who are persuaded that they serve a worthwhile purpose. 22 Others believe they arouse passions that lead to the commission of crimes; if that be true, surely there is a mountain of material just within the protected zone that is equally capable of motivating comparable conduct. 23 Moreover, the dire predictions about the baneful effects of these [431 U.S. 291, 321] materials are disturbingly reminiscent of arguments formerly made about the availability of what are now valued as works of art. In the end, I believe we must rely on the capacity of the free marketplace of ideas to distinguish that which is useful or beautiful from that which is ugly or worthless. 24 </s> In this case the petitioner's communications were intended to offend no one. He could hardly anticipate that they would offend the person who requested them. And delivery in sealed envelopes prevented any offense to unwilling third parties. Since his acts did not even constitute a nuisance, it necessarily follows, in my opinion, that they cannot provide the basis for a criminal prosecution. </s> I respectfully dissent. </s> [Footnote 1 17 Stat. 598, 18 U.S.C. 1461. The statute "was passed with less than an hour of Congressional debate, and there was no objection to its enactment in either the House or the Senate. Reflecting its origin, the law is still known as the Comstock Act." F. Schauer, The Law of Obscenity 13 (1976). </s> [Footnote 2 It is, of course, possible that the postal inspectors, who had used fictitious names to request the materials, were offended by them. There was, however, no such testimony. Moreover, persons examining materials of this kind as a part of their routine duties must surely develop an insensitivity to them. </s> [Footnote 3 Although appeal to the "prurient" interest and "patently offensive" character are identified as separate parts of the legal standard for determining whether materials are obscene, the two concepts overlap to some extent. But whether or not the two standards are different, sexually [431 U.S. 291, 312] oriented material is constitutionally protected if it is not patently offensive. </s> [Footnote 4 In 1962, Mr. Justice Harlan wrote: "There must first be decided the relevant `community' in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency." Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 (footnote omitted). </s> [Footnote 5 As MR. JUSTICE BRENNAN has written: "It is true that local communities throughout the land are in fact diverse, and that in cases such as this one the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. The Court has regularly been compelled, in reviewing criminal convictions challenged under the Due Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights of the local community which brought the prosecution and of the individual defendant. Such a task is admittedly difficult and delicate, but it is inherent in the Court's duty of determining whether a particular conviction worked [431 U.S. 291, 313] a deprivation of rights guaranteed by the Federal Constitution. The Court has not shrunk from discharging that duty in other areas, and we see no reason why it should do so here. The Court has explicitly refused to tolerate a result whereby `the constitutional limits of free expression in the Nation would vary with state lines,' Pennekamp v. Florida, supra, 328 U.S., at 335 ; we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding." Jacobellis v. Ohio, 378 U.S. 184, 194 -195 (footnote omitted). </s> [Footnote 6 Id., at 200-201 (dissenting opinion). </s> [Footnote 7 Miller v. California, 413 U.S. 15 . </s> [Footnote 8 Hamling v. United States, 418 U.S. 87 . </s> [Footnote 9 MR. JUSTICE STEWART, concurring in Jacobellis v. Ohio, supra, at 197, wrote that criminal prosecution in the obscenity area is constitutionally [431 U.S. 291, 314] limited to prosecution of "hard-core pornography." He went on to note: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." </s> [Footnote 10 The opinion in Miller, supra, at 30-31, assumes that jurors could more easily "draw on the standards of their community" than some "hypothetical and unascertainable `national standar[d].'" Yet, that assumption can only relate to isolated communities where jurors are well enough acquainted with members of their community to know their private tastes and values. The assumption does not apply to most segments of our diverse, mobile, metropolitan society. For surely, the standard for a metropolitan area is just as "hypothetical and unascertainable" as any national standard. For a juror, it would be almost as hard to determine the community standard for any large urban area as it would be to determine a national standard. Metropolitan areas typically contain some commercial districts devoted to the exploitation of sex, in bookshops, adult theaters, nightclubs, or burlesque houses; a juror might have seen respectable citizens frequenting the entertainments of such areas and therefore conclude that the community standard was one of "anything goes." Another juror might predicate his standard on residential enclaves which include nothing even closely resembling an adult bookstore, and decide that such an area reflects the proper standard. Under that test, the juror would probably conclude that any magazine sold from under the local drugstore counter must be obscene because its presence on the magazine rack might offend customers. A third juror might try to apply a hybrid standard. </s> [Footnote 11 See Hamling v. United States, supra, at 142-145 (BRENNAN, J., dissenting); United States v. McManus, 535 F.2d 460 (CA8 1976), cert. denied, 429 U.S. 1052 . Edelstein & Mott, Collateral Problems in Obscenity Regulation: A Uniform Approach to Prior Restraints, Community Standards and Judgment Preclusion, 7 Seton Hall L. Rev. 543, 566-571 (1976). </s> [Footnote 12 Rosenblatt & Rosenblatt, Six Member Juries in Criminal Cases: Legal and Psychological Considerations, 47 St. John's L. Rev. 615, 631-632 (1973); Asch, Effects of Group Pressure upon the Modification and Distortion of Judgments, reprinted in D. Cartwright, Group Dynamics 189-200 (1960). </s> [Footnote 13 A juror might well find certain materials appealing and yet be unwilling to say so. He may assume, without necessarily being correct, that his reaction is aberrant and at odds with the prevailing community view, [431 U.S. 291, 316] especially if the first members of the jury to speak indicate that they consider the material offensive. Perhaps one reason that the Comstock Act was passed unanimously, see n. 1, supra, is that it is much more popular to be against sin than to be tolerant of it. </s> [Footnote 14 The introduction of evidence on the question of contemporary community standards will rarely enable an appellate judge to differentiate between the jurors' own reactions to the materials in question and the reactions of the average resident of the community. For instance, in the present case, the defendant entered into evidence as exhibits materials which were freely and lawfully available at stores in Iowa. These exhibits were more salacious, lewd, and open in their treatment of sex than were the materials upon which the defendants were convicted. Yet a reviewing court could not use this evidence to overturn a jury verdict, for the jury's view may quite correctly have been that these materials, although freely available, were appreciated only by a deviant minority of the community and did not conform to the community standard. Testimony of experts would have to be similarly discounted. </s> [Footnote 15 Euclid v. Ambler Realty Co., 272 U.S. 365, 388 . </s> [Footnote 16 In deciding what comments on litigation may be punished, the content of the comment, whether it is uttered inside or outside the courtroom, and whether it concerns pending litigation, all have relevance. See In re Little, 404 U.S. 553 ; Pennekamp v. Florida, 328 U.S. 331 ; Bridges v. California, 314 U.S. 252 . See also In re Dellinger, 502 F.2d 813, 815 (CA7 1974), cert. denied sub nom. Dellinger v. United States, 420 U.S. 990 ; Theriault v. United States, 481 F.2d 1193, 1196 (CA5 1973), cert. denied, 414 U.S. 1114 . Such factors are always relevant in applying the clear-and-present-danger test: Only the combination of content (the word "fire") and place (a crowded theater) allows prohibition in Mr. Justice Holmes' famous example, Schenck v. United States, 249 U.S. 47, 52 . </s> [Footnote 17 See Saia v. New York, 334 U.S. 558 : Kovacs v. Cooper, 336 U.S. 77 . </s> [Footnote 18 This assumption must underlie the suggestion in Miller that a national standard would require that "the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." 413 U.S., at 32 (footnote omitted). That suggestion misreads the First Amendment in at least two ways. The constitutional protection of the speaker's right to communicate does not deprive the local community of all authority to regulate the time, place, and manner of communication; Nevada's approval of public displays would not necessarily require Maine or Mississippi to approve use of identical means of expression. More fundamentally, the constitutional inquiry is not confined to the question of what an unwilling recipient must accept; rather, the critical First Amendment question in this kind of case involves the interested individual's right of access to materials he desires. See the passage from Kleindienst v. Mandel, 408 U.S. 753, 762 -763, quoted in Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 757 , which recognizes that the First Amendment necessarily protects the right to "receive information and ideas." </s> [Footnote 19 As Mr. Justice Douglas once noted: "The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy." Dennis v. United States, 341 U.S. 494, 590 (dissenting opinion). </s> [Footnote 20 If First Amendment protection is properly denied to materials that are "patently offensive" to the average citizen, I question whether the element of erotic appeal is of critical importance. For the average person may find some portrayals of violence, of disease, or of intimate bodily functions (such as the birth of a child) equally offensive - at least when they are viewed for the first time. It is noteworthy that one of the examples of an unprotected representation identified by the Court, ante, at 301 n. 8, surely would have no erotic appeal to the average person. </s> [Footnote 21 As Mr. Justice Harlan wrote in Cohen v. California, 403 U.S. 15, 25 -26: "Additionally, we cannot overlook the fact . . . that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." To a similar effect, this Court wrote in Winters v. New York, 333 U.S. 507, 510 : "We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature." </s> [Footnote 22 See the Final Report of the President's Commission on Obscenity and Pornography (1970). </s> [Footnote 23 Anthony Comstock, who is given credit for the enactment of the statute involved in this case, understood this point. He wrote: "`No embellishment of art can rob lust of its power for evil upon the human nature,'" J. Kilpatrick, The Smut Peddlers 42 (1960). According to Professor Schauer "[a]mong the objects of Comstock's scorn were light literature, pool halls, lotteries, gambling dens, popular magazines, and weekly newspapers. Artistic motive was irrelevant." The Law of Obscenity 12 n. 51 (1976). </s> [Footnote 24 Mr. Justice Holmes has written: "[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution." Abrams v. United States, 250 U.S. 616, 630 (dissenting opinion). </s> [431 U.S. 291, 322]

United States Supreme Court TIME, INC. v. FIRESTONE(1976) No. 74-944 Argued: October 14, 1975Decided: March 2, 1976 </s> After respondent had sought separate maintenance, her husband, the scion of a wealthy industrial family, filed a counterclaim for divorce on grounds of extreme cruelty and adultery. The court granted the counterclaim, stating that "neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida," and that "the marriage should be dissolved." On the basis of newspaper and wire service reports and information from a bureau chief and a "stringer," petitioner published in its magazine an item reporting that the divorce was granted "on grounds of extreme cruelty and adultery." After petitioner had declined to retract, respondent brought this libel action in the state court. A jury verdict for damages against petitioner was ultimately affirmed by the Florida Supreme Court. Petitioner claims that the judgment violates its rights under the First and Fourteenth Amendments. Held: </s> 1. The standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254 , as later extended, which bars media liability for defamation of a public figure absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, is inapplicable to the facts of this case. Pp. 452-457. </s> (a) Respondent was not a "public figure," since she did not occupy "[a role] of especial prominence in the affairs of society," and had not been "thrust . . . to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 . Pp. 453-455. </s> (b) The New York Times rule does not automatically extend to all reports of judicial proceedings regardless of whether the party plaintiff in such proceedings is a public figure who might be assumed to "have voluntarily exposed [himself] to increased risk of injury from defamatory falsehood." Gertz, supra, at 345. There is no substantial reason why one involved in litigation should forfeit that degree of protection afforded by the law of defamation simply by virtue of being drawn into a courtroom. Pp. 455-457. [424 U.S. 448, 449] </s> 2. No finding was ever made by the divorce court that respondent was guilty of adultery as petitioner had reported, and though petitioner contends that it faithfully reproduced the precise meaning of the divorce judgment, the jury's verdict, upheld on appeal, rejected petitioner's contention that the report was accurate. Pp. 457-459. </s> 3. In a case such as this, Gertz, supra, imposes the constitutional limitations that (1) compensatory awards "be supported by competent evidence concerning the injury" and (2) liability cannot be imposed without fault. Since Florida permits damages awards in defamation actions based on elements other than injury to reputation, and there was competent evidence here to permit the jury to assess the amount of such injury, the first of these conditions was satisfied. Pp. 459-461. </s> 4. Since, however, there was no finding of fault on the part of the petitioner in its publication of the defamatory material, the second constitutional limitation imposed by Gertz was not met. Though the trial court's failure to submit the question of fault to the jury does not of itself establish noncompliance with the constitutional requirement, none of the Florida courts that considered this case determined that petitioner was at fault. Pp. 461-464. </s> 305 So.2d 172, vacated and remanded. </s> REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 464. BRENNAN, J., post, p. 471, WHITE, J., post, p. 481, and MARSHALL, J., post, p. 484, filed dissenting opinions. STEVENS, J., took no part in the consideration or decision of the case. </s> John H. Pickering argued the cause for petitioner. With him on the briefs were Harold R. Medina, Jr., and William S. Frates. </s> Edna L. Caruso argued the cause and filed a brief for respondent. </s> MR. JUSTICE REHNQUIST delivered the opinion of the Court. </s> Petitioner is the publisher of Time, a weekly news magazine. The Supreme Court of Florida affirmed a [424 U.S. 448, 450] $100,000 libel judgment against petitioner which was based on an item appearing in Time that purported to describe the result of domestic relations litigation between respondent and her husband. We granted certiorari, 421 U.S. 909 (1975), to review petitioner's claim that the judgment violates its rights under the First and Fourteenth Amendments to the United States Constitution. </s> I </s> Respondent, Mary Alice Firestone, married Russell Firestone, the scion of one of America's wealthier industrial families, in 1961. In 1964, they separated, and respondent filed a complaint for separate maintenance in the Circuit Court of Palm Beach Country, Fla. Her husband counterclaimed for divorce on grounds of extreme cruelty and adultery. After a lengthy trial the Circuit Court issued a judgment granting the divorce requested by respondent's husband. In relevant part the court's final judgment read: </s> "This cause came on for final hearing before the court upon the plaintiff wife's second amended complaint for separate maintenance (alimony unconnected with the causes of divorce), the defendant husband's answer and counterclaim for divorce on grounds of extreme cruelty and adultery, and the wife's answer thereto setting up certain affirmative defenses. . . . </s> . . . . . </s> "According to certain testimony in behalf of the defendant, extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in plaintiff's behalf, would indicate that defendant was guilty of bounding from one bedpartner to another [424 U.S. 448, 451] with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida . . . . </s> . . . . . </s> "In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved. </s> . . . . . </s> "The premises considered, it is thereupon "ORDERED AND ADJUDGED as follows: </s> "1. That the equities in this cause are with the defendant; that defendant's counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved. </s> . . . . . </s> "4. That the defendant shall pay unto the plaintiff the sum of $3,000 per month as alimony beginning January 1, 1968, and a like sum on the first day of each and every month thereafter until the death or remarriage of the plaintiff." App. 523-525, 528. </s> Time's editorial staff, headquartered in New York, was alerted by a wire service report and an account in a New York newspaper to the fact that a judgment had been rendered in the Firestone divorce proceeding. The staff subsequently received further information regarding the Florida decision from Time's Miami bureau chief and from a "stringer" working on a special assignment basis in the Palm Beach area. On the basis of these four sources, Time's staff composed the following item, [424 U.S. 448, 452] which appeared in the magazine's "Milestones" section the following week: </s> "DIVORCED. By Russell A. Firestone Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetime Palm Beach schoolteacher; on grounds of extreme cruelty and adultery; after six years of marriage, one son; in West Palm Beach, Fla. The 17-month intermittent trial produced enough testimony of extramarital adventures on both sides, said the judge, `to make Dr. Freud's hair curl.'" </s> Within a few weeks of the publication of this article respondent demanded in writing a retraction from petitioner, alleging that a portion of the article was "false, malicious and defamatory." Petitioner declined to issue the requested retraction. 1 </s> Respondent then filed this libel action against petitioner in the Florida Circuit Court. Based on a jury verdict for respondent, that court entered judgment against petitioner for $100,000, and after review in both the Florida District Court of Appeal and the Supreme Court of Florida the judgment was ultimately affirmed. 305 So.2d 172 (1974). Petitioner advances several contentions as to why the judgment is contrary to decisions of this Court holding that the First and Fourteenth Amendments of the United States Constitution limit the authority of state courts to impose liability for damages based on defamation. </s> II </s> Petitioner initially contends that it cannot be liable for publishing any falsehood defaming respondent unless [424 U.S. 448, 453] it is established that the publication was made "with actual malice," as that term is defined in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 2 Petitioner advances two arguments in support of this contention: that respondent is a "public figure" within this Court's decisions extending New York Times to defamation suits brought by such individuals, see, e. g., Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); and that the Time item constituted a report of a judicial proceeding, a class of subject matter which petitioner claims deserves the protection of the "actual malice" standard even if the story is proved to be defamatory false or inaccurate. We reject both arguments. </s> In Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974), we have recently further defined the meaning of "public figure" for the purposes of the First and Fourteenth Amendments: </s> "For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." </s> Respondent did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it. [424 U.S. 448, 454] </s> Petitioner contends that because the Firestone divorce was characterized by the Florida Supreme Court as a "cause celebre," it must have been a public controversy and respondent must be considered a public figure. But in so doing petitioner seeks to equate "public controversy" with all controversies of interest to the public. Were we to accept this reasoning, we would reinstate the doctrine advanced in the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), which concluded that the New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest. In Gertz, however, the Court repudiated this position, stating that "extension of the New York Times test proposed by the Rosenbloom plurality would abridge [a] legitimate state interest to a degree that we find unacceptable." 418 U.S., at 346 . </s> Dissolution of a marriage through judicial proceedings is not the sort of "public controversy" referred to in Gertz, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public. Nor did respondent freely choose to publicize issues as to the propriety of her married life. She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony. We have said that in such an instance "[r]esort to the judicial process . . . is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court." Boddie v. Connecticut, 401 U.S. 371, 376 -377 (1971). Her actions, both in instituting the litigation and in its conduct, were quite different from those of General Walker in Curtis Publishing Co., supra. 3 She assumed no "special prominence [424 U.S. 448, 455] in the resolution of public questions." Gertz, supra, at 351. We hold respondent was not a "public figure" for the purpose of determining the constitutional protection afforded petitioner's report of the factual and legal basis for her divorce. </s> For similar reasons we likewise reject petitioners claim for automatic extension of the New York Times privilege to all reports of judicial proceedings. It is argued that information concerning proceedings in our Nation's courts may have such importance to all citizens as to justify extending special First Amendment protection to the press when reporting on such events. We have recently accepted a significantly more confined version of this argument by holding that the Constitution precludes States from imposing civil liability based upon the publication of truthful information contained in official court records open to public inspection. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). </s> Petitioner would have us extend the reasoning of Cox Broadcasting to safeguard even inaccurate and false statements, at least where "actual malice" has not been established. But its argument proves too much. It may be that all reports of judicial proceedings contain some informational value implicating the First Amendment, but recognizing this is little different from labelling all judicial proceedings matters of "public or general interest," as that phrase was used by the plurality [424 U.S. 448, 456] in Rosenbloom. Whatever their general validity, use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area. It was our recognition and rejection of this weakness in the Rosenbloom test which led us in Gertz to eschew a subject-matter test for one focusing upon the character of the defamation plaintiff. See 418 U.S., at 344 -346. By confining inquiry to whether a plaintiff is a public officer or a public figure who might be assumed to "have voluntarily exposed [himself] to increased risk of injury from defamatory falsehood," we sought a more appropriate accommodation between the public's interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). </s> Presumptively erecting the New York Times barrier against all plaintiffs seeking to recover for injuries from defamatory falsehoods published in what are alleged to be reports of judicial proceedings would effect substantial depreciation of the individual's interest in protection from such harm, without any convincing assurance that such a sacrifice is required under the First Amendment. And in some instances such an undiscriminating approach might achieve results directly at odds with the constitutional balance intended. Indeed, the article upon which the Gertz libel action was based purported to be a report on the murder trial of a Chicago police officer. See 418 U.S., at 325 -326. Our decision in that case should make it clear that no such blanket privilege for reports of judicial proceedings is to be found in the Constitution. </s> It may be argued that there is still room for application of the New York Times protections to more narrowly [424 U.S. 448, 457] focused reports of what actually transpires in the courtroom. But even so narrowed, the suggested privilege is simply too broad. Imposing upon the law of private defamation the rather drastic limitations worked by New York Times cannot be justified by generalized references to the public interest in reports of judicial proceedings. The details of many, if not most, courtroom battles would add almost nothing toward advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times. See 376 U.S., at 270 ; cf. Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). And while participants in some litigation may be legitimate "public figures," either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co., supra. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection, see 418 U.S., at 340 , we think Gertz provides an adequate safeguard for the constitutionally protected interests of the press and affords it a tolerable margin for error by requiring some type of fault. </s> III </s> Petitioner has urged throughout this litigation that it could not be held liable for publication of the "Milestones" item because its report of respondent's divorce [424 U.S. 448, 458] was factually correct. In its view the Time article faithfully reproduced the precise meaning of the divorce judgment. But this issue was submitted to the jury under an instruction intended to implement Florida's limited privilege for accurate reports of judicial proceedings. App. 509; see 305 So.2d, at 177. By returning a verdict for respondent the jury necessarily found that the identity of meaning which petitioner claims does not exist even for laymen. The Supreme Court of Florida upheld this finding on appeal, rejecting petitioner's contention that its report was accurate as a matter of law. Because demonstration that an article was true would seem to preclude finding the publisher at fault, see Cox Broadcasting Co., 420 U.S., at 498 -500 (POWELL, J., concurring), we have examined the predicate for petitioner's contention. We believe the Florida courts properly could have found the "Milestones" item to be false. </s> For petitioner's report to have been accurate, the divorce granted Russell Firestone must have been based on a finding by the divorce court that his wife had committed extreme cruelty toward him and that she had been guilty of adultery. This is indisputably what petitioner reported in its "Milestones" item, but it is equally indisputable that these were not the facts. Russell Firestone alleged in his counterclaim that respondent had been guilty of adultery, but the divorce court never made any such finding. Its judgment provided that Russell Firestone's "counterclaim for divorce be and the same is hereby granted," but did not specify that the basis for the judgment was either of the two grounds alleged in the counterclaim. The Supreme Court of Florida on appeal concluded that the ground actually relied upon by the divorce court was "lack of domestication of the parties," a ground not theretofore recognized by Florida law. The Supreme Court nonetheless affirmed the judgment dissolving the bonds of matrimony [424 U.S. 448, 459] because the record contained sufficient evidence to establish the ground of extreme cruelty. Firestone v. Firestone, 263 So.2d 223, 225 (1972). </s> Petitioner may well argue that the meaning of the trial court's decree was unclear, 4 but this does not license it to choose from among several conceivable interpretations the one most damaging to respondent. Having chosen to follow this tack, 5 petitioner must be able to establish not merely that the item reported was a conceivable or plausible interpretation of the decree, but that the item was factually correct. We believe there is ample support for the jury's conclusion, affirmed by the Supreme Court of Florida, that this was not the case. There was, therefore, sufficient basis for imposing liability upon petitioner if the constitutional limitations we announced in Gertz have been satisfied. These are a prohibition against imposing liability without fault, 418 U.S., at 347 , and the requirement that compensatory awards "be supported by competent evidence concerning the injury." Id., at 350. [424 U.S. 448, 460] </s> As to the latter requirement little difficulty appears. Petitioner has argued that because respondent withdrew her claim for damages to reputation on the eve of trial, there could be no recovery consistent with Gertz. Petitioner's theory seems to be that the only compensable injury in a defamation action is that which may be done to one's reputation, and that claims not predicated upon such injury are by definition not actions for defamation. But Florida has obviously decided to permit recovery for other injuries without regard to measuring the effect the falsehood may have had upon a plaintiff's reputation. This does not transform the action into something other than an action for defamation as that term is meant in Gertz. In that opinion we made it clear that States could base awards on elements other than injury to reputation, specifically listing "personal humiliation, and mental anguish and suffering" as examples of injuries which might be compensated consistently with the Constitution upon a showing of fault. Because respondent has decided to forgo recovery for injury to her reputation, she is not prevented from obtaining compensation for such other damages that a defamatory falsehood may have caused her. </s> The trial court charged, consistently with Gertz, that the jury should award respondent compensatory damages in "an amount of money that will fairly and adequately compensate her for such damages," and further cautioned that "[i]t is only damages which are a direct and natural result of the alleged libel which may be recovered." App. 509. There was competent evidence introduced to permit the jury to assess the amount of injury. Several witnesses 6 testified to the extent of respondent's [424 U.S. 448, 461] anxiety and concern over Time's inaccurately reporting that she had been found guilty of adultery, and she herself took the stand to elaborate on her fears that her young son would be adversely affected by this falsehood when he grew older. The jury decided these injuries should be compensated by an award of $100,000. We have no warrant for re-examining this determination. Cf. Lincoln v. Power, 151 U.S. 436 (1894). </s> IV </s> Gertz established, however, that not only must there be evidence to support an award of compensatory damages, there must also be evidence of some fault on the part of a defendant charged with publishing defamatory material. No question of fault was submitted to the jury in this case, because under Florida law the only findings required for determination of liability were whether the article was defamatory, whether it was true, and whether the defamation, if any, caused respondent harm. </s> The failure to submit the question of fault to the jury does not of itself establish noncompliance with the constitutional requirements established in Gertz, however. Nothing in the Constitution requires that assessment of fault in a civil case tried in a state court be made by a jury, nor is there any prohibition against such a finding being made in the first instance by an appellate, rather than a trial, court. The First and Fourteenth Amendments do not impose upon the States any limitations as to how, within their own judicial systems, factfinding tasks shall be allocated. If we were satisfied that one of the Florida courts which considered this case had supportably ascertained petitioner [424 U.S. 448, 462] was at fault, we would be required to affirm the judgment below. </s> But the only alternative source of such a finding, given that the issue was not submitted to the jury, is the opinion of the Supreme Court of Florida. That opinion appears to proceed generally on the assumption that a showing of fault was not required, 7 but then in the penultimate paragraph it recites: </s> "Furthermore, this erroneous reporting is clear and convincing evidence of the negligence in certain segments of the news media in gathering the news. Gertz v. Welch, Inc., supra. Pursuant to Florida law in effect at the time of the divorce judgment (Section 61.08, Florida Statutes), a wife found guilty of adultery could not be awarded alimony. Since petitioner had been awarded alimony, she had not been found guilty of adultery nor had the [424 U.S. 448, 463] divorce been granted on the ground of adultery. A careful examination of the final decree prior to publication would have clearly demonstrated that the divorce had been granted on the grounds of extreme cruelty, and thus the wife would have been saved the humiliation of being accused of adultery in a nationwide magazine. This is a flagrant example of `journalistic negligence.'" 305 So.2d, at 178. </s> It may be argued that this is sufficient indication the court found petitioner at fault within the meaning of Gertz. Nothing in that decision or in the First or Fourteenth Amendment requires that in a libel action an appellate court treat in detail by written opinion all contentions of the parties, and if the jury or trial judge had found fault in fact, we would be quite willing to read the quoted passage as affirming that conclusion. But without some finding of fault by the judge or jury in the Circuit Court, we would have to attribute to the Supreme Court of Florida from the quoted language not merely an intention to affirm the finding of the lower court, but an intention to find such a fact in the first instance. </s> Even where a question of fact may have constitutional significance, we normally accord findings of state courts deference in reviewing constitutional claims here. See, e. g., Lyons v. Oklahoma, 322 U.S. 596, 602 -603 (1944); Gallegos v. Nebraska, 342 U.S. 55, 60 -61 (1951) (opinion of Reed, J.). But that deference is predicated on our belief that at some point in the state proceedings some fact finder has made a conscious determination of the existence or nonexistence of the critical fact. Here the record before us affords no basis for such a conclusion. </s> It may well be that petitioner's account in its "Milestones" section was the product of some fault on its part, [424 U.S. 448, 464] and that the libel judgment against it was, therefore, entirely consistent with Gertz. But in the absence of a finding in some element of the state-court system that there was fault, we are not inclined to canvass the record to make such a determination in the first instance. Cf. Rosenblatt v. Baer, 383 U.S., at 87 -88. Accordingly, the judgment of the Supreme Court of Florida is vacated and the case remanded for further proceedings not inconsistent with this opinion. </s> So ordered. </s> MR. JUSTICE STEVENS took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Under Florida law the demand for retraction was a prerequisite for filing a libel action, and permits defendants to limit their potential liability to actual damages by complying with the demand. Fla. Stat. Ann. 770.01-770.02 (1963). </s> [Footnote 2 The "actual malice" test requires that a plaintiff prove that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S., at 280 . </s> [Footnote 3 Nor do we think the fact that respondent may have held a few press conferences during the divorce proceedings in an attempt to [424 U.S. 448, 455] satisfy inquiring reporters converts her into a "public figure." Such interviews should have had no effect upon the merits of the legal dispute between respondent and her husband or the outcome of that trial, and we do not think it can be assumed that any such purpose was intended. Moreover, there is no indication that she sought to use the press conferences as a vehicle by which to thrust herself to the forefront of some unrelated controversy in order to influence its resolution. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). </s> [Footnote 4 Petitioner is incorrect in arguing that a rational interpretation of an ambiguous document is constitutionally protected under our decision in Time, Inc. v. Pape, 401 U.S. 279 (1971). There we were applying the New York Times standard to test whether the defendant had acted in reckless disregard of the truth. Id., at 292. But as we have concluded that the publication in this case need not be tested against the "actual malice" standard, Pape is of no assistance to petitioner. </s> [Footnote 5 In fact, it appears that none of petitioner's employees actually saw the decree prior to publication of the "Milestones" article. But we do not think this can affect the extent of constitutional protection afforded the statement. Moreover, petitioner has maintained throughout that it would have published an identical statement if its editorial staff had an opportunity to peruse the judgment prior to their publication deadline, and has consistently contended that its article was true when compared to the words of that judgment. </s> [Footnote 6 These included respondent's minister, her attorney in the divorce proceedings, plus several friends and neighbors, one of whom was a physician who testified to having to administer a sedative to [424 U.S. 448, 461] respondent in an attempt to reduce discomfort wrought by her worrying about the article. </s> [Footnote 7 After reiterating its conclusion that the article was false, the Florida court noted that falsely accusing a woman of adultery is libelous per se and normally actionable without proof of damages. The court then recognized that our opinion in Gertz necessarily displaced this presumption of damages but ruled that the trial court's instruction was consistent with Gertz and that there was evidence to support the jury's verdict - conclusions with which we have agreed. The court went on to reject a claim of privilege under state law, pointing out that the privilege shielded only "fair and accurate" reports and the jury had resolved these issues against petitioner. The court appears to have concluded its analysis of petitioner's legal claims with this statement, which immediately precedes the paragraph set out in the text: </s> "Careful examination and consideration of the record discloses that the judgment of the trial court is correct and should have been affirmed on appeal to the District Court." 305 So.2d, at 177-178. </s> There is nothing in the court's opinion which appears to make any reference to the relevance of some concept of fault in determining petitioner's liability. </s> MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins, concurring. </s> A clear majority of the Court adheres to the principles of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). But it is evident from the variety of views expressed that perceptions differ as to the proper application of such principles to this bizarre case. In order to avoid the appearance of fragmentation of the Court on the basic principles involved, I join the opinion of the Court. I add this concurrence to state my reaction to the record presented for our review. </s> In Gertz we held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Id., at 347. Thus, while a State may elect to hold a publisher to a lesser duty of care, 1 there is no First Amendment constraint against [424 U.S. 448, 465] allowing recovery upon proof of negligence. The applicability of such a fault standard was expressly limited to circumstances where, as here, "the substance of the defamatory statement `makes substantial danger to reputation apparent.'" 2 Id., at 348, quoting Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967). By requiring a showing of fault the Court in Gertz sought to shield the press and broadcast media from a rule of strict liability that could lead to intolerable self-censorship and at the same time recognize the legitimate state interest in compensating private individuals for wrongful injury from defamatory falsehoods. </s> In one paragraph near the end of its opinion, the Supreme Court of Florida cited Gertz in concluding that Time was guilty of "journalistic negligence." But, as the opinion of the Court recognizes, ante, at 462 n. 7, and 463, it is not evident from this single paragraph that any type of fault standard was in fact applied. Assuming that Florida now will apply a negligence standard in cases of this kind, the ultimate question here is whether Time exercised due care under the circumstances: Did Time exercise the reasonably prudent care that a State may constitutionally demand of a publisher or broadcaster prior to a publication whose content reveals its defamatory potential? </s> The answer to this question depends upon a careful consideration of all the relevant evidence concerning Time's actions prior to the publication of the [424 U.S. 448, 466] "Milestones" article. But in its conclusory paragraph finding negligence, the Supreme Court of Florida mentioned only the provision of Florida law that proscribed an award of alimony to a wife found guilty of adultery, arguing that the award of alimony to respondent clearly demonstrated that the divorce was granted on other grounds. There is no recognition in the opinion of the ambiguity of the divorce decree and no discussion of any of the efforts made by Time to verify the accuracy of its news report. Nor was there any weighing of the evidence to determine whether there was actionable negligence by Time under the Gertz standard. 3 </s> There was substantial evidence, much of it uncontradicted, that the editors of Time exercised considerable care in checking the accuracy of the story prior to its publication. The "Milestones" item appeared in the December 22, 1967, issue of Time. This issue went to press on Saturday, December 16, the day after the Circuit Court rendered its decision at about 4:30 in the afternoon. The evening of the 15th the Time editorial staff in New York received an Associated Press dispatch stating that Russell A. Firestone, Jr., had been granted a divorce from his third wife, whom "he had accused of adultery and extreme cruelty." Later that same evening, Time received the New York Daily News edition for December 16, which carried a special bulletin substantially to the same effect as the AP dispatch. </s> On the morning of December 16, in response to an inquiry sent to its Miami bureau, Time's New York office received a dispatch from the head of that bureau quoting excerpts from the Circuit Court's opinion that [424 U.S. 448, 467] strongly suggested adultery on the part of both parties. 4 Later that day the editorial staff received a message from Time's Palm Beach "stringer" that read, in part: "The technical grounds for divorce according to Joseph Farrish [sic], Jr., attorney for Mary Alice Firestone, were given as extreme cruelty and adultry [sic]." App. 532. The stringer's dispatch also included several quotations from the Circuit Court opinion. 5 At trial the senior editor testified that although no member of the New York editorial staff had read the Circuit Court's opinion, he had believed that both the stringer and the chief of Time's Miami bureau had read it. </s> The opaqueness of the Circuit Court's decree is also a factor to be considered in assessing whether Time was guilty of actionable fault under the Gertz standard. Although it appears that neither the head of the Miami bureau nor the stringer personally read the opinion or order, the stringer testified at trial that respondent's attorney Farish and others read him portions of the decree over the telephone before he filed his dispatch with Time. 6 The record does not reveal whether [424 U.S. 448, 468] the limited portions of the decree that shed light on the grounds for the granting of the divorce were read to the stringer. 7 But the ambiguity of the divorce decree may well have contributed to the stringer's view, and hence the Time editorial staff's conclusion, that a ground for the divorce was adultery by respondent. </s> However one may characterize it, the Circuit Court decision was hardly a model of clarity. Its opening sentence was as follows: </s> "This cause came on for final hearing before the court upon the plaintiff wife's second amended complaint for separate maintenance (alimony unconnected with the causes of divorce), the defendant husband's answer and counterclaim for divorce on grounds of extreme cruelty and adultery, and the wife's answer thereto setting up certain affirmative defenses." App. 523. </s> After commenting on the conflicting testimony as to respondent's "extra marital escapades" and her husband's "bounding from one bedpartner to another," the opinion states that "it is the conclusion and finding of the court that neither party is domesticated . . . ." Finally, the Circuit Court "ORDERED AND ADJUDGED": </s> "That the equities in this cause are with the defendant; [424 U.S. 448, 469] that defendant's counterclaim for divorce be and the same is hereby granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved." App. 528. </s> The remaining paragraphs in the order portion of the decision relate to child custody and support, disposition of certain property, attorney's fees, and the award of $3,000 per month to the wife (respondent) as alimony. There is no reference whatever in the "order" portion of the decision either to "extreme cruelty" or "adultery," the only grounds relied upon by the husband. But the divorce was granted to him following an express finding "that the equities . . . are with the defendant [the husband]." </s> Thus, on the face of the opinion itself, the husband had counterclaimed for divorce on the grounds of extreme cruelty and adultery, and the court had found the equities to be with him and had granted his counterclaim for divorce. Apart from the awarding of alimony to the wife there is no indication, either in the opinion or accompanying order, that the husband's counterclaim was not granted on both of the grounds asserted. This may be a redundant reading, as either ground would have sufficed. But the opinion that preceded the order was full of talk of adultery and made no explicit reference to any other type of cruelty. In these circumstances, the decision of the Circuit Court may have been sufficiently ambiguous to have caused reasonably prudent newsmen to read it as granting divorce on the ground of adultery. </s> As I join the opinion of the Court remanding this case, it is unnecessary to decide whether the foregoing establishes as a matter of law that Time exercised the requisite care under the circumstances. Nor have I undertaken to identify all of the evidence that may be relevant or to [424 U.S. 448, 470] point out conflicts that arguably have been resolved against Time by the jury. My point in writing is to emphasize that, against the background of a notorious divorce case, see Curtis Publishing Co., 388 U.S., at 158 -159, 8 and a decree that invited misunderstanding, there was substantial evidence supportive of Time's defense that it was not guilty of actionable negligence. At the very least the jury or court assessing liability in this case should have weighed these factors and this evidence before reaching a judgment. 9 There is no indication in the record before us that this was done in accordance with Gertz. 10 </s> [Footnote 1 A State, if it elected to do so, could require proof of gross negligence before holding a publisher or broadcaster liable for defamation. In Gertz, we concluded "that the States should retain [424 U.S. 448, 465] substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual." 418 U.S., at 345 -346. </s> [Footnote 2 In amplification of this limitation, we referred to the type of "factual misstatement whose content [does] not warn a reasonably prudent editor or broadcaster of its defamatory potential." Id., at 348. </s> [Footnote 3 The absence of any assessment of fault under the Gertz standard by the Supreme Court of Florida is fatal here because there was no such finding at any other level of judgment in this proceeding. Ante, at 461-463, and n. 7. </s> [Footnote 4 The excerpts included: "`According to certain testimony in behalf of the defendant [husband], extra marital escapades of the plaintiff [wife] were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in the plaintiff's behalf, would indicate that the defendant was guilty of bounding from one bed partner to another with the erotic zest of a satyr.'" App. 544. </s> [Footnote 5 Based on these news items and dispatches, the Time editorial team, consisting of a researcher, writer, and senior editor in charge of the "Milestones" section of the magazine, wrote, edited, and checked the article for accuracy. At trial they testified as to their complete belief in the truth of the news item at the time of publication. </s> [Footnote 6 Several hours after filing his dispatch, the stringer spoke with the divorce judge by telephone. According to testimony of the stringer at trial the divorce judge read him portions of the decree, and none of this information was inconsistent with that contained [424 U.S. 448, 468] in his dispatch to Time; otherwise, he would have alerted Time's New York office immediately. </s> [Footnote 7 Time did not consider the stringer to be an employee. He worked for Time part time and was compensated at an hourly rate, although he was guaranteed a minimum amount of work each year. In this case, he was contacted by the chief of the Miami bureau and requested to investigate the Firestone divorce decree. There is thus a question whether the fault, if any, of the stringer in not personally reading the entire opinion and order, is even a factor that may be considered in assessing whether there was actionable fault by Time under Gertz. Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253 -254 (1974). </s> [Footnote 8 In its first opinion remanding the case to the District Court of Appeal, after referring to the general prominence of the Firestones, the Supreme Court of Florida indicated that "their marital difficulties were equally well known; and the charges and countercharges of meretriciousness, flowing from both sides of the controversy, made their divorce action a veritable cause celebre in social circles across the country." 271 So.2d 745, 751 (1972). The District Court of Appeal similarly observed that in part due to the sensational and colorful testimony the 17-month divorce trial had been the object of national news coverage. 254 So.2d 386, 389 (1971). The reports Time received that the decree was granted on the ground of adultery therefore were consistent with the well-publicized trial revelations. </s> [Footnote 9 Indeed, I agree with the view expressed by MR. JUSTICE MARSHALL in his dissenting opinion: Unless there exists some basis for a finding of fault other than that given by the Supreme Court of Florida there can be no liability. </s> [Footnote 10 The Florida District Court of Appeal, on the second appeal to it, reversed a judgment for respondent. In doing so, it applied the New York Times "actual malice" standard, but added: "Nowhere was there proof Time was even negligent, much less intentionally false or in reckless disregard of the truth." 254 So.2d, at 390. A problem infecting the various decisions in the Florida courts is the understandable uncertainty as to exactly what standard should be applied. This case was in litigation several years before Gertz was decided. [424 U.S. 448, 471] </s> MR. JUSTICE BRENNAN, dissenting. </s> In my view, the question presented by this case is the degree of protection commanded by the First Amendment's free expression guarantee where it is sought to hold a publisher liable under state defamation laws for erroneously reporting the results of a public judicial proceeding. </s> I </s> In a series of cases beginning with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), this Court has held that the laws of libel and defamation, no less than other legal modes of restraint on the freedoms of speech and press, are subject to constitutional scrutiny under the First Amendment. The Court has emphasized that the central meaning of the free expression guarantee is that the body politic of this Nation shall be entitled to the communications necessary for self-governance, and that to place restraints on the exercise of expression is to deny the instrumental means required in order that the citizenry exercise that ultimate sovereignty reposed in its collective judgment by the Constitution. 1 Accordingly, we have held that laws governing harm incurred by individuals through defamation or invasion of privacy, although directed to the worthy objective of ensuring the "essential dignity and worth of every human being" necessary to a civilized society, Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (STEWART, J., concurring), must be measured and limited by constitutional constraints [424 U.S. 448, 472] assuring the maintenance and well-being of the system of free expression. Although "calculated false-hood" is no part of the expression protected by the central meaning of the First Amendment, Garrison v. Louisiana, 379 U.S. 64, 75 (1964), error and misstatement is recognized as inevitable in any scheme of truly free expression and debate. New York Times, supra, at 271-272. Therefore, in order to avoid the self-censorship that would necessarily accompany strict or simple fault liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin for error - protecting some misstatements so that the "freedoms of expression . . . have the `breathing space' that they `need . . . to survive.'" Ibid. "[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones." St. Amant v. Thompson, 390 U.S. 727, 732 (1968). For this reason, New York Times held that liability for defamation of a public official may not be imposed in the absence of proof of actual malice on the part of the person making the erroneous statement. 376 U.S., at 279 -280. 2 </s> [424 U.S. 448, 473] </s> Identical considerations led the Court last Term in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), to hold that the First Amendment commands an absolute privilege to truthfully report the contents of public records reflecting the subject matter of judicial proceedings. Recognizing the possibility of injury to legitimate privacy interests of persons affected by such proceedings, the Court was nevertheless constrained in light of the strong First Amendment values involved to conclude that no liability whatever could be imposed by the State for reports damaging to those concerns. Following the reasoning of New York Times and its progeny, the Court in Cox Broadcasting noted: </s> "[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government [424 U.S. 448, 474] generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. . . . </s> . . . . . </s> ". . . Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." 420 U.S., at 491 -492, 495. </s> Crucial to the holding in Cox Broadcasting was the determination that a "reasonable man" standard for imposing liability for invasion of privacy interests is simply inadequate to the task of safeguarding against "timidity and self-censorship" in reporting judicial proceedings. Id., at 496. Clearly, the inadequacy of any such standard is no less in the related area of liability for defamation resulting from inadvertent error in reporting such proceedings. </s> II </s> It is true, of course, that the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), cut back on the scope of application of the New York Times privilege as it had evolved through the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). Rosenbloom had held the New York Times privilege applicable to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous." 403 U.S., at 44 . But in light of the Court's perception [424 U.S. 448, 475] of an altered balance between the conflicting values at stake where the person defamed is in some sense a "private individual," Gertz, supra, at 347, 349-350, held First Amendment interests adequately protected in such circumstances so long as defamation liability is restricted to a requirement of "fault" and proof of "actual injury" resulting from the claimed defamation. 3 418 U.S., [424 U.S. 448, 476] at 349-350. However, the extension of the relaxed standard of Gertz to news reporting of events transpiring in and decisions arising out of public judicial proceedings is unwarranted by the terms of Gertz itself, is contrary to other well-established precedents of this Court and, most importantly, savages the cherished values encased in the First Amendment. </s> There is no indication in Gertz of any intention to overrule the Rosenbloom decision on its facts. Confined to those facts, Rosenbloom holds that in instances of erroneous reporting of the public actions of public officials, the New York Times actual-malice standard must be met before liability for defamation may be imposed in favor of persons affected by those actions. Although Gertz clearly altered the broader rationale of Rosenbloom, until the Court's decision today it could not have been supposed that Rosenbloom did not remain the law roughly to the extent of my Brother WHITE'S concurring statement therein: </s> "[I]n defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view." 403 U.S., at 62 . 4 </s> At stake in the present case is the ability of the press to report to the citizenry the events transpiring in the Nation's judicial systems. There is simply no meaningful [424 U.S. 448, 477] or constitutionally adequate way to report such events without reference to those persons and transactions that form the subject matter in controversy. 5 This Court has long held: </s> "A trial is a public event. What transpires in the court room is public property . . . . Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it." Craig v. Harney, 331 U.S. 367, 374 (1947). 6 </s> The Court has recognized that with regard to the judiciary, no less than other areas of government, the press performs an indispensable role by "subjecting the . . . judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). And it is critical that the judicial processes be open to such scrutiny and criticism, for, as the Court has noted in the specific context of labor disputes, the more acute public controversies are, "the more likely it is that in some aspect they will get into court." Bridges v. California, 314 U.S. 252, 268 -269 (1941). 7 Indeed, slight [424 U.S. 448, 478] reflection is needed to observe the insistent and complex interaction between controversial judicial proceedings and popular impressions thereof and fundamental legal and political changes in the Nation throughout the 200 years of evolution of our political system. With the judiciary as with all other aspects of government, the First Amendment guarantees to the people of this Nation that they shall retain the necessary means of control over their institutions that might in the alternative grow remote, insensitive, and finally acquisitive of those attributes of sovereignty not delegated by the Constitution. 8 </s> Also no less true than in other areas of government, error in reporting and debate concerning the judicial process is inevitable. Indeed, in view of the complexities of that process and its unfamiliarity to the laymen [424 U.S. 448, 479] who report it, the probability of inadvertent error may be substantially greater. 9 </s> "There is perhaps no area of news more inaccurately reported factually, on the whole, though with some notable exceptions, than legal news. [424 U.S. 448, 480] </s> "Some part of this is due to carelessness . . . . But a great deal of it must be attributed, in candor, to ignorance which frequently is not at all blame-worthy. For newspapers are conducted by men who are laymen to the law. With too rare exceptions their capacity for misunderstanding the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor peculiar to newsmen. For the law, as lawyers best know, is full of perplexities. </s> "In view of these facts any standard which would require strict accuracy in reporting legal events factually or in commenting upon them in the press would be an impossible one. Unless the courts and judges are to be put above criticism, no such rule [424 U.S. 448, 481] can obtain. There must be some room for misstatement of fact, as well as for misjudgment, if the press and others are to function as critical agencies in our democracy concerning courts as for all other instruments of government." Pennekamp v. Florida, 328 U.S. 331, 371 -372 (1946) (Rutledge, J., concurring). 10 </s> For precisely such reasons, we have held that the contempt power may not be used to punish the reporting of judicial proceedings merely because a reporter "missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case." Craig v. Harney, 331 U.S., at 375 . See also Pennekamp v. Florida, supra. And "[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel." New York Times, 376 U.S., at 277 . The First Amendment insulates from defamation liability a margin for error sufficient to ensure the avoidance of crippling press self-censorship in the field of reporting public judicial affairs. To be adequate, that margin must be both of sufficient breadth and predictable in its application. In my view, therefore, the actual-malice standard of New York Times must be met in order to justify the imposition of liability in these circumstances. </s> [Footnote 1 See Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup. Ct. Rev. 191; Meiklejohn, The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245. See also Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the Philosopher, 28 Rutgers L. Rev. 41 (1974); Meiklejohn, Public Speech in the Supreme Court Since New York Times v. Sullivan, 26 Syracuse L. Rev. 819 (1975). </s> [Footnote 2 The protection of the actual-malice test extends to erroneous statements that in any way "might touch on . . . [the] fitness for office" of a public official, Garrison v. Louisiana, 379 U.S. 64, 77 (1964), or a candidate for public office, Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971). The actual-malice standard has been applied "at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs," Rosenblatt v. Baer, 383 U.S. 75, 85 (1966), and further to "public figures" who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren, C. J., concurring in result). </s> As an erroneous judgment of liability is, in view of the First [424 U.S. 448, 473] Amendment values at stake, of more serious concern than an erroneous judgment in the opposite direction, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 50 (1971), the Court has held that actual malice must be demonstrated with "convincing clarity." New York Times, 376 U.S., at 285 -286. The actual-malice standard requires a showing that the erroneous statements were made in knowing or reckless disregard of their falsity, id., at 280, and has been otherwise defined as requiring a showing that the statements were made by a person who in fact was entertaining "serious doubts" as to their truth. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). </s> [Footnote 3 In this case, the $100,000 damage award was premised entirely on the injury of mental pain and anguish. All claims as to injury to reputation were withdrawn prior to trial, and no evidence concerning damage to reputation was presented at trial. (Indeed, it appears that petitioner was affirmatively precluded from offering evidence to refute any possible jury assumption in this regard by a pretrial order granting "Plaintiff's Motion to Limit Testimony," App. 77.) It seems clear that by allowing this type of recovery the State has subverted whatever protective influence the "actual injury" stricture may possess. Gertz would, of course, allow for an award of damages for such injury after proof of injury to reputation. 418 U.S., at 349 -350. But to allow such damages without proof "by competent evidence" of any other "actual injury" is to do nothing less than return to the old rule of presumed damages supposedly outlawed by Gertz in instances where the New York Times standard is not met. 418 U.S., at 349 . See Anderson, Libel and Press Self-Censorship, 53 Tex. L. Rev. 422, 472-473 (1975); Eaton, The American Law of Defamation through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L. Rev. 1349, 1436-1437 (1975). The result is clearly to invite "gratuitous awards of money damages far in excess of any actual injury" and jury punishment of "unpopular opinion rather than [compensation to] individuals for injury sustained by the publication of a false fact." Gertz, supra, at 349. </s> Furthermore, the allowance of damages for mental suffering alone will completely abrogate the use of summary judgment procedures in defamation litigation. Cf. Anderson, supra, at 469 n. 218. The use of such summary procedures may be a critical factor enabling publishers to avoid large litigation expenses in marginal and frivolous defamation suits. The specter of such expenses may be as potent a force for self-censorship as any threat of an ultimate damages award. See generally ibid. </s> [Footnote 4 Cf. Anderson, supra, n. 3, at 450-451, concluding that the Gertz opinion suggests a "category of involuntary public figures" roughly equivalent to "individual[s] involved in or affected by . . . official action" as defined by my Brother WHITE in Rosenbloom, 403 U.S., at 62 . </s> [Footnote 5 Cf. Rosenbloom v. Metromedia, Inc., supra, at 61 (WHITE, J., concurring): </s> "Discussion of the conduct of public officials cannot . . . be subjected to artificial limitations designed to protect others involved in an episode with officials from unfavorable publicity. Such limitations would deprive the public of full information about the official action that took place." </s> [Footnote 6 Craig also refutes any contention that private civil litigation is somehow different in this respect. 331 U.S., at 378 . </s> [Footnote 7 An early and sympathetic observer of our Nation's political system commented: </s> "The judicial organization of the United States is the institution [424 U.S. 448, 478] which a stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked in the political occurrences of every day, and he naturally concludes that in the United States the judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day. </s> . . . . . </s> "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." 1 A. de Tocqueville, Democracy in America 98, 280 (P. Bradley ed. 1948). </s> [Footnote 8 Even those who would narrowly confine the central meaning of the First Amendment to "explicitly political speech" recognize that this must extend to all speech "concerned with governmental behavior, policy or personnel, whether the governmental unit involved is executive, legislative, judicial or administrative." Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 27-28 (1971). </s> [Footnote 9 The difficulties encountered by laymen attempting to report in summarized form the results of judicial proceedings are surely illustrated in the instant case. Respondent's husband in counterclaiming for divorce had alleged grounds of "extreme cruelty and adultery," a fact reported in the subsequent judicial opinion. That opinion went on to state: </s> "According to certain testimony in behalf of the defendant, extra marital escapades of the plaintiff were bizarre and of an amatory nature which would have made Dr. Freud's hair curl. Other testimony, in plaintiff's behalf, would indicate that defendant was guilty of bounding from one bedpartner to another with the erotic zest of a satyr. The court is inclined to discount much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither party is domesticated, within the meaning of that term as used by the Supreme Court of Florida in the case of Chesnut v. Chesnut, 33 So.2d 730, where the court, in holding that a divorce rather than separate maintenance should be granted, said: </s> "`The big trouble was total incapacity on the part of either for domestication. Seventy-five per cent of successful marriage depends on tact to cushion and bypass domestic frictions. It is much better than meeting them head on and bearing the scars they leave. When the bride and the groom are both devoid of a yen for domestication, the marital bark puts out to sea with its jib pointed to the rocks. . . . We think the record reveals a complete allergy to the give and take essential to successful marriage.' </s> . . . . . </s> "In the present case, it is abundantly clear from the evidence of marital discord that neither of the parties has shown the least susceptibility to domestication, and that the marriage should be dissolved. </s> . . . . . </s> "The premises considered, it is thereupon </s> "ORDERED AND ADJUDGED as follows: </s> "1. That the equities in this cause are with the defendant; that defendant's counterclaim for divorce be and the same is hereby [424 U.S. 448, 480] granted, and the bonds of matrimony which have heretofore existed between the parties are hereby forever dissolved." App. 523-529. </s> The Florida Supreme Court in the instant action found the fault required by Gertz, 418 U.S., at 347 , to be present in the record by virtue of the fact that </s> "[p]ursuant to Florida law in effect at the time of the divorce judgment . . . a wife found guilty of adultery could not be awarded alimony. Since petitioner had been awarded alimony, she had not been found guilty of adultery nor had the divorce been granted on the ground of adultery. A careful examination of the final decree prior to publication would have clearly demonstrated that the divorce had been granted on the grounds of extreme cruelty . . . ." 305 So.2d 172, 178 (1974). </s> Surely the threat of press self-censorship in reporting judicial proceedings is obvious if liability is to be imposed on the basis of such "fault." Indeed, the impossibility of assuring against such errors in reporting is manifested by the fact that the same Florida Supreme Court, in reviewing the judgment of divorce some two and one-half years previous to the above-quoted statement, had found the divorce to have been granted by the trial judge on the erroneous grounds of "lack of domestication" rather than for either extreme cruelty or adultery. Firestone v. Firestone, 263 So.2d 223 (1972). </s> [Footnote 10 Judge Frank's opinion of the phenomenon and its cause appears to have been roughly comparable. J. Frank, Courts On Trial 1-3 (Atheneum ed. 1963). </s> MR. JUSTICE WHITE, dissenting. </s> I would affirm the judgment of the Florida Supreme Court because First Amendment values will not be furthered in any way by application to this case of the fault standards newly drafted and imposed by Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), upon which my [424 U.S. 448, 482] Brother REHNQUIST relies, or the fault standards required by Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), upon which my Brother BRENNAN relies; and because, in any event, any requisite fault was properly found below. </s> The jury found on ample evidence that the article published by petitioner Time, Inc., about respondent Firestone was false and defamatory. This Court has held, and no one seriously disputes, that, regardless of fault, "there is no constitutional value in false statements of fact." "They belong to that category of utterances which `. . . are of such slight social value as'" to be worthy of no First Amendment protection. Gertz v. Robert Welch, Inc., supra, at 340, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). This Court's decisions from New York Times Co. v. Sullivan, 376 U.S. 254 (1964), through Gertz v. Robert Welch, Inc., supra, holding that the Constitution requires a finding of some degree of fault as a precondition to a defamation award, have done so for one reason and one reason alone: unless innocent falsehood is allowed as a defense, some true speech will also be deterred. Thus "[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters," Gertz v. Robert Welch, Inc., supra, at 341 (emphasis supplied), e. g., true fact statements. In light of these decisions, the threshold question in the instant case should be whether requiring proof of fault on the part of Time, Inc., as a precondition to recovery in this case - and thereby possibly interfering with the State's desire to compensate respondent Firestone - will contribute in any way to the goal of protecting "speech that matters." I think it would not. </s> At the time of the defamatory publication in this case - December 1967 - the law clearly authorized liability [424 U.S. 448, 483] without fault in defamation cases of the sort involved here. * Whatever the chilling effect of that rule of law on publication of "speech that matters" in 1967 might have been, it has already occurred and is now irremediable. The goal of protecting "speech that matters" by announcing rules, as this Court did in Gertz v. Robert Welch, Inc., supra, and Rosenbloom v. Metromedia, Inc., supra, requiring fault as a precondition to a defamation recovery under circumstances such as are involved here, is fully achieved so long as fault is required for cases in which the publication occurred after the dates of those decisions. This is not such a case. </s> Therefore, to require proof of fault in this case - or in any other case predating Gertz and Rosenbloom in which a private figure is defamed - is to interfere with the State's otherwise legitimate policy of compensating defamation victims without furthering First Amendment goals in any way at all. In other areas in which the Court has developed a rule designed not to achieve justice in the case before it but designed to induce socially desirable conduct by some group in the future, the Court has declined to apply the rule to fact situations predating its announcement, e. g., Williams v. [424 U.S. 448, 484] United States, 401 U.S. 646, 653 (1971) (plurality opinion). The Court should follow a similar path here. </s> In any event, the judgment of the court below should be affirmed. My Brother REHNQUIST concludes that negligence is sufficient fault, under Gertz, to justify the judgment below, and that a finding of negligence may constitutionally be supplied by the Florida Supreme Court. I agree. Furthermore, the state court referred to Gertz v. Robert Welch, Inc., by name; noted the "convincing evidence of . . . negligence" in the case; pointed out that a careful examination of the divorce decree would have "clearly demonstrated" that the divorce was not grounded on adultery, as reported by Time, Inc.; and stated flatly: "This is a flagrant example of `journalistic negligence.'" 305 So.2d 172, 178 (1974). It appears to me that the Florida Supreme Court has made a sufficiently "conscious determination," ante, at 463, of the fact of negligence. If it is Gertz that controls this case and if that decision is to be applied retroactively, I would affirm the judgment. </s> [Footnote * Konigsberg v. State Bar of California, 366 U.S. 36, 49 , and n. 10 (1961); Times Film Corp. v. Chicago, 365 U.S. 43, 48 (1961); Roth v. United States, 354 U.S. 476, 486 -487 (1957); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); Pennekamp v. Florida, 328 U.S. 331, 348 -349 (1946); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 715 (1931). The majority concludes that respondent Firestone was neither a "public official" nor a "public figure," New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), and therefore that this case does not fall within any exception, then announced, to the Court's statements that common-law defamation rules do not violate the First Amendment. In this respect I agree with the majority. </s> MR. JUSTICE MARSHALL, dissenting. </s> The Court agrees with the Supreme Court of Florida that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a "public figure" within the meaning of our prior decisions, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), I respectfully dissent. </s> I </s> Mary Alice Firestone was not a person "first brought to public attention by the defamation that is the subject of the lawsuit." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 78 , 86 (1971) (MARSHALL, J., dissenting). On the contrary, she was "prominent among the `400' of [424 U.S. 448, 485] Palm Beach society," and an "active [member] of the sporting set," 271 So.2d 745, 751 (Fla. 1972), whose activities predictably attracted the attention of a sizable portion of the public. Indeed, Mrs. Firestone's appearances in the press were evidently frequent enough to warrant her subscribing to a press-clipping service. </s> Mrs. Firestone brought suit for separate maintenance, with reason to know of the likely public interest in the proceedings. As the Supreme Court of Florida noted, Mr. and Mrs. Firestone's "marital difficulties were . . . well-known," and the lawsuit became "a veritable cause celebre in social circles across the country." Ibid. The 17-month trial and related events attracted national news coverage, and elicited no fewer than 43 articles in the Miami Herald and 45 articles in the Palm Beach Post and Palm Beach Times. Far from shunning the publicity, Mrs. Firestone held several press conferences in the course of the proceedings. </s> These facts are sufficient to warrant the conclusion that Mary Alice Firestone was a "public figure" for purposes of reports on the judicial proceedings she initiated. In Gertz v. Robert Welch, Inc., supra, at 352 we noted that an individual can be a public figure for some purposes and a private figure for others. And we found two distinguishing features between public figures and private figures. First, we recognized that public figures have less need for judicial protection because of their greater ability to resort to self-help; "public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy." 418 U.S., at 344 . </s> As the above recital of the facts makes clear. Mrs. Firestone is hardly in a position to suggest that she lacked access to the media for purposes relating to her lawsuit. [424 U.S. 448, 486] It may well be that she would have had greater difficulty countering alleged falsehoods in the national press than in the Miami and Palm Beach papers that covered the proceedings so thoroughly. But presumably the audience Mrs. Firestone would have been most interested in reaching could have been reached through the local media. In any event, difficulty in reaching all those who may have read the alleged falsehood surely ought not preclude a finding that Mrs. Firestone was a public figure under Gertz. Gertz set no absolute requirement that an individual be able fully to counter falsehoods through self-help in order to be a public figure. We viewed the availability of the self-help remedy as a relative matter in Gertz, and set it forth as a minor consideration in determining whether an individual is a public figure. </s> The second, "more important," consideration in Gertz was a normative notion that public figures are less deserving of protection than private figures: That although "it may be possible for someone to become a public figure through no purposeful action of his own," generally those classed as public figures have "thrust themselves to the forefront of particular public controversies" and thereby "invite[d] attention and comment." Id., at 344-345. And even if they have not, "the communications media are entitled to act on the assumption that . . . public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them." Id., at 345. </s> We must assume that it was by choice that Mrs. Firestone became an active member of the "sporting set" - a social group with "especial prominence in the affairs of society," ibid., whose lives receive constant media attention. Certainly there is nothing in the record to indicate otherwise, and Mrs. Firestone's subscription to a press-clipping service suggests that she was not altogether uninterested [424 U.S. 448, 487] in the publicity she received. Having placed herself in a position in which her activities were of interest to a significant segment of the public, Mrs. Firestone chose to initiate a lawsuit for separate maintenance, and most significantly, held several press conferences in the course of that lawsuit. If these actions for some reason fail to establish as a certainly that Mrs. Firestone "voluntarily exposed [herself] to increased risk of injury from defamatory falsehood," surely they are sufficient to entitle the press to act on the assumption that she did. Accordingly, Mrs. Firestone would appear to be a public figure under Gertz. </s> The Court resists this result by concluding that the subject matter of the alleged defamation was not a "public controversy" as that term was used in Gertz. In part, the Court's conclusion rests on what I view as an understatement of the degree to which Mrs. Firestone can be said to have voluntarily acted in a manner that invited public attention. But more fundamentally its conclusion rests on a reading of Gertz that differs from mine. The meaning that the Court attributes to the term "public controversy" used in Gertz resurrects the precise difficulties that I thought Gertz was designed to avoid. </s> It is not enough for the Court that, because of Mrs. Firestone's acquired prominence within a segment of society, her lawsuit had already attracted significant public attention and comment when the Time report was published. According to the Court, the controversy, already of interest to the public, was "not the sort of `public controversy' referred to in Gertz." Ante, at 454. The only explanation I can discern from the Court's opinion is that the controversy was not of the sort deemed relevant to the "affairs of society," ante, at 453, and the public's interest not of the sort deemed "legitimate" or worthy of judicial recognition. [424 U.S. 448, 488] </s> If there is one thing that is clear from Gertz, it is that we explicitly rejected the position of the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), that the applicability of the New York Times standard depends upon whether the subject matter of a report is a matter of "public or general concern." We explained in Gertz that the test advanced by the Rosenbloom plurality </s> "would occasion the . . . difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of `general or public interest' and which do not - to determine, in the words of MR. JUSTICE MARSHALL, `what information is relevant to self-government.' Rosenbloom v. Metromedia Inc., 403 U.S., at 79 . We doubt the wisdom of committing this task to the conscience of judges." 418 U.S., at 346 . </s> Having thus rejected the appropriateness of judicial inquiry into "the legitimacy of interest in a particular event or subject," Rosenbloom, supra, at 78, 79 (MARSHALL, J., dissenting), Gertz obviously did not intend to sanction any such inquiry by its use of the term "public controversy." Yet that is precisely how I understand the Court's opinion to interpret Gertz. 1 </s> [424 U.S. 448, 489] </s> If Gertz is to have any meaning at all, the focus of analysis must be on the actions of the individual, and the degree of public attention that had already developed, or that could have been anticipated, before the report in question. Under this approach, the class of public figures must include an individual like Mrs. Firestone, who acquired a social prominence that could be expected to attract public attention, initiated a lawsuit that predictably attracted more public attention, and held press conferences in the course of and in regard to the lawsuit. 2 I would hold that, for purposes of this [424 U.S. 448, 490] case, Mrs. Firestone is a public figure, who must demonstrate that the report in question was published with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. </s> II </s> While the foregoing discussion is sufficient to dispose of the case under my reading of the law, two other aspects of the Court's opinion warrant comment. First, the Court appears to reject the contention that a rational interpretation of an ambiguous document is always entitled to some constitutional protection. The Court reads Time, Inc. v. Pape, 401 U.S. 279 (1971), as providing such protection only under the rubric of the New York Times "actual malice" standard. Ante, at 459 n. 4. I disagree. While the precise holding in Pape was that the choice of one of several rational interpretations of an ambiguous document is not enough to create a jury issue of "actual malice," the Court's reasoning suggests that its holding ought not be so confined. In introducing its discussion, the Court noted: </s> "[A] vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the `truth' of [424 U.S. 448, 491] such an indirect newspaper report presents rather complicated problems." 401 U.S., at 285 -286 (emphasis in original). </s> And in discussing the need for some protection for the publisher attempting to report the gist of a lengthy government document, the Court observed: </s> "Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of `truth' that would not put the publisher virtually at the mercy of the unguided discretion of a jury." Id., at 291. </s> Surely the Court's evident concern that publishers be accorded the leeway to offer rational interpretations of ambiguous documents was not restricted to cases in which the New York Times standard is applicable. That concern requires that protection for rational interpretations be accorded under the fault standard contemplated in Gertz. Thus my Brothers POWELL and STEWART, while joining the opinion of the Court, recognize that the rationality of an interpretation of an ambiguous document must figure as a crucial element in any assessment of fault under Gertz. Ante, at 467-469. I agree. The choice of one of several rational interpretations of an ambiguous document, without more, is insufficient to support a finding of fault under Gertz. </s> Finally, assuming that the Court is correct in its assessment of the law in this case, I find the Court's disposition baffling. The Court quotes that portion of the Florida Supreme Court's opinion which, citing Gertz, states in no uncertain terms that Time's report was a "flagrant example of `journalistic negligence.'" 305 So.2d 172, 178 (1974). But the Court is unwilling to read that statement as a "conscious determination" of fault, and accordingly the Court remands the case for an assessment of fault. [424 U.S. 448, 492] </s> Surely the Court cannot be suggesting that the quoted portion of the Supreme Court of Florida's opinion, which contained a citation to Gertz, had no meaning at all. And if it did have meaning, it must have reflected either an intention to find fault or an intention to affirm a finding of fault. It is quite clear that the opinion was not intended to affirm any finding of fault, for as the Court observes there was no finding of fault to affirm. The question of fault had not been submitted to the jury, and the District Court of Appeal had explicitly noted the absence of any proof that Time had been negligent. 254 So.2d 386, 390 (1971). The absence of any prior finding of fault only reinforces what the Florida Supreme Court's language itself makes clear - that the court was not simply affirming a finding of fault, but making such a finding in the first instance. </s> I therefore agree with my Brother WHITE that the Supreme Court of Florida made a conscious determination of fault. I would add, however, that it is a determination that is wholly unsupportable. The sole basis for that court's determination of fault was that under Florida law a wife found guilty of adultery cannot be, as Mrs. Firestone was, awarded alimony. Time, the court reasoned, should have realized that a divorce decree containing an award of alimony could not, consistent with Florida law, have been based on adultery. But that reasoning assumes that judicial decisions can always be squared with the prior state of the law. If we need be remained that courts occasionally err in their assessment of the law, we need only refer to the subsequent history of the divorce decree involved in this case: When the divorce case reached the Supreme Court of Florida, that court found that the divorce had been granted for lack of "domestication" and pointed out that that was not one of the statutory grounds for [424 U.S. 448, 493] divorce. Firestone v. Firestone, 263 So.2d 223 (1972). Time's responsibility was to report accurately what the trial court did, not what it could or should have done. If the trial court awarded alimony while basing the divorce on a finding of adultery by the wife, Time cannot be faulted for reporting that fact. Unless there is some basis for a finding of fault other than that given by the Supreme Court of Florida, I think it clear that there can be no liability. </s> [Footnote 1 The Supreme Court of Florida's explanation of why the New York Times standard is inapplicable is equally inconsistent with Gertz. After referring to Mrs. Firestone's prominence in Palm Beach society, the widespread attention her lawsuit received, and her granting of interviews to the news media, the court reasoned as follows: </s> "That the public was curious, titillated or intrigued with the scandal in the Firestone divorce is beyond doubt. But we again emphasize the distinction we make between that genre of public interest and real public or general concern. </s> . . . . . </s> ". . . [W]e cannot find here any aspect of real public concern, [424 U.S. 448, 489] and none has been shown to us, which would be furthered or enhanced by `free discussion' and `robust debate' about the divorce of Russell and Mary Alice Firestone. </s> "Nor did [Mrs. Firestone's] quoted interviews with the press raise the untidy affair to the dignity of true public concern. Unlike an actress who might grant interviews relating to the opening of her new play, [Mrs. Firestone] was not seeking public patronage. Publicity, or sympathy, perhaps, but not patronage. Irrespective of her subjective motives, objectively she was merely satiating the appetites of a curious press. </s> "In sum, the Firestone divorce action was unquestionably news-worthy, but reports thereof were not constitutionally protected as being matters of real public or general concern." 271 So.2d, at 752. </s> This language is from an opinion that issued before Gertz was decided, but the reasoning was reaffirmed in the Supreme Court of Florida's final opinion in the case, 305 So.2d 172, 174-175 (1974), which issued after our decision in Gertz. </s> [Footnote 2 The Court places heavy emphasis on the degree to which Mrs. Firestone attempted to "influence the resolution of" a particular controversy. In response to the observation that Mrs. Firestone held press conferences, for example, the Court notes that those conferences were not intended to influence the outcome of the trial or any other controversy. Ante, at 454-455, n. 3. Gertz did, of course, refer to the fact that persons often become public figures by attempting to influence the resolution of public questions. 418 U.S., at 345 . But the reference must be viewed as but an example of how one becomes a public figure. Surely Gertz did not intend [424 U.S. 448, 490] to establish a requirement that an individual attempt to influence the resolution of a particular controversy before he can be termed a public figure. If that were the rule, Athletic Director Butts in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), would not be a public figure. We held that Butts was a public figure, and in Gertz we specifically noted that that decision was "correct." 418 U.S., at 343 . </s> [424 U.S. 448, 494]

United States Supreme Court ADARAND CONSTRUCTORS, INC. v. PENA(1995) No. 93-1841 Argued: January 17, 1995Decided: June 12, 1995 </s> Most federal agency contracts must contain a subcontractor compensation clause, which gives a prime contractor a financial incentive to hire subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals, and requires the contractor to presume that such individuals include minorities or any other individuals found to be disadvantaged by the Small Business Administration (SBA). The prime contractor under a federal highway construction contract containing such a clause awarded a subcontract to a company that was certified as a small disadvantaged business. The record does not reveal how the company obtained its certification, but it could have been by any one of three routes: under one of two SBA programs - known as the 8(a) and 8(d) programs - or by a state agency under relevant Department of Transportation regulations. Petitioner Adarand Constructors, Inc., which submitted the low bid on the subcontract but was not a certified business, filed suit against respondent federal officials, claiming that the race-based presumptions used in subcontractor compensation clauses violate the equal protection component of the Fifth Amendment's Due Process Clause. The District Court granted respondents summary judgment. In affirming, the Court of Appeals assessed the constitutionality of the federal race-based action under a lenient standard, resembling intermediate scrutiny, which it determined was required by Fullilove v. Klutznick, 448 U.S. 448 , and Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 . </s> Held: </s> The judgment is vacated, and the case is remanded. </s> 16 F.3d 1537, vacated and remanded. </s> JUSTICE O'CONNOR delivered an opinion with respect to Parts I, Page II II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in JUSTICE SCALIA'S concurrence, concluding that: </s> 1. Adarand has standing to seek forward-looking relief. It has met the requirements necessary to maintain its claim by alleging an invasion of a legally protected interest in a particularized manner, and by showing that it is very likely to bid, in the relatively near future, on another Government contract offering financial incentives to a prime contractor for hiring disadvantaged subcontractors. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 . Pp. 7-10. </s> 2. All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Pp. 10-29; 34-37. </s> (a) In Richmond v. J. A. Croson Co., 488 U.S. 469 , a majority of the Court held that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. While Croson did not consider what standard of review the Fifth Amendment requires for such action taken by the Federal Government, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "`[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant v. Jackson Board of Ed., 476 U.S. 267, 273 -274. Second, consistency: "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," Croson, supra, at 494. And third, congruence: "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S. 1, 93 . Taken together, these propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. Pp. 10-23. </s> (b) However, a year after Croson, the Court, in Metro Broadcasting, upheld two federal race-based policies against a Fifth Amendment challenge. The Court repudiated the long-held notion that "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on a State to afford equal protection of the laws, Bolling v. Sharpe, 347 U.S. 497, 500 , by holding that congressionally mandated "benign" racial classifications need only satisfy intermediate scrutiny. By adopting that standard, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation that strict scrutiny of governmental racial classifications Page III is essential because it may not always be clear that a so-called preference is in fact benign. Second, it squarely rejected one of the three propositions established by this Court's earlier cases, namely, congruence between the standards applicable to federal and state race-based action, and in doing so also undermined the other two. Pp. 23-25. </s> (c) The propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments protect persons, not groups. It follows from that principle that all governmental action based on race - a group classification long recognized as in most circumstances irrelevant and therefore prohibited - should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection has not been infringed. Thus, strict scrutiny is the proper standard for analysis of all racial classifications, whether imposed by a federal, state, or local actor. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled. Pp. 25-29. </s> (d) The decision here makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. Thus, to the extent that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling. Requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications a detailed examination, as to both ends and means. It is not true that strict scrutiny is strict in theory, but fatal in fact. Government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test set out in this Court's previous cases. Pp. 34-36. </s> 3. Because this decision alters the playing field in some important respects, the case is remanded to the lower courts for further consideration. The Court of Appeals did not decide whether the interests served by the use of subcontractor compensation clauses are properly described as "compelling." Nor did it address the question of narrow tailoring in terms of this Court's strict scrutiny cases. Unresolved questions also remain concerning the details of the complex regulatory regimes implicated by the use of such clauses. Pp. 36-37. </s> JUSTICE SCALIA agreed that strict scrutiny must be applied to racial classifications imposed by all governmental actors, but concluded that government can never have a "compelling interest" in Page IV discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. Under the Constitution there can be no such thing as either a creditor or a debtor race. We are just one race in the eyes of government. Pp. 1-2. </s> O'CONNOR, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of SCALIA, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., and by SCALIA, J., to the extent heretofore indicated; and Part III-C was joined by KENNEDY, J. SCALIA, J., and THOMAS, J., filed opinions concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE O'CONNOR </s> announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which is for the Court except insofar as it might be inconsistent with the views expressed in JUSTICE SCALIA'S concurrence, and an opinion with respect to Part III-C in which JUSTICE KENNEDY joins. </s> Petitioner Adarand Constructors, Inc., claims that the Federal Government's practice of giving general contractors on government projects a financial incentive to hire subcontractors controlled by "socially and economically disadvantaged individuals," and in particular, the Government's use of race-based presumptions in identifying such individuals, violates the equal protection component of the Fifth Amendment's Due Process Clause. The Court of Appeals rejected Adarand's claim. We conclude, however, that courts should analyze cases of this kind under a different standard of review than the one the Court of Appeals applied. We therefore vacate the Court of Appeals' judgment and remand the case for further proceedings. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 2] </s> I </s> In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States Department of Transportation (DOT), awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction Company also submitted a bid. </s> The prime contract's terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by "socially and economically disadvantaged individuals," App. 24. Gonzales is certified as such a business; Adarand is not. Mountain Gravel awarded the subcontract to Gonzales, despite Adarand's low bid, and Mountain Gravel's Chief Estimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand's bid, had it not been for the additional payment it received by hiring Gonzales instead. Id., at 28-31. Federal law requires that a subcontracting clause similar to the one used here must appear in most federal agency contracts, and it also requires the clause to state that "[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a) of the Small Business Act." 15 U.S.C. 637(d)(2), (3). Adarand claims that the presumption set forth in that statute discriminates on the basis of race in violation of the Federal Government's Fifth Amendment obligation not to deny anyone equal protection of the laws. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 3] </s> These fairly straightforward facts implicate a complex scheme of federal statutes and regulations, to which we now turn. The Small Business Act, 72 Stat. 384, as amended, 15 U.S.C. 631 et seq. (Act), declares it to be "the policy of the United States that small business concerns, [and] small business concerns owned and controlled by socially and economically disadvantaged individuals, . . . shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency." 8(d)(1), 15 U.S.C. 637(d)(1). The Act defines "socially disadvantaged individuals" as "those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities," 8(a)(5), 15 U.S.C. 637(a)(5), and it defines "economically disadvantaged individuals" as "those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged." 8(a)(6)(A), 15 U.S.C. 637(a) (6)(A). </s> In furtherance of the policy stated in 8(d)(1), the Act establishes "[t]he Government-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals" at "not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year." 15 U.S.C. 644(g) (1). It also requires the head of each Federal agency to set agency-specific goals for participation by businesses controlled by socially and economically disadvantaged individuals. Ibid. </s> The Small Business Administration (SBA) has implemented these statutory directives in a variety of ways, two of which are relevant here. One is the "8(a) program," which is available to small businesses controlled by socially and economically disadvantaged </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 4] </s> individuals as the SBA has defined those terms. The 8(a) program confers a wide range of benefits on participating businesses, see, e. g., 13 CFR 124.303-124.311, 124.403 (1994); 48 CFR subpt. 19.8 (1994), one of which is automatic eligibility for subcontractor compensation provisions of the kind at issue in this case, 15 U.S.C. 637(d)(3)(C) (conferring presumptive eligibility on anyone "found to be disadvantaged . . . pursuant to section 8(a) of the Small Business Act"). To participate in the 8(a) program, a business must be "small," as defined in 13 CFR 124.102 (1994); and it must be 51% owned by individuals who qualify as "socially and economically disadvantaged," 124.103. The SBA presumes that Black, Hispanic, Asian Pacific, Subcontinent Asian, and Native Americans, as well as "members of other groups designated from time to time by SBA," are "socially disadvantaged," 124.105(b)(1). It also allows any individual not a member of a listed group to prove social disadvantage "on the basis of clear and convincing evidence," as described in 124.105(c). Social disadvantage is not enough to establish eligibility, however; SBA also requires each 8(a) program participant to prove "economic disadvantage" according to the criteria set forth in 124.106(a). </s> The other SBA program relevant to this case is the "8(d) subcontracting program," which unlike the 8(a) program is limited to eligibility for subcontracting provisions like the one at issue here. In determining eligibility, the SBA presumes social disadvantage based on membership in certain minority groups, just as in the 8(a) program, and again appears to require an individualized, although "less restrictive," showing of economic disadvantage, 124.106(b). A different set of regulations, however, says that members of minority groups wishing to participate in the 8(d) subcontracting program are entitled to a race-based presumption of social and economic disadvantage. 48 CFR 19.001, 19.703(a)(2) </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 5] </s> (1994). We are left with some uncertainty as to whether participation in the 8(d) subcontracting program requires an individualized showing of economic disadvantage. In any event, in both the 8(a) and the 8(d) programs, the presumptions of disadvantage are rebuttable if a third party comes forward with evidence suggesting that the participant is not, in fact, either economically or socially disadvantaged. 13 CFR 124.111(c)-(d), 124.601-124.609 (1994). </s> The contract giving rise to the dispute in this case came about as a result of the Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub. L. 100-17, 101 Stat. 132 (STURAA), a DOT appropriations measure. Section 106(c)(1) of STURAA provides that "not less than 10 percent" of the appropriated funds "shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals." 101 Stat. 145. STURAA adopts the Small Business Act's definition of "socially and economically disadvantaged individual," including the applicable race-based presumptions, and adds that "women shall be presumed to be socially and economically disadvantaged individuals for purposes of this subsection." 106(c)(2)(B), 101 Stat. 146. STURAA also requires the Secretary of Transportation to establish "minimum uniform criteria for State governments to use in certifying whether a concern qualifies for purposes of this subsection." 106(c)(4), 101 Stat. 146. The Secretary has done so in 49 CFR pt. 23, subpt. D (1994). Those regulations say that the certifying authority should presume both social and economic disadvantage (i. e., eligibility to participate) if the applicant belongs to certain racial groups, or is a woman. 49 CFR 23.62 (1994); 49 CFR pt. 23, subpt. D, App. C (1994). As with the SBA programs, third parties may come forward with evidence in an effort to rebut the presumption of </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 6] </s> disadvantage for a particular business. 49 CFR 23.69 (1994). </s> The operative clause in the contract in this case reads as follows: </s> "Subcontracting. This subsection is supplemented to include a Disadvantaged Business Enterprise (DBE) Development and Subcontracting Provision as follows: </s> "Monetary compensation is offered for awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals. . . . </s> "A small business concern will be considered a DBE after it has been certified as such by the U.S. Small Business Administration or any State Highway Agency. Certification by other Government agencies, counties, or cities may be acceptable on an individual basis provided the Contracting Officer has determined the certifying agency has an acceptable and viable DBE certification program. If the Contractor requests payment under this provision, the Contractor shall furnish the engineer with acceptable evidence of the subcontractor(s) DBE certification and shall furnish one certified copy of the executed subcontract(s). </s> . . . . . </s> "The Contractor will be paid an amount computed as follows: </s> "1. If a subcontract is awarded to one DBE, 10 percent of the final amount of the approved DBE subcontract, not to exceed 1.5 percent of the original contract amount. </s> "2. If subcontracts are awarded to two or more DBEs, 10 percent of the final amount of the approved DBE subcontracts, not to exceed 2 percent of the original contract amount." App. 24-26. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 7] </s> To benefit from this clause, Mountain Gravel had to hire a subcontractor who had been certified as a small disadvantaged business by the SBA, a state highway agency, or some other certifying authority acceptable to the Contracting Officer. Any of the three routes to such certification described above - SBA's 8(a) or 8(d) program, or certification by a State under the DOT regulations - would meet that requirement. The record does not reveal how Gonzales obtained its certification as a small disadvantaged business. </s> After losing the guardrail subcontract to Gonzales, Adarand filed suit against various federal officials in the United States District Court for the District of Colorado, claiming that the race-based presumptions involved in the use of subcontracting compensation clauses violate Adarand's right to equal protection. The District Court granted the Government's motion for summary judgment. Adarand Constructors, Inc. v. Skinner, 790 F. Supp. 240 (1992). The Court of Appeals for the Tenth Circuit affirmed. 16 F.3d 1537 (1994). It understood our decision in Fullilove v. Klutznick, 448 U.S. 448 (1980), to have adopted "a lenient standard, resembling intermediate scrutiny, in assessing" the constitutionality of federal race-based action. 16 F.3d, at 1544. Applying that "lenient standard," as further developed in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), the Court of Appeals upheld the use of subcontractor compensation clauses. 16 F.3d, at 1547. We granted certiorari. 512 U.S. ___ (1994). </s> II </s> Adarand, in addition to its general prayer for "such other and further relief as to the Court seems just and equitable," specifically seeks declaratory and injunctive relief against any future use of subcontractor compensation clauses. App. 22-23 (complaint). Before reaching the merits of Adarand's challenge, we must consider </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 8] </s> whether Adarand has standing to seek forward-looking relief. Adarand's allegation that it has lost a contract in the past because of a subcontractor compensation clause of course entitles it to seek damages for the loss of that contract (we express no view, however, as to whether sovereign immunity would bar such relief on these facts). But as we explained in Los Angeles v. Lyons, 461 U.S. 95 (1983), the fact of past injury, "while presumably affording [the plaintiff] standing to claim damages . . . , does nothing to establish a real and immediate threat that he would again" suffer similar injury in the future. Id., at 105. </s> If Adarand is to maintain its claim for forward-looking relief, our cases require it to allege that the use of subcontractor compensation clauses in the future constitutes "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (footnote, citations, and internal quotation marks omitted). Adarand's claim that the Government's use of subcontractor compensation clauses denies it equal protection of the laws of course alleges an invasion of a legally protected interest, and it does so in a manner that is "particularized" as to Adarand. We note that, contrary to the respondents' suggestion, see Brief for Respondents 29-30, Adarand need not demonstrate that it has been, or will be, the low bidder on a government contract. The injury in cases of this kind is that a "discriminatory classification prevent[s] the plaintiff from competing on an equal footing." General Contractors v. Jacksonville, 508 U.S. ___, ___ (1993) (slip op., at 11). The aggrieved party "need not allege that he would have obtained the benefit but for the barrier in order to establish standing." Id., at ___ (slip op., at 9). </s> It is less clear, however, that the future use of subcontractor compensation clauses will cause Adarand "imminent" </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 9] </s> injury. We said in Lujan that "[a]lthough `imminence' is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to insure that the alleged injury is not too speculative for Article III purposes - that the injury is `certainly impending.'" Lujan, supra, at 565, n. 2. We therefore must ask whether Adarand has made an adequate showing that sometime in the relatively near future it will bid on another government contract that offers financial incentives to a prime contractor for hiring disadvantaged subcontractors. </s> We conclude that Adarand has satisfied this requirement. Adarand's general manager said in a deposition that his company bids on every guardrail project in Colorado. See Reply Brief for Petitioner 5-A. According to documents produced in discovery, the CFLHD let fourteen prime contracts in Colorado that included guardrail work between 1983 and 1990. Plaintiff's Motion for Summary Judgment in No. 90-C-1413, Exh. I, Attachment A (D. Colo.). Two of those contracts do not present the kind of injury Adarand alleges here. In one, the prime contractor did not subcontract out the guardrail work; in another, the prime contractor was itself a disadvantaged business, and in such cases the contract generally does not include a subcontractor compensation clause. Ibid.; see also id., Supplemental Exhibits, Deposition of Craig Actis 14 (testimony of CFLHD employee that 8(a) contracts do not include subcontractor compensation clauses). Thus, statistics from the years 1983 through 1990 indicate that the CFLHD lets on average one and one half contracts per year that could injure Adarand in the manner it alleges here. Nothing in the record suggests that the CFLHD has altered the frequency with which it lets contracts that include guardrail work. And the record indicates that Adarand often must compete for contracts against companies certified as small disadvantaged businesses. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 10] </s> See id., Exh. F, Attachments 1-3. Because the evidence in this case indicates that the CFLHD is likely to let contracts involving guardrail work that contain a subcontractor compensation clause at least once per year in Colorado, that Adarand is very likely to bid on each such contract, and that Adarand often must compete for such contracts against small disadvantaged businesses, we are satisfied that Adarand has standing to bring this lawsuit. </s> III </s> The Government urges that "[t]he Subcontracting Compensation Clause program is . . . a program based on disadvantage, not on race," and thus that it is subject only to "the most relaxed judicial scrutiny." Brief for Respondents 26. To the extent that the statutes and regulations involved in this case are race neutral, we agree. The Government concedes, however, that "the race-based rebuttable presumption used in some certification determinations under the Subcontracting Compensation Clause" is subject to some heightened level of scrutiny. Id., at 27. The parties disagree as to what that level should be. (We note, incidentally, that this case concerns only classifications based explicitly on race, and presents none of the additional difficulties posed by laws that, although facially race neutral, result in racially disproportionate impact and are motivated by a racially discriminatory purpose. See generally Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976).) </s> Adarand's claim arises under the Fifth Amendment to the Constitution, which provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law." Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 11] </s> Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment, which provides that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). Our cases have accorded varying degrees of significance to the difference in the language of those two Clauses. We think it necessary to revisit the issue here. </s> A </s> Through the 1940s, this Court had routinely taken the view in non-race-related cases that, "[u]nlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress." Detroit Bank v. United States, 317 U.S. 329, 337 (1943); see also, e. g., Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941); LaBelle Iron Works v. United States, 256 U.S. 377, 392 (1921) ("Reference is made to cases decided under the equal protection clause of the Fourteenth Amendment . . . ; but clearly they are not in point. The Fifth Amendment has no equal protection clause"). When the Court first faced a Fifth Amendment equal protection challenge to a federal racial classification, it adopted a similar approach, with most unfortunate results. In Hirabayashi v. United States, 320 U.S. 81 (1943), the Court considered a curfew applicable only to persons of Japanese ancestry. The Court observed - correctly - that "[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality," and that "racial discriminations are in most circumstances irrelevant and therefore prohibited." Id., at 100. But it also cited Detroit Bank for the proposition that the Fifth Amendment "restrains only such discriminatory legislation by Congress as amounts to a denial of due process," ibid., </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 12] </s> and upheld the curfew because "circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made." Id., at 102. </s> Eighteen months later, the Court again approved wartime measures directed at persons of Japanese ancestry. Korematsu v. United States, 323 U.S. 214 (1944), concerned an order that completely excluded such persons from particular areas. The Court did not address the view, expressed in cases like Hirabayashi and Detroit Bank, that the Federal Government's obligation to provide equal protection differs significantly from that of the States. Instead, it began by noting that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . [and] courts must subject them to the most rigid scrutiny." 323 U.S., at 216 . That promising dictum might be read to undermine the view that the Federal Government is under a lesser obligation to avoid injurious racial classifications than are the States. Cf. id., at 234-235 (Murphy, J., dissenting) ("[T]he order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment"). But in spite of the "most rigid scrutiny" standard it had just set forth, the Court then inexplicably relied on "the principles we announced in the Hirabayashi case," id., at 217, to conclude that, although "exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p. m. to 6 a. m.," id., at 218, the racially discriminatory order was nonetheless within the Federal Government's power. * </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 13] </s> In Bolling v. Sharpe, 347 U.S. 497 (1954), the Court for the first time explicitly questioned the existence of any difference between the obligations of the Federal Government and the States to avoid racial classifications. Bolling did note that "[t]he `equal protection of the laws' is a more explicit safeguard of prohibited unfairness than `due process of law,'" id., at 499. But Bolling then concluded that, "[i]n view of [the] decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Id., at 500. </s> Bolling's facts concerned school desegregation, but its reasoning was not so limited. The Court's observations that "[d]istinctions between citizens solely because of their ancestry are by their very nature odious," Hirabayashi, 320 U.S., at 100 , and that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect," Korematsu, 323 U.S., at 216 , carry no less force in the context of federal action than in the context of action by the States - indeed, they first appeared in cases concerning action by the Federal Government. Bolling relied on those observations, 347 U.S., at 499 , n. 3, and reiterated "`that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race,'" id., at 499 (quoting Gibson v. Mississippi, 162 U.S. 565, 591 (1896)) (emphasis added). The Court's application of that general principle to the case before it, </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 14] </s> and the resulting imposition on the Federal Government of an obligation equivalent to that of the States, followed as a matter of course. </s> Later cases in contexts other than school desegregation did not distinguish between the duties of the States and the Federal Government to avoid racial classifications. Consider, for example, the following passage from McLaughlin v. Florida, 379 U.S. 184 , a 1964 case that struck down a race-based state law: </s> "[W]e deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications `constitutionally suspect,' Bolling v. Sharpe, 347 U.S. 497, 499 ; and subject to the `most rigid scrutiny,' Korematsu v. United States, 323 U.S. 214, 216 ; and `in most circumstances irrelevant' to any constitutionally acceptable legislative purpose, Hirabayashi v. United States, 320 U.S. 81, 100 ." Id., at 191-192. </s> McLaughlin's reliance on cases involving federal action for the standards applicable to a case involving state legislation suggests that the Court understood the standards for federal and state racial classifications to be the same. </s> Cases decided after McLaughlin continued to treat the equal protection obligations imposed by the Fifth and the Fourteenth Amendments as indistinguishable; one commentator observed that "[i]n case after case, fifth amendment equal protection problems are discussed on the assumption that fourteenth amendment precedents are controlling." Karst, The Fifth Amendment's Guarantee of Equal Protection, 55 N.C. L. Rev. 541, 554 (1977). Loving v. Virginia, which struck down a </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 15] </s> race-based state law, cited Korematsu for the proposition that "the Equal Protection Clause demands that racial classifications . . . be subjected to the `most rigid scrutiny.'" 388 U.S. 1, 11 (1967). The various opinions in Frontiero v. Richardson, 411 U.S. 677 (1973), which concerned sex discrimination by the Federal Government, took their equal protection standard of review from Reed v. Reed, 404 U.S. 71 (1971), a case that invalidated sex discrimination by a State, without mentioning any possibility of a difference between the standards applicable to state and federal action. Frontiero, 411 U.S., at 682 -684 (plurality opinion of Brennan, J.); id., at 691 (Stewart, J., concurring in judgment); id., at 692 (Powell, J., concurring in judgment). Thus, in 1975, the Court stated explicitly that "[t]his Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment." Weinberger v. Wiesenfeld, 420 U.S. 636, 638 , n. 2 (1975); see also Buckley v. Valeo, 424 U.S. 1, 93 (1976) ("Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment"); United States v. Paradise, 480 U.S. 149, 166 , n. 16 (1987) (plurality opinion of Brennan, J.) ("[T]he reach of the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth"). We do not understand a few contrary suggestions appearing in cases in which we found special deference to the political branches of the Federal Government to be appropriate, e. g., Hampton v. Mow Sun Wong, 426 U.S. 88, 100 , 101-102, n. 21 (1976) (federal power over immigration), to detract from this general rule. </s> B </s> Most of the cases discussed above involved classifications burdening groups that have suffered discrimination in our society. In 1978, the Court confronted the </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 16] </s> question whether race-based governmental action designed to benefit such groups should also be subject to "the most rigid scrutiny." Regents of Univ. of California v. Bakke, 438 U.S. 265 , involved an equal protection challenge to a state-run medical school's practice of reserving a number of spaces in its entering class for minority students. The petitioners argued that "strict scrutiny" should apply only to "classifications that disadvantage `discrete and insular minorities.'" Id., at 287-288 (opinion of Powell, J.) (citing United States v. Carolene Products Co., 304 U.S. 144, 152 , n. 4 (1938)). Bakke did not produce an opinion for the Court, but Justice Powell's opinion announcing the Court's judgment rejected the argument. In a passage joined by Justice White, Justice Powell wrote that "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color." 438 U.S., at 289 -290. He concluded that "[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination." Id., at 291. On the other hand, four Justices in Bakke would have applied a less stringent standard of review to racial classifications "designed to further remedial purposes," see id., at 359 (Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). And four Justices thought the case should be decided on statutory grounds. Id., at 411-412, 421 (STEVENS, J., joined by Burger, C. J., Stewart, and REHNQUIST, JJ., concurring in judgment in part and dissenting in part). </s> Two years after Bakke, the Court faced another challenge to remedial race-based action, this time involving action undertaken by the Federal Government. In Fullilove v. Klutznick, 448 U.S. 448 (1980), the Court upheld Congress' inclusion of a 10% set-aside for minority-owned businesses in the Public Works Employment Act of 1977. As in Bakke, there was no opinion </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 17] </s> for the Court. Chief Justice Burger, in an opinion joined by Justices White and Powell, observed that "[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees." 448 U.S., at 491 . That opinion, however, "d[id] not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as [Bakke]." Id., at 492. It employed instead a two-part test which asked, first, "whether the objectives of th[e] legislation are within the power of Congress," and second, "whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives." Id., at 473. It then upheld the program under that test, adding at the end of the opinion that the program also "would survive judicial review under either `test' articulated in the several Bakke opinions." Id., at 492. Justice Powell wrote separately to express his view that the plurality opinion had essentially applied "strict scrutiny" as described in his Bakke opinion - i. e., it had determined that the set-aside was "a necessary means of advancing a compelling governmental interest" - and had done so correctly. 448 U.S., at 496 (concurring opinion). Justice Stewart (joined by then-JUSTICE REHNQUIST) dissented, arguing that the Constitution required the Federal Government to meet the same strict standard as the States when enacting racial classifications, id., at 523, and n. 1, and that the program before the Court failed that standard. JUSTICE STEVENS also dissented, arguing that "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification," id., at 537, and that the program before the Court could not be characterized "as a `narrowly tailored' remedial measure." Id., at 541. Justice Marshall (joined by Justices Brennan and Blackmun) concurred in </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 18] </s> the judgment, reiterating the view of four Justices in Bakke that any race-based governmental action designed to "remed[y] the present effects of past racial discrimination" should be upheld if it was "substantially related" to the achievement of an "important governmental objective" - i. e., such action should be subjected only to what we now call "intermediate scrutiny." 448 U.S., at 518 -519. </s> In Wygant v. Jackson Board of Ed., 476 U.S. 267 (1986), the Court considered a Fourteenth Amendment challenge to another form of remedial racial classification. The issue in Wygant was whether a school board could adopt race-based preferences in determining which teachers to lay off. Justice Powell's plurality opinion observed that "the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination," id., at 273, and stated the two-part inquiry as "whether the layoff provision is supported by a compelling state purpose and whether the means chosen to accomplish that purpose are narrowly tailored." Id., at 274. In other words, "racial classifications of any sort must be subjected to `strict scrutiny.'" Id., at 285 (O'CONNOR, J., concurring in part and concurring in judgment). The plurality then concluded that the school board's interest in "providing minority role models for its minority students, as an attempt to alleviate the effects of societal discrimination," id., at 274, was not a compelling interest that could justify the use of a racial classification. It added that "[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy," id., at 276, and insisted instead that "a public employer . . . must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 19] </s> has been prior discrimination," id., at 277. Justice White concurred only in the judgment, although he agreed that the school board's asserted interests could not, "singly or together, justify this racially discriminatory layoff policy." Id., at 295. Four Justices dissented, three of whom again argued for intermediate scrutiny of remedial race-based government action. Id., at 301-302 (Marshall, J., joined by Brennan and Blackmun, JJ., dissenting). </s> The Court's failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the proper analysis for remedial race-based governmental action. See United States v. Paradise, 480 U.S., at 166 (plurality opinion of Brennan, J.) ("[A]lthough this Court has consistently held that some elevated level of scrutiny is required when a racial or ethnic distinction is made for remedial purposes, it has yet to reach consensus on the appropriate constitutional analysis"); Sheet Metal Workers v. EEOC, 478 U.S. 421, 480 (1986) (plurality opinion of Brennan, J.). Lower courts found this lack of guidance unsettling. See, e. g., Kromnick v. School Dist. of Philadelphia, 739 F.2d 894, 901 (CA3 1984) ("The absence of an Opinion of the Court in either Bakke or Fullilove and the concomitant failure of the Court to articulate an analytic framework supporting the judgments makes the position of the lower federal courts considering the constitutionality of affirmative action programs somewhat vulnerable"), cert. denied, 469 U.S. 1107 (1985); Williams v. New Orleans, 729 F.2d 1554, 1567 (CA5 1984) (en banc) (Higginbotham, J., concurring specially); South Florida Chapter of Associated General Contractors of America, Inc. v. Metropolitan Dade County, Fla., 723 F.2d 846, 851 (CA11), cert. denied, 469 U.S. 871 (1984). </s> The Court resolved the issue, at least in part, in 1989. Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), concerned a city's determination that 30% of its contracting </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 20] </s> work should go to minority-owned businesses. A majority of the Court in Croson held that "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," and that the single standard of review for racial classifications should be "strict scrutiny." Id., at 493-494 (opinion of O'CONNOR, J., joined by REHNQUIST, C. J., White, and KENNEDY, JJ.); id., at 520 (SCALIA, J., concurring in judgment) ("I agree . . . with JUSTICE O'CONNOR's conclusion that strict scrutiny must be applied to all governmental classification by race"). As to the classification before the Court, the plurality agreed that "a state or local subdivision . . . has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction," id., at 491-492, but the Court thought that the city had not acted with "a `strong basis in evidence for its conclusion that remedial action was necessary,'" id., at 500 (majority opinion) (quoting Wygant, supra, at 277 (plurality opinion)). The Court also thought it "obvious that [the] program is not narrowly tailored to remedy the effects of prior discrimination." 488 U.S., at 508 . </s> With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires for such action taken by the Federal Government. Croson observed simply that the Court's "treatment of an exercise of congressional power in Fullilove cannot be dispositive here," because Croson's facts did not implicate Congress' broad power under 5 of the Fourteenth Amendment. Croson, 488 U.S., at 491 (plurality opinion); see also id., at 522 (SCALIA, J., concurring in judgment) ("[W]ithout revisiting what we held in Fullilove . . . , I do not believe our decision in that case controls the one before us here"). On the other hand, </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 21] </s> the Court subsequently indicated that Croson had at least some bearing on federal race-based action when it vacated a decision upholding such action and remanded for further consideration in light of Croson. H. K. Porter Co. v. Metropolitan Dade County, 489 U.S. 1062 (1989); see also Shurberg Broadcasting of Hartford, Inc. v. FCC, 876 F.2d 902, 915, n. 16 (CADC 1989) (opinion of Silberman, J.) (noting the Court's action in H. K. Porter Co.), rev'd sub nom. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990). Thus, some uncertainty persisted with respect to the standard of review for federal racial classifications. See, e. g., Mann v. City of Albany, Ga., 883 F.2d 999, 1006 (CA11 1989) (Croson "may be applicable to race-based classifications imposed by Congress"); Shurberg, supra, at 910 (noting the difficulty of extracting general principles from the Court's fractured opinions); id., at 959 (Wald, J., dissenting from denial of rehearing en banc) ("Croson certainly did not resolve the substantial questions posed by congressional programs which mandate the use of racial preferences"); Winter Park Communications, Inc. v. FCC, 873 F.2d 347, 366 (CADC 1989) (Williams, J., concurring in part and dissenting in part) ("The unresolved ambiguity of Fullilove and Croson leaves it impossible to reach a firm opinion as to the evidence of discrimination needed to sustain a congressional mandate of racial preferences"), aff'd sub nom. Metro Broadcasting, supra. </s> Despite lingering uncertainty in the details, however, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications. First, skepticism: "`[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant, 476 U.S., at 273 (plurality opinion of Powell, J.); Fullilove, 448 U.S., at 491 (opinion of Burger, C. J.); see also id., at 523 (Stewart, J., dissenting) ("[A]ny official action that treats a person differently on account of his race or </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 22] </s> ethnic origin is inherently suspect"); McLaughlin, 379 U.S., at 192 ("[R]acial classifications [are] `constitutionally suspect'"); Hirabayashi, 320 U.S., at 100 ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people"). Second, consistency: "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," Croson, 488 U.S., at 494 (plurality opinion); id., at 520 (SCALIA, J., concurring in judgment); see also Bakke, 438 U.S., at 289 -290 (opinion of Powell, J.), i. e., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S., at 93 ; see also Weinberger v. Wiesenfeld, 420 U.S., at 638 , n. 2; Bolling v. Sharpe, 347 U.S., at 500 . Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny. Justice Powell's defense of this conclusion bears repeating here: </s> "If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, [Korematsu], but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 23] </s> compromise struck by contending groups within the democratic process. When they touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U.S. [1, 22 (1948)]." Bakke, 438 U.S., at 299 (opinion of Powell, J.) (footnote omitted). </s> A year later, however, the Court took a surprising turn. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), involved a Fifth Amendment challenge to two race-based policies of the Federal Communications Commission. In Metro Broadcasting, the Court repudiated the long-held notion that "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government" than it does on a State to afford equal protection of the laws, Bolling, supra, at 500. It did so by holding that "benign" federal racial classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny. "[B]enign" federal racial classifications, the Court said," - even if those measures are not `remedial' in the sense of being designed to compensate victims of past governmental or societal discrimination - are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives." Metro Broadcasting, 497 U.S., at 564 -565 (emphasis added). The Court did not explain how to tell whether a racial classification should be deemed "benign," other than to express "confiden[ce] that an `examination of the legislative scheme and its history' will separate benign measures from other types of racial classifications." Id., at 564, n. 12 (citation omitted). </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 24] </s> Applying this test, the Court first noted that the FCC policies at issue did not serve as a remedy for past discrimination. Id., at 566. Proceeding on the assumption that the policies were nonetheless "benign," it concluded that they served the "important governmental objective" of "enhancing broadcast diversity," id., at 566-567, and that they were "substantially related" to that objective, id., at 569. It therefore upheld the policies. </s> By adopting intermediate scrutiny as the standard of review for congressionally mandated "benign" racial classifications, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation of why strict scrutiny of all governmental racial classifications is essential: </s> "Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are `benign' or `remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen `fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Croson, supra, at 493 (plurality opinion of O'CONNOR, J.). </s> We adhere to that view today, despite the surface appeal of holding "benign" racial classifications to a lower standard, because "it may not always be clear that a so-called preference is in fact benign," Bakke, supra, at 298 (opinion of Powell, J.). "[M]ore than good motives should be required when government seeks to allocate </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 25] </s> its resources by way of an explicit racial classification system." Days, Fullilove, 96 Yale L. J. 453, 485 (1987). </s> Second, Metro Broadcasting squarely rejected one of the three propositions established by the Court's earlier equal protection cases, namely, congruence between the standards applicable to federal and state racial classifications, and in so doing also undermined the other two skepticism of all racial classifications, and consistency of treatment irrespective of the race of the burdened or benefited group. See supra, at 21-22. Under Metro Broadcasting, certain racial classifications ("benign" ones enacted by the Federal Government) should be treated less skeptically than others; and the race of the benefited group is critical to the determination of which standard of review to apply. Metro Broadcasting was thus a significant departure from much of what had come before it. </s> The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race - a group classification long recognized as "in most circumstances irrelevant and therefore prohibited," Hirabayashi, supra, at 100 - should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court's understanding of equal protection, and holding "benign" state and federal racial classifications to different standards does not square with them. "[A] free people whose institutions are founded upon the doctrine of equality," ibid., should tolerate no retreat from the principle that government may treat people differently because of their race only for the most compelling reasons. Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 26] </s> analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled. </s> In dissent, JUSTICE STEVENS criticizes us for "deliver[ing] a disconcerting lecture about the evils of governmental racial classifications," post, at 1. With respect, we believe his criticisms reflect a serious misunderstanding of our opinion. </s> JUSTICE STEVENS concurs in our view that courts should take a skeptical view of all governmental racial classifications. Post, at 1-2. He also allows that "[n]othing is inherently wrong with applying a single standard to fundamentally different situations, as long as that standard takes relevant differences into account." Post, at 6. What he fails to recognize is that strict scrutiny does take "relevant differences" into account - indeed, that is its fundamental purpose. The point of carefully examining the interest asserted by the government in support of a racial classification, and the evidence offered to show that the classification is needed, is precisely to distinguish legitimate from illegitimate uses of race in governmental decisionmaking. See supra, at 24-25. And JUSTICE STEVENS concedes that "some cases may be difficult to classify," post, at 5, and n. 4; all the more reason, in our view, to examine all racial classifications carefully. Strict scrutiny does not "trea[t] dissimilar race-based decisions as though they were equally objectionable," post, at 5; to the contrary, it evaluates carefully all governmental race-based decisions in order to decide which are constitutionally objectionable and which are not. By requiring strict scrutiny of racial classifications, we require courts to make sure that a governmental classification based on race, which "so seldom provide[s] a relevant basis for </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 27] </s> disparate treatment," Fullilove, supra, at 534 (STEVENS, J., dissenting), is legitimate, before permitting unequal treatment based on race to proceed. </s> JUSTICE STEVENS chides us for our "supposed inability to differentiate between `invidious' and `benign' discrimination," because it is in his view sufficient that "people understand the difference between good intentions and bad." Post, at 5. But, as we have just explained, the point of strict scrutiny is to "differentiate between" permissible and impermissible governmental use of race. And JUSTICE STEVENS himself has already explained in his dissent in Fullilove why "good intentions" alone are not enough to sustain a supposedly "benign" racial classification: "[E]ven though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race. Because that perception especially when fostered by the Congress of the United States - can only exacerbate rather than reduce racial prejudice, it will delay the time when race will become a truly irrelevant, or at least insignificant, factor. Unless Congress clearly articulates the need and basis for a racial classification, and also tailors the classification to its justification, the Court should not uphold this kind of statute." Fullilove, supra, at 545 (dissenting opinion) (emphasis added; footnote omitted); see also id., at 537 ("Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification"); Croson, supra, at 516-517 (STEVENS, J., concurring in part and concurring in judgment) ("Although [the legislation at issue] stigmatizes the disadvantaged class with the unproven charge of past racial discrimination, it actually imposes a greater stigma on its supposed beneficiaries"); supra, at 24-25; but cf. post, at 5-6 (STEVENS, J., dissenting). These passages make a </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 28] </s> persuasive case for requiring strict scrutiny of congressional racial classifications. </s> Perhaps it is not the standard of strict scrutiny itself, but our use of the concepts of "consistency" and "congruence" in conjunction with it, that leads JUSTICE STEVENS to dissent. According to JUSTICE STEVENS, our view of consistency "equate[s] remedial preferences with invidious discrimination," post, at 6, and ignores the difference between "an engine of oppression" and an effort "to foster equality in society," or, more colorfully, "between a `No Trespassing' sign and a welcome mat," post, at 2, 4. It does nothing of the kind. The principle of consistency simply means that whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection. It says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny. The principle of consistency explains the circumstances in which the injury requiring strict scrutiny occurs. The application of strict scrutiny, in turn, determines whether a compelling governmental interest justifies the infliction of that injury. </s> Consistency does recognize that any individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be. This Court clearly stated that principle in Croson, see 488 U.S., at 493 -494 (plurality opinion); id., at 520-521 (SCALIA, J., concurring in judgment); see also Shaw v. Reno, 509 U.S. ___, ___ (1993); Powers v. Ohio, 499 U.S. 400, 410 (1991). JUSTICE STEVENS does not explain how his views square with Croson, or with the long line of cases understanding equal protection as a personal right. </s> JUSTICE STEVENS also claims that we have ignored any difference between federal and state legislatures. But </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 29] </s> requiring that Congress, like the States, enact racial classifications only when doing so is necessary to further a "compelling interest" does not contravene any principle of appropriate respect for a co-equal Branch of the Government. It is true that various Members of this Court have taken different views of the authority 5 of the Fourteenth Amendment confers upon Congress to deal with the problem of racial discrimination, and the extent to which courts should defer to Congress' exercise of that authority. See, e. g., Metro Broadcasting, supra, at 605-606 (O'CONNOR, J., dissenting); Croson, supra, at 486-493 (opinion of O'CONNOR, J., joined by REHNQUIST, C. J., and White, J.); id., at 518-519 (KENNEDY, J., concurring in part and concurring in judgment); id., at 521-524 (SCALIA, J., concurring in judgment); Fullilove, supra, at 472-473 (opinion of Burger, C. J.); id., at 500-502, and nn. 2-3, 515, and n. 14 (Powell, J., concurring); id., at 526-527 (Stewart, J., dissenting). We need not, and do not, address these differences today. For now, it is enough to observe that JUSTICE STEVENS' suggestion that any Member of this Court has repudiated in this case his or her previously expressed views on the subject, post, at 9-13, 17, is incorrect. </s> C </s> "Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification." Arizona v. Rumsey, 467 U.S. 203, 212 (1984). In deciding whether this case presents such justification, we recall Justice Frankfurter's admonition that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience." Helvering v. Hallock, 309 U.S. 106, 119 (1940). </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 30] </s> Remaining true to an "intrinsically sounder" doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation, "special justification" exists to depart from the recently decided case. </s> As we have explained, Metro Broadcasting undermined important principles of this Court's equal protection jurisprudence, established in a line of cases stretching back over fifty years, see supra, at 11-23. Those principles together stood for an "embracing" and "intrinsically soun[d]" understanding of equal protection "verified by experience," namely, that the Constitution imposes upon federal, state, and local governmental actors the same obligation to respect the personal right to equal protection of the laws. This case therefore presents precisely the situation described by Justice Frankfurter in Helvering: we cannot adhere to our most recent decision without colliding with an accepted and established doctrine. We also note that Metro Broadcasting's application of different standards of review to federal and state racial classifications has been consistently criticized by commentators. See, e. g., Fried, Metro Broadcasting, Inc. v. FCC: Two Concepts of Equality, 104 Harv. L. Rev. 107, 113-117 (1990) (arguing that Metro Broadcasting's adoption of different standards of review for federal and state racial classifications placed the law in an "unstable condition," and advocating strict scrutiny across the board); Devins, Metro Broadcasting, Inc. v. FCC: Requiem for a Heavyweight, 69 Texas L. Rev. 125, 145-146 (1990) (same); Linder, Review of Affirmative Action After Metro Broadcasting v. FCC: The Solution Almost Nobody Wanted, 59 UMKC L. Rev. 293, 297, 316-317 (1991) (criticizing "anomalous results as </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 31] </s> exemplified by the two different standards of review"); Katz, Public Affirmative Action and the Fourteenth Amendment: The Fragmentation of Theory After Richmond v. J.A. Croson Co. and Metro Broadcasting, Inc. v. Federal Communications Commission, 17 T. Marshall L. Rev. 317, 319, 354-355, 357 (1992) (arguing that "the current fragmentation of doctrine must be seen as a dangerous and seriously flawed approach to constitutional interpretation," and advocating intermediate scrutiny across the board). </s> Our past practice in similar situations supports our action today. In United States v. Dixon, 509 U.S. ___ (1993), we overruled the recent case of Grady v. Corbin, 495 U.S. 508 (1990), because Grady "lack[ed] constitutional roots" and was "wholly inconsistent with earlier Supreme Court precedent." Dixon, supra, at ___, ___ (slip op., at 14-15, 22-23). In Solorio v. United States, 483 U.S. 435 (1987), we overruled O'Callahan v. Parker, 395 U.S. 258 (1969), which had caused "confusion" and had rejected "an unbroken line of decisions from 1866 to 1960." Solorio, supra, at 439-441, 450-451. And in Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), we overruled United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967), which was "an abrupt and largely unexplained departure" from precedent, and of which "[t]he great weight of scholarly opinion ha[d] been critical." Continental T. V., supra, at 47-48, 58. See also, e. g., Payne v. Tennessee, 501 U.S. 808, 830 (1991) (overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989)); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 695 -701 (1978) (partially overruling Monroe v. Pape, 365 U.S. 167 (1961), because Monroe was a "departure from prior practice" that had not engendered substantial reliance); Swift & Co. v. Wickham, 382 U.S. 111, 128 -129 (1965) (overruling Kesler v. Department of Public Safety of Utah, </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 32] </s> 369 U.S. 153 (1962), to reaffirm "pre-Kesler precedent" and restore the law to the "view . . . which this Court has traditionally taken" in older cases). </s> It is worth pointing out the difference between the applications of stare decisis in this case and in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. ___ (1992). Casey explained how considerations of stare decisis inform the decision whether to overrule a long-established precedent that has become integrated into the fabric of the law. Overruling precedent of that kind naturally may have consequences for "the ideal of the rule of law," id., at ___ (slip op., at 12). In addition, such precedent is likely to have engendered substantial reliance, as was true in Casey itself, id., at ___ (slip op., at 14) ("[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail"). But in this case, as we have explained, we do not face a precedent of that kind, because Metro Broadcasting itself departed from our prior cases - and did so quite recently. By refusing to follow Metro Broadcasting, then, we do not depart from the fabric of the law; we restore it. We also note that reliance on a case that has recently departed from precedent is likely to be minimal, particularly where, as here, the rule set forth in that case is unlikely to affect primary conduct in any event. Cf. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. ___, ___ (1995) (slip op., at 6) (declining to overrule Southland Corp. v. Keating, 465 U.S. 1 (1984), where "private parties have likely written contracts relying upon Southland as authority" in the ten years since Southland was decided). </s> JUSTICE STEVENS takes us to task for what he perceives to be an erroneous application of the doctrine of stare decisis. But again, he misunderstands our position. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 33] </s> We have acknowledged that, after Croson, "some uncertainty persisted with respect to the standard of review for federal racial classifications," supra, at 21, and we therefore do not say that we "merely restor[e] the status quo ante" today, post, at 17. But as we have described supra, at 11-25, we think that well-settled legal principles pointed toward a conclusion different from that reached in Metro Broadcasting, and we therefore disagree with JUSTICE STEVENS that "the law at the time of that decision was entirely open to the result the Court reached," post, at 17. We also disagree with JUSTICE STEVENS that Justice Stewart's dissenting opinion in Fullilove supports his "novelty" argument, see post, at 19, and n. 13. Justice Stewart said that "[u]nder our Constitution, any official action that treats a person differently on account of his race or ethnic origin is inherently suspect and presumptively invalid," and that "`[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.'" Fullilove, supra, at 523, and n. 1. He took the view that "[t]he hostility of the Constitution to racial classifications by government has been manifested in many cases decided by this Court," and that "our cases have made clear that the Constitution is wholly neutral in forbidding such racial discrimination, whatever the race may be of those who are its victims." Id., at 524. Justice Stewart gave no indication that he thought he was addressing a "novel" proposition, post, at 19. Rather, he relied on the fact that the text of the Fourteenth Amendment extends its guarantee to "persons," and on cases like Buckley, Loving, McLaughlin, Bolling, Hirabayashi, and Korematsu, see Fullilove, supra, at 524-526, as do we today. There is nothing new about the notion that Congress, like the States, may treat people differently because of their race only for compelling reasons. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 34] </s> "The real problem," Justice Frankfurter explained, "is whether a principle shall prevail over its later misapplications." Helvering, 309 U.S., at 122 . Metro Broadcasting's untenable distinction between state and federal racial classifications lacks support in our precedent, and undermines the fundamental principle of equal protection as a personal right. In this case, as between that principle and "its later misapplications," the principle must prevail. </s> D </s> Our action today makes explicit what Justice Powell thought implicit in the Fullilove lead opinion: federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. See Fullilove, 448 U.S., at 496 (concurring opinion). (Recall that the lead opinion in Fullilove "d[id] not adopt . . . the formulas of analysis articulated in such cases as [Bakke]." Id., at 492 (opinion of Burger, C. J.).) Of course, it follows that to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling. But we need not decide today whether the program upheld in Fullilove would survive strict scrutiny as our more recent cases have defined it. </s> Some have questioned the importance of debating the proper standard of review of race-based legislation. See, e. g., post, at 6-7 (STEVENS, J., dissenting); Croson, 488 U.S., at 514 -515, and n. 5 (STEVENS, J., concurring in part and concurring in judgment); cf. Metro Broadcasting, 497 U.S., at 610 (O'CONNOR, J., dissenting) ("This dispute regarding the appropriate standard of review may strike some as a lawyers' quibble over words"). But we agree with JUSTICE STEVENS that, "[b]ecause racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 35] </s> race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classification be clearly identified and unquestionably legitimate," and that "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification." Fullilove, supra, at 533-535, 537 (dissenting opinion) (footnotes omitted). We think that requiring strict scrutiny is the best way to ensure that courts will consistently give racial classifications that kind of detailed examination, both as to ends and as to means. Korematsu demonstrates vividly that even "the most rigid scrutiny" can sometimes fail to detect an illegitimate racial classification, compare Korematsu, 323 U.S., at 223 ("To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race"), with Pub. L. 100-383, 2(a), 102 Stat. 903-904 ("[T]hese actions [of relocating and interning civilians of Japanese ancestry] were carried out without adequate security reasons . . . and were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership"). Any retreat from the most searching judicial inquiry can only increase the risk of another such error occurring in the future. </s> Finally, we wish to dispel the notion that strict scrutiny is "strict in theory, but fatal in fact." Fullilove, supra, at 519 (Marshall, J., concurring in judgment). The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it. As recently as 1987, for example, every Justice of this Court agreed that the Alabama Department of Public Safety's "pervasive, systematic, and obstinate discriminatory conduct" justified a narrowly tailored </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 36] </s> race-based remedy. See United States v. Paradise, 480 U.S., at 167 (plurality opinion of Brennan, J.); id., at 190 (STEVENS, J., concurring in judgment); id., at 196 (O'CONNOR, J., dissenting). When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test this Court has set out in previous cases. </s> IV </s> Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced. The Court of Appeals, following Metro Broadcasting and Fullilove, analyzed the case in terms of intermediate scrutiny. It upheld the challenged statutes and regulations because it found them to be "narrowly tailored to achieve [their] significant governmental purpose of providing subcontracting opportunities for small disadvantaged business enterprises." 16 F.3d, at 1547 (emphasis added). The Court of Appeals did not decide the question whether the interests served by the use of subcontractor compensation clauses are properly described as "compelling." It also did not address the question of narrow tailoring in terms of our strict scrutiny cases, by asking, for example, whether there was "any consideration of the use of race-neutral means to increase minority business participation" in government contracting, Croson, supra, at 507, or whether the program was appropriately limited such that it "will not last longer than the discriminatory effects it is designed to eliminate," Fullilove, supra, at 513 (Powell, J., concurring). </s> Moreover, unresolved questions remain concerning the details of the complex regulatory regimes implicated by the use of subcontractor compensation clauses. For example, the SBA's 8(a) program requires an </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 37] </s> individualized inquiry into the economic disadvantage of every participant, see 13 CFR 124.106(a) (1994), whereas the DOT's regulations implementing STURAA 106(c) do not require certifying authorities to make such individualized inquiries, see 49 CFR 23.62 (1994); 49 CFR pt. 23, subpt. D, App. C (1994). And the regulations seem unclear as to whether 8(d) subcontractors must make individualized showings, or instead whether the race-based presumption applies both to social and economic disadvantage, compare 13 CFR 124.106(b) (apparently requiring 8(d) participants to make an individualized showing), with 48 CFR 19.703(a)(2) (1994) (apparently allowing 8(d) subcontractors to invoke the race-based presumption for social and economic disadvantage). See generally Part I, supra. We also note an apparent discrepancy between the definitions of which socially disadvantaged individuals qualify as economically disadvantaged for the 8(a) and 8(d) programs; the former requires a showing that such individuals' ability to compete has been impaired "as compared to others in the same or similar line of business who are not socially disadvantaged," 13 CFR 124.106(a)(1)(i) (1994) (emphasis added), while the latter requires that showing only "as compared to others in the same or similar line of business," 124.106(b)(1). The question whether any of the ways in which the Government uses subcontractor compensation clauses can survive strict scrutiny, and any relevance distinctions such as these may have to that question, should be addressed in the first instance by the lower courts. </s> Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> [Footnote * Justices Roberts, Murphy, and Jackson filed vigorous dissents; Justice Murphy argued that the challenged order "falls into the ugly abyss of racism." Korematsu, 323 U.S., at 233 . Congress has recently agreed with the dissenters' position, and has attempted to </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 13] </s> make amends. See Pub. L. 100-383, 2(a), 102 Stat. 903 ("The Congress recognizes that . . . a grave injustice was done to both citizens and permanent resident aliens of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II"). </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE SCALIA, concurring in part and concurring in the judgment. </s> I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a "compelling interest" in discriminating on the basis of race in order to "make up" for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, see Amdt. 14, 1 ("[N]or shall any State . . . deny to any person" the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote "on account of race") or based on blood, see Art. III, 3 ("[N]o Attainder of Treason shall work Corruption of Blood"); Art. I, 9 ("No Title of Nobility shall be granted by the United States"). To pursue the concept of racial entitlement - even for the most admirable and benign of purposes - is to reinforce and preserve for future </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 2] </s> mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American. </s> It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE THOMAS, concurring in part and concurring in the judgment. </s> I agree with the majority's conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS' and JUSTICE GINSBURG'S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a "moral [and] constitutional equivalence," post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. </s> That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 2] </s> appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness"). </s> These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, "[i]nvidious [racial] discrimination is an engine of oppression," post, at 3. It is also true that "[r]emedial" racial preferences may reflect "a desire to foster equality in society," ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called "benign" discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government's use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are "entitled" to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly "benign" discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that "remedial" race legislation "is perceived by many as resting on an assumption that those who are granted this special </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 3] </s> preference are less qualified in some respect that is identified purely by their race"). </s> In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple. </s> [Footnote * It should be obvious that every racial classification helps, in a narrow sense, some races and hurts others. As to the races benefitted, the classification could surely be called "benign." Accordingly, whether a law relying upon racial taxonomy is "benign" or "malign," ante, at 5 (GINSBURG, J., dissenting); see also, ante, at 6 (STEVENS, J., dissenting) (addressing differences between "invidious" and "benign" discrimination), either turns on "`whose ox is gored,'" Regents of the Univ. of California v. Bakke, 438 U.S. 265, 295 n. 35 (1978) (Powell, J.) (quoting, A. Bickel, The Morality of Consent 133 (1975)), or on distinctions found only in the eye of the beholder. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, dissenting. </s> Instead of deciding this case in accordance with controlling precedent, the Court today delivers a disconcerting lecture about the evils of governmental racial classifications. For its text the Court has selected three propositions, represented by the bywords "skepticism," "consistency," and "congruence." See ante, at 21-22. I shall comment on each of these propositions, then add a few words about stare decisis, and finally explain why I believe this Court has a duty to affirm the judgment of the Court of Appeals. </s> I </s> The Court's concept of skepticism is, at least in principle, a good statement of law and of common sense. Undoubtedly, a court should be wary of a governmental decision that relies upon a racial classification. "Because racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic," a reviewing court must satisfy itself that the reasons for any such classification are "clearly identified and unquestionably legitimate." Fullilove v. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 2] </s> Klutznick, 448 U.S. 448, 533 -535 (1980) (STEVENS, J., dissenting). This principle is explicit in Chief Justice Burger's opinion, id., at 480; in Justice Powell's concurrence, id., at 496; and in my dissent in Fullilove, id., at 533-534. I welcome its renewed endorsement by the Court today. But, as the opinions in Fullilove demonstrate, substantial agreement on the standard to be applied in deciding difficult cases does not necessarily lead to agreement on how those cases actually should or will be resolved. In my judgment, because uniform standards are often anything but uniform, we should evaluate the Court's comments on "consistency," "congruence," and stare decisis with the same type of skepticism that the Court advocates for the underlying issue. </s> II </s> The Court's concept of "consistency" assumes that there is no significant difference between a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority. In my opinion that assumption is untenable. There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. No sensible conception of the Government's constitutional obligation to "govern impartially," Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976), should ignore this distinction. 1 </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 3] </s> To illustrate the point, consider our cases addressing the Federal Government's discrimination against Japanese Americans during World War II, Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944). The discrimination at issue in those cases was invidious because the Government imposed special burdens - a curfew and exclusion from certain areas on the West Coast 2 - on the members of a minority class defined by racial and ethnic characteristics. Members of the same racially defined class exhibited exceptional heroism in the service of our </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 4] </s> country during that War. Now suppose Congress decided to reward that service with a federal program that gave all Japanese-American veterans an extraordinary preference in Government employment. Cf. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979). If Congress had done so, the same racial characteristics that motivated the discriminatory burdens in Hirabayashi and Korematsu would have defined the preferred class of veterans. Nevertheless, "consistency" surely would not require us to describe the incidental burden on everyone else in the country as "odious" or "invidious" as those terms were used in those cases. We should reject a concept of "consistency" that would view the special preferences that the National Government has provided to Native Americans since 1834 3 as comparable to the official discrimination against African Americans that was prevalent for much of our history. </s> The consistency that the Court espouses would disregard the difference between a "No Trespassing" sign and a welcome mat. It would treat a Dixiecrat Senator's decision to vote against Thurgood Marshall's confirmation in order to keep African Americans off the Supreme Court as on a par with President Johnson's evaluation of his nominee's race as a positive factor. It would equate a law that made black citizens ineligible </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 5] </s> for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in "consistency" does not justify treating differences as though they were similarities. </s> The Court's explanation for treating dissimilar race-based decisions as though they were equally objectionable is a supposed inability to differentiate between "invidious" and "benign" discrimination. Ante, at 23-25. But the term "affirmative action" is common and well understood. Its presence in everyday parlance shows that people understand the difference between good intentions and bad. As with any legal concept, some cases may be difficult to classify, 4 but our equal protection jurisprudence has identified a critical difference between state action that imposes burdens on a disfavored few and state action that benefits the few "in spite of" its adverse effects on the many. Feeney, 442 U.S., at 279 . </s> Indeed, our jurisprudence has made the standard to be applied in cases of invidious discrimination turn on whether the discrimination is "intentional," or whether, by contrast, it merely has a discriminatory "effect." Washington v. Davis, 426 U.S. 229 (1976). Surely this distinction is at least as subtle, and at least as difficult to apply, see id., at 253-254 (concurring opinion), as the usually obvious distinction between a measure intended to benefit members of a particular minority race and a measure intended to burden a minority race. A state actor inclined to subvert the Constitution might easily hide bad intentions in the guise of unintended "effects"; </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 6] </s> but I should think it far more difficult to enact a law intending to preserve the majority's hegemony while casting it plausibly in the guise of affirmative action for minorities. </s> Nothing is inherently wrong with applying a single standard to fundamentally different situations, as long as that standard takes relevant differences into account. For example, if the Court in all equal protection cases were to insist that differential treatment be justified by relevant characteristics of the members of the favored and disfavored classes that provide a legitimate basis for disparate treatment, such a standard would treat dissimilar cases differently while still recognizing that there is, after all, only one Equal Protection Clause. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 451 -455 (1985) (STEVENS, J., concurring); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 98 -110 (1973) (Marshall, J., dissenting). Under such a standard, subsidies for disadvantaged businesses may be constitutional though special taxes on such businesses would be invalid. But a single standard that purports to equate remedial preferences with invidious discrimination cannot be defended in the name of "equal protection." </s> Moreover, the Court may find that its new "consistency" approach to race-based classifications is difficult to square with its insistence upon rigidly separate categories for discrimination against different classes of individuals. For example, as the law currently stands, the Court will apply "intermediate scrutiny" to cases of invidious gender discrimination and "strict scrutiny" to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones. If this remains the law, then today's lecture about "consistency" will produce the anomalous result that the Government can more easily enact affirmative-action programs to remedy discrimination against women than </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 7] </s> it can enact affirmative-action programs to remedy discrimination against African Americans - even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. SeeAssociated General Contractors of Cal., Inc. v. San Francisco, 813 F.2d 922 (CA9 1987) (striking down racial preference under strict scrutiny while upholding gender preference under intermediate scrutiny). When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency. </s> As a matter of constitutional and democratic principle, a decision by representatives of the majority to discriminate against the members of a minority race is fundamentally different from those same representatives' decision to impose incidental costs on the majority of their constituents in order to provide a benefit to a disadvantaged minority. 5 Indeed, as I have previously </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 8] </s> argued, the former is virtually always repugnant to the principles of a free and democratic society, whereas the latter is, in some circumstances, entirely consistent with the ideal of equality. Wygant v. Jackson Board of Ed., 476 U.S. 267, 316 -317 (1986) (STEVENS, J., dissenting). 6 By insisting on a doctrinaire notion of </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 9] </s> "consistency" in the standard applicable to all race-based governmental actions, the Court obscures this essential dichotomy. </s> III </s> The Court's concept of "congruence" assumes that there is no significant difference between a decision by the Congress of the United States to adopt an affirmative-action program and such a decision by a State or a municipality. In my opinion that assumption is untenable. It ignores important practical and legal differences between federal and state or local decisionmakers. </s> These differences have been identified repeatedly and consistently both in opinions of the Court and in separate opinions authored by members of today's majority. Thus, in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990), in which we upheld a federal program designed to foster racial diversity in broadcasting, we identified the special "institutional competence" of our National Legislature. Id., at 563. "It is of overriding significance in these cases," we were careful to emphasize, "that the FCC's minority ownership programs have been specifically approved indeed, mandated - by Congress." Ibid. We recalled the several opinions in </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 10] </s> Fullilove that admonished this Court to "`approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to "provide for the . . . general Welfare of the United States" and "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment.' [Fullilove, 448 U.S. ], at 472; see also id., at 491; id., at 510, and 515-516, n. 14 (Powell, J., concurring); id., at 517-520 (MARSHALL, J., concurring in judgment)." Id., at 563. We recalled that the opinions of Chief Justice Burger and Justice Powell in Fullilove had "explained that deference was appropriate in light of Congress' institutional competence as the National Legislature, as well as Congress' powers under the Commerce Clause, the Spending Clause, and the Civil War Amendments." Ibid. (citations and footnote omitted). </s> The majority in Metro Broadcasting and the plurality in Fullilove were not alone in relying upon a critical distinction between federal and state programs. In his separate opinion in Richmond v. J. A. Croson Co., 488 U.S. 469, 520 -524 (1989), JUSTICE SCALIA discussed the basis for this distinction. He observed that "it is one thing to permit racially based conduct by the Federal Government - whose legislative powers concerning matters of race were explicitly enhanced by the Fourteenth Amendment, see U.S. Const., Amdt. 14, 5 - and quite another to permit it by the precise entities against whose conduct in matters of race that Amendment was specifically directed, see Amdt. 14, 1." Id., at 521-522. Continuing, JUSTICE SCALIA explained why a "sound distinction between federal and state (or local) action based on race rests not only upon the substance of the Civil War Amendments, but upon social reality and governmental theory." Id., at 522. </s> "What the record shows, in other words, is that racial discrimination against any group finds a more ready expression at the state and local than at the </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 11] </s> federal level. To the children of the Founding Fathers, this should come as no surprise. An acute awareness of the heightened danger of oppression from political factions in small, rather than large, political units dates to the very beginning of our national history. See G. Wood, The Creation of the American Republic, 1776-1787, pp. 499-506 (1969). As James Madison observed in support of the proposed Constitution's enhancement of national powers: </s> "`The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression. Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.' The Federalist No. 10, pp. 82-84 (C. Rossiter ed. 1961)." Id., at 523 (SCALIA, J., concurring in judgment). </s> In her plurality opinion in Croson, JUSTICE O'CONNOR also emphasized the importance of this distinction when she responded to the City's argument that Fullilove was controlling. She wrote: </s> "What appellant ignores is that Congress, unlike any State or political subdivision, has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment. The power to `enforce' may at times also include the power to define situations </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 12] </s> which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations. The Civil War Amendments themselves worked a dramatic change in the balance between congressional and state power over matters of race." 488 U.S., at 490 (plurality opinion of O'CONNOR, J., joined by REHNQUIST, C.J., and White, J.) (citations omitted). </s> An additional reason for giving greater deference to the National Legislature than to a local law-making body is that federal affirmative-action programs represent the will of our entire Nation's elected representatives, whereas a state or local program may have an impact on nonresident entities who played no part in the decision to enact it. Thus, in the state or local context, individuals who were unable to vote for the local representatives who enacted a race-conscious program may nonetheless feel the effects of that program. This difference recalls the goals of the Commerce Clause, U.S. Const., Art. I, 8, cl. 3, which permits Congress to legislate on certain matters of national importance while denying power to the States in this area for fear of undue impact upon out-of-state residents. See Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 -768, n. 2 (1945) ("[T]o the extent that the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected"). </s> Ironically, after all of the time, effort, and paper this Court has expended in differentiating between federal and state affirmative action, the majority today virtually ignores the issue. See ante, at 28-29. It provides not a word of direct explanation for its sudden and enormous departure from the reasoning in past cases. Such silence, however, cannot erase the difference between Congress' institutional competence and constitutional </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 13] </s> authority to overcome historic racial subjugation and the States' lesser power to do so. </s> Presumably, the majority is now satisfied that its theory of "congruence" between the substantive rights provided by the Fifth and Fourteenth Amendments disposes of the objection based upon divided constitutional powers. But it is one thing to say (as no one seems to dispute) that the Fifth Amendment encompasses a general guarantee of equal protection as broad as that contained within the Fourteenth Amendment. It is another thing entirely to say that Congress' institutional competence and constitutional authority entitles it to no greater deference when it enacts a program designed to foster equality than the deference due a State legislature. 7 The latter is an extraordinary proposition; and, as the foregoing discussion demonstrates, our precedents have rejected it explicitly and repeatedly. 8 </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 14] </s> Our opinion in Metro Broadcasting relied on several constitutional provisions to justify the greater deference we owe to Congress when it acts with respect to private individuals. 497 U.S., at 563 . In the programs challenged in this case, Congress has acted both with respect to private individuals and, as in Fullilove, with respect to the States themselves. 9 When Congress does this, it draws its power directly from 5 of the </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 15] </s> Fourteenth Amendment. 10 That section reads: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." One of the "provisions of this article" that Congress is thus empowered to enforce reads: "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; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amdt. 14, 1. The Fourteenth Amendment directly empowers Congress at the same time it expressly limits the States. 11 This is no accident. It represents our Nation's consensus, achieved after hard experience throughout our sorry history of race relations, that the Federal Government must be the primary defender of racial minorities against the States, some of which may be inclined to oppress such minorities. A rule of "congruence" that ignores a purposeful "incongruity" so fundamental to our system of government is unacceptable. </s> In my judgment, the Court's novel doctrine of "congruence" is seriously misguided. Congressional deliberations </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 16] </s> about a matter as important as affirmative action should be accorded far greater deference than those of a State or municipality. </s> The Court's concept of stare decisis treats some of the language we have used in explaining our decisions as though it were more important than our actual holdings. In my opinion that treatment is incorrect. </s> This is the third time in the Court's entire history that it has considered the constitutionality of a federal affirmative-action program. On each of the two prior occasions, the first in 1980, Fullilove v. Klutznick, 448 U.S. 448 , and the second in 1990, Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 , the Court upheld the program. Today the Court explicitly overrules Metro Broadcasting (at least in part), ante, at 25-26, and undermines Fullilove by recasting the standard on which it rested and by calling even its holding into question, ante, at 34. By way of explanation, JUSTICE O'CONNOR advises the federal agencies and private parties that have made countless decisions in reliance on those cases that "we do not depart from the fabric of the law; we restore it." Ante, at 32. A skeptical observer might ask whether this pronouncement is a faithful application of the doctrine of stare decisis. 12 A brief comment on each of the two ailing cases may provide the answer. </s> In the Court's view, our decision in Metro Broadcasting was inconsistent with the rule announced in Richmond v. J. A. Croson Co., 488 U.S. 469 (1989). Ante, at 23-24. But two decisive distinctions separate those </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 17] </s> two cases. First, Metro Broadcasting involved a federal program, whereas Croson involved a city ordinance. Metro Broadcasting thus drew primary support from Fullilove, which predated Croson and which Croson distinguished on the grounds of the federal-state dichotomy that the majority today discredits. Although members of today's majority trumpeted the importance of that distinction in Croson, they now reject it in the name of "congruence." It is therefore quite wrong for the Court to suggest today that overruling Metro Broadcasting merely restores the status quo ante, for the law at the time of that decision was entirely open to the result the Court reached. Today's decision is an unjustified departure from settled law. </s> Second, Metro Broadcasting's holding rested on more than its application of "intermediate scrutiny." Indeed, I have always believed that, labels notwithstanding, the FCC program we upheld in that case would have satisfied any of our various standards in affirmative-action cases - including the one the majority fashions today. What truly distinguishes Metro Broadcasting from our other affirmative-action precedents is the distinctive goal of the federal program in that case. Instead of merely seeking to remedy past discrimination, the FCC program was intended to achieve future benefits in the form of broadcast diversity. Reliance on race as a legitimate means of achieving diversity was first endorsed by Justice Powell in Regents of Univ. of California v. Bakke, 438 U.S. 265, 311 -319 (1978). Later, in Wygant v. Jackson Board of Ed., 476 U.S. 267 (1986), I also argued that race is not always irrelevant to governmental decisionmaking, see id., at 314-315 (STEVENS, J., dissenting); in response, JUSTICE O'CONNOR correctly noted that, although the School Board had relied on an interest in providing black teachers to serve as role models for black students, that interest "should not be confused with the very different goal of promoting </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 18] </s> racial diversity among the faculty." Id., at 288, n. She then added that, because the school board had not relied on an interest in diversity, it was not "necessary to discuss the magnitude of that interest or its applicability in this case." Ibid. </s> Thus, prior to Metro Broadcasting, the interest in diversity had been mentioned in a few opinions, but it is perfectly clear that the Court had not yet decided whether that interest had sufficient magnitude to justify a racial classification. Metro Broadcasting, of course, answered that question in the affirmative. The majority today overrules Metro Broadcasting only insofar as it is "inconsistent with [the] holding" that strict scrutiny applies to "benign" racial classifications promulgated by the Federal Government. Ante, at 26. The proposition that fostering diversity may provide a sufficient interest to justify such a program is not inconsistent with the Court's holding today - indeed, the question is not remotely presented in this case - and I do not take the Court's opinion to diminish that aspect of our decision in Metro Broadcasting. </s> The Court's suggestion that it may be necessary in the future to overrule Fullilove in order to restore the fabric of the law, ante, at 34, is even more disingenuous than its treatment of Metro Broadcasting. For the Court endorses the "strict scrutiny" standard that Justice Powell applied in Bakke, see ante, at 22-23, and acknowledges that he applied that standard in Fullilove as well, ante, at 16-17. Moreover, Chief Justice Burger also expressly concluded that the program we considered in Fullilove was valid under any of the tests articulated in Bakke, which of course included Justice Powell's. 448 U.S., at 492 . The Court thus adopts a standard applied in Fullilove at the same time it questions that case's continued vitality and accuses it of departing from prior law. I continue to believe that the Fullilove case was incorrectly decided, see id., at 532-554 (STEVENS, J., dissenting), </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 19] </s> but neither my dissent nor that filed by Justice Stewart, id., at 522-532, contained any suggestion that the issue the Court was resolving had been decided before. 13 As was true of Metro Broadcasting, the Court in Fullilove decided an important, novel, and difficult question. Providing a different answer to a similar question today cannot fairly be characterized as merely "restoring" previously settled law. </s> V </s> The Court's holding in Fullilove surely governs the result in this case. The Public Works Employment Act of 1977 (1977 Act), 91 Stat. 116, which this Court upheld in Fullilove, is different in several critical respects from the portions of the Small Business Act (SBA), 72 Stat. 384, as amended, 15 U.S.C. 631 et seq., and the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA), 101 Stat. 132, challenged in this case. Each of those differences makes the current program designed to provide assistance to disadvantaged business enterprises (DBE's) significantly less objectionable than the 1977 categorical grant of $400 million in exchange for a 10% set-aside in public contracts to "a class of investors defined solely by racial characteristics." Fullilove, 448 U.S., at 532 (STEVENS, J., dissenting). In no meaningful respect is </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 20] </s> the current scheme more objectionable than the 1977 Act. Thus, if the 1977 Act was constitutional, then so must be the SBA and STURAA. Indeed, even if my dissenting views in Fullilove had prevailed, this program would be valid. </s> Unlike the 1977 Act, the present statutory scheme does not make race the sole criterion of eligibility for participation in the program. Race does give rise to a rebuttable presumption of social disadvantage which, at least under STURAA, 14 gives rise to a second rebuttable presumption of economic disadvantage. 49 CFR 23.62 (1994). But a small business may qualify as a DBE, by showing that it is both socially and economically disadvantaged, even if it receives neither of these presumptions. 13 CFR 124.105(c), 124.106 (1995); 48 CFR 19.703 (1994); 49 CFR pt. 23, subpt. D., Appendixes A and C (1994). Thus, the current preference is more inclusive than the 1977 Act because it does not make race a necessary qualification. </s> More importantly, race is not a sufficient qualification. Whereas a millionaire with a long history of financial successes, who was a member of numerous social clubs and trade associations, would have qualified for a preference under the 1977 Act merely because he was an Asian American or an African American, see Fullilove, 448 U.S., at 537 -538, 540, 543-544, and n. 16, 546 (STEVENS, J., dissenting), neither the SBA nor STURAA creates any such anomaly. The DBE program excludes </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 21] </s> members of minority races who are not, in fact, socially or economically disadvantaged. 15 13 CFR 124.106(a)(ii) (1995); 49 CFR 23.69 (1994). The presumption of social disadvantage reflects the unfortunate fact that irrational racial prejudice - along with its lingering effects still survives. 16 The presumption of economic disadvantage embodies a recognition that success in the private sector of the economy is often attributable, in part, to social skills and relationships. Unlike the 1977 set-asides, the current preference is designed to overcome the social and economic disadvantages that are often associated with racial characteristics. If, in a particular case, these disadvantages are not present, the presumptions can be rebutted. 13 CFR 124.601-124.610 (1995); 49 CFR 23.69 (1994). The program is thus designed to allow race to play a part in the decisional process only when there is a meaningful basis for assuming its relevance. In this connection, I think it is particularly significant that the current program targets the negotiation of subcontracts between private firms. The 1977 Act applied entirely to the award of public contracts, an area of the economy in which social relationships should be irrelevant and in </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 22] </s> which proper supervision of government contracting officers should preclude any discrimination against particular bidders on account of their race. In this case, in contrast, the program seeks to overcome barriers of prejudice between private parties specifically, between general contractors and subcontractors. The SBA and STURAA embody Congress' recognition that such barriers may actually handicap minority firms seeking business as subcontractors from established leaders in the industry that have a history of doing business with their golfing partners. Indeed, minority subcontractors may face more obstacles than direct, intentional racial prejudice: they may face particular barriers simply because they are more likely to be new in the business and less likely to know others in the business. Given such difficulties, Congress could reasonably find that a minority subcontractor is less likely to receive favors from the entrenched businesspersons who award subcontracts only to people with whom - or with whose friends - they have an existing relationship. This program, then, if in part a remedy for past discrimination, is most importantly a forward-looking response to practical problems faced by minority subcontractors. </s> The current program contains another forward-looking component that the 1977 set-asides did not share. Section 8(a) of the SBA provides for periodic review of the status of DBE's, 15 U.S.C. 637(a)(B)-(C) (1988 ed., Supp. V); 13 CFR 124.602(a) (1995), 17 and DBE status can be challenged by a competitor at any time </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 23] </s> under any of the routes to certification. 13 CFR 124.603 (1995); 49 CFR 23.69 (1994). Such review prevents ineligible firms from taking part in the program solely because of their minority ownership, even when those firms were once disadvantaged but have since become successful. The emphasis on review also indicates the Administration's anticipation that after their presumed disadvantages have been overcome, firms will "graduate" into a status in which they will be able to compete for business, including prime contracts, on an equal basis. 13 CFR 124.208 (1995). As with other phases of the statutory policy of encouraging the formation and growth of small business enterprises, this program is intended to facilitate entry and increase competition in the free market. </s> Significantly, the current program, unlike the 1977 set-aside, does not establish any requirement - numerical or otherwise - that a general contractor must hire DBE subcontractors. The program we upheld in Fullilove required that 10% of the federal grant for every federally funded project be expended on minority business enterprises. In contrast, the current program contains no quota. Although it provides monetary incentives to general contractors to hire DBE subcontractors, it does not require them to hire DBE's, and they do not lose their contracts if they fail to do so. The importance of this incentive to general contractors (who always seek to offer the lowest bid) should not be underestimated; but the preference here is far less rigid, and thus more narrowly tailored, than the 1977 Act. Cf. Bakke, 438 U.S., at 319 -320 (opinion of Powell, J.) (distinguishing between numerical set-asides and consideration of race as a factor). </s> Finally, the record shows a dramatic contrast between the sparse deliberations that preceded the 1977 Act, see Fullilove, 448 U.S., at 549 -550 (STEVENS, J., dissenting), and the extensive hearings conducted in several </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 24] </s> Congresses before the current program was developed. 18 However we might evaluate the benefits and costs - both fiscal and social - of this or any other affirmative-action program, our obligation to give deference to Congress' policy choices is much more demanding in this case than it was in Fullilove. If the 1977 program of race-based </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 25] </s> set-asides satisfied the strict scrutiny dictated by Justice Powell's vision of the Constitution - a vision the Court expressly endorses today - it must follow as night follows the day that the Court of Appeals' judgment upholding this more carefully crafted program should be affirmed. </s> VI </s> My skeptical scrutiny of the Court's opinion leaves me in dissent. The majority's concept of "consistency" ignores a difference, fundamental to the idea of equal protection, between oppression and assistance. The majority's concept of "congruence" ignores a difference, fundamental to our constitutional system, between the Federal Government and the States. And the majority's concept of stare decisis ignores the force of binding precedent. I would affirm the judgment of the Court of Appeals. </s> Footnotes [Footnote 1 As JUSTICE GINSBURG observes, post, at 3, 5-6, the majority's "flexible" approach to "strict scrutiny" may well take into account </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 3] </s> differences between benign and invidious programs. The majority specifically notes that strict scrutiny can accommodate "`relevant differences,'" ante, at 26; surely the intent of a government actor and the effects of a program are relevant to its constitutionality. See Missouri v. Jenkins, ___ U.S. ___, ___ (1995) (O'CONNOR, J., concurring) (slip op., at 10-11) ("[T]ime and again, we have recognized the ample authority legislatures possess to combat racial injustice . . . . It is only by applying strict scrutiny that we can distinguish between unconstitutional discrimination and narrowly tailored remedial programs that legislatures may enact to further the compelling governmental interest in redressing the effects of past discrimination"). </s> Even if this is so, however, I think it is unfortunate that the majority insists on applying the label "strict scrutiny" to benign race-based programs. That label has usually been understood to spell the death of any governmental action to which a court may apply it. The Court suggests today that "strict scrutiny" means something different - something less strict - when applied to benign racial classifications. Although I agree that benign programs deserve different treatment than invidious programs, there is a danger that the fatal language of "strict scrutiny" will skew the analysis and place well-crafted benign programs at unnecessary risk. </s> [Footnote 2 These were, of course, neither the sole nor the most shameful burdens the Government imposed on Japanese Americans during that War. They were, however, the only such burdens this Court had occasion to address in Hirabayashi and Korematsu. See Korematsu, 323 U.S., at 223 ("Regardless of the true nature of the assembly and relocation centers . . . we are dealing specifically with nothing but an exclusion order"). </s> [Footnote 3 See Morton v. Mancari, 417 U.S. 535, 541 (1974). To be eligible for the preference in 1974, an individual had to "`be one fourth or more degree Indian blood and be a member of a Federally-recognized tribe.'" Id., at 553, n. 24, quoting 44 BIAM 335, 3.1 (1972). We concluded that the classification was not "racial" because it did not encompass all Native Americans. 417 U.S., at 553 -554. In upholding it, we relied in part on the plenary power of Congress to legislate on behalf of Indian tribes. Id., at 551-552. In this case the Government relies, in part, on the fact that not all members of the preferred minority groups are eligible for the preference, and on the special power to legislate on behalf of minorities granted to Congress by 5 of the 14th Amendment. </s> [Footnote 4 For example, in Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), a majority of the members of the city council that enacted the race-based set-aside were of the same race as its beneficiaries. </s> [Footnote 5 In his concurrence, JUSTICE THOMAS argues that the most significant cost associated with an affirmative-action program is its adverse stigmatic effect on its intended beneficiaries. Ante, at 2-3. Although I agree that this cost may be more significant than many people realize, see Fullilove, 448 U.S., at 545 (STEVENS, J., dissenting), I do not think it applies to the facts of this case. First, this is not an argument that petitioner Adarand, a white-owned business, has standing to advance. No beneficiaries of the specific program under attack today have challenged its constitutionality - perhaps because they do not find the preferences stigmatizing, or perhaps because their ability to opt out of the program provides them all the relief they would need. Second, even if the petitioner in this case were a minority-owned business challenging the stigmatizing effect of this program, I would not find JUSTICE THOMAS' extreme proposition - that there is a moral and constitutional equivalence between an attempt to subjugate and an attempt to redress the effects of a caste system, ante, at 1 - at all persuasive. It is one thing to question the wisdom of affirmative-action programs: there are many responsible arguments against them, including the one based upon stigma, that Congress might find persuasive when it decides whether </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 8] </s> to enact or retain race-based preferences. It is another thing altogether to equate the many well-meaning and intelligent lawmakers and their constituents - whether members of majority or minority races - who have supported affirmative action over the years, to segregationists and bigots. </s> Finally, although JUSTICE THOMAS is more concerned about the potential effects of these programs than the intent of those who enacted them (a proposition at odds with this Court's jurisprudence, see Washington v. Davis, 426 U.S. 229 (1976), but not without a strong element of common sense, see id., at 252-256 (STEVENS, J., concurring); id., at 256-270 (BRENNAN, J., dissenting)), I am not persuaded that the psychological damage brought on by affirmative action is as severe as that engendered by racial subordination. That, in any event, is a judgment the political branches can be trusted to make. In enacting affirmative action programs, a legislature intends to remove obstacles that have unfairly placed individuals of equal qualifications at a competitive disadvantage. See Fullilove, 448 U.S., at 521 (Marshall, J., concurring in judgment). I do not believe such action, whether wise or unwise, deserves such an invidious label as "racial paternalism," ante, at 1 (opinion of THOMAS, J.). If the legislature is persuaded that its program is doing more harm than good to the individuals it is designed to benefit, then we can expect the legislature to remedy the problem. Significantly, this is not true of a government action based on invidious discrimination. </s> [Footnote 6 As I noted in Wygant: </s> "There is . . . a critical difference between a decision to exclude a member of a minority race because of his or her skin color and a decision to include more members of the minority in a school faculty for that reason. </s> "The exclusionary decision rests on the false premise that differences in race, or in the color of a person's skin, reflect real differences that are relevant to a person's right to share in the blessings of a free society. As noted, that premise is `utterly irrational,' Cleburne v. Cleburne Living Center, 473 U.S. 432, 452 (1985), and </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 9] </s> repugnant to the principles of a free and democratic society. Nevertheless, the fact that persons of different races do, indeed have differently colored skin, may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it. The inclusionary decision is consistent with the principle that all men are created equal; the exclusionary decision is at war with that principle. One decision accords with the Equal Protection Clause of the Fourteenth Amendment; the other does not. Thus, consideration of whether the consciousness of race is exclusionary or inclusionary plainly distinguishes the Board's valid purpose in this case from a race-conscious decision that would reinforce assumptions of inequality." 476 U.S., at 316 -317 (STEVENS, J., dissenting). </s> [Footnote 7 Despite the majority's reliance on Korematsu v. United States, 323 U.S. 214 (1944), ante, at 12, that case does not stand for the proposition that federal remedial programs are subject to strict scrutiny. Instead, Korematsu specifies that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect." 323 U.S., at 216 , quoted ante, at 12 (emphasis added). The programs at issue in this case (as in most affirmative-action cases) do not "curtail the civil rights of a single racial group"; they benefit certain racial groups and impose an indirect burden on the majority. </s> [Footnote 8 We have rejected this proposition outside of the affirmative-action context as well. In Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976), we held: </s> "The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment's guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment. Although both Amendments require the same type of analysis, see Buckley v. Valeo, 424 U.S. 1, 93 [(1976)], the Court of Appeals correctly stated that the two protections are not always coextensive. Not only does the language of the two Amendments differ, but more importantly, there may be overriding national interests which justify selective </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 14] </s> federal legislation that would be unacceptable for an individual State. On the other hand, when a federal rule is applicable to only a limited territory, such as the District of Columbia, or an insular possession, and when there is no special national interest involved, the Due Process Clause has been construed as having the same significance as the Equal Protection Clause." </s> [Footnote 9 The funding for the preferences challenged in this case comes from the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA), 101 Stat. 132, in which Congress has granted funds to the States in exchange for a commitment to foster subcontracting by disadvantaged business enterprises, or "DBE's." STURAA is also the source of funding for DBE preferences in federal highway contracting. Approximately 98% of STURAA's funding is allocated to the States. Brief for Respondents 38, n. 34. Moreover, under STURAA States are empowered to certify businesses as "disadvantaged" for purposes of receiving subcontracting preferences in both state and federal contracts. STURAA 106(c)(4), 101 Stat. 146.1 </s> In this case, Adarand has sued only the federal officials responsible for implementing federal highway contracting policy; it has not directly challenged DBE preferences granted in state contracts funded by STURAA. It is not entirely clear, then, whether the majority's "congruence" rationale would apply to federally regulated state contracts, which may conceivably be within the majority's view of Congress' 5 authority even if the federal contracts are not. See Metro Broadcasting, 497 U.S., at 603 -604 (O'CONNOR, J., dissenting). As I read the majority's opinion, however, it draws no distinctions between direct federal preferences and federal preferences achieved through subsidies to States. The extent to which STURAA intertwines elements of direct federal regulations with elements of federal conditions on grants to the States would make such a distinction difficult to sustain. </s> [Footnote 10 Because Congress has acted with respect to the States in enacting STURAA, we need not revisit today the difficult question of 5's application to pure federal regulation of individuals. </s> [Footnote 11 We have read 5 as a positive grant of authority to Congress, not just to punish violations, but also to define and expand the scope of the Equal Protection Clause. Katzenbach v. Morgan, 384 U.S. 641 (1966). In Katzenbach, this meant that Congress under 5 could require the States to allow non-English-speaking citizens to vote, even if denying such citizens a vote would not have been an independent violation of 1. Id., at 648-651. Congress, then, can expand the coverage of 1 by exercising its power under 5 when it acts to foster equality. Congress has done just that here; it has decided that granting certain preferences to minorities best serves the goals of equal protection. </s> [Footnote 12 Our skeptical observer might also notice that JUSTICE O'CONNOR'S explanation for departing from settled precedent is joined only by JUSTICE KENNEDY. Ante, at 1. Three members of the majority thus provide no explanation whatsoever for their unwillingness to adhere to the doctrine of stare decisis. </s> [Footnote 13 Of course, Justice Stewart believed that his view, disapproving of racial classifications of any kind, was consistent with this Court's precedents. See ante, at 33, citing 448 U.S., at 523 -526. But he did not claim that the question whether the Federal Government could engage in race-conscious affirmative action had been decided before Fullilove. The fact that a justice dissents from an opinion means that he disagrees with the result; it does not usually mean that he believes the decision so departs from the fabric of the law that its reasoning ought to be repudiated at the next opportunity. Much less does a dissent bind or authorize a later majority to reject a precedent with which it disagrees. </s> [Footnote 14 STURAA accords a rebuttable presumption of both social and economic disadvantage to members of racial minority groups. 49 CFR 23.62 (1994). In contrast, 8(a) of the SBA accords a presumption only of social disadvantage, 13 CFR 124.105(b) (1995); the applicant has the burden of demonstrating economic disadvantage, id., 124.106. Finally, 8(d) of the SBA accords at least a presumption of social disadvantage, but it is ambiguous as to whether economic disadvantage is presumed or must be shown. See 15 U.S.C. 637(d)(3) (1988 ed. and Supp. V); 13 CFR 124.601 (1995). </s> [Footnote 15 The Government apparently takes this exclusion seriously. See Autek Systems Corp. v. United States, 835 F. Supp. 13 (DC 1993) (upholding Small Business Administration decision that minority business owner's personal income disqualified him from DBE status under 8(a) program), aff'd, 43 F.3d 712 (CADC 1994). </s> [Footnote 16 "The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it." Ante, at 35. </s> "Our findings clearly state that groups such as black Americans, Hispanic Americans, and Native Americans, have been and continue to be discriminated against and that this discrimination has led to the social disadvantagement of persons identified by society as members of those groups." 124 Cong. Rec. 34097 (1978) </s> [Footnote 17 The Department of Transportation strongly urges States to institute periodic review of businesses certified as DBE's under STURAA, 49 CFR pt. 23, subpt. D, App. A (1994), but it does not mandate such review. The Government points us to no provisions for review of 8(d) certification, although such review may be derivative for those businesses that receive 8(d) certification as a result of 8(a) or STURAA certification. </s> [Footnote 18 The Government points us to the following legislative history: H. R. 5612, To amend the Small Business Act to Extend the current SBA 8(a) Pilot Program: Hearing on H. R. 5612 before the Senate Select Committee on Small Business, 96th Cong., 2d Sess. (1980); Small and Minority Business in the Decade of the 1980's (Part 1): Hearings before the House Committee on Small Business, 97th Cong., 1st Sess. (1981); Minority Business and Its Contribution to the U.S. Economy: Hearing Before the Senate Committee on Small Business, 97th Cong., 2d Sess. (1982); Federal Contracting Opportunities for Minority and Women-Owned Businesses - An Examination of the 8(d) Subcontracting Program: Hearings before the Senate Committee on Small Business, 98th Cong., 1st Sess. (1983); Women Entrepreneurs - Their Success and Problems: Hearing before the Senate Committee on Small Business, 98th Cong., 2d Sess. (1984); State of Hispanic Small Business in America: Hearing Before the Subcommittee on SBA and SBIC Authority, Minority Enterprise, and General Small Business Problems of the House Committee on Small Business, 99th Cong., 1st Sess. (1985); Minority Enterprise and General Small Business Problems: Hearing before the Subcommittee on SBA and SBIC Authority, Minority Enterprise, and General Small Business Problems of the House Committee on Small Business, 99th Cong., 2d Sess. (1986); Disadvantaged Business Set-Asides in Transportation Construction Projects: Hearings before the Subcommittee on Procurement, Innovation, and Minority Enterprise Development of the House Committee on Small Business, 100th Cong., 2d Sess. (1988); Barriers to Full Minority Participation in Federally Funded Highway Construction Projects: Hearing Before a Subcommittee of the House Committee on Government Operations, 100th Cong., 2d Sess. (1988); Surety Bonds and Minority Contractors: Hearing before the Subcommittee on Commerce, Consumer Protection, and Competitiveness of the House Committee on Energy and Commerce, 100th Cong., 2d Sess. (1988); Small Business Problems: Hearings before the House Committee on Small Business, 100th Cong., 1st Sess. (1987). See Brief for Respondents 9-10, n. 9. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting. </s> As this case worked its way through the federal courts prior to the grant of certiorari that brought it here, petitioner Adarand Constructors, Inc. was understood to have raised only one significant claim: that before a federal agency may exceed the goals adopted by Congress in implementing a race-based remedial program, the Fifth and Fourteenth Amendments require the agency to make specific findings of discrimination, as under Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), sufficient to justify surpassing the congressional objective. See 16 F.3d 1537, 1544 (CA10 1994) ("The gravamen of Adarand's argument is that the CFLHD must make particularized findings of past discrimination to justify its race-conscious SCC program under Croson because the precise goals of the challenged SCC program were fashioned and specified by an agency and not by Congress"); Adarand Constructors, Inc. v. Skinner, 790 F. Supp. 240, 242 (Colo. 1992) ("Plaintiff's motion for summary judgment seeks a declaratory judgment and permanent injunction against the DOT, the FHA and the CFLHD until specific findings of discrimination are made by the defendants as allegedly required by City of </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 2] </s> Richmond v. Croson"); cf. Complaint § 28, App. 20 (federal regulations violate the Fourteenth and Fifteenth Amendments by requiring "the use of racial and gender preferences in the award of federally financed highway construction contracts, without any findings of past discrimination in the award of such contracts"). </s> Although the petition for certiorari added an antecedent question challenging the use, under the Fifth and Fourteenth Amendments, of any standard below strict scrutiny to judge the constitutionality of the statutes under which the respondents acted, I would not have entertained that question in this case. The statutory scheme must be treated as constitutional if Fullilove v. Klutznick, 448 U.S. 448 (1980), is applied, and petitioners did not identify any of the factual premises on which Fullilove rested as having disappeared since that case was decided. </s> As the Court's opinion explains in detail, the scheme in question provides financial incentives to general contractors to hire subcontractors who have been certified as disadvantaged business enterprises on the basis of certain race-based presumptions. See generally ante, at 3-6. These statutes (or the originals, of which the current ones are reenactments) have previously been justified as providing remedies for the continuing effects of past discrimination, see, e.g., Fullilove, supra, at 465-466 (citing legislative history describing SBA 8(a) as remedial); S. Rep. No. 100-4, p. 11 (1987) (Committee Report stating that DBE provision of STURAA was "necessary to remedy the discrimination faced by socially and economically disadvantaged persons"), and the Government has so defended them in this case, Brief for Respondents 33. Since petitioner has not claimed the obsolescence of any particular fact on which the Fullilove Court upheld the statute, no issue has come up to us that might be resolved in a way that would render Fullilove inapposite. See, e.g., 16 F.3d, at 1544 </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 3] </s> ("Adarand has stipulated that section 502 of the Small Business Act . . . satisfies the evidentiary requirements of Fullilove"); Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment in No. 90-C-1413 (D. Colo.), p. 12 (Fullilove is not applicable to the case at bar because "[f]irst and foremost, Fullilove stands for only one proposition relevant here: the ability of the U.S. Congress, under certain limited circumstances, to adopt a race-base[d] remedy"). </s> In these circumstances, I agree with JUSTICE STEVENS's conclusion that stare decisis compels the application of Fullilove. Although Fullilove did not reflect doctrinal consistency, its several opinions produced a result on shared grounds that petitioner does not attack: that discrimination in the construction industry had been subject to government acquiescence, with effects that remain and that may be addressed by some preferential treatment falling within the congressional power under 5 of the Fourteenth Amendment. 1 Fullilove, 448 U.S., at 477 -478 (opinion of Burger, C. J.); id., at 503 (Powell, J., concurring); id., at 520-521 (Marshall, J., concurring in judgment). Once Fullilove is applied, as JUSTICE STEVENS points out, it follows that the statutes in question here (which are substantially better tailored to the harm being remedied than the statute endorsed in Fullilove, see ante, at 19-25 (STEVENS, J., dissenting)) pass muster under Fifth Amendment due process and Fourteenth Amendment equal protection. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 4] </s> The Court today, however, does not reach the application of Fullilove to the facts of this case, and on remand it will be incumbent on the Government and petitioner to address anew the facts upon which statutes like these must be judged on the Government's remedial theory of justification: facts about the current effects of past discrimination, the necessity for a preferential remedy, and the suitability of this particular preferential scheme. Petitioner could, of course, have raised all of these issues under the standard employed by the Fullilove plurality, and without now trying to read the current congressional evidentiary record that may bear on resolving these issues I have to recognize the possibility that proof of changed facts might have rendered Fullilove's conclusion obsolete as judged under the Fullilove plurality's own standard. Be that as it may, it seems fair to ask whether the statutes will meet a different fate from what Fullilove would have decreed. The answer is, quite probably not, though of course there will be some interpretive forks in the road before the significance of strict scrutiny for congressional remedial statutes becomes entirely clear. </s> The result in Fullilove was controlled by the plurality for whom Chief Justice Burger spoke in announcing the judgment. Although his opinion did not adopt any label for the standard it applied, and although it was later seen as calling for less than strict scrutiny, Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 564 (1990), none other than Justice Powell joined the plurality opinion as comporting with his own view that a strict scrutiny standard should be applied to all injurious race-based classifications. Fullilove, supra, at 495-496 (Powell, J., concurring) ("Although I would place greater emphasis than THE CHIEF JUSTICE on the need to articulate judicial standards of review in conventional terms, I view his opinion announcing the judgment as substantially in accord with my views"). Chief Justice </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 5] </s> Burger's noncategorical approach is probably best seen not as more lenient than strict scrutiny but as reflecting his conviction that the treble-tiered scrutiny structure merely embroidered on a single standard of reasonableness whenever an equal protection challenge required a balancing of justification against probable harm. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 451 (1985) (STEVENS, J., concurring, joined by Burger, C. J.). Indeed, the Court's very recognition today that strict scrutiny can be compatible with the survival of a classification so reviewed demonstrates that our concepts of equal protection enjoy a greater elasticity than the standard categories might suggest. See ante, at 35 ("we wish to dispel the notion that strict scrutiny is `strict in theory, but fatal in fact.' Fullilove, supra, at 519 (Marshall, J., concurring in judgment)"); see also Missouri v. Jenkins, post, at ___ (O'CONNOR, J., concurring) (slip op., at 11) ("But it is not true that strict scrutiny is `strict in theory, but fatal in fact'"). </s> In assessing the degree to which today's holding portends a departure from past practice, it is also worth noting that nothing in today's opinion implies any view of Congress's 5 power and the deference due its exercise that differs from the views expressed by the Fullilove plurality. The Court simply notes the observation in Croson "that the Court's `treatment of an exercise of congressional power in Fullilove cannot be dispositive here,' because Croson's facts did not implicate Congress' broad power under 5 of the Fourteenth Amendment," ante, at 20, and explains that there is disagreement among today's majority about the extent of the 5 power, ante, at 28-29. There is therefore no reason to treat the opinion as affecting one way or another the views of 5 power, described as "broad," ante, at 20, "unique," Fullilove, supra, at 500 (Powell, J., concurring), and "unlike [that of] any state or political subdivision," Croson, 488 U.S., at 490 (opinion of O'CONNOR, J.). See </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 6] </s> also Jenkins, post, at ___ (O'CONNOR, J., concurring) (slip op., at 11) ("Congress . . . enjoys `"discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,"' Croson, 488 U.S., at 490 (quoting Katzenbach v. Morgan, 384 U.S., at 651 )"). Thus, today's decision should leave 5 exactly where it is as the source of an interest of the national government sufficiently important to satisfy the corresponding requirement of the strict scrutiny test. </s> Finally, I should say that I do not understand that today's decision will necessarily have any effect on the resolution of an issue that was just as pertinent under Fullilove's unlabeled standard as it is under the standard of strict scrutiny now adopted by the Court. The Court has long accepted the view that constitutional authority to remedy past discrimination is not limited to the power to forbid its continuation, but extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) ("Where racial discrimination is concerned, `the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future,'") quoting Louisiana v. United States, 380 U.S. 145, 154 (1965). This is so whether the remedial authority is exercised by a court, see ibid.; Green v. School Board of New Kent County, 391 U.S. 430, 437 (1968), the Congress, see Fullilove, 448 U.S., at 502 (Powell, J., concurring), or some other legislature, see Croson, supra, at 491-492 (opinion of O'CONNOR, J.). Indeed, a majority of the Court today reiterates that there are circumstances in which Government may, consistently with the Constitution, adopt programs aimed at remedying the effects of past invidious discrimination. See, e.g., ante, at __, __ (opinion of </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 7] </s> O'CONNOR, J.) (slip op., at 26-27, 35); id., at __ (STEVENS, J., with whom GINSBURG, J., joins, dissenting) (slip op., at 2); id., at __, __ (GINSBURG, J., with whom BREYER, J. joins, dissenting) (slip op. at 3, 6); Jenkins, post, at __ (O'CONNOR, J., concurring) (slip op. at 11) (noting the critical difference "between unconstitutional discrimination and narrowly tailored remedial programs that legislatures may enact to further the compelling governmental interest in redressing the effects of past discrimination"). </s> When the extirpation of lingering discriminatory effects is thought to require a catch-up mechanism, like the racially preferential inducement under the statutes considered here, the result may be that some members of the historically favored race are hurt by that remedial mechanism, however innocent they may be of any personal responsibility for any discriminatory conduct. When this price is considered reasonable, it is in part because it is a price to be paid only temporarily; if the justification for the preference is eliminating the effects of a past practice, the assumption is that the effects will themselves recede into the past, becoming attenuated and finally disappearing. Thus, Justice Powell wrote in his concurring opinion in Fullilove that the "temporary nature of this remedy ensures that a race-conscious program will not last longer than the discriminatory effects it is designed to eliminate." 448 U.S., at 513 ; ante, at 37 (opinion of the Court). </s> Surely the transition from the Fullilove plurality view (in which Justice Powell joined) to today's strict scrutiny (which will presumably be applied as Justice Powell employed it) does not signal a change in the standard by which the burden of a remedial racial preference is to be judged as reasonable or not at any given time. If in the District Court Adarand had chosen to press a challenge </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 8] </s> to the reasonableness of the burden of these statutes, 2 more than a decade after Fullilove had examined such a burden, I doubt that the claim would have fared any differently from the way it will now be treated on remand from this Court. </s> [Footnote 1 If the statutes are within the 5 power, they are just as enforceable when the national government makes a construction contract directly as when it funnels construction money through the states. In any event, as Justice Stevens has noted, see ante, at 11, n. 5, 12, n. 6, it is not clear whether the current challenge implicates only Fifth Amendment due process or Fourteenth Amendment equal protection as well. </s> [Footnote 2 I say "press a challenge," because petitioner's Memorandum in Support of Summary Judgment did include an argument challenging the reasonableness of the duration of the statutory scheme; but the durational claim was not, so far as I am aware, stated elsewhere, and, in any event, was not the gravamen of the complaint. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE GINSBURG, with whom JUSTICE BREYER joins, dissenting. </s> For the reasons stated by JUSTICE SOUTER, and in view of the attention the political branches are currently giving the matter of affirmative action, I see no compelling cause for the intervention the Court has made in this case. I further agree with JUSTICE STEVENS that, in this area, large deference is owed by the Judiciary to "Congress' institutional competence and constitutional authority to overcome historic racial subjugation." Ante, at 12-13 (STEVENS, J., dissenting); see id., at 14-15. 1 I write separately to underscore not the differences the </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 2] </s> several opinions in this case display, but the considerable field of agreement - the common understandings and concerns - revealed in opinions that together speak for a majority of the Court. </s> I </s> The statutes and regulations at issue, as the Court indicates, were adopted by the political branches in response to an "unfortunate reality": "[t]he unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country." Ante, at 35 (lead opinion). The United States suffers from those lingering effects because, for most of our Nation's history, the idea that "we are just one race," ante, at 2 (SCALIA, J., concurring in part and concurring in judgment), was not embraced. For generations, our lawmakers and judges were unprepared to say that there is in this land no superior race, no race inferior to any other. In Plessy v. Ferguson, 163 U.S. 537 (1896), not only did this Court endorse the oppressive practice of race segregation, but even Justice Harlan, the advocate of a "color-blind" Constitution, stated: </s> "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty." Id., at 559 (Harlan, J., dissenting). </s> Not until Loving v. Virginia, 388 U.S. 1 (1967), which held unconstitutional Virginia's ban on interracial marriages, could one say with security that the Constitution </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 3] </s> and this Court would abide no measure "designed to maintain White Supremacy." Id., at 11. 2 </s> The divisions in this difficult case should not obscure the Court's recognition of the persistence of racial inequality and a majority's acknowledgement of Congress' authority to act affirmatively, not only to end discrimination, but also to counteract discrimination's lingering effects. Ante, at 35 (lead opinion); see also ante, at 6 (SOUTER, J., dissenting). Those effects, reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods. Job applicants with identical resumes, qualifications, and interview styles still experience different receptions, depending on their race. 3 White and </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 4] </s> African-American consumers still encounter different deals. 4 People of color looking for housing still face discriminatory treatment by landlords, real estate agents, and mortgage lenders. 5 Minority entrepreneurs sometimes fail to gain contracts though they are the low bidders, and they are sometimes refused work even after winning contracts. 6 Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, 7 keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice. </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 5] </s> Given this history and its practical consequences, Congress surely can conclude that a carefully designed affirmative action program may help to realize, finally, the "equal protection of the laws" the Fourteenth Amendment has promised since 1868. 8 </s> II </s> The lead opinion uses one term, "strict scrutiny," to describe the standard of judicial review for all governmental classifications by race. Ante, at 34-36. But that opinion's elaboration strongly suggests that the strict standard announced is indeed "fatal" for classifications burdening groups that have suffered discrimination in our society. That seems to me, and, I believe, to the Court, the enduring lesson one should draw from Korematsu v. United States, 323 U.S. 214 (1944); for in that case, scrutiny the Court described as "most rigid," id., at 216, nonetheless yielded a pass for an odious, gravely injurious racial classification. See ante, at 12 (lead opinion). A Korematsu-type classification, as I read the opinions in this case, will never again survive scrutiny: such a classification, history and precedent instruct, properly ranks as prohibited. </s> For a classification made to hasten the day when "we are just one race," ante, at 2 (SCALIA, J., concurring in part and concurring in judgment), however, the lead opinion has dispelled the notion that "strict scrutiny" is </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 6] </s> "`fatal in fact.'" Ante, at 35 (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment)). Properly, a majority of the Court calls for review that is searching, in order to ferret out classifications in reality malign, but masquerading as benign. See ante, at 26-28 (lead opinion). The Court's once lax review of sex-based classifications demonstrates the need for such suspicion. See, e.g., Hoyt v. Florida, 368 U.S. 57, 60 (1961) (upholding women's "privilege" of automatic exemption from jury service); Goesaert v. Cleary, 335 U.S. 464 (1948) (upholding Michigan law barring women from employment as bartenders); see also Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N. Y. U. L. Rev. 675 (1971). Today's decision thus usefully reiterates that the purpose of strict scrutiny "is precisely to distinguish legitimate from illegitimate uses of race in governmental decisionmaking," ante, at 26 (lead opinion), "to `differentiate between' permissible and impermissible governmental use of race," id., at 27, to distinguish "`between a "No Trespassing" sign and a welcome mat.'" Id., at 28. </s> Close review also is in order for this further reason. As JUSTICE SOUTER points out, ante, at 7 (dissenting opinion), and as this very case shows, some members of the historically favored race can be hurt by catch-up mechanisms designed to cope with the lingering effects of entrenched racial subjugation. Court review can ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups. See, e.g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F.2d 1333, 1341 (CA2 1973). </s> [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) </s> , 7] </s> * * * </s> While I would not disturb the programs challenged in this case, and would leave their improvement to the political branches, I see today's decision as one that allows our precedent to evolve, still to be informed by and responsive to changing conditions. </s> [Footnote 1 On congressional authority to enforce the equal protection principle, see, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 286 (1964) (Douglas, J., concurring) (recognizing Congress' authority, under 5 of the Fourteenth Amendment, to "pu[t] an end to all obstructionist strategies and allo[w] every person - whatever his race, creed, or color - to patronize all places of public accommodation without discrimination whether he travels interstate or intrastate."); id., at 291, 293 (Goldberg, J., concurring) ("primary purpose of the Civil Rights Act of 1964 . . . is the vindication of human dignity"; "Congress clearly had authority under both 5 of the Fourteenth Amendment and the Commerce Clause" to enact the law); G. Gunther, Constitutional Law 147-151 (12th ed. 1991). </s> [Footnote 2 The Court, in 1955 and 1956, refused to rule on the constitutionality of antimiscegenation laws; it twice declined to accept appeals from the decree on which the Virginia Supreme Court of Appeals relied in Loving. See Naim v. Naim, 197 Va. 80, 87 S. E. 2d 749, vacated and remanded, 350 U.S. 891 (1955), reinstated and aff'd, 197 Va. 734, 90 S. E. 2d 849, app. dism'd, 350 U.S. 985 (1956). Naim expressed the state court's view of the legislative purpose served by the Virginia law: "to preserve the racial integrity of [Virginia's] citizens"; to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride." 197 Va., at 90, 87 S. E. 2d, at 756. </s> [Footnote 3 See, e.g., H. Cross, et al., Employer Hiring Practices: Differential Treatment of Hispanic and Anglo Job Seekers 42 (Urban Institute Report 90-4, 1990) (e.g., Anglo applicants sent out by investigators received 52% more job offers than matched Hispanics); M. Turner, et al., Opportunities Denied, Opportunities Diminished: Racial Discrimination in Hiring xi (Urban Institute Report 91-9, 1991) ("In one out of five audits, the white applicant was able to advance farther through the hiring process than his black counterpart. In one out of eight audits, the white was offered a job although his equally qualified black partner was not. In contrast, black auditors advanced farther than their white counterparts only 7 percent of the time, and received job offers while their white partners did not in 5 percent of the audits."). </s> [Footnote 4 See, e.g., Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 Harv. L. Rev. 817, 821-822, 819, 828 (1991) ("blacks and women simply cannot buy the same car for the same price as can white men using identical bargaining strategies"; the final offers given white female testers reflected 40 percent higher markups than those given white male testers; final offer markups for black male testers were twice as high, and for black female testers three times as high as for white male testers). </s> [Footnote 5 See, e.g., A Common Destiny: Blacks and American Society 50 (G. Jaynes & R. Williams eds., 1989) ("[I]n many metropolitan areas one-quarter to one-half of all [housing] inquiries by blacks are met by clearly discriminatory responses."); M. Turner, et al., U.S. Department of Housing and Urban Development, Housing Discrimination Study: Synthesis i-vii (1991) (1989 audit study of housing searches in 25 metropolitan areas; over half of African-American and Hispanic testers seeking to rent or buy experienced some form of unfavorable treatment compared to paired white testers); Leahy, Are Racial Factors Important for the Allocation of Mortgage Money?, 44 Am. J. Econ. & Soc. 185, 193 (1985) (controlling for socioeconomic factors, and concluding that "even when neighborhoods appear to be similar on every major mortgage-lending criterion except race, mortgage-lending outcomes are still unequal"). </s> [Footnote 6 See, e.g., Associated General Contractors v. Coalition for Economic Equity, 950 F.2d 1401, 1415 (CA9 1991) (detailing examples in San Francisco). </s> [Footnote 7 Cf. Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 318 (1986) (STEVENS, J., dissenting); Califano v. Goldfarb, 430 U.S. 199, 222 -223 (1977) (STEVENS, J., concurring in judgment). </s> [Footnote 8 On the differences between laws designed to benefit an historically disfavored group and laws designed to burden such a group, see, e.g., Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433-434 (1988) ("[W]hatever the source of racism, to count it the same as racialism, to say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppression, is to trivialize the lives and deaths of those who have suffered under racism. To pretend . . . that the issue presented in Bakke was the same as the issue in Brown is to pretend that history never happened and that the present doesn't exist."). Page I

United States Supreme Court AGRICULTURAL BANK v. TAX COMM'N(1968) No. 755 Argued: April 22, 1968Decided: June 17, 1968 </s> Massachusetts sales tax (which by its terms must be passed on to the purchaser) and use tax are invalid as applied to national banks since such taxes are not among the only four specified methods of taxation in addition to taxes on real estate by which, under 12 U.S.C. 548, Congress has permitted States to tax national banks. Pp. 339-348. </s> ___ Mass. ___, 229 N. E. 2d 245, reversed. </s> Ronald H. Kessel argued the cause for appellant. With him on the brief were John P. Weitzel and Alex J. McFarland. </s> Alan J. Dimond, Assistant Attorney General of Massachusetts, argued the cause for appellee. With him on the brief were Elliot L. Richardson, Attorney General, Walter H. Mayo III, Assistant Attorney General, and Mark L. Cohen, Deputy Assistant Attorney General. </s> Briefs of amici curiae were filed by James Lawrence White for the Colorado Bankers Assn.; by William C. Sennett, Attorney General, John J. Gain, Assistant Attorney General, and Edward T. Baker and George W. Keitel, Deputy Attorneys General, for the Commonwealth of Pennsylvania; by Louis J. Lefkowitz, Attorney General, Ruth Kessler Toch, Solicitor General, and Robert W. Bush, Assistant Attorney General, for the State of New York, and by James F. Bell and Brian C. Elmer for the National Association of Supervisors of State Banks. </s> MR. JUSTICE BLACK delivered the opinion of the Court. </s> The principal issue raised by this case concerns the extent to which States may tax a national bank. The [392 U.S. 339, 340] Supreme Judicial Court for the Commonwealth of Massachusetts held that appellant, First Agricultural National Bank of Berkshire County, was subject to Massachusetts' recently enacted sales and use taxes 1 on purchases for its own use of tangible personal property. For reasons to be stated we believe this decision was erroneous, and we reverse. </s> As long ago as 1819, in the historic case of M`Culloch v. Maryland, 4 Wheat. 316, this Court declared unconstitutional a state tax on the bank of the United States since, according to Chief Justice Marshall, this amounted to a "tax on the operation of an instrument employed by the government of the Union to carry its powers into execution." 4 Wheat., at 436-437. A long line of subsequent decisions by this Court has firmly established the proposition that the States are without power, unless authorized by Congress, to tax federally created, or, as they are presently called, national, banks. Owensboro Nat. Bank v. Owensboro, 173 U.S. 664, 668 ; Des Moines Nat. Bank v. Fairweather, 263 U.S. 103, 106 ; First Nat. Bank v. Hartford, 273 U.S. 548, 550 ; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 244 . As recently as 1966, MR. JUSTICE FORTAS, speaking for a unanimous Court, thought this ancient principle so well established that he used national banks as an example in holding the American Red Cross immune from state taxation: </s> "In those respects in which the Red Cross differs from the usual government agency - e. g., in that its employees are not employees of the United States, and that government officials do not direct its everyday affairs - the Red Cross is like other institutions - e. g., national banks - whose status as tax-immune instrumentalities of the United States is [392 U.S. 339, 341] beyond dispute." Department of Employment v. United States, 385 U.S. 355, 360 . (Emphasis added.) </s> The decision below recognized the strong precedents against taxation, but the Massachusetts Supreme Judicial Court was of the opinion that the status of national banks has been so changed by the establishment of the Federal Reserve System 2 that they should no longer be considered nontaxable by the States as instrumentalities of the United States. Essentially the reasoning of the Supreme Judicial Court is that under present-day conditions and regulations there is no substantial difference between national banks and state banks; and the implication of this is, of course, that national banks lack any unique quality giving them the character of a federal instrumentality. Because of pertinent congressional legislation in the banking field, we find it unnecessary to reach the constitutional question of whether today national banks should be considered nontaxable as federal instrumentalities. </s> As will be seen, Congress has been far from reluctant to pass legislation in the banking field. There are important committees on banking and currency in both Houses which continually monitor banking affairs and propose new legislation when changes are felt to be needed. For purposes of this case, the most important piece of banking legislation is 12 U.S.C. 548 3 which [392 U.S. 339, 342] originated as part of the Act of June 3, 1864, c. 106, 41, 13 Stat. 111. This section allows state taxation of national banks in any one of four specified ways in addition to taxes on their real estate. Before this legislation was originally enacted in 1864, there was sharp controversy in the Congress over the extent to which the States should be allowed to tax national banks. A vocal opponent to any state taxation of national banks was the powerful Senator Summer of Massachusetts, who said: </s> "If you allow the State to interfere with the proposed system [of national banks] in any way, may they not embarrass it? Where shall they stop? Where will you run a line? </s> . . . . . </s> "Now, sir, every consideration, every argument which goes to sustain this great judgment [M`Culloch v. Maryland] may be employed against the proposed concession to the States of the power to tax this national institution in any particular, whether directly or indirectly." Cong. Globe, 38th Cong., 1st Sess., 1893-1894 (1864). </s> On the other side, proposed amendments expressly permitting much broader state and local taxation of national banks were introduced, debated, and rejected by the Congress. Among these was an amendment introduced in the House which would have made national banks [392 U.S. 339, 343] subject, without exception, to all state and local general taxes on personal as well as real property: </s> "And the said associations or corporations shall severally be subject to State and municipal taxation upon their real and personal estate, the same as persons residing at their respective places of business are subject to such taxation by State laws." Cong. Globe, 38th Cong., 1st Sess., 1392 (1864). </s> The result of this conflict was that the legislation, when finally passed, was a compromise which permitted state taxation of national banks in certain ways, but prohibited all other forms of state taxation. Senator Fessenden, Chairman of the Finance Committee, clearly defined the compromise that was being enacted: </s> "If the Senator reads this bill he will perceive that all the power of taxation upon the operations of the bank itself, all upon the circulation, all upon the deposits, all upon everything which can properly be made by a tax is reserved to the General Government; that the States cannot touch it in any possible form; that they are limited and controlled; the simple right is given them to say that the property which their own citizens have invested in it shall contribute to State taxation precisely as other property." Cong. Globe, 38th Cong., 1st Sess., 1895 (1864). </s> It seems clear to us from the legislative history that 12 U.S.C. 548 was intended to prescribe the only ways in which the States can tax national banks. And this is certainly not a novel interpretation of the section, as shown by previous decisions of this Court. As early as 1899 the Court declared: </s> "This section [R. S. 5219, 12 U.S.C. 548], then, of the Revised Statutes is the measure of the power of a State to tax national banks, their property [392 U.S. 339, 344] or their franchises. By its unambiguous provisions the power is confined to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank. Any state tax therefore which is in excess of and not in conformity to these requirements is void." Owensboro Nat. Bank v. Owensboro, 173 U.S. 664, 669 . </s> A more complete explanation of 548 and its meaning appears in this Court's opinion in Bank of California v. Richardson, 248 U.S. 476 , where it was said: </s> "There is also no doubt from the section [R. S. 5219, 12 U.S.C. 548] that it was intended to comprehensively control the subject with which it dealt and thus to furnish the exclusive rule governing state taxation as to the federal agencies created as provided in the section. . . . </s> "Two provisions in apparent conflict were adopted. First, the absolute exclusion of power in the States to tax the banks, the national agencies created, so as to prevent all interference with their operations, the integrity of their assets, or the administrative governmental control over their affairs. Second, preservation of the taxing power of the several States so as to prevent any impairment thereof from arising from the existence of the national agencies created, to the end that the financial resources engaged in their development might not be withdrawn from the reach of state taxation . . . . </s> "The first aim was attained by the non-recognition of any power whatever in the States to tax the federal agencies, the banks, except as to real estate specially provided for, and, therefore, the exclusion of all such powers. The second was reached by a recognition of the fact that, considered from the point of view of ultimate and beneficial interest, [392 U.S. 339, 345] every available asset possessed or enjoyed by the banks would be owned by their stockholders and would be, therefore, reached by taxation of the stockholders as such. . . ." 248 U.S., at 483 . </s> Finally, so there can be no doubt, consider these words of the Court in Des Moines Bank v. Fairweather, 263 U.S. 103 : </s> "This section [R. S. 5219, 12 U.S.C. 548] shows, and the decisions under it hold, that what Congress intended was that national banks and their property should be free from taxation under state authority, other than taxes on their real property and on shares held by them in other national banks; and that all shares in such banks should be taxable to their owners, the stockholders, much as other personal property is taxable . . . ." 263 U.S., at 107 . </s> Thus, at least since the Owensboro decision, supra, in 1899, it has been abundantly clear that 12 U.S.C. 548 marks the outer limit within which States can tax national banks. Now this Court is asked to change what legislative history and prior decisions have established is the precise meaning of an Act of Congress. This we cannot do. For, as we pointed out above, the banking field has traditionally been an area of particular congressional concern marked by legislation responsive to new problems. This can be illustrated by the history of 548 alone. It was originally passed in 1864 because the 1863 Currency Act 4 contained no provision for state taxation of national banks or their shares. In 1868 a technical amendment was made to the section. 5 Then in 1923 a substantive amendment was made which, among other things, authorized the state taxation of national [392 U.S. 339, 346] bank income and dividends. 6 Another important part of this amendment was the declaration that "bonds, notes, or other evidences of indebtedness" in the hands of individual citizens were not to be considered "moneyed capital . . . coming into competition with the business of national banks." Just two years before, this Court had ruled in Merchants' Nat. Bank of Richmond v. Richmond, 256 U.S. 635 (1921), that such bonds and notes were moneyed capital in competition with national banks and thus covered by 548. Senator Pepper, who spoke for the amendment, made clear that it was offered as a response to this Court's decision which had placed an erroneous interpretation on the section. 7 Then again in 1926, 548 was amended to permit States to levy franchise and excise taxes on national banks measured by the entire income (including income from tax-exempt securities) of the banks. 8 Finally, in 1950, a bill was sent to the Senate Committee on Banking and Currency which expressly permitted the levying of state sales and use taxes on national banks, but Congress did not pass it. 9 </s> Because of 548 and its legislative history, we are convinced that if a change is to be made in state taxation of national banks, it must come from the Congress, which has established the present limits. </s> With this primary question out of the way, there is one additional issue which must be resolved. The court below held, contrary to appellant's contention, that the Massachusetts sales tax is not imposed upon the bank as a purchaser, but is a tax upon vendors who sell tangible personal property to the bank. Of course if [392 U.S. 339, 347] this is true, the bank cannot object if a particular vendor decides to pass the burden of the tax on to it through an increased price. But if this is not true, and if the tax is on the bank as a purchaser, then, because it is a national bank, appellant is exempt under 12 U.S.C. 548. Because the question here is whether the tax affects federal immunity, it is clear that for this limited purpose we are not bound by the state court's characterization of the tax. See Society for Savings v. Bowers, 349 U.S. 143, 151 , and the cases cited therein. And essentially the question for us is: On whom does the incidence of the tax fall? See Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 121 -122. Also see Carson v. Roane-Anderson Co., 342 U.S. 232 . </s> It would appear to be indisputable that a sales tax which by its terms must be passed on to the purchaser imposes the legal incidence of the tax upon the purchaser. See Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 99 . Subsection 3 of the Massachusetts sales tax provides: </s> "Reimbursement for the tax hereby imposed shall be paid by the purchaser to the vendor and each vendor in this commonwealth shall add to the sales price and shall collect from the purchaser the full amount of the tax imposed by this section, or an amount equal as nearly as possible or practicable to the average equivalent thereof; and such tax shall be a debt from the purchaser to the vendor, when so added to the sales price, and shall be recoverable at law in the same manner as other debts." Acts and Resolves, 1966, c. 14, 1, subsec. 3. (Emphasis added.) </s> This subsection reads to us as a clear requirement that the sales tax be passed on to the purchaser. And this interpretation is reinforced by subsection 23 which prohibits [392 U.S. 339, 348] as unlawful advertising the holding out by any vendor that he will assume or absorb the tax on any sale that he may make. We cannot accept the reasoning of the court below that simply because there is no sanction against a vendor who refuses to pass on the tax (assuming this is true), this means the tax is on the vendor. There can be no doubt from the clear wording of the statute that the Massachusetts Legislature intended that this sales tax be passed on to the purchaser. For our purposes, at least, that intent is controlling. And it seems clear to us that the force of the law, especially the language in subsection 3, is such that, regardless of sanctions, businessmen will attempt, in their everyday commercial affairs, to conform to its provisions as written. </s> For these reasons we reverse and hold that appellant is immune from both the Massachusetts use and sales taxes. </s> Reversed. </s> MR. JUSTICE FORTAS took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Acts and Resolves, 1966, c. 14, 1 and 2. </s> [Footnote 2 The Federal Reserve Act of December 23, 1913, c. 6, 38 Stat. 251, 12 U.S.C. 221 et seq. </s> [Footnote 3 This section provides in pertinent part: </s> "The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or [392 U.S. 339, 342] holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income . . . . </s> "1. (a) The imposition by any State of any one of the above four forms of taxation shall be in lieu of the others . . . . </s> . . . . . </s> "3. Nothing herein shall be construed to exempt the real property of associations from taxation in any State or in any subdivision thereof, to the same extent, according to its value, as other real property is taxed." </s> [Footnote 4 Act of February 25, 1863, c. 58, 12 Stat. 665. </s> [Footnote 5 Act of February 10, 1868, c. 7, 15 Stat. 34. </s> [Footnote 6 Act of March 4, 1923, c. 267, 42 Stat. 1499. </s> [Footnote 7 64 Cong. Rec. 1454 (1923). </s> [Footnote 8 Act of March 25, 1926, c. 88, 44 Stat. 223. </s> [Footnote 9 See Hearing on S. 2547 before the Subcommittee on Federal Reserve Matters of the Senate Committee on Banking and Currency, 81st Cong., 2d Sess., 9 (1950). </s> MR. JUSTICE MARSHALL, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting. </s> I would make clear that the Constitution of its own force does not prohibit Massachusetts from applying its uniform sales and use taxes to, among other things, appellant's wastebaskets. 1 It seems to me necessary to [392 U.S. 339, 349] decide that constitutional question in order properly to interpret 12 U.S.C. 548, upon which the Court bases its decision. Moreover, the refusal to decide the issue gives further life to a largely outmoded doctrine. </s> Mr. Justice Brandeis rightly cautioned that "[i]n cases involving constitutional issues . . . this Court must, in order to reach sound conclusions, feel free to bring its opinions into agreement with experience and with facts newly ascertained, so that its judicial authority may . . . `depend altogether on the force of the reasoning by which it is supported.'" 2 I think that in light of the present functions and role of national banks they should not in this day and age be considered constitutionally immune from nondiscriminatory state taxation, and that 548 should not be construed as giving them a statutory immunity from the taxes here involved. </s> I. </s> A. The starting point of the constitutional inquiry is, of course, M`Culloch v. Maryland, 4 Wheat. 316 (1819). That case involved a state statute applicable to any bank established in Maryland "without authority from the State," i. e., the Second Bank of the United States, chartered by Congress in 1816. It prohibited the circulation of notes (currency) by such a bank except on payment of a 2% stamp tax, or, alternatively, upon the payment annually to the State of $15,000. Substantial monetary penalties were provided for violations of the statute, for which the State had sued cashier M`Culloch. In a celebrated opinion Chief Justice Marshall, a principal architect of our federalism, struck down the Maryland statute. [392 U.S. 339, 350] </s> In Osborn v. Bank of the United States, 9 Wheat. 738 (1824), M`Culloch was applied to strike down an Ohio statute that attempted to extract an annual tax of $50,000 from each branch of a business operating in the State without its authority. The statutes found unconstitutional in both of those cases were patently discriminatory against the Second Bank of the United States (the Ohio statute specifically mentioned it), for the taxes did not apply to state-chartered banks. Chief Justice Marshall, however, did not limit his opinions in the two cases to discriminatory taxation, and they were applied by the Court in Owensboro Nat. Bank v. Owensboro, 173 U.S. 664 (1899), with little independent analysis to hold that Kentucky could not collect a nondiscriminatory franchise tax from a national bank. There was no discussion of the possible differences between federal functions performed by the kind of national bank involved there, which existed by virtue of legislation enacted in 1863 and 1864, and the quite distinct functions performed by the Second Bank of the United States involved in M`Culloch and Osborn. </s> Virtually all of the later cases in which national banks have been held to be federal instrumentalities immune from state taxation depend upon these three cases. One could, and perhaps should, read M`Culloch and Osborn simply for the principle that the Constitution prohibits a State from taxing discriminatorily a federally established instrumentality. On that view, Chief Justice Marshall's statement that "the power to tax involves the power to destroy," M`Culloch v. Maryland, supra, at 431, did not relate to a principle entirely necessary to the decision. As Mr. Justice Frankfurter pointed out in reference to what he called that "seductive cliche": </s> "The web of unreality spun from Marshall's famous dictum was brushed away by one stroke of Mr. [392 U.S. 339, 351] Justice Holmes's pen: `The power to tax is not the power to destroy while this Court sits.'" 3 </s> Absent an examination of the differences between the bank involved in Owensboro and the Second Bank of the United States involved in M`Culloch and Osborn, the Owensboro decision might be justified upon either of the following grounds: its alternative holding that the statute that is now 548 constituted congressional delineation of the permissible scope of the power of the State to tax a national bank, or perhaps that the particular franchise tax was invalid as applied because it was based upon a valuation that included the national bank's required investment in nontaxable bonds of the United States. 4 Or one might view Owensboro, in holding a nondiscriminatory tax invalid, as simply incorrect. </s> Such a limited view of those hoary cases would, of course, require a re-evaluation of the validity of the doctrine of intergovernmental tax immunities - a doctrine which does not rest upon any specific provisions of the [392 U.S. 339, 352] Constitution, but rather upon this Court's concepts of federalism. See M`Culloch v. Maryland, supra, at 426; Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 487 -492 (1939) (Frankfurter, J., concurring); T. Powell, Vagaries and Varieties in Constitutional Interpretation, c. IV (1956). I have no doubt that Congress could provide (and has provided, see infra, at 362) statutory immunity from state taxation for the federal instrumentalities it may establish. See, e. g., United States v. City of Detroit, 355 U.S. 466, 474 (1958); Maricopa County v. Valley Nat. Bank, 318 U.S. 357, 361 (1943); Railroad Co. v. Peniston, 18 Wall. 5, 37-38 (1873) (concurring in judgment). Given that congressional power, there is little reason for this Court to cling to the view that the Constitution itself makes federal instrumentalities immune from state taxation in the absence of authorizing legislation. The disparate kinds of instrumentalities and forms of state taxation create difficulties for ad hoc resolution of the immunity issue by this Court based only upon abstract concepts of federalism. See generally Powell, Waning of Intergovernmental Tax Immunities, 58 Harv. L. Rev. 633 (1945); Powell, Remnant of Intergovernmental Tax Immunities, 58 Harv. L. Rev. 757 (1945). As the Court has sometimes realized: </s> "Wise and flexible adjustment of intergovernmental tax immunity calls for political and economic considerations of the greatest difficulty and delicacy. Such complex problems are ones which Congress is best qualified to resolve." United States v. City of Detroit, 355 U.S., at 474 . </s> B. The Court has never indicated any great desire to reconsider in toto the doctrine of the constitutional immunity of federal instrumentalities from state taxation. The Court has, however, noted the trend in its decisions toward restricting "the scope of immunity [from taxes] of private persons seeking to clothe themselves with governmental [392 U.S. 339, 353] character." Oklahoma Tax Comm'n v. Texas Co., 336 U.S. 342, 352 (1949). The wisdom of that trend counsels, I think, a rejection of the constitutional argument in this case. </s> As the Court said last Term, "there is no simple test for ascertaining whether an institution is so closely related to governmental activity as to become a tax-immune instrumentality," Department of Employment v. United States, 385 U.S. 355, 358 -359 (1966) (holding Red Cross immune). Various formulations of the controlling test have been used to determine whether institutions or individuals are immune: whether they "have been so incorporated into the government structure as to become instrumentalities of the United States and thus enjoy governmental immunity," United States v. Boyd, 378 U.S. 39, 48 (1964); whether they "are arms of the Government deemed by it essential for the performance of governmental functions," and "are integral parts of [a government department and] . . . share in fulfilling the duties entrusted to it," Standard Oil Co. v. Johnson, 316 U.S. 481, 485 (1942) (Army post-exchanges immune); whether they have been so "assimilated by the Government as to become one of its constituent parts," United States v. Township of Muskegon, 355 U.S. 484, 486 (1958); and whether the institution is regarded "virtually as an arm of the Government," Department of Employment v. United States, supra, at 359-360. </s> Under those general rubrics, the Court has looked to various specific factors and characteristics to determine the status of the specific institution: whether it is organized for private profit, and whether the Government has retained such control over it so that "it could properly be called a `servant' of the United States in agency terms," United States v. Township of Muskegon, supra, at 486; whether it was organized to effectuate a specific [392 U.S. 339, 354] governmental program, Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 102 (1941); whether its ownership, substantially or totally, lies in the Government, Clallam County v. United States, 263 U.S. 341, 343 (1923); Railroad Co. v. Peniston, 18 Wall., at 32; whether government officials handle and control its operations, Standard Oil Co. v. Johnson, supra; whether its officers or any significant portion of them are appointed by the Government, Department of Employment v. United States, supra; compare Railroad Co. v. Peniston, supra; whether the Government gives it significant financial aid, whether it is charged by law with carrying out some of the Government's international commitments, and whether it performs "functions indispensable to the workings" of a governmental unit, Department of Employment v. United States, supra, at 359. </s> Under any of those rubrics and applying the factors listed above - a list not intended to be exhaustive - a national bank cannot be considered a tax-immune federal instrumentality. It is a privately owned corporation existing for the private profit of its shareholders. It performs no significant federal governmental function that is not performed equally by state-chartered banks. Government officials do not run its day-to-day operations nor does the Government have any ownership interest in a national bank. </s> Appellant points to two factors as leading to the conclusion that national banks are federal instrumentalities: that they "owe their very existence to congressional legislation," and that they are subject to extensive federal regulation. But the fact that institutions "owe their existence to," i. e., are chartered by, the Government, has been definitely rejected as a basis alone for determining they should be tax immune. Railroad Co. v. Peniston, supra; cf. Broad River Power Co. v. Query, 288 U.S. 178 (1933). Similarly, a whole host of businesses and [392 U.S. 339, 355] institutions are subject to extensive federal regulation and that has never been thought to bring them within the scope of the "federal instrumentalities" doctrine. The plain fact is that one could hold that national banks have a constitutional tax-immune status today only by mechanically applying the three seminal cases of M`Culloch, Osborn, and Owensboro. It is instructive, therefore, to examine the functions performed by the national banks involved in those cases. </s> The Second Bank of the United States, involved in M`Culloch and Osborn, would clearly be a federal instrumentality under the Court's most recent discussion of the doctrine (Department of Employment, supra): the United States owned 20% of its capital stock (the remainder being owned by private persons); the President appointed five of its 25 directors, and the Government, as a shareholder, participated in the election of the others; the Secretary of the Treasury was required to deposit all of the public funds in the bank, unless he could give reasons to Congress why he should not do so; the bank was required to transmit funds for the United States without charge; the bank issued currency which was established as legal tender for all debts owing to the Government; and the bank clearly acted as the fiscal agent of the Government, handling its foreign exchange transactions. See P. Studenski & H. Krooss, Financial History of the United States 83-88, 103-106 (2d ed. 1963); Federal Reserve System, Banking Studies 7-8, 18, 39-41 (1941). </s> Even the national bank involved in Owensboro might warrant tax-immune status were it in existence today. It was established pursuant to the National Currency Acts of 1863 and 1864 5 which were enacted largely to [392 U.S. 339, 356] bolster the Union's financial status, shaky because of the Civil War. Banking Studies, supra, at 43-46. Most importantly, from the standpoint of analyzing the federal functions such banks served, national banks under the Civil War legislation, 6 to which national banks today trace their history, had important and significant functions concerning currency. They were authorized to issue currency, printed for them by the Treasury Department, and such currency was established as legal tender for all debts owing to, or payable by, the Government. To insure the stability of the national currency by insuring the stability of the issuing banks, as well as to provide a ready market for the Government, each such national bank was required to secure its currency by depositing United States bonds with the Treasury Department. Banking Studies, supra, 14-16, 41-46; Studenski & Krooss, supra, 154-155. </s> All of this was radically changed with the passage of the Federal Reserve Act of 1913, 38 Stat. 251, as amended, 12 U.S.C. 221 et seq., and by subsequent developments with respect both to the Federal Reserve System and to national banks. To capsulize those developments greatly, suffice it to say that the Federal Reserve banks (and System) are now the monetary and fiscal agents of the United States. 12 U.S.C. 391. By 1935, the power of national banks to issue currency had ceased and now Federal Reserve banks are the only banking institutions that can do so. Banking Studies, supra, at 240; Federal Reserve System, The Federal Reserve System: Purposes and Functions c. X (5th rev. ed. 1967). The diminished importance of national banks as federal functionaries was compensated for by the enactment of legislation designed to make them more competitive with state banks, e. g., [392 U.S. 339, 357] branch banking, 44 Stat. 1228 (1927), as amended, 12 U.S.C. 36 (c); fiduciary powers, 76 Stat. 668 (1962), 12 U.S.C. 92a; rate of interest on loans, 48 Stat. 191 (1933), as amended, 12 U.S.C. 85; capitalization, 48 Stat. 185 (1933), 12 U.S.C. 51; and interest on time and savings deposits, 44 Stat. 1232 (1927), 12 U.S.C. 371. </s> To be sure, the Federal Reserve System could not function without national banks, which are required to be members therein, 12 U.S.C. 222, and in that sense they are part and parcel of the establishment and effectuation of the national fiscal and monetary policies. But, in my view, that does not make them sufficiently quasi-public to enjoy the tax-immune status of federal instrumentalities. If that alone were enough, then it would seem that state banks which elect to join the Federal Reserve System should also be tax-immune federal instrumentalities. 7 </s> In any event, there is little difference today between a national bank and its state-chartered competitor: the ownership, control and capital source of each is private; each exists for private profit. More importantly, neither may issue legal tender: </s> "With the passing of the national bank notes, the United States lost much of the difference between the national banking system and the state banking systems. Except for automatic membership in the Federal Reserve System, different examining boards, and more or less different standards of examination, appraisal, and the like, the main point of differentiation between the national banking system and any [state] . . . banking system . . . was formerly the [392 U.S. 339, 358] privilege of currency issue." J. Paris, Monetary Policies of the United States, 1932-1938, at 96 (1938). </s> Today the national banks perform no significant fiscal services to the Federal Government not performed by their state competitors. Any federally insured bank, state or national, may be a government depository. 12 U.S.C. 265. The principal checking accounts of the Government are carried today, not by national banks, but by the Federal Reserve banks. When a new issue of government securities is offered, the Federal Reserve banks receive the applications of purchasers. When government securities are to be redeemed or exchanged, the transactions are handled by the Federal Reserve banks. Those banks administer for the Treasury the tax and loan deposit accounts of the banks in their respective districts. See The Federal Reserve System: Purposes and Functions, supra, at 225-234, 274-277; Banking Studies, supra, 260-265. </s> In Graves v. New York ex rel. O'Keefe, 306 U.S., at 483 , Mr. Justice Stone wrote for the Court: </s> "[T]he implied immunity of one government and its agencies from taxation by the other should, as a principle of constitutional construction, be narrowly restricted. For the expansion of the immunity of the one government correspondingly curtails the sovereign power of the other to tax, and where that immunity is invoked by the private citizen it tends to operate for his benefit at the expense of the taxing government and without corresponding benefit to the government in whose name the immunity is claimed." 8 </s> That is precisely the situation here; I would heed those words and hold that national banks, today, are not [392 U.S. 339, 359] immune from nondiscriminatory state taxation as federal instrumentalities. 9 I might also add that I am a bit mystified that under the Court's decisions in this field the Federal Government in practical effect must pay a state tax in dealing with its contractors (who pass the tax on to the Government), see, e. g., Alabama v. King & Boozer, 314 U.S. 1 (1941), but that a national bank, a private profit-making corporation, is constitutionally immune from state taxation. </s> II. </s> The Court holds that 12 U.S.C. 548, ante, at 341, n. 3, "was intended to prescribe the only ways in which the States can tax national banks." Ante, at 343. I would be less than candid not to acknowledge that that holding has the virtue of being supported by substantial precedent. But that seems to me to be its only virtue. That interpretation of 548 has its judicial origin in the Owensboro case. Given the constitutional premise of Owensboro, that interpretation would be quite clearly correct. But since I reject the constitutional premise so far as national banks today are concerned, it seems to me 548 ought to be examined freshly, for the "immunity formerly said to rest on constitutional implication [should not] . . . now be resurrected in the form of statutory implication." Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 604 (1943). </s> Section 548 expressly mentions four specified types of taxes: those on national bank shares, on dividends on shares in the hands of stockholders, on the income of the [392 U.S. 339, 360] bank, and taxes "according to or measured by" a bank's income. It provides that the imposition of any one of the four listed taxes "shall be in lieu of the others." That statement, together with language of the section omitted in the Court's note as not pertinent (ante, at 341-342, n. 3), 10 makes clear that the purpose of the section was to [392 U.S. 339, 361] insure the competitive equality of the banks with other businesses by preventing the bank or its shareholders from being subjected to more than one of the four enumerated types of taxes, other than real property taxes, so as to prevent multiple taxation of the same income, unless the States taxed the income of other businesses in similar multiple fashion. See 12 U.S.C. 548, subsections 1 (b), (c), and (d), supra, n. 10. All that the majority can point to in the legislative history of 548 is that the Congress was well aware of M`Culloch v. Maryland. And that decision specifically stated the following: </s> "This opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State." (4 Wheat., at 436.) </s> I view 548 as congressional delineation of those areas of state taxation of national banks permitted by the M`Culloch decision itself. I would hold that the section was "merely designed to insure that the inherent taxing powers which were recognized in" that case - "e. g., the power to tax the real property of the banks as well as the privately owned shares - be exercised in a nondiscriminatory fashion." Liberty Nat. Bank v. Buscaglia, 21 N. Y. 2d 357, 370, 235 N. E. 2d 101, 108 (1967). As this Court said in Tradesmens Nat. Bank v. Oklahoma Tax Comm'n, 309 U.S. 560, 567 (1940), "the various restrictions [ 548] . . . places on the permitted methods [392 U.S. 339, 362] of taxation are designed to prohibit only those systems of state taxation which discriminate in practical operation against national banking associations or their shareholders as a class." </s> Moreover, whatever else may be said of the statute, it most assuredly does not provide specifically that it is the sole measure of the State's power of taxation. One could argue that, given the state of constitutional law as it then existed, Congress saw no need to say specifically in 548 that national banks were immune from state taxation except as that section permitted. Aside from the misreading of M`Culloch that such a view entails, the constitutional immunity of federal instrumentalities was just as plain when Congress provided statutory immunity for such agencies as, e. g., the Federal Reserve banks, 38 Stat. 258 (1913), 12 U.S.C. 531; Federal land banks, 39 Stat. 380 (1916), 12 U.S.C. 931; many other federal banking institutions; 11 the Reconstruction Finance Corporation, 47 Stat. 9 (1932), 15 U.S.C. 607; and the Public Housing Administration, 50 Stat. 890 (1937), 42 U.S.C. 1405 (e), and a host of government-owned corporations. 12 </s> It is not without relevance in construing 548, it seems to me, that the kinds of state taxes here involved did not exist at the time the section was adopted and were not a significant factor in the raising of state revenue until the early 1930's, subsequent to the last amendment of 548 in 1926. See generally H. R. Rep. No. 565, 89th Cong., 1st Sess., 608 (1965). I think we should be reluctant to interpret a statute having such narrow [392 U.S. 339, 363] scope as 548 as encompassing such a broad prohibitory application. It seems to me that we would do far better to recognize that the Constitution does not prohibit nondiscriminatory state taxation of national banks, and that 548 limits only the kinds of taxes specifically set forth therein. Only in that way is Congress free to re-evaluate the situation. That is, so far as construing 548 is concerned, in practical effect the issue is who shall bear the burden of seeking congressional action. I would put the burden where it ought to be, namely, on the private profit-making corporation that seeks exemption from nondiscriminatory state taxation. </s> Finally, a major national banking policy has been to foster competitive equality of national and state banks. See, e. g., First Nat. Bank v. Walker Bank, 385 U.S. 252 (1966); Lewis v. Fidelity & Deposit Co., 292 U.S. 559 (1934). We ought, if other considerations are not decisive, to promote rather than retard that strong policy. </s> For the reasons stated, I would affirm. </s> [Footnote 1 The reductio ad absurdum in the text is, unlike most, somewhat accurate. One item upon which, appellant informed its supplier, it should not have to pay the sales tax was a wastebasket (as well as, e. g., "1 Box 5 x 7 Index Cards"). The record does not reveal the extent of appellant's liability for use taxes; appellant paid a total of $575.66 in sales taxes for the three months of the year 1966 that are specifically at issue here. </s> [Footnote 2 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412 -413 (1932) (dissenting opinion), quoting from Passenger Cases, 7 How. 283, 470 (1849) (Taney, C. J.). </s> [Footnote 3 Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 489 , 490 (1939) (concurring opinion), quoting from Panhandle Oil Co. v. Knox, 277 U.S. 218, 223 (1928) (dissenting opinion). </s> [Footnote 4 Owensboro might also be viewed simply as prohibiting a franchise tax, i. e., as holding that a State may not condition the privilege to operate within its borders granted to the bank by Congress, by exacting that kind of tax. (Such a tax is permissible under 12 U.S.C. 548, as amended after Owensboro, see Tradesmens Nat. Bank v. Tax Comm'n, 309 U.S. 560 (1940).) The taxes in M`Culloch and Osborn, apart from their discriminatory aspects, might be similarly viewed: the Maryland tax was directly upon the bank's operations, and alternatively upon its privilege to operate within the State; the Ohio tax in Osborn was also a condition upon the bank's privilege to transact business there. While the language and holdings of later cases go well beyond that limited view, that view would seem preferable to me to interpreting those constitutional decisions as flatly prohibiting all forms of state taxation, aside from exceptions listed in M`Culloch, 4 Wheat., at 436 (see infra, at 361). </s> [Footnote 5 Act of February 25, 1863, 12 Stat. 665 ("An Act to provide a national Currency . . ."); Act of June 3, 1864, 13 Stat. 99 ("An Act to provide a National Currency . . ."). </s> [Footnote 6 See n. 5, supra; see also revenue acts, Act of March 3, 1865, 6, 7, 13 Stat. 484; Act of July 13, 1866, 9, 14 Stat. 146. </s> [Footnote 7 As of December 31, 1966, membership in the Federal Reserve System was composed of 1,351 state-chartered, and 4,799 national, banks. The Federal Reserve System: Purposes and Functions, supra, at 24-25. </s> [Footnote 8 Accord, Indian Motorcycle Co. v. United States, 283 U.S. 570, 580 (1931) (Stone, J., dissenting). </s> [Footnote 9 Compare the rejection of a national bank's contention that it, as a federal instrumentality, should be exempt from the federal labor laws, NLRB v. Bank of America, 130 F.2d 624, 627 (C. A. 9th Cir. 1942) (footnote omitted): </s> "It is a privately owned corporation, privately managed and operated in the interest of its stockholders. . . . The United States did not create it, but has merely enabled it to be created. . . ." </s> [Footnote 10 The relevant omitted portions of 548 read: </s> "1. (a) . . . </s> "(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks: Provided, That bonds, notes, or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section. </s> "(c) In case of a tax on or according to or measured by the net income of an association, the taxing State may, except in case of a tax on net income, include the entire net income received from all sources, but the rate shall not be higher than the rate assessed upon other financial corporations nor higher than the highest of the rates assessed by the taxing State upon mercantile, manufacturing, and business corporations doing business within its limits: Provided, however, That a State which imposes a tax on or according to or measured by the net income of, or a franchise or excise tax on, financial, mercantile, manufacturing, and business corporations organized under its own laws or laws of other States and also imposes a tax upon the income of individuals, may include in such individual income dividends from national banking associations located within the State on condition that it also includes dividends from domestic corporations and may likewise include dividends from national banking associations located without the State on condition that it also includes dividends from foreign corporations, but at no higher rate than is imposed on dividends from such other corporations. </s> "(d) In case the dividends derived from the said shares are taxed, the tax shall not be at a greater rate than is assessed upon the net income from other moneyed capital. </s> "2. The shares of any national banking association owned by nonresidents of any State shall be taxed by the taxing district or [392 U.S. 339, 361] by the State where the association is located and not elsewhere; and such association shall make return of such shares and pay the tax thereon as agent of such nonresident shareholders." </s> [Footnote 11 E. g., federal intermediate credit banks, 12 U.S.C. 1111; Federal Home Loan Bank, 12 U.S.C. 1433; federal savings and loan associations, 12 U.S.C. 1464 (h). </s> [Footnote 12 E. g., Federal Deposit Insurance Corp., 12 U.S.C. 1825. See Government Corporation Control Act of 1945, 59 Stat. 597, as amended, 31 U.S.C. 841 et seq. </s> MR. JUSTICE HARLAN: In addition to the reasons given in my Brother MARSHALL'S opinion, which I have joined, I would affirm the judgment below on the basis of that part of Justice Reardon's opinion for the Supreme Judicial Court of Massachusetts which upheld the application of Massachusetts' use tax to national banks. See ___ Mass. ___, ___ _ ___, 229 N. E. 2d 245, 251-260. </s> [392 U.S. 339, 364]

United States Supreme Court FORTSON v. TOOMBS(1965) No. 300 Argued: Decided: January 18, 1965 </s> After holding the Georgia Legislature to be malapportioned the District Court enjoined appellant election officials from placing on the 1964 ballot or subsequent ballots, until the General Assembly is properly apportioned, the question of adopting a new state constitution. Appellees suggested that the issue was moot. Held: This part of the decree is vacated and remanded to the District Court to consider the present need for the injunction. </s> Decree vacated in part and remanded. </s> E. Freeman Leverett, Deputy Assistant Attorney General of Georgia, argued the cause for appellants. With him on the brief was Eugene Cook, Attorney General of Georgia. </s> Francis Shackelford argued the cause for appellees. With him on the brief were Emmet J. Bondurant II, J. Quentin Davidson, Edward S. White and Hamilton Lokey. </s> PER CURIAM. </s> The District Court, having held that the Georgia Legislature was malapportioned (Toombs v. Fortson, 205 F. Supp. 248), enjoined appellants, election officials, "from placing on the ballot to be used in the General Election to be held on November 3, 1964, or at any subsequent election until the General Assembly is reapportioned in accordance with constitutional standards, the question whether a constitutional amendment purporting to amend the present state constitution by substituting an entirely [379 U.S. 621, 622] new constitution therefor shall be adopted." * Appellants challenge that provision on the merits. Appellees, while defending it on the merits, suggest alternatively that the issue has become moot. </s> The situation has changed somewhat since the 1964 election, as both the Senate and the House have new members, and appellees, for whose benefit the challenged provision was added, say it is now highly speculative as to what the 1965 legislature will do and suggest the paragraph in question be vacated as moot. </s> We vacate this part of the decree and remand to the District Court, to whom we give a wide range in moulding a decree (United States v. Crescent Amusement Co., 323 U.S. 173, 185 ; International Boxing Club v. United States, 358 U.S. 242, 253 ), for reconsideration of the desirability and need for the on-going injunction in light of the results of the 1964 election and the representations of appellees. </s> It is so ordered. [379 U.S. 621, 623] </s> MR. JUSTICE CLARK, concurring. </s> Although I would prefer to declare this litigation moot and vacate the judgment below, I am joining the opinion and judgment of the Court solely on the basis that it is not reaching the merits regarding the propriety of the order fashioned by the three-judge District Court. In my view, the Court is simply vacating and remanding in order to give the District Court an opportunity to reconsider its order in light of the change in circumstances which has occurred since judgment was entered. </s> [Footnote * The entire paragraph reads as follows: </s> "The defendants are hereby enjoined from placing on the ballot to be used in the General Election to be held on November 3, 1964, or at any subsequent election until the General Assembly is reapportioned in accordance with constitutional standards, the question whether a constitutional amendment purporting to amend the present state constitution by substituting an entirely new constitution therefor shall be adopted; provided, however, nothing in this order shall prevent the submission of amendments to the Constitution of the State of Georgia which are separate as to subject matter, in accordance with Article XIII, Section I, Article 1, of the Constitution of the State of Georgia, 1945. (See Hammond v. Clarke, 136 Ga. 313, for a discussion by the Georgia Supreme Court of what constitutes separate amendments). Nor shall anything in this order prevent the calling by the General Assembly of a `convention of the people to revise, amend or change the constitution' if the representation `in the convention is based on population as near as practicable' with the members being elected by the people (see Article XIII, Section I, Article 2). Constitution of the State of Georgia, 1945." </s> MR. JUSTICE HARLAN, with whom MR. JUSTICE STEWART joins, concurring in part and dissenting in part. </s> This is the first time that the Court, after plenary briefing and argument, has been called on to consider the propriety of interim arrangements prescribed by a district court pending the effectuation of its decision requiring reapportionment of a branch of a state legislature. </s> After holding that the House of Representatives of the General Assembly of Georgia was unconstitutionally composed, a decision which is not called into question on this appeal, the three-judge District Court ordered: (1) that the election in 1964 of the legislature to serve in 1965 (the 1965 legislature) might proceed under the State's existing methods of apportionment; (2) that until a properly apportioned legislature took office no other legislature could propose to the electorate, except through the calling of a convention of popularly elected delegates, the adoption of a new state constitution; and (3) that (except for reapportionment legislation) the 1965 House should be "limited," notwithstanding any provision of state law, "to the enactment of such legislation as shall properly come before the said Legislature during the regular 1965 45-day session" provided by Georgia law. After the State's appeal was filed in this Court this last [379 U.S. 621, 624] provision was in effect abrogated by the District Court with the approval of the parties. 1 </s> This appeal draws in question the validity of items (2) and (3) above, similarly numbered in the District Court's order. It is contended by the appellees, however, that both these issues have now become moot. </s> I. </s> The Court's disposition of this case, of course, involves a holding that at least as to item (2) the case is not moot. For, contrary to what my Brother GOLDBERG says in his dissenting opinion (post, pp. 636-638) and as my Brother CLARK seems to recognize (ante), the Court does not remand the case to the District Court for a determination on the issue of mootness, but only to decide whether any injunctive relief is now appropriate in light of what has transpired since such relief was first granted. </s> While it may be that the Court's implicit holding on mootness does not reach beyond the portion of the District Court's decree that goes to the submission of a proposed new state constitution (par. (2) of the decree), I would also hold not moot the pronouncement of that decree placing limitations on the functioning of the 1965 State Legislature (original par. (3) of the decree). </s> As to paragraph (2), it is sufficient to say that the injunction has continuing effect, not only with respect to the 1965 legislature, but also as to any successor legislature if it is found to be "malapportioned." Any alleged "speculativeness" as to whether a new state constitution may be proposed to the electorate before a "constitutional" legislature comes into being, goes not to mootness but only to the question whether the District Court (assuming its power in the premises, see below) should [379 U.S. 621, 625] have granted any relief on this score. 2 So far as original paragraph (3) of the decree is concerned (limiting the activities of the 1965 legislature) it was not rendered moot by the District Court's modification after the case had been taken for review by this Court. Analytically, the situation is tantamount to a confession of error at this level, at most relieving this Court of the necessity of making a definitive exposition of its views on this subject (compare the suggestion of my Brother GOLDBERG, post, pp. 638-639), but not depriving the question of the attribute of justiciability. Cf. Young v. United States, 315 U.S. 257, 258 -259. </s> The position adopted by the Court is that although the case is not moot, at least as to the "constitution-submission" issue, decision of that question could be avoided if the District Court chose to vacate that part of its injunction in light of the change in circumstance which has made the need for such relief speculative; the Court therefore remands the case to afford the District Court that opportunity. I do not think that such avoidance as to either question is called for in this case. The Court's reapportionment decisions have pressed district courts onto an uncharted and highly sensitive field of federalstate relations with little more to guide them than the elusive "one-person-one-vote" aphorism. District courts, as courts of first instance, must necessarily fashion remedies for themselves, and the passage of time and the variety of remedies chosen by them may ultimately help this Court to wend its way through this treacherous constitutional terrain. But it is essential that the lower courts at least be launched in the right general direction and not allowed to range so far afield as to hamstring state legislatures and deprive States of effective [379 U.S. 621, 626] legislative government. Paragraphs (2) and (3) of the injunction involved in this case do range that far afield. Absent disapproval by this Court, the decision below, rendered by a distinguished panel, cannot fail to furnish a strong practical, if not legal, precedent for other district courts. I do not think this should be allowed to happen. </s> II. </s> I would hold the decree below improvident in both the aspects before us. </s> As to the provision forbidding submission to the electorate of a legislatively proposed new state constitution, I can find nothing in the Fourteenth Amendment, elsewhere in the Constitution, or in any decision of this Court which requires a State to initiate complete or partial constitutional change only by some method in which every voice in the voting population is given an opportunity to express itself. Can there be the slightest constitutional doubt that a State may lodge the power to initiate constitutional changes in any select body it pleases, such as a committee of the legislature, a group of constitutional lawyers, or even a "malapportioned" legislature - particularly one whose composition was considered, prior to this Court's reapportionment pronouncements of June 15, 1964, to be entirely and solely a matter of state concern? 3 </s> Similarly as to the provision of the lower court's original decree limiting the functions of the 1965 legislature, it seems scarcely open to serious doubt that so long as the federal courts allow this Georgia Legislature to sit, it must be regarded as the de facto legislature of the State, possessing the full panoply of legislative powers accorded by Georgia law. [379 U.S. 621, 627] </s> I think that the State of Georgia is entitled to a clearcut pronouncement from this Court that nothing in its reapportionment decisions contemplated such unheard-of federal court intrusion into state political affairs as the decree before us evinces. Beyond that, for this Court to temporize with important interstitial matters of this kind, deeply affecting the even course of federal-state relations, can only serve to aggravate the confusion which last June's reapportionment cases have left in their wake. 4 </s> I would modify the decree below by striking therefrom paragraph (2) and approving the substitute for original paragraph (3) as framed by the District Court. </s> Footnotes [Footnote 1 The full text of the District Court's order and the amendment of item 3 are printed in the dissenting opinion of MR. JUSTICE GOLDBERG as Appendices A and B, respectively. Post, pp. 639, 641. </s> [Footnote 2 See Labor Board v. Pennsylvania Greyhound Lines. Inc., 303 U.S. 261, 271 ; Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 514 -515. </s> [Footnote 3 If, as I believe, a State is not federally restricted in its choice of means for initiating constitutional change, the question of whether, under Georgia law, the proposed new Georgia Constitution should have been initiated by a popularly elected convention instead of by the legislature is not a matter for federal cognizance. </s> [Footnote 4 To hold as I think the Court should on these issues would not in any way impair the federal courts' ability to prevent frustration of their reapportionment decrees. </s> MR. JUSTICE GOLDBERG, dissenting. </s> I dissent from the Court's disposition of this case. By remanding, the Court is, in effect, asking the District Court to decide whether this appeal, which is pending before us and with respect to which we noted probable jurisdiction and heard argument, should be dismissed as moot due to events occurring after the appeal had been perfected in this Court. Mootness, in my view, is a question which, under these circumstances, this Court has the responsibility to decide. The facts relevant to this issue are undisputed. The District Court is in no better position to resolve the issue of mootness than we. No legitimate purpose is served by asking it to determine a question which is properly before us and which a long line of unbroken precedents would have us decide. 1 Moreover, if the case is moot, as I believe, there is no need for a further time-consuming hearing below and a possible future second [379 U.S. 621, 628] appeal to this Court. Surely both the District Court and this Court have enough to do without this Court creating unnecessary work for both. I would simply vacate the injunction order and dismiss this appeal as moot. </s> That this case is in fact moot becomes apparent from a consideration of the history of this litigation. </s> The appeal calls into question the validity of portions of an injunction issued by a three-judge District Court involving the reapportionment of the Georgia House of Representatives. The District Court entered an order on June 30, 1964, holding that the Georgia House of Representatives was unconstitutionally apportioned under the Federal Constitution and declaring invalid state constitutional and statutory apportionment provisions. The court's order allowed the November 1964 elections for the House of Representatives to take place under the then-existing constitutional and statutory provisions, but it required that new elections be held in 1965 in time for a properly apportioned legislature to take office no later than "the second Monday in January, 1966." Paragraph (2) of the court's order further enjoined appellants, state election officials, from placing on the November 1964 election ballot a new state constitution proposed by the then-existing unconstitutionally apportioned legislature, and it also enjoined the submission of a wholly new constitution to the voters by the legislature "at any subsequent election until the [legislature] . . . is reapportioned in accordance with constitutional standards." Paragraph (3) of the District Court's order limited the power of the 1965 legislature to enacting "such legislation as shall properly come before [it] . . . during the regular 1965 45-day session." Appellants' motion for a stay of the District Court's order was denied by MR. JUSTICE BLACK on July 6, 1964. 2 </s> [379 U.S. 621, 629] </s> Appellants appealed to this Court. In their jurisdictional statement they did not contest the basic holding that the House of Representatives was unconstitutionally apportioned. They challenged the validity of portions of paragraphs (2) and (3) of the District Court's order. 3 Appellees moved to affirm on the ground that the order was in all respects valid. We noted probable jurisdiction, 379 U.S. 809 , and granted appellants' motion to advance the cause for oral argument. </s> Shortly prior to argument, appellees moved that this appeal be dismissed because events supervening since the entry of the District Court's order rendered this appeal moot. Appellants opposed this motion. Consideration of appellees' motion to dismiss was postponed until the hearing. </s> Upon argument of this case it appeared without dispute that, since the entry of the order below, the parties had agreed upon modifications which eliminated appellants' objections to paragraph (3) of the District Court's order and that the District Court, on November 3, 1964, had entered an order embodying the agreed-upon modifications. 4 It likewise was agreed at the argument that the new constitution proposed by the legislature was not submitted to the voters in November 1964 and that under Georgia law it has lapsed and cannot be resubmitted. Thus the only issue remaining in this case is the validity of that portion of the District Court's order which prevents the newly elected or any future unconstitutionally [379 U.S. 621, 630] apportioned legislature from proposing and submitting to the voters a wholly new state constitution. </s> Appellees in their motion to dismiss and at the argument stated that although they originally sought affirmance of the portion of the District Court's order now under consideration, they no longer do so because, due to supervening events, it is now "highly speculative" as to whether the newly elected legislature 5 or any future unconstitutionally apportioned legislature will ever submit another wholly new constitution to the voters. Appellees state that consequently they no longer need the protection given them by the District Court's prohibition of such a submission, and that "this appeal presents only an abstract, hypothetical controversy in which the `lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity' is lacking." 6 They suggest that for these reasons controversy over this portion of the order has now become moot and urge that the appeal be dismissed and that this portion of the order be vacated. Appellants [379 U.S. 621, 631] resist the motion to dismiss on grounds of mootness. They contend that this Court should reach the merits and reverse the basic determination of the District Court that under the Federal Constitution a malapportioned legislature is without power to propose a new constitution to the voters. 7 They argue that a decision on the merits is called for because the issuance of the prior opinion of the District Court granting the injunction will have a precedential and deterrent effect, notwithstanding the vacation of the injunction order. </s> As this history shows, the appeal, in its present posture, is plainly moot under long-established principles and precedents. The question appellants would have us decide is one of grave import involving the power under the Federal Constitution of a malapportioned legislature to submit a state constitution to a popular vote - a question which necessarily involves a consideration of the varying systems used in different States for proposing constitutional amendments. The doctrine of "mootness," like the related doctrine of "ripeness," has been evolved by this Court so that it will not have to pass upon this type of question except upon the urging of one who is harmed or is currently threatened with harm caused by the allegedly unconstitutional action. See Stearns v. Wood, 236 U.S. 75 . While this Court cannot and will not avoid its constitutional responsibility to decide apportionment cases arising when justiciable problems are presented and pressed for decision by litigants [379 U.S. 621, 632] claiming an abridgment of their constitutional rights, 8 it should not, in apportionment cases, as in other areas, decide moot issues, volunteer judgments or seek out questions which have ceased to be ripe for adjudication 9 and are no longer presented in the context of an actual pending controversy. 10 I strongly, albeit respectfully, disagree with my Brother HARLAN'S intimation, grounded on his basic view that the Court should never have entered into reapportionment matters at all, that now that it has been decided that such issues are justiciable, this Court should be more willing in this "sensitive" area than in other areas, to give opinions of an advisory nature, so that "the lower courts [will] at least be launched in the right general direction and not allowed to range so far afield." Opinion of MR. JUSTICE HARLAN, ante, p. 625. Moreover, it has already been demonstrated, as was easily predictable from the history of other constitutional issues of a "sensitive" nature, that there is in this area ample opportunity to guide the lower courts within the traditional bounds of concrete, live controversies, actively pressed by real adverse parties. See Fortson v. Dorsey, ante, p. 433; Scranton v. Drew, ante, p. 40. </s> This Court does not pass upon constitutional questions unless it is necessary to do so to preserve the rights of the parties. See Liverpool, N. Y. & P. S. S. Co. v. Commissioners, 113 U.S. 33, 39 ; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 , 345-348 (concurring opinion of Mr. Justice Brandeis); Coffman v. Breeze Corps., 323 U.S. 316, 325 . Nor does it decide abstract questions merely because of the effect such judgments might have [379 U.S. 621, 633] upon future actions in similar circumstances. Little v. Bowers, 134 U.S. 547, 558 ; California v. San Pablo & T. R. Co., 149 U.S. 308, 314 ; Kimball v. Kimball, 174 U.S. 158 . In the present case we are told by the proponents of the injunction that there exists only a remote possibility that the newly elected legislature or some future one will submit a wholly new constitution to the voters. Cf. Bus Employees v. Missouri, 374 U.S. 74, 78 . If the question of the legislature's power to propose such a constitution were being submitted to a court as an initial matter, the speculativeness of the legislature's future conduct would undoubtedly render this issue unripe for adjudication. See New Jersey v. Sargent, 269 U.S. 328 ; Arizona v. California, 283 U.S. 423 ; Electric Bond & Share Co. v. SEC, 303 U.S. 419, 443 ; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 471 ; United States v. Harriss, 347 U.S. 612 . The speculativeness, which has arisen in this case since the order was entered, makes the issue in this appeal, in my view, similarly unsuitable for adjudication. United States v. Alaska S. S. Co., 253 U.S. 113 . </s> The appellees themselves, in whose favor the judgment below has run, do not assert the need for the protection of the District Court's order against future submission of a new constitution; they deem the possibility of such a submission too remote. They therefore are agreeable to the vacation of the injunction which they sought and obtained. This obviously will relieve appellants of any burden which the injunction imposes upon them. It also will remove any precedential effect of the opinion of the District Court on this issue. United States v. Munsingwear, 340 U.S. 36, 39 -41; Note, 103 U. Pa. L. Rev. 772, 794. Appellants would have the injunction reversed on the merits as improperly issued rather than vacated as appellees desire. Although there is this difference as to the proper disposition of this case, the net [379 U.S. 621, 634] result is that no party wishes the injunction to remain in effect. In the present posture of the case, the conclusion which emerges is that although the parties differ with respect to the abstract legal question of the validity of the order, there is no longer present here that "real, earnest and vital controversy between individuals" which assures us that a cause is in a "real sense adversary." 11 Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 ; United States v. Johnson, 319 U.S. 302, 305 . Appellants' argument that the order, though vacated, will have an inhibitory effect upon the legislature's activity is but a way of saying that appellants desire to know for their own purposes, as a guide to future conduct, what this Court would have said on the merits, had the issue remained embedded in a real and substantial controversy. Without such a controversy currently existing between those who appear as adverse parties, this Court should not give an opinion upon questions of law "which a party desires to know for . . . his own purposes." 12 Cleveland v. Chamberlain, 1 Black 419, 426; see Woodpaper Co. v. Heft, 8 Wall. 333; South Spring Hill Gold [379 U.S. 621, 635] Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 . </s> The situation in this case is a far cry from that presented in Bus Employees v. Missouri, supra, where an "existing unresolved dispute" made the likelihood of repetition of the conduct in question much greater than the mere "speculative" possibility existing here. Id., at 78. Nor do other decisions 13 relied upon by appellants support their position. In none of these cases was there any assertion, as here, by the party for whose benefit the injunction order was issued, that it had become highly problematical that the conduct which underlay the controversy would be repeated. In Federal Trade Comm'n v. Goodyear Tire & Rubber Co., 304 U.S. 257 ; J. I. Case Co. v. Labor Board, 321 U.S. 332 , relied upon by appellants, the party supporting the validity of the order called into question contended that the order was necessary and its validity should be reviewed. In the instant case whether or not the legislature, while still malapportioned, will submit a wholly new constitution to the voters is highly problematical, and the parties supporting the correctness of the injunction themselves feel that it should be vacated since they see no threat that the legislature will repeat conduct they consider illegal. The case is, therefore, much more closely analogous to United States v. Alaska S. S. Co., supra, in which this Court refused to review the question of the power of the Interstate Commerce Commission to require carriers to comply with an ICC order prescribing certain bills of lading. A three-judge District Court had found the Commission had no such power and had enjoined the Commission from ever issuing such an order. Before argument in this Court, [379 U.S. 621, 636] however, it became clear that provisions in the bills of lading prescribed by the Commission conflicted with provisions contained in new legislation passed by Congress after the District Court's decision. Since the particular bills of lading prescribed would have to be withdrawn by the Commission in view of this legislation, and because of the uncertainty as to whether the Commission would prescribe new bills of lading or the form they would take, this Court refused to decide the issue of whether the Commission had the power to prescribe any bills of lading. The Court stated, "However convenient it might be to have decided the question of the power of the Commission to require the carriers to comply with an order prescribing bills of lading, this court `is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.'" 253 U.S., at 116 . The Court reversed the District Court's order and remanded the case to the District Court "with directions to dismiss the petition . . . without prejudice to the right of the complainants to assail in the future any order of the Commission prescribing bills of lading after the enactment of the new legislation." Id., at 116-117. Unless Alaska S. S. Co., is to be overruled or ignored, the Court should act similarly here. </s> Finally, I find the Court's disposition of this case mystifying, for I cannot understand what the District Court is to do upon remand. Since the District Court's order has been vacated, no injunction will be in effect. Presumably the District Court will have before it two groups of parties, one group urging that no order be entered and the other group claiming that no order is necessary because the likelihood of the legislature's resubmitting a new constitution is too remote. It is inconceivable to me that the District Court would be warranted in rein-stating [379 U.S. 621, 637] its injunction under the present facts. Of course, if circumstances changed, and there was a real, rather than a tenuous threat of further legislative action of the type originally complained of, the District Court, which has retained jurisdiction of this case, would be empowered to entertain an application for appropriate injunctive relief. However, I cannot understand the logic of the Court's decision in asking the District Court now to make a determination which, under the present circumstances, is rightfully our responsibility. </s> My Brother HARLAN suggests that, contrary to my view, "the Court does not remand the case to the District Court for a determination on the issue of mootness, but only to decide whether any injunctive relief is now appropriate in light of what has transpired since such relief was first granted." Ante, p. 624. But with due respect, I suggest that his interpretation of the Court's opinion is not justified by what the Court says or does. The Court explicitly sets forth appellees' contention that the case is moot because "[t]he situation has changed somewhat since the 1964 election," and "it is now highly speculative as to what the 1965 legislature will do" (ante, p. 622), and then the Court remands the case for reconsideration of the desirability of and need for the injunction in terms of the contentions raised by appellees, i. e., "in light of the results of the 1964 election and the representations of appellees." Ibid. This surely must mean that the Court is asking the District Court to consider appellees' contentions that the case is moot. Further, I might better understand my Brother HARLAN'S general distinction between determining whether a case is moot and whether an injunction is still appropriate if there were some issue in this case other than the power of the District Court to issue the injunction. But the only issue presented for decision on the merits is whether the District Court validly issued this type of injunction; thus to decide here [379 U.S. 621, 638] whether, in light of the changed circumstances and the parties' present desires, continuance of the injunction is still appropriate is to decide the identical question as to whether, in light of these changed circumstances and the present contentions of the parties, the case has become moot. Determining the issue of mootness and deciding "whether any injunctive relief is now appropriate in light of what has transpired since such relief was first granted," both come down to the same thing - the question is whether, at this juncture, as appellees contend, "this appeal presents only an abstract, hypothetical controversy in which the `lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity' is lacking." The question is one for this Court to decide. </s> I believe that the proper result in this case would be to sustain the appellees' motion to dismiss for mootness and to enter an order vacating paragraph (2) of the District Court's order of June 30, 1964, prohibiting submission of a wholly new constitution to the voters by the legislature at the 1964 election or "at any subsequent election until [it] . . . is reapportioned in accordance with constitutional standards." Thus this portion of the slate would be wiped clean, United States v. Munsingwear, supra, without any necessity for further proceedings below to try the mootness issue. In view of the parties' stipulations before this Court that they accept the modifications entered by the District Court on November 3, 1964, I believe that the Court is correct in not passing upon the validity of paragraph (3) of the District Court's order of June 30, 1964 - that portion of the order which appellants took as limiting the powers of the 1965 legislature. However, because of doubts expressed as to the jurisdiction of the District Court to enter its modified order while appeal is pending in this Court, see Schempp v. School District, 184 F. Supp. 381 (D.C. E. D. Pa.), the Court [379 U.S. 621, 639] ought also to vacate paragraph (3) of the June 30, 1964, order on the assumption that the District Court will re-enter its modified order of November 3, 1964, in accordance with the agreement of the parties. </s> The federal district courts have enough to do in deciding ripe reapportionment cases without our requiring them to decide stale ones. </s> APPENDIX A TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING. </s> FINAL ORDER OF THE COURT OF JUNE 30, 1964. </s> Revised Order. </s> All parties having consented thereto, the order of the Court dated June 24, 1964, is hereby revised to read as follows: </s> It is now Ordered, Adjudged and Decreed as follows: </s> (1) Article III, Section III, Paragraph I (Code Section 2-1501) of the Constitution of Georgia of 1945, is hereby declared to be null, void and inoperative, as being in conflict with the Fourteenth Amendment to the Constitution of the United States. </s> Section 47-101 of the Code of Georgia, as amended, is hereby declared to be prospectively null, void and inoperative, as being in conflict with the Fourteenth Amendment to the Constitution of the United States, for elections to the House of Representatives after the General Election to be held in November of 1964. </s> (2) The defendants are hereby enjoined from placing on the ballot to be used in the General Election to be held on November 3, 1964, or at any subsequent election until the General Assembly is reapportioned in accordance with constitutional standards, the question whether a constitutional amendment purporting to amend the present state constitution by substituting an entirely new [379 U.S. 621, 640] constitution therefor shall be adopted; provided, however, nothing in this order shall prevent the submission of amendments to the Constitution of the State of Georgia which are separate as to subject matter, in accordance with Article XIII, Section I, Article 1, of the Constitution of the State of Georgia, 1945. (See Hammond v. Clarke, 136 Ga. 313, for a discussion by the Georgia Supreme Court of what constitutes separate amendments). Nor shall anything in this order prevent the calling by the General Assembly of a "convention of the people to revise, amend or change the constitution" if the representation "in the convention is based on population as near as practicable" with the members being elected by the people (see Article XIII, Section I, Article 2). Constitution of the State of Georgia, 1945. </s> (3) The motion of the plaintiffs for further injunctive relief prior to the conduct of the party primaries or conventions and the General Election of November 3, 1964, is hereby denied at this time, provided, however, that notwithstanding anything in Article III, Section IV, Paragraph I (Code Section 2-1601) of the Constitution of Georgia of 1945 to the contrary, the service of the members of the House of Representatives of the General Assembly of the State of Georgia to be elected at the General Election in November, 1964, shall be limited to the enactment of such legislation as shall properly come before the said Legislature during the regular 1965 45-day session, as provided in the Georgia Constitution, including such legislation as may be necessary for the General Assembly to be reapportioned in accordance with constitutional requirements and as may be necessary to permit the holding of elections to the newly constituted General Assembly, said elections to be held at such times as may be necessary to permit the Members of such General Assembly to take office as soon as practicable, but in no event later than the second Monday in January, 1966. [379 U.S. 621, 641] </s> APPENDIX B TO OPINION OF MR. JUSTICE GOLDBERG, DISSENTING. </s> ORDER OF THE DISTRICT COURT OF NOVEMBER 3, 1964. </s> Both parties agree that the motion for alternative relief should be granted. Therefore, paragraph 3 of the order of June 30, 1964, is hereby stricken and the following paragraph 3 is substituted in lieu thereof: </s> "(3) The motion of the plaintiffs for further injunctive relief prior to the conduct of the party primaries or conventions and the General Election of November 3, 1964, is hereby denied at this time, provided, however, that, notwithstanding anything in Article III, Section IV, Paragraph I (Code Section 2-1601) of the Constitution of Georgia of 1945 to the contrary, the service of the members of the House of Representatives of the General Assembly of the State of Georgia to be elected at the General Election in November, 1964, shall be limited to a term of one year's duration and provided further that the plaintiffs shall have the right to reapply to this Court for further relief should the General Assembly, which convenes in January, 1965, fail to enact, during the regular 1965 45-day session, as provided in the Georgia Constitution, such legislation as may be necessary for the General Assembly to be reapportioned in accordance with Constitutional requirements and as may be necessary to permit the holding of elections to the newly constituted General Assembly during the calendar year 1965, which elections are to be held at such time as may be necessary to permit the members of such newly constituted General Assembly to take office no later than the second Monday in January, 1966. To the extent that state statutory and constitutional provisions might otherwise conflict with such legislative reapportionment, they are hereby declared to be void and of no effect." </s> This 3rd day of November, 1964. </s> [Footnote 1 See, e. g., San Mateo County v. Southern Pac. R. Co., 116 U.S. 138 ; United States v. Alaska S. S. Co., 253 U.S. 113 ; Bus Employees v. Wisconsin Board, 340 U.S. 416 ; Oil Workers Unions v. Missouri, 361 U.S. 363 , and the numerous cases cited at 368, n. 7 therein. </s> [Footnote 2 The District Court's order of June 30, 1964, is printed as Appendix A. </s> [Footnote 3 Appellants interpreted paragraph (3) of the order to mean that the 1965 legislature could only deal with what was legally considered to be "legislation." They feared that the legislature would be unable to conduct investigations, vote pardons, or perform other similar duties. They also were concerned that under the terms of the District Court's order the 1965 legislature might be unable to meet in special session if such a session proved necessary. </s> [Footnote 4 This order is printed here as Appendix B. </s> [Footnote 5 Appellees pointed out at the argument that in the new legislature which will meet in 1965, 20 of the 54 Senators and 67 of the 205 Representatives will have been newly elected at the November 1964 election. </s> [Footnote 6 In their Motion to Dismiss at p. 5, appellees state: </s> "Before the proposed new constitution can be placed on the ballot for ratification in any future general election, it must again be submitted to the General Assembly and passed by an affirmative two-thirds vote of both houses. This Court has repeatedly admonished that `constitutional questions are not to be dealt with abstractly.' The mere possibility that a similar constitutional proposal may be passed by the General Assembly at some future time is an insufficient basis for invoking the awesome responsibility of constitutional adjudication by this Court. Without further legislative action, this appeal presents only an abstract, hypothetical controversy in which the `lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity' is lacking." (Citations omitted.) </s> [Footnote 7 This portion of the District Court's order also rested upon a determination that under Georgia law the legislature could not submit to the voters a wholly new constitution in the form of an amendment to the existing constitution. Questions are raised as to the correctness of this determination and the propriety of the District Court's having made it. See Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25 . In light of my resolution of this case, I would not reach these questions. </s> [Footnote 8 See Baker v. Carr, 369 U.S. 186 ; Reynolds v. Sims, 377 U.S. 533 , and companion cases. </s> [Footnote 9 See United States v. Alaska S. S. Co., 253 U.S. 113 . </s> [Footnote 10 See San Mateo County v. Southern Pac. R. Co., 116 U.S. 138 ; Mills v. Green, 159 U.S. 651 ; Jones v. Montague, 194 U.S. 147 ; Harris v. Battle, 348 U.S. 803 . </s> [Footnote 11 Since their motion to dismiss was reserved until the hearing, appellees have conscientiously argued the merits. However, we cannot ignore the basic fact that they are not pressing for a decision on the merits since they believe they no longer need the protection of the injunction. </s> [Footnote 12 That appellants' argument does not show that this Court should reach the merits here is further demonstrated by the fact that any inhibitory effect produced by the District Court's injunction at issue here would also be produced by that part of the injunction prohibiting submission of a new constitution only at the 1964 election. Yet appellants concede, as they must, that this Court would not now review that part of the injunction concerned only with the November 1964 election which has already taken place since the new constitution was not submitted to the voters in November 1964 and under Georgia law it has lapsed and cannot be resubmitted. See Mills v. Green, supra. </s> [Footnote 13 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 ; Federal Trade Comm'n v. Goodyear Tire & Rubber Co., 304 U.S. 257 ; J. I. Case Co. v. Labor Board, 321 U.S. 332 . </s> [379 U.S. 621, 642]

United States Supreme Court DOE v. BOLTON(1973) No. 70-40 Argued: December 13, 1971Decided: January 22, 1973 </s> Georgia law proscribes an abortion except as performed by a duly licensed Georgia physician when necessary in "his best clinical judgment" because continued pregnancy would endanger a pregnant woman's life or injure her health; the fetus would likely be born with a serious defect; or the pregnancy resulted from rape. 26-1202 (a) of Ga. Criminal Code. In addition to a requirement that the patient be a Georgia resident and certain other requirements, the statutory scheme poses three procedural conditions in 26-1202 (b): (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals (JCAH); (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by independent examinations of the patient by two other licensed physicians. Appellant Doe, an indigent married Georgia citizen, who was denied an abortion after eight weeks of pregnancy for failure to meet any of the 26-1202 (a) conditions, sought declaratory and injunctive relief, contending that the Georgia laws were unconstitutional. Others joining in the complaint included Georgia-licensed physicians (who claimed that the Georgia statutes "chilled and deterred" their practices), registered nurses, clergymen, and social workers. Though holding that all the plaintiffs had standing, the District Court ruled that only Doe presented a justiciable controversy. In Doe's case the court gave declaratory, but not injunctive, relief, invalidating as an infringement of privacy and personal liberty the limitation to the three situations specified in 26-1202 (a) and certain other provisions but holding that the State's interest in health protection and the existence of a "potential of independent human existence" justified regulation through 26-1202 (b) of the "manner of performance as well as the quality of the final decision to abort." The appellants, claiming entitlement to broader relief, directly appealed to this Court. Held: </s> 1. Doe's case presents a live, justiciable controversy and she has standing to sue, Roe v. Wade, ante, p. 113, as do the physician-appellants [410 U.S. 179, 180] (who, unlike the physician in Wade, were not charged with abortion violations), and it is therefore unnecessary to resolve the issue of the other appellants' standing. Pp. 187-189. </s> 2. A woman's constitutional right to an abortion is not absolute. Roe v. Wade, supra. P. 189. </s> 3. The requirement that a physician's decision to perform an abortion must rest upon "his best clinical judgment" of its necessity is not unconstitutionally vague, since that judgment may be made in the light of all the attendant circumstances. United States v. Vuitch, 402 U.S. 62, 71 -72. Pp. 191-192. </s> 4. The three procedural conditions in 26-1202 (b) violate the Fourteenth Amendment. Pp. 192-200. </s> (a) The JCAH-accreditation requirement is invalid, since the State has not shown that only hospitals (let alone those with JCAH accreditation) meet its interest in fully protecting the patient; and a hospital requirement failing to exclude the first trimester of pregnancy would be invalid on that ground alone, see Roe v. Wade, supra. Pp. 193-195. </s> (b) The interposition of a hospital committee on abortion, a procedure not applicable as a matter of state criminal law to other surgical situations, is unduly restrictive of the patient's rights, which are already safeguarded by her personal physician. Pp. 195-198. </s> (c) Required acquiescence by two copractitioners also has no rational connection with a patient's needs and unduly infringes on her physician's right to practice. Pp. 198-200. </s> 5. The Georgia residence requirement violates the Privileges and Immunities Clause by denying protection to persons who enter Georgia for medical services there. P. 200. </s> 6. Appellants' equal protection argument centering on the three procedural conditions in 26-1202 (b), invalidated on other grounds, is without merit. Pp. 200-201. </s> 7. No ruling is made on the question of injunctive relief. Cf. Roe v. Wade, supra. P. 201. </s> 319 F. Supp. 1048, modified and affirmed. </s> BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C. J., post, p. 207, and DOUGLAS, J., post, p. 209, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion, post, p. 223. [410 U.S. 179, 181] </s> Margie Pitts Hames reargued the cause for appellants. With her on the briefs were Reber F. Boult, Jr., Charles Morgan, Jr., Elizabeth Roediger Rindskopf, and Tobiane Schwartz. </s> Dorothy T. Beasley reargued the cause for appellees. With her on the brief were Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Joel Feldman, Henry L. Bowden, and Ralph H. Witt. * </s> [Footnote * Briefs of amici curiae were filed by Roy Lucas for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Delores V. Horan for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G. Zarky for the American Association of University Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; by Robert E. Dunne for Robert L. Sassone; and by Ferdinand Buckley pro se. </s> MR. JUSTICE BLACKMUN delivered the opinion of the Court. </s> In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are 26-1201 through 26-1203 of the State's Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante, p. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect [410 U.S. 179, 182] in a majority of our States. The Georgia legislation, however, is different and merits separate consideration. </s> I </s> The statutes in question are reproduced as Appendix A, post, p. 202. 1 As the appellants acknowledge, 2 the 1968 statutes are patterned upon the American Law Institute's Model Penal Code, 230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States. 3 The new Georgia provisions replaced statutory law that had been in effect for more than 90 years. Georgia Laws 1876, No. 130, 2, at 113. 4 The predecessor statute paralleled [410 U.S. 179, 183] the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary "to preserve the life" of the pregnant woman. The new statutes have not been tested on constitutional grounds in the Georgia state courts. </s> Section 26-1201, with a referenced exception, makes abortion a crime, and 26-1203 provides that a person convicted of that crime shall be punished by imprisonment for not less than one nor more than 10 years. Section 26-1202 (a) states the exception and removes from 1201's definition of criminal abortion, and thus makes noncriminal, an abortion "performed by a physician duly licensed" in Georgia when, "based upon his best clinical judgment . . . an abortion is necessary because: </s> "(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or </s> "(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or </s> "(3) The pregnancy resulted from forcible or statutory rape." 5 </s> Section 26-1202 also requires, by numbered subdivisions of its subsection (b), that, for an abortion to be authorized [410 U.S. 179, 184] or performed as a noncriminal procedure, additional conditions must be fulfilled. These are (1) and (2) residence of the woman in Georgia; (3) reduction to writing of the performing physician's medical judgment that an abortion is justified for one or more of the reasons specified by 26-1202 (a), with written concurrence in that judgment by at least two other Georgia-licensed physicians, based upon their separate personal medical examinations of the woman; (4) performance of the abortion in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; (5) advance approval by an abortion committee of not less than three members of the hospital's staff; (6) certifications in a rape situation; and (7), (8), and (9) maintenance and confidentiality of records. There is a provision (subsection (c)) for judicial determination of the legality of a proposed abortion on petition of the judicial circuit law officer or of a close relative, as therein defined, of the unborn child, and for expeditious hearing of that petition. There is also a provision (subsection (e)) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure. </s> II </s> On April 16, 1970, Mary Doe, 6 23 other individuals (nine described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers), and two nonprofit Georgia corporations that advocate abortion reform instituted this federal action in the Northern District of Georgia against the State's attorney general, the district attorney of [410 U.S. 179, 185] Fulton County, and the chief of police of the city of Atlanta. The plaintiffs sought a declaratory judgment that the Georgia abortion statutes were unconstitutional in their entirety. They also sought injunctive relief restraining the defendants and their successors from enforcing the statutes. </s> Mary Doe alleged: </s> (1) She was a 22-year-old Georgia citizen, married, and nine weeks pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe's poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child. </s> (2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial Hospital, Atlanta, for a therapeutic abortion under 26-1202. Her application was denied 16 days later, on April 10, when she was eight weeks pregnant, on the ground that her situation was not one described in 26-1202 (a). 7 </s> (3) Because her application was denied, she was forced either to relinquish "her right to decide when and how many children she will bear" or to seek an abortion that was illegal under the Georgia statutes. This invaded her [410 U.S. 179, 186] rights of privacy and liberty in matters related to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The statutes also denied her equal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. She sued "on her own behalf and on behalf of all others similarly situated." </s> The other plaintiffs alleged that the Georgia statutes "chilled and deterred" them from practicing their respective professions and deprived them of rights guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs also purported to sue on their own behalf and on behalf of others similarly situated. </s> A three-judge district court was convened. An offer of proof as to Doe's identity was made, but the court deemed it unnecessary to receive that proof. The case was then tried on the pleadings and interrogatories. </s> The District Court, per curiam, 319 F. Supp. 1048 (ND Ga. 1970), held that all the plaintiffs had standing but that only Doe presented a justiciable controversy. On the merits, the court concluded that the limitation in the Georgia statute of the "number of reasons for which an abortion may be sought," id., at 1056, improperly restricted Doe's rights of privacy articulated in Griswold v. Connecticut, 381 U.S. 479 (1965), and of "personal liberty," both of which it thought "broad enough to include the decision to abort a pregnancy," 319 F. Supp., at 1055. As a consequence, the court held invalid those portions of 26-1202 (a) and (b) (3) limiting legal abortions to the three situations specified; 26-1202 (b) (6) relating to certifications in a rape situation; and 26-1202 (c) authorizing a court test. Declaratory relief was granted accordingly. The court, however, held [410 U.S. 179, 187] that Georgia's interest in protection of health, and the existence of a "potential of independent human existence" (emphasis in original), id., at 1055, justified state regulation of "the manner of performance as well as the quality of the final decision to abort," id., at 1056, and it refused to strike down the other provisions of the statutes. It denied the request for an injunction, id., at 1057. </s> Claiming that they were entitled to an injunction and to broader relief, the plaintiffs took a direct appeal pursuant to 28 U.S.C. 1253. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971). The defendants also purported to appeal, pursuant to 1253, but their appeal was dismissed for want of jurisdiction. 402 U.S. 936 (1971). We are advised by the appellees, Brief 42, that an alternative appeal on their part is pending in the United States Court of Appeals for the Fifth Circuit. The extent, therefore, to which the District Court decision was adverse to the defendants, that is, the extent to which portions of the Georgia statutes were held to be unconstitutional, technically is not now before us. 8 Swarb v. Lennox, 405 U.S. 191, 201 (1972). </s> III </s> Our decision in Roe v. Wade, ante, p. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe's existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe's and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy and has standing to maintain the action. [410 U.S. 179, 188] </s> Inasmuch as Doe and her class are recognized, the question whether the other appellants - physicians, nurses, clergymen, social workers, and corporations - present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State's abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F.2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). </s> In holding that the physicians, while theoretically possessed of standing, did not present a justiciable controversy, the District Court seems to have relied primarily on Poe v. Ullman, 367 U.S. 497 (1961). There, a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Georgia's statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another [410 U.S. 179, 189] Georgia abortion statute under which, we are told, 9 physicians were prosecuted. The present case, therefore, is closer to Epperson v. Arkansas, 393 U.S. 97 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State's anti-evolution statute. See also Griswold v. Connecticut, 381 U.S., at 481 . </s> The parallel claims of the nurse, clergy, social worker, and corporation-appellants are another step removed and as to them, the Georgia statutes operate less directly. Not being licensed physicians, the nurses and the others are in no position to render medical advice. They would be reached by the abortion statutes only in their capacity as accessories or as counselor-conspirators. We conclude that we need not pass upon the status of these additional appellants in this suit, for the issues are sufficiently and adequately presented by Doe and the physician-appellants, and nothing is gained or lost by the presence or absence of the nurses, the clergymen, the social workers, and the corporations. See Roe v. Wade, ante, at 127. </s> IV </s> The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection. </s> A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here and need not be repeated. [410 U.S. 179, 190] </s> B. The appellants go on to argue, however, that the present Georgia statutes must be viewed historically, that is, from the fact that prior to the 1968 Act an abortion in Georgia was not criminal if performed to "preserve the life" of the mother. It is suggested that the present statute, as well, has this emphasis on the mother's rights, not on those of the fetus. Appellants contend that it is thus clear that Georgia has given little, and certainly not first, consideration to the unborn child. Yet, it is the unborn child's rights that Georgia asserts in justification of the statute. Appellants assert that this justification cannot be advanced at this late date. </s> Appellants then argue that the statutes do not adequately protect the woman's right. This is so because it would be physically and emotionally damaging to Doe to bring a child into her poor, "fatherless" 10 family, and because advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child. Thus, "a statute that requires a woman to carry an unwanted pregnancy to term infringes not only on a fundamental right of privacy but on the right to life itself." Brief 27. </s> The appellants recognize that a century ago medical knowledge was not so advanced as it is today, that the techniques of antisepsis were not known, and that any abortion procedure was dangerous for the woman. To restrict the legality of the abortion to the situation where it was deemed necessary, in medical judgment, for the preservation of the woman's life was only a natural conclusion in the exercise of the legislative judgment of that time. A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge. It is perhaps unfair to argue, as the appellants do, that because the early focus [410 U.S. 179, 191] was on the preservation of the woman's life, the State's present professed interest in the protection of embryonic and fetal life is to be downgraded. That argument denies the State the right to readjust its views and emphases in the light of the advanced knowledge and techniques of the day. </s> C. Appellants argue that 26-1202 (a) of the Georgia statutes, as it has been left by the District Court's decision, is unconstitutionally vague. This argument centers on the proposition that, with the District Court's having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as 26-1202 (a) reads, it is "based upon his best clinical judgment that an abortion is necessary." The appellants contend that the word "necessary" does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary. </s> The net result of the District Court's decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his "best clinical," judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him. </s> The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U.S. 62, 71 -72 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal "unless the same were done as necessary for the preservation of the mother's life or health and under the direction of a competent licensed practitioner of medicine." That statute has been construed to bear upon psychological as [410 U.S. 179, 192] well as physical well-being. This being so, the Court concluded that the term "health" presented no problem of vagueness. "Indeed, whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered." Id., at 72. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, "an abortion is necessary" is a professional judgment that the Georgia physician will be called upon to make routinely. </s> We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman. </s> D. The appellants next argue that the District Court should have declared unconstitutional three procedural demands of the Georgia statute: (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals: 11 (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by the independent examinations of the patient by two other licensed physicians. The appellants attack these provisions not only on the ground that they unduly restrict the woman's right of privacy, but also on procedural due process and equal protection grounds. The physician-appellants also argue that, by subjecting a doctor's individual medical judgment to [410 U.S. 179, 193] committee approval and to confirming consultations, the statute impermissibly restricts the physician's right to practice his profession and deprives him of due process. </s> 1. JCAH accreditation. The Joint Commission on Accreditation of Hospitals is an organization without governmental sponsorship or overtones. No question whatever is raised concerning the integrity of the organization or the high purpose of the accreditation process. 12 That process, however, has to do with hospital standards generally and has no present particularized concern with abortion as a medical or surgical procedure. 13 In Georgia, there is no restriction on the performance of non-abortion surgery in a hospital not yet accredited by the JCAH so long as other requirements imposed by the State, such as licensing of the hospital and of the operating surgeon, are met. See Georgia Code 88-1901 (a) [410 U.S. 179, 194] and 88-1905 (1971) and 84-907 (Supp. 1971). Furthermore, accreditation by the Commission is not granted until a hospital has been in operation at least one year. The Model Penal Code, 230.3, Appendix B hereto, contains no requirement for JCAH accreditation. And the Uniform Abortion Act (Final Draft, Aug. 1971), 14 approved by the American Bar Association in February 1972, contains no JCAH-accredited hospital specification. 15 Some courts have held that a JCAH-accreditation requirement is an overbroad infringement of fundamental rights because it does not relate to the particular medical problems and dangers of the abortion operation. E. g., Poe v. Menghini, 339 F. Supp., at 993-994. </s> We hold that the JCAH-accreditation requirement does not withstand constitutional scrutiny in the present context. It is a requirement that simply is not "based on differences that are reasonably related to the purposes of the Act in which it is found." Morey v. Doud, 354 U.S. 457, 465 (1957). </s> This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt [410 U.S. 179, 195] standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests. We hold that the hospital requirement of the Georgia law, because it fails to exclude the first trimester of pregnancy, see Roe v. Wade, ante, at 163, is also invalid. In so holding we naturally express no opinion on the medical judgment involved in any particular case, that is, whether the patient's situation is such that an abortion should be performed in a hospital, rather than in some other facility. </s> 2. Committee approval. The second aspect of the appellants' procedural attack relates to the hospital abortion committee and to the pregnant woman's asserted [410 U.S. 179, 196] lack of access to that committee. Relying primarily on Goldberg v. Kelly, 397 U.S. 254 (1970), concerning the termination of welfare benefits, and Wisconsin v. Constantineau, 400 U.S. 433 (1971), concerning the posting of an alcoholic's name, Doe first argues that she was denied due process because she could not make a presentation to the committee. It is not clear from the record, however, whether Doe's own consulting physician was or was not a member of the committee or did or did not present her case, or, indeed, whether she herself was or was not there. We see nothing in the Georgia statute that explicitly denies access to the committee by or on behalf of the woman. If the access point alone were involved, we would not be persuaded to strike down the committee provision on the unsupported assumption that access is not provided. </s> Appellants attack the discretion the statute leaves to the committee. The most concrete argument they advance is their suggestion that it is still a badge of infamy "in many minds" to bear an illegitimate child, and that the Georgia system enables the committee members' personal views as to extramarital sex relations, and punishment therefor, to govern their decisions. This approach obviously is one founded on suspicion and one that discloses a lack of confidence in the integrity of physicians. To say that physicians will be guided in their hospital committee decisions by their predilections on extramarital sex unduly narrows the issue to pregnancy outside marriage. (Doe's own situation did not involve extramarital sex and its product.) The appellants' suggestion is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his female patients. He, perhaps more than anyone else, is knowledgeable in this area of patient care, and he is aware of human frailty, [410 U.S. 179, 197] so-called "error," and needs. The good physician - despite the presence of rascals in the medical profession, as in all others, we trust that most physicians are "good" - will have sympathy and understanding for the pregnant patient that probably are not exceeded by those who participate in other areas of professional counselling. </s> It is perhaps worth noting that the abortion committee has a function of its own. It is a committee of the hospital and it is composed of members of the institution's medical staff. The membership usually is a changing one. In this way, its work burden is shared and is more readily accepted. The committee's function is protective. It enables the hospital appropriately to be advised that its posture and activities are in accord with legal requirements. It is to be remembered that the hospital is an entity and that it, too, has legal rights and legal obligations. </s> Saying all this, however, does not settle the issue of the constitutional propriety of the committee requirement. Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee. With regard to the protection of potential life, the medical judgment is already completed prior to the committee stage, and review by a committee once removed from diagnosis is basically redundant. We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under 26-1202 (e), the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, [410 U.S. 179, 198] for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202 (e) affords adequate protection to the hospital, and little more is provided by the committee prescribed by 26-1202 (b) (5). </s> We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State. </s> 3. Two-doctor concurrence. The third aspect of the appellants' attack centers on the "time and availability of adequate medical facilities and personnel." It is said that the system imposes substantial and irrational roadblocks and "is patently unsuited" to prompt determination of the abortion decision. Time, of course, is critical in abortion. Risks during the first trimester of pregnancy are admittedly lower than during later months. </s> The appellants purport to show by a local study 16 of Grady Memorial Hospital (serving indigent residents in Fulton and DeKalb Counties) that the "mechanics of the system itself forced . . . discontinuance of the abortion process" because the median time for the workup was 15 days. The same study shows, however, that 27% of the candidates for abortion were already 13 or more weeks pregnant at the time of application, that is, they were at the end of or beyond the first trimester when they made their applications. It is too much to say, as appellants do, that these particular persons "were victims of a system over which they [had] no control." If higher risk was incurred because of abortions in the [410 U.S. 179, 199] second rather than the first trimester, much of that risk was due to delay in application, and not to the alleged cumbersomeness of the system. We note, in passing, that appellant Doe had no delay problem herself; the decision in her case was made well within the first trimester. </s> It should be manifest that our rejection of the accredited-hospital requirement and, more important, of the abortion committee's advance approval eliminates the major grounds of the attack based on the system's delay and the lack of facilities. There remains, however, the required confirmation by two Georgia-licensed physicians in addition to the recommendation of the pregnant woman's own consultant (making under the statute, a total of six physicians involved, including the three on the hospital's abortion committee). We conclude that this provision, too, must fall. </s> The statute's emphasis, as has been repetitively noted, is on the attending physician's "best clinical judgment that an abortion is necessary." That should be sufficient. The reasons for the presence of the confirmation step in the statute are perhaps apparent, but they are insufficient to withstand constitutional challenge. Again, no other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us. If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice. The attending physician will know when a consultation is advisable - the doubtful situation, the need for assurance when the medical decision is a delicate one, and the like. Physicians have followed this routine historically and [410 U.S. 179, 200] know its usefulness and benefit for all concerned. It is still true today that "[r]eliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he [the physician] possesses the requisite qualifications." Dent v. West Virginia, 129 U.S. 114, 122 -123 (1889). See United States v. Vuitch, 402 U.S., at 71 . </s> E. The appellants attack the residency requirement of the Georgia law, 26-1202 (b) (1) and (b) (2), as violative of the right to travel stressed in Shapiro v. Thompson, 394 U.S. 618, 629 -631 (1969), and other cases. A requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient. </s> Nevertheless, we do not uphold the constitutionality of the residence requirement. It is not based on any policy of preserving state-supported facilities for Georgia residents, for the bar also applies to private hospitals and to privately retained physicians. There is no intimation, either, that Georgia facilities are utilized to capacity in caring for Georgia residents. Just as the Privileges and Immunities Clause, Const. Art. IV, 2, protects persons who enter other States to ply their trade, Ward v. Maryland, 12 Wall. 418, 430 (1871); Blake v. McClung, 172 U.S. 239, 248 -256 (1898), so must it protect persons who enter Georgia seeking the medical services that are available there. See Toomer v. Witsell, 334 U.S. 385, 396 -397 (1948). A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve. </s> F. The last argument on this phase of the case is one that often is made, namely, that the Georgia system is violative of equal protection because it discriminates against the poor. The appellants do not urge that abortions [410 U.S. 179, 201] should be performed by persons other than licensed physicians, so we have no argument that because the wealthy can better afford physicians, the poor should have non-physicians made available to them. The appellants acknowledged that the procedures are "nondiscriminatory in . . . express terms" but they suggest that they have produced invidious discriminations. The District Court rejected this approach out of hand. 319 F. Supp., at 1056. It rests primarily on the accreditation and approval and confirmation requirements, discussed above, and on the assertion that most of Georgia's counties have no accredited hospital. We have set aside the accreditation, approval, and confirmation requirements, however, and with that, the discrimination argument collapses in all significant aspects. </s> V </s> The appellants complain, finally, of the District Court's denial of injunctive relief. A like claim was made in Roe v. Wade, ante, p. 113. We declined decision there insofar as injunctive relief was concerned, and we decline it here. We assume that Georgia's prosecutorial authorities will give full recognition to the judgment of this Court. </s> In summary, we hold that the JCAH-accredited hospital provision and the requirements as to approval by the hospital abortion committee, as to confirmation by two independent physicians, and as to residence in Georgia are all violative of the Fourteenth Amendment. Specifically, the following portions of 26-1202 (b), remaining after the District Court's judgment, are invalid: </s> (1) Subsections (1) and (2). </s> (2) That portion of Subsection (3) following the words "[s]uch physician's judgment is reduced to writing." </s> (3) Subsections (4) and (5). [410 U.S. 179, 202] </s> The judgment of the District Court is modified accordingly and, as so modified, is affirmed. Costs are allowed to the appellants. </s> APPENDIX A TO OPINION OF THE COURT </s> Criminal Code of Georgia </s> (The italicized portions are those held unconstitutional by the District Court) </s> CHAPTER 26-12. ABORTION. </s> 26-1201. Criminal Abortion. Except as otherwise provided in section 26-1202, a person commits criminal abortion when he administers any medicine, drug or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion. </s> 26-1202. Exception. (a) Section 26-1201 shall not apply to an abortion performed by a physician duly licensed to practice medicine and surgery pursuant to Chapter 84-9 or 84-12 of the Code of Georgia of 1933, as amended, based upon his best clinical judgment that an abortion is necessary because: </s> (1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or </s> (2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or </s> (3) The pregnancy resulted from forcible or statutory rape. </s> (b) No abortion is authorized or shall be performed under this section unless each of the following conditions is met: </s> (1) The pregnant woman requesting the abortion certifies in writing under oath and subject to the penalties [410 U.S. 179, 203] of false swearing to the physician who proposes to perform the abortion that she is a bona fide legal resident of the State of Georgia. </s> (2) The physician certifies that he believes the woman is a bona fide resident of this State and that he has no information which should lead him to believe otherwise. </s> (3) Such physician's judgment is reduced to writing and concurred in by at least two other physicians duly licensed to practice medicine and surgery pursuant to Chapter 84-9 of the Code of Georgia of 1933, as amended, who certify in writing that based upon their separate personal medical examinations of the pregnant woman, the abortion is, in their judgment, necessary because of one or more of the reasons enumerated above. </s> (4) Such abortion is performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals. </s> (5) The performance of the abortion has been approved in advance by a committee of the medical staff of the hospital in which the operation is to be performed. This committee must be one established and maintained in accordance with the standards promulgated by the Joint Commission on the Accreditation of Hospitals, and its approval must be by a majority vote of a membership of not less than three members of the hospital's staff; the physician proposing to perform the operation may not be counted as a member of the committee for this purpose. </s> (6) If the proposed abortion is considered necessary because the woman has been raped, the woman makes a written statement under oath, and subject to the penalties of false swearing, of the date, time and place of the rape and the name of the rapist, if known. There must be attached to this statement a certified copy of any report of the rape made by any law enforcement officer or agency and a statement by the solicitor general of the [410 U.S. 179, 204] judicial circuit where the rape occurred or allegedly occurred that, according to his best information, there is probable cause to believe that the rape did occur. </s> (7) Such written opinions, statements, certificates, and concurrences are maintained in the permanent files of such hospital and are available at all reasonable times to the solicitor general of the judicial circuit in which the hospital is located. </s> (8) A copy of such written opinions, statements, certificates, and concurrences is filed with the Director of the State Department of Public Health within 10 days after such operation is performed. </s> (9) All written opinions, statements, certificates, and concurrences filed and maintained pursuant to paragraphs (7) and (8) of this subsection shall be confidential records and shall not be made available for public inspection at any time. </s> (c) Any solicitor general of the judicial circuit in which an abortion is to be performed under this section, or any person who would be a relative of the child within the second degree of consanguinity, may petition the superior court of the county in which the abortion is to be performed for a declaratory judgment whether the performance of such abortion would violate any constitutional or other legal rights of the fetus. Such solicitor general may also petition such court for the purpose of taking issue with compliance with the requirements of this section. The physician who proposes to perform the abortion and the pregnant woman shall be respondents. The petition shall be heard expeditiously and if the court adjudges that such abortion would violate the constitutional or other legal rights of the fetus, the court shall so declare and shall restrain the physician from performing the abortion. </s> (d) If an abortion is performed in compliance with this section, the death of the fetus shall not give rise to any claim for wrongful death. [410 U.S. 179, 205] </s> (e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b) (5). A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person. </s> 26-1203. Punishment. A person convicted of criminal abortion shall be punished by imprisonment for not less than one nor more than 10 years. </s> APPENDIX B TO OPINION OF THE COURT </s> American Law Institute </s> MODEL PENAL CODE </s> Section 230.3. Abortion. </s> (1) Unjustified Abortion. A person who purposely and unjustifiably terminates the pregnancy of another otherwise than by a live birth commits a felony of the third degree or, where the pregnancy has continued beyond the twenty-sixth week, a felony of the second degree. </s> (2) Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All [410 U.S. 179, 206] illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection. Justifiable abortions shall be performed only in a licensed hospital except in case of emergency when hospital facilities are unavailable. [Additional exceptions from the requirement of hospitalization may be incorporated here to take account of situations in sparsely settled areas where hospitals are not generally accessible.] </s> (3) Physicians' Certificates; Presumption from Non-Compliance. No abortion shall be performed unless two physicians, one of whom may be the person performing the abortion, shall have certified in writing the circumstances which they believe to justify the abortion. Such certificate shall be submitted before the abortion to the hospital where it is to be performed and, in the case of abortion following felonious intercourse, to the prosecuting attorney or the police. Failure to comply with any of the requirements of this Subsection gives rise to a presumption that the abortion was unjustified. </s> (4) Self-Abortion. A woman whose pregnancy has continued beyond the twenty-sixth week commits a felony of the third degree if she purposely terminates her own pregnancy otherwise than by a live birth, or if she uses instruments, drugs or violence upon herself for that purpose. Except as justified under Subsection (2), a person who induces or knowingly aids a woman to use instruments, drugs or violence upon herself for the purpose of terminating her pregnancy otherwise than by a live birth commits a felony of the third degree whether or not the pregnancy has continued beyond the twenty-sixth week. </s> (5) Pretended Abortion. A person commits a felony of the third degree if, representing that it is his purpose to perform an abortion, he does an act adapted to cause abortion in a pregnant woman although the woman is in fact not pregnant, or the actor does not believe she is. [410 U.S. 179, 207] A person charged with unjustified abortion under Subsection (1) or an attempt to commit that offense may be convicted thereof upon proof of conduct prohibited by this Subsection. </s> (6) Distribution of Abortifacients. A person who sells, offers to sell, possesses with intent to sell, advertises, or displays for sale anything specially designed to terminate a pregnancy, or held out by the actor as useful for that purpose, commits a misdemeanor, unless: </s> (a) the sale, offer or display is to a physician or druggist or to an intermediary in a chain of distribution to physicians or druggists; or </s> (b) the sale is made upon prescription or order of a physician; or </s> (c) the possession is with intent to sell as authorized in paragraphs (a) and (b); or </s> (d) the advertising is addressed to persons named in paragraph (a) and confined to trade or professional channels not likely to reach the general public. </s> (7) Section Inapplicable to Prevention of Pregnancy. Nothing in this Section shall be deemed applicable to the prescription, administration or distribution of drugs or other substances for avoiding pregnancy, whether by preventing implantation of a fertilized ovum or by any other method that operates before, at or immediately after fertilization. </s> Footnotes [Footnote 1 The portions italicized in Appendix A are those held unconstitutional by the District Court. </s> [Footnote 2 Brief for Appellants 25 n. 5; Tr. of Oral Arg. 9. </s> [Footnote 3 See Roe v. Wade, ante, p. 113, at 140 n. 37. </s> [Footnote 4 The pertinent provisions of the 1876 statute were: </s> "Section I. Be it enacted, etc., That from and after the passage of this Act, the willful killing of an unborn child, so far developed as to be ordinarily called `quick,' by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be guilty of a felony, and punishable by death or imprisonment for life, as the jury trying the case may recommend. </s> "Sec. II. Be it further enacted, That every person who shall administer to any woman pregnant with a child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or mother be thereby produced, be declared guilty of an assault with intent to murder. </s> "Sec. III. Be it further enacted, That any person who shall wilfully administer to any pregnant woman any medicine, drug or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to procure the miscarriage or abortion of any such woman, unless the same shall have been necessary [410 U.S. 179, 183] to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished as prescribed in section 4310 of the Revised Code of Georgia." </s> It should be noted that the second section, in contrast to the first, made no specific reference to quickening. The section was construed, however, to possess this line of demarcation. Taylor v. State, 105 Ga. 846, 33 S. E. 190 (1899). </s> [Footnote 5 In contrast with the ALI model, the Georgia statute makes no specific reference to pregnancy resulting from incest. We were assured by the State at reargument that this was because the statute's reference to "rape" was intended to include incest. Tr. of Oral Rearg. 32. </s> [Footnote 6 Appellants by their complaint, App. 7, allege that the name is a pseudonym. </s> [Footnote 7 In answers to interrogatories, Doe stated that her application for an abortion was approved at Georgia Baptist Hospital on May 5, 1970, but that she was not approved as a charity patient there and had no money to pay for an abortion. App. 64. </s> [Footnote 8 What we decide today obviously has implications for the issues raised in the defendants' appeal pending in the Fifth Circuit. </s> [Footnote 9 Tr. of Oral Arg. 21-22. </s> [Footnote 10 Brief for Appellants 25. </s> [Footnote 11 We were advised at reargument, Tr. of Oral Rearg. 10, that only 54 of Georgia's 159 counties have a JCAH-accredited hospital. </s> [Footnote 12 Since its founding, JCAH has pursued the "elusive goal" of defining the "optimal setting" for "quality of service in hospitals." JCAH, Accreditation Manual for Hospitals, Foreword (Dec. 1970). The Manual's Introduction states the organization's purpose to establish standards and conduct accreditation programs that will afford quality medical care "to give patients the optimal benefits that medical science has to offer." This ambitious and admirable goal is illustrated by JCAH's decision in 1966 "[t]o raise and strengthen the standards from their present level of minimum essential to the level of optimum achievable . . . ." Some of these "optimum achievable" standards required are: disclosure of hospital ownership and control; a dietetic service and written dietetic policies; a written disaster plan for mass emergencies; a nuclear medical services program; facilities for hematology, chemistry, microbiology, clinical microscopy, and sero-immunology; a professional library and document delivery service; a radiology program; a social services plan administered by a qualified social worker; and a special care unit. </s> [Footnote 13 "The Joint Commission neither advocates nor opposes any particular position with respect to elective abortions." Letter dated July 9, 1971, from John I. Brewer, M. D., Commissioner, JCAH, to the Rockefeller Foundation. Brief for amici curiae, American College of Obstetricians and Gynecologists et al., p. A-3. </s> [Footnote 14 See Roe v. Wade, ante, at 146-147, n. 40. </s> [Footnote 15 Some state statutes do not have the JCAH-accreditation requirement. Alaska Stat. 11.15.060 (1970); Hawaii Rev. Stat. 453-16 (Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp. 1972-1973). Washington has the requirement but couples it with the alternative of "a medical facility approved . . . by the state board of health." Wash. Rev. Code 9.02.070 (Supp. 1972). Florida's new statute has a similar provision. Law of Apr. 13, 1972, c. 72-196, 1 (2). Others contain the specification. Ark. Stat. Ann. 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53 (Cum. Supp. 1967); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, 137-139 (1971). Cf. Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972), specifying "a nationally recognized medical or hospital accreditation authority," 1790 (a). </s> [Footnote 16 L. Baker & M. Freeman, Abortion Surveillance at Grady Memorial Hospital Center for Disease Control (June and July 1971) (U.S. Dept. of HEW, Public Health Service). </s> MR. CHIEF JUSTICE BURGER, concurring * </s> I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using [410 U.S. 179, 208] the term health in its broadest medical context. See United States v. Vuitch, 402 U.S. 62, 71 -72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts. </s> In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH. </s> I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand. </s> [Footnote * [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.] [410 U.S. 179, 209] </s> MR. JUSTICE DOUGLAS, concurring * </s> While I join the opinion of the Court, 1 I add a few words. </s> I </s> The questions presented in the present cases go far beyond the issues of vagueness, which we considered in United States v. Vuitch, 402 U.S. 62 . They involve the right of privacy, one aspect of which we considered in Griswold v. Connecticut, 381 U.S. 479, 484 , when we held that various guarantees in the Bill of Rights create zones of privacy. 2 </s> [410 U.S. 179, 210] </s> The Griswold case involved a law forbidding the use of contraceptives. We held that law as applied to married people unconstitutional: </s> "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Id., at 486. </s> The District Court in Doe held that Griswold and related cases "establish a Constitutional right to privacy broad enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages, by obtaining an abortion." 319 F. Supp. 1048, 1054. </s> The Supreme Court of California expressed the same view in People v. Belous, 3 71 Cal. 2d 954, 963, 458 P.2d 194, 199. </s> The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them, in my view, come [410 U.S. 179, 211] within the meaning of the term "liberty" as used in the Fourteenth Amendment. </s> First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality. </s> These are rights protected by the First Amendment and, in my view, they are absolute, permitting of no exceptions. See Terminiello v. Chicago, 337 U.S. 1 ; Roth v. United States, 354 U.S. 476, 508 (dissent); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 (concurring); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (Black, J., concurring, in which I joined). The Free Exercise Clause of the First Amendment is one facet of this constitutional right. The right to remain silent as respects one's own beliefs, Watkins v. United States, 354 U.S. 178, 196 -199, is protected by the First and the Fifth. The First Amendment grants the privacy of first-class mail, United States v. Van Leeuwen, 397 U.S. 249, 253 . All of these aspects of the right of privacy are rights "retained by the people" in the meaning of the Ninth Amendment. </s> Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. </s> These rights, unlike those protected by the First Amendment, are subject to some control by the police power. Thus, the Fourth Amendment speaks only of "unreasonable searches and seizures" and of "probable cause." These rights are "fundamental," and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a "compelling state interest" must be shown in support of the limitation. E. g., Kramer v. Union Free School District, 395 U.S. 621 ; Shapiro v. Thompson, 394 U.S. 618 ; [410 U.S. 179, 212] Carrington v. Rash, 380 U.S. 89 ; Sherbert v. Verner, 374 U.S. 398 ; NAACP v. Alabama, 357 U.S. 449 . </s> The liberty to marry a person of one's own choosing, Loving v. Virginia, 388 U.S. 1 ; the right of procreation, Skinner v. Oklahoma, 316 U.S. 535 ; the liberty to direct the education of one's children, Pierce v. Society of Sisters, 268 U.S. 510 , and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this category. 4 </s> [410 U.S. 179, 213] Only last Term in Eisenstadt v. Baird, 405 U.S. 438 , another contraceptive case, we expanded the concept of Griswold by saying: </s> "It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453. </s> This right of privacy was called by Mr. Justice Brandeis the right "to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (dissenting opinion). That right includes the privilege of an individual to plan his own affairs, for, "`outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.'" Kent v. Dulles, 357 U.S. 116, 126 . </s> Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf. </s> These rights, though fundamental, are likewise subject to regulation on a showing of "compelling state interest." We stated in Papachristou v. City of Jacksonville, 405 U.S. 156, 164 , that walking, strolling, and wandering "are historically part of the amenities of life as we have known them." As stated in Jacobson v. Massachusetts, 197 U.S. 11, 29 : </s> "There is, of course, a sphere within which the individual may assert the supremacy of his own will [410 U.S. 179, 214] and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will." </s> In Union Pacific R. Co. v. Botsford, 141 U.S. 250, 252 , the Court said, "The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow." </s> In Terry v. Ohio, 392 U.S. 1, 8 -9, the Court, in speaking of the Fourth Amendment stated, "This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." </s> Katz v. United States, 389 U.S. 347, 350 , emphasizes that the Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion." </s> In Meyer v. Nebraska, 262 U.S. 390, 399 , the Court said: </s> "Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." </s> The Georgia statute is at war with the clear message of these cases - that a woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. For example, rejected applicants under the Georgia statute are required to endure the [410 U.S. 179, 215] discomforts of pregnancy; to incur the pain, higher mortality rate, and aftereffects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing child care; and, in some cases, to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships. </s> II </s> Such reasoning is, however, only the beginning of the problem. The State has interests to protect. Vaccinations to prevent epidemics are one example, as Jacobson, supra, holds. The Court held that compulsory sterilization of imbeciles afflicted with hereditary forms of insanity or imbecility is another. Buck v. Bell, 274 U.S. 200 . Abortion affects another. While childbirth endangers the lives of some women, voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society. The woman's health is part of that concern; as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as a medical one. </s> One difficulty is that this statute as construed and applied apparently does not give full sweep to the "psychological as well as physical well-being" of women patients which saved the concept "health" from being void for vagueness in United States v. Vuitch, 402 U.S., at 72 . But, apart from that, Georgia's enactment has a constitutional infirmity because, as stated by the District Court, it "limits the number of reasons for which an abortion may be sought." I agree with the holding of the District Court, "This the State may not do, because such action unduly restricts a decision sheltered by the Constitutional right to privacy." 319 F. Supp., at 1056. </s> The vicissitudes of life produce pregnancies which may be unwanted, or which may impair "health" in [410 U.S. 179, 216] the broad Vuitch sense of the term, or which may imperil the life of the mother, or which in the full setting of the case may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take. These hardships may be properly embraced in the "health" factor of the mother as appraised by a person of insight. Or they may be part of a broader medical judgment based on what is "appropriate" in a given case, though perhaps not "necessary" in a strict sense. </s> The "liberty" of the mother, though rooted as it is in the Constitution, may be qualified by the State for the reasons we have stated. But where fundamental personal rights and liberties are involved, the corrective legislation must be "narrowly drawn to prevent the supposed evil," Cantwell v. Connecticut, 310 U.S. 296, 307 , and not be dealt with in an "unlimited and indiscriminate" manner. Shelton v. Tucker, 364 U.S. 479, 490 . And see Talley v. California, 362 U.S. 60 . Unless regulatory measures are so confined and are addressed to the specific areas of compelling legislative concern, the police power would become the great leveler of constitutional rights and liberties. </s> There is no doubt that the State may require abortions to be performed by qualified medical personnel. The legitimate objective of preserving the mother's health clearly supports such laws. Their impact upon the woman's privacy is minimal. But the Georgia statute outlaws virtually all such operations - even in the earliest stages of pregnancy. In light of modern medical evidence suggesting that an early abortion is safer healthwise than childbirth itself, 5 it cannot be seriously [410 U.S. 179, 217] urged that so comprehensive a ban is aimed at protecting the woman's health. Rather, this expansive proscription of all abortions along the temporal spectrum can rest only on a public goal of preserving both embryonic and fetal life. </s> The present statute has struck the balance between the woman's and the State's interests wholly in favor of the latter. I am not prepared to hold that a State may equate, as Georgia has done, all phases of maturation preceding birth. We held in Griswold that the States may not preclude spouses from attempting to avoid the joinder of sperm and egg. If this is true, it is difficult to perceive any overriding public necessity which might attach precisely at the moment of conception. As Mr. Justice Clark has said: 6 </s> "To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity - the known rather than the unknown. When sperm meets egg life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of [410 U.S. 179, 218] life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus. 7 This would not be the case if the fetus constituted human life." </s> In summary, the enactment is overbroad. It is not closely correlated to the aim of preserving prenatal life. In fact, it permits its destruction in several cases, including pregnancies resulting from sex acts in which unmarried females are below the statutory age of consent. At the same time, however, the measure broadly proscribes aborting other pregnancies which may cause severe mental disorders. Additionally, the statute is overbroad because it equates the value of embryonic life immediately after conception with the worth of life immediately before birth. </s> III </s> Under the Georgia Act, the mother's physician is not the sole judge as to whether the abortion should be performed. Two other licensed physicians must concur in his judgment. 8 Moreover, the abortion must be performed in a licensed hospital; 9 and the abortion must be [410 U.S. 179, 219] approved in advance by a committee of the medical staff of that hospital. 10 </s> Physicians, who speak to us in Doe through an amicus brief, complain of the Georgia Act's interference with their practice of their profession. </s> The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship. </s> It is one thing for a patient to agree that her physician may consult with another physician about her case. It is quite a different matter for the State compulsorily to impose on that physician-patient relationship another layer or, as in this case, still a third layer of physicians. The right of privacy - the right to care for one's health and person and to seek out a physician of one's own choice protected by the Fourteenth Amendment - becomes only a matter of theory, not a reality, when a multiple-physician-approval system is mandated by the State. </s> The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known. He is entitled to procedural due process before professional disciplinary sanctions may be imposed. See In re Ruffalo, 390 U.S. 544 . Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good-faith decision of the patient's chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails. </s> The right to seek advice on one's health and the right to place reliance on the physician of one's choice are [410 U.S. 179, 220] basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the "liberty" and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their "liberty," viz., their right of privacy, without any compelling, discernible state interest. </s> Georgia has constitutional warrant in treating abortion as a medical problem. To protect the woman's right of privacy, however, the control must be through the physician of her choice and the standards set for his performance. </s> The protection of the fetus when it has acquired life is a legitimate concern of the State. Georgia's law makes no rational, discernible decision on that score. 11 For under the Code, the developmental stage of the fetus is irrelevant when pregnancy is the result of rape, when the fetus will very likely be born with a permanent defect, or when a continuation of the pregnancy will endanger the life of the mother or permanently injure her health. When life is present is a question we do not try to resolve. While basically a question for medical experts, as stated by Mr. Justice Clark, 12 it is, of course, caught up in matters of religion and morality. </s> In short, I agree with the Court that endangering the life of the woman or seriously and permanently injuring [410 U.S. 179, 221] her health are standards too narrow for the right of privacy that is at stake. </s> I also agree that the superstructure of medical supervision which Georgia has erected violates the patient's right of privacy inherent in her choice of her own physician. </s> [Footnote * [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.] </s> [Footnote 1 I disagree with the dismissal of Dr. Hallford's complaint in intervention in Roe v. Wade, ante, p. 113, because my disagreement with Younger v. Harris, 401 U.S. 37 , revealed in my dissent in that case, still persists and extends to the progeny of that case. </s> [Footnote 2 There is no mention of privacy in our Bill of Rights but our decisions have recognized it as one of the fundamental values those amendments were designed to protect. The fountainhead case is Boyd v. United States, 116 U.S. 616 , holding that a federal statute which authorized a court in tax cases to require a taxpayer to produce his records or to concede the Government's allegations offended the Fourth and Fifth Amendments. Mr. Justice Bradley, for the Court, found that the measure unduly intruded into the "sanctity of a man's home and the privacies of life." Id., at 630. Prior to Boyd, in Kilbourn v. Thompson, 103 U.S. 168, 190 , Mr. Justice Miller held for the Court that neither House of Congress "possesses the general power of making inquiry into the private affairs of the citizen." Of Kilbourn, Mr. Justice Field later said, "This case will stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee." In re Pacific Railway Comm'n, 32 F. 241, 253 (cited with approval in Sinclair v. United States, 279 U.S. 263, 293 ). Mr. Justice Harlan, also speaking for the Court, in ICC v. Brimson, 154 U.S. 447, 478 , thought the same was true of [410 U.S. 179, 210] administrative inquiries, saying that the Constitution did not permit a "general power of making inquiry into the private affairs of the citizen." In a similar vein were Harriman v. ICC, 211 U.S. 407 ; United States v. Louisville & Nashville R. Co., 236 U.S. 318, 335 ; and FTC v. American Tobacco Co., 264 U.S. 298 . </s> [Footnote 3 The California abortion statute, held unconstitutional in the Belous case, made it a crime to perform or help perform an abortion "unless the same is necessary to preserve [the mother's] life." 71 Cal. 2d, at 959, 458 P.2d, at 197. </s> [Footnote 4 My Brother STEWART, writing in Roe v. Wade, supra, says that our decision in Griswold reintroduced substantive due process that had been rejected in Ferguson v. Skrupa, 372 U.S. 726 . Skrupa involved legislation governing a business enterprise; and the Court in that case, as had Mr. Justice Holmes on earlier occasions, rejected the idea that "liberty" within the meaning of the Due Process Clause of the Fourteenth Amendment was a vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats. Griswold involved legislation touching on the marital relation and involving the conviction of a licensed physician for giving married people information concerning contraception. There is nothing specific in the Bill of Rights that covers that item. Nor is there anything in the Bill of Rights that in terms protects the right of association or the privacy in one's association. Yet we found those rights in the periphery of the First Amendment. NAACP v. Alabama, 357 U.S. 449, 462 . Other peripheral rights are the right to educate one's children as one chooses, Pierce v. Society of Sisters, 268 U.S. 510 , and the right to study the German language, Meyer v. Nebraska, 262 U.S. 390 . These decisions, with all respect, have nothing to do with substantive due process. One may think they are not peripheral to other rights that are expressed in the Bill of Rights. But that is not enough to bring into play the protection of substantive due process. </s> There are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123 , 124 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed. </s> [Footnote 5 Many studies show that it is safer for a woman to have a medically induced abortion than to bear a child. In the first 11 months of operation of the New York abortion law, the mortality [410 U.S. 179, 217] rate associated with such operations was six per 100,000 operations. Abortion Mortality, 20 Morbidity and Mortality 208, 209 (June 1971) (U.S. Dept. of HEW, Public Health Service). On the other hand, the maternal mortality rate associated with childbirths other than abortions was 18 per 100,000 live births. Tietze, Mortality with Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969). See also Tietze & Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (Apr. 1961); Kolblova, Legal Abortion in Czechoslovakia, 196 J. A. M. A. 371 (Apr. 1966); Mehland, Combating Illegal Abortion in the Socialist Countries of Europe, 13 World Med. J. 84 (1966). </s> [Footnote 6 Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 9-10 (1969). </s> [Footnote 7 In Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617, the California Supreme Court held in 1970 that the California murder statute did not cover the killing of an unborn fetus, even though the fetus be "viable," and that it was beyond judicial power to extend the statute to the killing of an unborn. It held that the child must be "born alive before a charge of homicide can be sustained." Id., at 639, 470 P.2d, at 630. </s> [Footnote 8 See Ga. Code Ann. 26-1202 (b) (3). </s> [Footnote 9 See id., 26-1202 (b) (4). </s> [Footnote 10 Id., 26-1202 (b) (5). </s> [Footnote 11 See Rochat, Tyler, & Schoenbucher, An Epidemiological Analysis of Abortion in Georgia, 61 Am. J. of Public Health 543 (1971). </s> [Footnote 12 Supra, n. 6, at 10. </s> MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting. * </s> At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons - convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. </s> The Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother. </s> With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 179, 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. </s> The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs. </s> It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 179, 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court. </s> Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of 26-1202 (a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case. </s> [Footnote * [This opinion applies also to No. 70-18, Roe v. Wade, ante, p. 113.] </s> MR. JUSTICE REHNQUIST, dissenting. </s> The holding in Roe v. Wade, ante, p. 113, that state abortion laws can withstand constitutional scrutiny only if the State can demonstrate a compelling state interest, apparently compels the Court's close scrutiny of the various provisions in Georgia's abortion statute. Since, as indicated by my dissent in Wade, I view the compelling-state-interest standard as an inappropriate measure of the constitutionality of state abortion laws, I respectfully dissent from the majority's holding. </s> [410 U.S. 179, 224]

United States Supreme Court REITER v. SONOTONE CORP.(1979) No. 78-690 Argued: April 25, 1979Decided: June 11, 1979 </s> Petitioner brought a class action on behalf of herself and all persons in the United States who purchased hearing aids manufactured by respondents, alleging that, because of antitrust violations committed by respondents, she and the class she seeks to represent have been forced to pay illegally fixed higher prices for the hearing aids and related services they purchased from respondents' retail dealers. Treble damages were sought under 4 of the Clayton Act, which provides that "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws" may bring suit and recover treble damages. Respondents moved to dismiss the damages claim on the ground that petitioner had not been injured in her "business or property" within the meaning of 4. The District Court held that under 4 a retail purchaser is injured in "property" if it can be shown that antitrust violations caused an increase in the price paid for the article purchased; however, it certified the question to the Court of Appeals. The Court of Appeals reversed, holding that retail purchasers of consumer goods and services who allege no injury of a commercial or business nature are not injured in their "business or property" within the meaning of 4, and that the phrase "business or property" was intended to limit standing to those engaged in commercial ventures. </s> Held: </s> Consumers who pay a higher price for goods purchased for personal use as a result of antitrust violations sustain an injury in their "property" within the meaning of 4. Pp. 337-345. </s> (a) Statutory construction must begin with the language employed by Congress. The word "property" has a naturally broad and inclusive meaning comprehending, in common usage, anything of material value owned or possessed. Congress' use of the disjunctive "or" in the phrase "business or property" indicates "business" was not intended to modify "property," nor was "property" intended to modify "business." Giving the word "property" the independent significance to which it is entitled in this context does not destroy the restrictive significance of the phrase "business or property" as a whole. Pp. 337-339. </s> (b) Monetary injury, standing alone, may be injury in one's "property" within the meaning of 4. Chattanooga Foundry & Pipe Works [442 U.S. 330, 331] v. Atlanta, 203 U.S. 390 . Thus, the fact that petitioner was deprived of only money is no reason to conclude that she did not sustain a "property" injury. Pp. 339-340. </s> (c) Nor does petitioner's status as a "consumer" who purchased goods at retail for personal use change the nature of the injury she suffered or the intrinsic meaning of "property" in 4. Pp. 340-342. </s> (d) The legislative history reflects that the treble-damages remedy was designed to protect consumers, and that no one questioned the right of consumers to sue under 4. Thus, to the extent that 4's legislative history is relevant, it also supports the conclusion that a consumer deprived of money by reason of anticompetitive conduct is injured in "property" within the meaning of 4. Pp. 342-344. </s> (e) The fact that allowing class actions such as this may add a significant burden to the federal courts' already overcrowded dockets is an important but not a controlling consideration, since Congress created the 4 treble-damages remedy precisely for the purpose of encouraging private challenges to antitrust violations. P. 344. </s> (f) Respondents' arguments that the cost of defending consumer class actions will have a potentially ruinous effect on small businesses in particular and will ultimately be paid by consumers, are policy considerations more properly addressed to Congress than to this Court; in any event they cannot govern the reading of the plain language of 4. Pp. 344-345. </s> 579 F.2d 1077, reversed and remanded. </s> BURGER, C. J., delivered the opinion of the Court, in which all other Members joined, except BRENNAN, J., who took no part in the decision of the case. REHNQUIST, J., filed a concurring opinion, post, p. 345. </s> John E. Thomas argued the cause and filed a brief for petitioner. </s> Julian R. Wilheim and Elliot S. Kaplan argued the cause for respondents. With them on the brief were Fred L. Woodworth, Joseph C. Basta, and Deborah J. Palmer. </s> Assistant Attorney General Shenefield argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Deputy Solicitor General Easterbrook, Stephen M. Shapiro, Barry Grossman, and Bruce E. Fein. Warren Spannaus, Attorney General [442 U.S. 330, 332] of Minnesota, argued the cause for the States of Alabama et al. as amici curiae urging reversal. With him on the brief were Richard B. Allyn, Solicitor General of Minnesota, Alan H. Maclin, Stephen P. Kilgruff, and Thomas Kenyon, Special Assistant Attorneys General; and John Ashcroft, Attorney General of Missouri, Walter O. Theiss, Assistant Attorney General, and Roger Bern; joined by other officials for their respective States as follows: Charles A. Graddick, Attorney General, for Alabama; Avrum M. Gross, Attorney General, and Mark E. Ashburn, Assistant Attorney General, for Alaska; Robert K. Corbin, Attorney General, and Kenneth R. Reed for Arizona; Steve Clark, Attorney General, and Royce O. Griffin, Jr., Deputy Attorney General, for Arkansas; George Deukmejian, Attorney General, Warren J. Abbott, Assistant Attorney General, and Linda L. Tedeschi, Deputy Attorney General, for California; J. D. MacFarlane, Attorney General, B. Lawrence Theis, First Assistant Attorney General, and William E. Walters, Assistant Attorney General, for Colorado; Carl R. Ajello, Attorney General, Gerard J. Dowling and Larry H. Evans, Assistant Attorneys General, for Connecticut; Richard S. Gebelein, Attorney General, and William E. Kirk III, Assistant Attorney General, for Delaware; Jim Smith, Attorney General, Charles R. Ranson, Special Assistant Attorney General, and Douglas C. Kearney, Assistant Attorney General, for Florida; Wayne Minami, Attorney General, and Thomas T. Wood, Deputy Attorney General, for Hawaii; David H. Leroy, Attorney General, and Mike Brassey, Deputy Attorney General, for Idaho; William J. Scott, Attorney General, for Illinois; Theodore L. Sendak, Attorney General, for Indiana; Thomas J. Miller, Attorney General, and Gary H. Swanson, Assistant Attorney General, for Iowa; Robert T. Stephan, Attorney General, and Wayne E. Hundley, Deputy Attorney General, for Kansas; Robert F. Stephens, Attorney General, and James M. Ringo, Assistant [442 U.S. 330, 333] Attorney General, for Kentucky; William J. Guste, Jr., Attorney General, and John R. Flowers, Jr., Assistant Attorney General, for Louisiana; Richard S. Cohen, Attorney General, and Cheryl Harrington, Assistant Attorney General, for Maine; Stephen H. Sachs, Attorney General, and Charles O. Monk II, Assistant Attorney General, for Maryland; Francis X. Bellotti, Attorney General, Paula W. Gold, Assistant Attorney General, and Steven J. Greenfogel for Massachusetts; Frank J. Kelley, Attorney General, and Edwin M. Bladen, Assistant Attorney General, for Michigan; A. F. Summer, Attorney General, and Marshall G. Bennett, Assistant Attorney General, for Mississippi; Mike T. Greely, Attorney General, and Jerome J. Cate, Assistant Attorney General, for Montana; Paul L. Douglas, Attorney General, and Robert F. Bartle and Paul E. Hofmeister, Assistant Attorneys General, for Nebraska; Richard H. Bryan, Attorney General, for Nevada; Thomas D. Rath, Attorney General, for New Hampshire; John J. Degnan, Attorney General, and Alfred J. Luciani for New Jersey; Jeff Bingham, Attorney General, and James J. Wechsler, Assistant Attorney General, for New Mexico; Robert Abrams, Attorney General, and John M. Desiderio, Assistant Attorney General, for New York; Rufus L. Edmisten, Attorney General, Howard A. Kramer, Deputy Attorney General, and David S. Crump, Special Deputy Attorney General, for North Carolina; Allen I. Olson, Attorney General, and Dale V. Sandstrom and Terry L. Adkins, Assistant Attorneys General, for North Dakota; William J. Brown, Attorneys General, and Eugene F. McShane and Richard M. Firestone, Assistant Attorneys General, for Ohio; Jan Eric Cartwright, Attorney General, and Manville J. Buford, Assistant Attorney General, for Oklahoma; James A. Redden, Attorney General, and James Kirkham Johns for Oregon; Edward G. Biester, Jr., Attorney General, and Norman J. Watkins and John L. Shearburn, Deputy Attorneys General, [442 U.S. 330, 334] for Pennsylvania; Dennis J. Roberts II, Attorney General, and Patrick J. Quinlan, Special Assistant Attorney General, for Rhode Island; Daniel R. McLeod, Attorney General, for South Carolina; Mark V. Meierhenry, Attorney General, and James E. McMahon, Assistant Attorney General, for South Dakota; William M. Leech, Jr., Attorney General, and William J. Haynes, Jr., Deputy Attorney General, for Tennessee; Mark White, Attorney General, for Texas; Robert B. Hansen, Attorney General, and Andrew W. Buffmire, Assistant Attorney General, for Utah; M. Jerome Diamond, Attorney General, and Jay I. Ashman, Assistant Attorney General, for Vermont; Marshall Coleman, Attorney General, and Joseph W. Kaestner, Assistant Attorney General, for Virginia; Slade Gorton, Attorney General, Thomas L. Boeder, Senior Assistant Attorney General, and Earle J. Hereford, Jr., Assistant Attorney General, for Washington; Chauncey H. Browning, Jr., Attorney General, and Charles G. Brown, Deputy Attorney General, for West Virginia; Bronson C. La Follette, Attorney General, and Michael L. Zaleski, Assistant Attorney General, for Wisconsin; and John D. Troughton, Attorney General, Peter J. Mulvaney, Deputy Attorney General, and James W. Gusea, Assistant Attorney General, for Wyoming. * </s> [Footnote * David Berger, H. Laddie Montague, Jr., Merrill G. Davidoff, Stanley J. Friedman, Frederick P. Furth, Thomas R. Fahrner, Aaron M. Fine, and Josef D. Cooper filed a brief for the plaintiffs in Kennedy Smith v. Toyota Motor Sales U.S. A. et al. as amici curiae urging reversal. </s> MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We granted certiorari to decide whether consumers who pay a higher price for goods purchased for personal use as a result of antitrust violations sustain an injury in their "business or property" within the meaning of 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 15. [442 U.S. 330, 335] </s> I </s> Petitioner brought a class action on behalf of herself and all persons in the United States who purchased hearing aids manufactured by five corporations, respondents here. Her complaint alleges that respondents have committed a variety of antitrust violations, including vertical and horizontal price fixing. 1 Because of these violations, the complaint alleges, petitioner and the class of persons she seeks to represent have been forced to pay illegally fixed higher prices for the hearing aids and related services they purchased from respondents' retail dealers. Treble damages and injunctive relief are sought under 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. 15 and 26. </s> Respondents moved for dismissal of the complaint or summary judgment in the District Court. Among other things, respondents argued that Reiter, as a retail purchaser of hearing aids for personal use, lacked standing to sue for treble damages under 4 of the Clayton Act because she had not been injured in her "business or property" within the meaning of the Act. </s> The District Court held that under 4 a retail purchaser is injured in "property" if the purchaser can show that antitrust violations caused an increase in the price paid for the article purchased. The District Court relied on Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 396 (1906), and the legislative history of the Clayton Act set forth in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 , [442 U.S. 330, 336] 486 n. 10 (1977), indicating that Congress intended to give a 4 remedy to consumers. 435 F. Supp. 933, 935-938 (Minn. 1977). </s> The District Court determined, however, that the respondents had raised a "controlling question of law as to which there is substantial ground for difference of opinion." id., at 938, and accordingly certified the question for interlocutory review under 28 U.S.C. 1292 (b). It then stayed further proceedings in the case and declined to express any opinion on the merits of the other issues raised by respondents' motions or on the certifiability of the class. </s> The Court of Appeals reversed, holding that retail purchasers of consumer goods and services who allege no injury of a commercial or business nature are not injured in their "business or property" within the meaning of 4. 579 F.2d 1077 (CA8 1978). Noting the absence of any holdings on this precise issue by this Court or other courts of appeals, the court reasoned that the phrase "business or property" was intended to limit standing to those engaged in commercial ventures. It relied on the legislative history and this Court's statement in Hawaii v. Standard Oil Co., 405 U.S. 251, 264 (1972), that "business or property" referred to "commercial interests or enterprises." A contrary holding, the Court of Appeals observed, would add a substantial volume of litigation to the already strained dockets of the federal courts and could be used to exact unfair settlements from retail businesses. Small and medium-sized retailers would be especially hard hit by "gigantic consumer class actions," and granting standing to retail consumers might actually have an anticompetitive impact as a consequence. Accordingly, the Court of Appeals thought "it sensible as a matter of policy and compelled as a matter of law that consumers alleging no injury of a commercial or competitive nature are not injured in their property under section 4 of the Clayton Act." 579 F.2d. at 1087. [442 U.S. 330, 337] </s> We granted certiorari, 439 U.S. 1065 (1979). 2 We reverse. 3 </s> II </s> As is true in every case involving the construction of a statute, our starting point must be the language employed by Congress. Section 4 of the Clayton Act, 38 Stat. 731, provides: </s> "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . . without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. 15 (emphasis added). </s> On its face, 4 contains little in the way of restrictive language. In Pfizer Inc. v. Government of India, 434 U.S. 308 (1978), we remarked: </s> "`The Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices [442 U.S. 330, 338] by whomever they may be perpetrated.' Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 ; cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138 -139. And the legislative history of the Sherman Act demonstrates that Congress used the phrase `any person' intending it to have its naturally broad and inclusive meaning. There was no mention in the floor debates of any more restrictive definition." Id., at 312. </s> Similarly here, the word "property" has a naturally broad and inclusive meaning. In its dictionary definitions and in common usage "property" comprehends anything of material value owned or possessed. See, e. g., Webster's Third New International Dictionary 1818 (1961). Money, of course, is a form of property. </s> Respondents protest that, if the reference to "property" in 4 means "money," the term "business" then becomes superfluous, for every injury in one's business necessarily involves a pecuniary injury. They argue that if Congress wished to permit one who lost only money to bring suit under 4, it would not have used the restrictive phrase "business or property"; rather, it would have employed more generic language akin to that of 16, for example, which provides for injunctive relief against any "threatened loss or damage." 15 U.S.C. 26. Congress plainly intended to exclude some category of injury in choosing the phrase "business or property" for 4. Only a "commercial interest" gloss, they argue, both gives the phrase the restrictive significance intended for it and at the same time gives independent significance to the word "business" and the word "property." The argument of respondents is straightforward: the phrase "business or property" means "business activity or property related to one's business." Brief for Respondents 11 n. 7. </s> That strained construction would have us ignore the disjunctive "or" and rob the term "property" of its independent [442 U.S. 330, 339] and ordinary significance; moreover, it would convert the noun "business" into an adjective. In construing a statute we are obliged to give effect, if possible, to every word Congress used. United States v. Menasche, 348 U.S. 528, 538 -539 (1955). Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not. See FCC v. Pacifica Foundation, 438 U.S. 726, 739 -740 (1978). Congress' use of the word "or" makes plain that "business" was not intended to modify "property," nor was "property" intended to modify "business." </s> When a commercial enterprise suffers a loss of money it suffers an injury in both its "business" and its "property." But neither term is rendered redundant by recognizing that a consumer not engaged in a "business" enterprise, but rather acquiring goods or services for personal use, is injured in "property" when the price of those goods or services is artificially inflated by reason of the anticompetitive conduct complained of. The phrase "business or property" also retains restrictive significance. It would, for example, exclude personal injuries suffered. E. g., Hamman v. United States, 267 F. Supp. 420, 432 (Mont. 1967). Congress must have intended to exclude some class of injuries by the phrase "business or property." But it taxes the ordinary meaning of common terms to argue, as respondents do, that a consumer's monetary injury arising directly out of a retail purchase is not comprehended by the natural and usual meaning of the phrase "business or property." We simply give the word "property" the independent significance to which it is entitled in this context. A consumer whose money has been diminished by reason of an antitrust violation has been injured "in his . . . property" within the meaning of 4. </s> Indeed, this Court indicated as much in Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390 (1960). There the city alleged that the anticompetitive conduct of the defendants [442 U.S. 330, 340] had caused the city to pay more for water pipes purchased for use in the city's water system. The defendants answered that the pecuniary injury resulting from the alleged overcharges did not injure the city in its "business or property" within the meaning of 4. This Court, without relying on the fact that the city was engaged in a business enterprise, stated: </s> "The city was . . . injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe. A person whose property is diminished by a payment of money wrongfully induced is injured in his property." 203 U.S., at 396 . </s> The holding of Chattanooga Foundry could well have been grounded on the undisputed fact that the city was engaged in the commercial enterprise of supplying water for a charge and, therefore, engaged in a business. It was not uncommon for both municipalities and private companies to own and operate competing waterworks at the turn of the century. In operating a municipal public utility, the city was in a real sense engaged in the "business of furnishing water" when it purchased the pipe to carry water from the city's reservoirs to its customers. Ibid. </s> Yet, the Court's holding in Chattanooga Foundry was deliberately grounded on the premise that the city had been injured in its "property" - independent of any injury it had sustained in its "business of furnishing water" - because the defendants' antitrust violation caused it to pay a higher price for the pipe than it otherwise would have paid. Ibid. Chattanooga Foundry therefore establishes that monetary injury, standing alone, may be injury in one's "property" within the meaning of 4. Thus, the fact that petitioner Reiter was deprived of only money, albeit a modest amount, is no reason to conclude that she did not sustain a "property" injury. </s> Nor does her status as a "consumer" change the nature of [442 U.S. 330, 341] the injury she suffered or the intrinsic meaning of "property" in 4. That consumers of retail goods and services have standing to sue under 4 is implicit in our decision in Goldfarb v. Virginia State Bar, 421 U.S. 773, 780 , 782 (1975). There we held that a bar association was subject to a treble-damages suit brought under 4 by persons who sought legal services in connection with the purchase of a residence. Furthermore, we have often referred to "consumers" as parties entitled to seek damages under 4 without intimating that consumers of goods and services purchased for personal rather than commercial use were in any way foreclosed by the statutory language from asserting an injury in their "property." E. g., Pfizer Inc. v. Government of India, 434 U.S., at 313 -315; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S., at 486 n. 10; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 494 (1968); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948). </s> Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), is not to the contrary. There we held that injury to a state's total economy, for which the state sought redress in its parens patriae capacity, was not cognizable under 4. It is true we noted that the words "business or property" refer to "commercial interests or enterprises," and reasoned that Hawaii could not recover on its claim for damage done to its "general economy" because such injury did not harm Hawaii's "commercial interests." 405 U.S., at 264 . </s> However, the language of an opinion is not always to be parsed as though we were dealing with language of a statute. Use of the phrase "commercial interests or enterprises," read in context, in no sense suggests that only injuries to a business entity are within the ambit of 4. Respondents ignore the Court's careful use of the disjunctive and the naturally broad meaning of the term "interests" in Hawaii v. Standard Oil Co., supra. The phrase "commercial interests" was used there as a generic reference to the interests of the [442 U.S. 330, 342] State of Hawaii as a party to a commercial transaction. This is apparent from Hawaii's explicit reaffirmance of the rule of Chattanooga Foundry and statement that, where injury to a state "occurs in its capacity as a consumer in the marketplace" through a "payment of money wrongfully induced." treble damages are recoverable by a state under the Clayton Act. Hawaii v. Standard Oil Co., supra, at 263 n. 14. A central premise of our holding in Hawaii was concern over duplicative recoveries. We noted that a "large and ultimately indeterminable part of the injury to the `general economy'" for which the State sued was "no more than a reflection of injuries to the `business or property' of consumers" for which, on a proper showing, they could recover in their own right. 405 U.S., at 263 -264. </s> Consumers in the United States purchase at retail more than $1.2 trillion in goods and services annually. 1978 Economic Report of the President 257 (Table B-1). It is in the sound commercial interests of the retail purchasers of goods and services to obtain the lowest price possible within the framework of our competitive private enterprise system. The essence of the antitrust laws is to ensure fair price competition in an open market. Here, where petitioner alleges a wrongful deprivation of her money because the price of the hearing aid she bought was artificially inflated by reason of respondents' anticompetitive conduct, she has alleged an injury in her "property" under 4. </s> Nothing in the legislative history of 4 conflicts with our holding today. Many courts and commentators have observed that the respective legislative histories of 4 of the Clayton Act and 7 of the Sherman Act, its predecessor, shed no light on Congress' original understanding of the terms "business or property." 4 Nowhere in the legislative record [442 U.S. 330, 343] is specific reference made to the intended scope of those terms. Respondents engage in speculation in arguing that the substitution of the terms "business or property" for the broader language originally proposed by Senator Sherman 5 was clearly intended to exclude pecuniary injuries suffered by those who purchase goods and services at retail for personal use. None of the subsequent floor debates reflect any such intent. On the contrary, they suggest that Congress designed the Sherman Act as a "consumer welfare prescription." R. Bork, The Antitrust Paradox 66 (1978). Certainly the leading proponents of the legislation perceived the treble-damages remedy of what is now 4 as a means of protecting consumers from overcharges resulting from price fixing. E. g., 21 Cong. Rec. 2457, 2460, 2558 (1890). Because Congress in 1890 rejected a proposal to allow a group of consumers to bring a collective action as a class, some legislators questioned whether individual consumers would be willing to bring actions for relatively small amounts. See, e. g., id., at 1767-1768, 2569, 2612, 3147-3148, 3150. At no time, however, was the right of a consumer to bring an action for damages questioned. 6 </s> In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, after examining the legislative history of 4, we described the Sherman Act as "conceived of primarily as a remedy for `[t]he people of the United States as individuals,' especially consumers," and the treble-damages provision of the Clayton Act as "conceived primarily as `open[ing] the door of justice [442 U.S. 330, 344] to every man . . . and giv[ing] the injured party ample damages for the wrong suffered.'" 429 U.S., at 486 n. 10. Thus, to the extent that the legislative history is relevant, it supports our holding that a consumer deprived of money by reason of allegedly anticompetitive conduct is injured in "property" within the meaning of 4. 7 </s> Respondents also argue that allowing class actions to be brought by retail consumers like the petitioner here will add a significant burden to the already crowded dockets of the federal courts. That may well be true but cannot be a controlling consideration here. We must take the statute as we find it. Congress created the treble-damages remedy of 4 precisely for the purpose of encouraging private challenges to antitrust violations. These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations. Indeed, nearly 20 times as many private antitrust actions are currently pending in the federal courts as actions filed by the Department of Justice. Administrative Office of the United States Courts Ann. Rep. 101, Table 28 (1978). To be sure, these private suits impose a heavy litigation burden on the federal courts; it is the clear responsibility of Congress to provide the judicial resources necessary to execute its mandates. </s> Finally, respondents argue that the cost of defending consumer class actions will have a potentially ruinous effect on small businesses in particular and will ultimately be paid by [442 U.S. 330, 345] consumers in any event. These are not unimportant considerations, but they are policy considerations more properly addressed to Congress than to this Court. However accurate respondents' arguments may prove to be - and they are not without substance - they cannot govern our reading of the plain language in 4. </s> District courts must be especially alert to identify frivolous claims brought to extort nuisance settlements; they have broad power and discretion vested in them by Fed. Rule Civ. Proc. 23 with respect to matters involving the certification and management of potentially cumbersome or frivolous class actions. See generally Durham & Dibble, Certification: A Practical Device for Early Screening of Spurious Antitrust Litigation, 1978 B. Y. U. L. Rev. 299. Recognition of the plain meaning of the statutory language "business or property" need not result in administrative chaos, class-action harassment, or "windfall" settlements if the district courts exercise sound discretion and use the tools available. </s> The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. </s> Reversed and remanded. </s> MR. JUSTICE BRENNAN took no part in the decision of this case. </s> Footnotes [Footnote 1 Specifically, Reiter alleges that respondents violated 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1 and 2, and 3 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 14. She claims respondents restricted the territories, customers, and brands of hearing aids offered by their retail dealers, used the customer lists of their retail dealers for their own purposes, prohibited unauthorized retailers from dealing in or repairing their hearing aids, and conspired among themselves and with their retail dealers to fix the retail prices of the hearing aids. </s> [Footnote 2 Differing views on this issue have been expressed by various courts. See, e. g., Reiter v. Sonotone Corp., 579 F.2d 1077 (CA8 1978) (case below); Bravman v. Bassett Furniture Industries, 552 F.2d 90, 98-99, and n. 23 (CA3), cert. denied, 434 U.S. 823 (1977); Cleary v. Chalk, 159 U.S. App. D.C. 415, 419 n. 17, 488 F.2d 1315, 1319 n. 17 (1973), cert. denied, 416 U.S. 938 (1974); Theophil v. Sheller-Globe Corp., 446 F. Supp. 131 (EDNY 1978); Gutierrez v. E. & J. Gallo Winery Co., 425 F. Supp. 1221 (ND Cal. 1977), appeal docketed, No. 77-1725 (CA9). </s> [Footnote 3 The Court of Appeals expressly noted that Reiter's claim for injunctive relief under 16 of the Clayton Act was not before it on interlocutory appeal. 579 F.2d, at 1087 n. 19. The court therefore expressed no view as to Reiter's standing to raise this claim. It also expressly refused to decide whether Reiter's claim for treble damages under 4 was barred by the direct-purchaser rule of Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). 579 F.2d, at 1079 n. 3. Accordingly, these issues are not before us. </s> [Footnote 4 See, e. g., Hawaii v. Standard Oil Co., 405 U.S. 251, 261 (1972); Weinberg v. Federated Department Stores, Inc., 426 F. Supp. 880, 882-883 (ND Cal. 1977), appeal docketed, No. 77-1547 (CA9); M. Forkosch, [442 U.S. 330, 343] Antitrust and the Consumer 2-3 (1956); Comment, Closing the Door on Consumer Antitrust Standing, 54 N. Y. U. L. Rev. 237, 242-243, 249-252 (1979). See also 1 P. Areeda & D. Turner, Antitrust Law § 106, pp. 14-16 (1978). </s> [Footnote 5 As originally introduced, the bill that ultimately became the Sherman Act authorized "any person or corporation injured or damnified by [an unlawful] arrangement, contract, agreement, trust, or combination" to sue for damages thereby sustained. S. 1, 51st Cong., 1st Sess., 2 (1889). </s> [Footnote 6 Of course, the treble-damages remedy of 4 took on new practical significance for consumers with the advent of Fed. Rule Civ. Proc. 23. </s> [Footnote 7 Although in no sense a controlling consideration, we note that our holding is consistent with the assumption on which Congress enacted the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 90 Stat. 1394, 15 U.S.C. 15c et seq. The text and legislative history of this statute make clear that in 1976 Congress believed that consumers have a cause of action under 4, which the statute authorizes the states to assert in a parens patriae capacity. See, e. g., 15 U.S.C. 15c (a) (1), 15c (a) (1) (B) (ii), 15c (b) (2); H. R. Rep. No. 94-499, pp. 6, 9 (1975). See also Illinois Brick Co. v. Illinois, 431 U.S., at 734 n. 14. </s> MR. JUSTICE REHNQUIST, concurring. </s> I join the Court's opinion and write separately only to point out that the concern expressed by the Court of Appeals that an interpretation of "business or property" in the manner in which the Court interprets it today would "add a substantial volume of litigation to the already strained dockets of the federal courts and could be used to exact unfair settlements from retail businesses," ante, at 336, is by no means an unfounded one. And pronouncements from this Court exhorting district courts to be "especially alert to identify frivolous [442 U.S. 330, 346] claims brought to extort nuisance settlements" will not be a complete solution for those courts which are actually on the firing line in this type of litigation. Ante, at 345. But I fully agree that we must take the statute as Congress wrote it, and I also fully agree with the Court's construction of the phrase "business or property." I think that the Court's observation, ante, at 343 n. 6, that "the treble-damages remedy of 4 took on new practical significance for consumers with the advent of Fed. Rule Civ. Proc. 23" is a miracle of understatement; and in the absence of any jurisdictional limit, there is considerable doubt in my mind whether this type of action is indeed ultimately of primary benefit to consumers themselves, who may recover virtually no monetary damages, as opposed to the attorneys for the class, who stand to obtain handsome rewards for their services. Be that as it may, the problem, if there is one, is for Congress and not for the courts. </s> [442 U.S. 330, 347]

United States Supreme Court MASSACHUSETTS MUT. LIFE INS. CO. v. LUDWIG(1976) No. 75-1504 Argued: Decided: June 14, 1976 </s> In a diversity action by respondent administrator against petitioner insurer for recovery under the double indemnity provision of a life insurance policy issued in Michigan to respondent's decedent, who was killed in Illinois, the District Court ruled that under Illinois conflict-of-laws rules Michigan substantive law applied and that under that law petitioner was liable only for ordinary benefits. On respondent's appeal the Court of Appeals reversed the judgment that under Michigan law petitioner was liable only for ordinary benefits and also held that petitioner's failure to cross-appeal precluded it from arguing that Illinois law applied, under which it would also be liable only for ordinary benefits. Held: The Court of Appeals erred because petitioner's argument was no more than "an attack on the reasoning of the lower court," and as such required no cross-appeal. United States v. American Ry. Exp. Co., 265 U.S. 425, 435 . </s> Certiorari granted; 524 F.2d 376, vacated and remanded. </s> PER CURIAM. </s> This is a diversity case. Petitioner (the insurer) issued a life insurance policy in Michigan to Dean E. Cane providing for double indemnity if Cane's "death was the result of an injury sustained while the insured was a passenger in or upon a public conveyance then being operated by a common carrier to transport passengers for hire . . . ." Cane was killed in Illinois by a freight train while crossing a railroad track in order to board a commuter train which had not yet arrived at the station. The insurer paid Cane's estate ordinary benefits, but denied liability under the double indemnity provision of the policy. [426 U.S. 479, 480] </s> The administrator of Cane's estate (respondent) sued the insurer in the District Court for the Northern District of Illinois to recover benefits under the double indemnity provision. The District Court held that under Illinois conflict-of-laws rules, the law of the situs of the contract (Michigan) applied, and that under Michigan law the insurer was liable only for ordinary benefits. The administrator appealed. The insurer argued in the Court of Appeals for the Seventh Circuit that the District Court's application and interpretation of Michigan law was correct, and alternatively that Illinois conflict-of-laws rules required application of Illinois - not Michigan - substantive law in this case, and that under Illinois substantive law its liability was also only for ordinary benefits. The Court of Appeals reversed, 524 F.2d 376 (1975), but without reaching the question of which State's substantive law would be applicable under the Illinois conflicts rule. The court held that the insurer was precluded from arguing on appeal the applicability of Illinois substantive law, because it had not cross-appealed from the District Court's ruling that Michigan law applied. Id., at 379 n. 1. </s> The Court of Appeals' decision on this issue is plainly at odds with the "inveterate and certain" rule, Morley Co. v. Maryland Cas. Co., 300 U.S. 185, 191 (1937), of United States v. American Ry. Exp. Co., 265 U.S. 425, 435 (1924), where a unanimous Court said: </s> "It is true that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the [426 U.S. 479, 481] decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it." (Footnote omitted.) </s> The argument of the insurer before the Court of Appeals that Illinois, not Michigan, substantive law applied was no more than "an attack upon the reasoning of the lower court," and as such required no cross-appeal. </s> Because the Court of Appeals did "not reach the issue nor express any opinion on the effect of the tort claim conflicts of law doctrine" of Illinois, 524 F.2d, at 379 n. 1, we think it "appropriate to remand the case rather than deal with the merits of that question in this Court." Dandridge v. Williams, 397 U.S. 471, 476 n. 6 (1970). Accordingly, the petition for writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings in conformity with this opinion. </s> So ordered. </s> MR. JUSTICE STEVENS took no part in the consideration or decision of this case. </s> [426 U.S. 479, 482]

United States Supreme Court JOHNSON et al. v. FANKELL(1997) No. 96-292 Argued: February 26, 1997Decided: June 9, 1997 </s> </s> Respondent filed this 42 U.S.C. § 1983 damages action in Idaho state court, alleging that the termination of her state employment by petitioner officials deprived her of property without due process in violation of the Fourteenth Amendment. The trial court denied petitioners' motion to dismiss, which asserted that they were entitled to qualified immunity. The Idaho Supreme Court dismissed their appeal from that ruling, explaining that the denial was neither an appealable final order under Idaho Appellate Rule 11(a)(1) nor appealable as a matter of federal right under §1983. </s> Held: Defendants in a state court §1983 action do not have a federal right to an interlocutory appeal from a denial of qualified immunity. Pp. 2-11. </s> (a) State officials performing discretionary functions have a "qualified immunity" defense that, in appropriate circumstances, shields them both from liability for damages under §1983 and from the burdens of trial. Harlow v. Fitzgerald, 457 U.S. 800, 818 . A federal district court order rejecting such a defense on the ground that the defendant's actions--if proven--would have violated clearly established law may be appealed immediately as a "final decision" under the general federal appellate jurisdiction statute, 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 524 -530. Relying on respondent's federal statutory claim and their own federal defense, petitioners submit that the Idaho courts must protect their right to avoid the burdens of trial by allowing the same interlocutory appeal that would be available in a federal court. Pp. 2-4. </s> (b) This Court rejects petitioners' argument that when the Idaho courts construe their own Rule 11(a)(1), they must accept the federal definition of a "final decision" in cases brought under §1983. Even if the Idaho Rule and §1291 contained identical language--and theydo not--the Idaho Supreme Court's interpretation of the Rule would be binding on federal courts, which have no authority to place a different construction upon it. See, e.g., New York v. Ferber, 458 U.S. 747, 767 . Idaho could voluntarily place the same construction on the Rule as the Mitchell Court placed on §1291, but this Court cannot command that choice. Pp. 4-5. </s> (c) Also unpersuasive is petitioners' contention that Rule 11(a)(1) is pre empted by §1983 to the extent that it does not allow an interlocutory appeal. Petitioner's arguments are not strong enough to overcome two considerable hurdles. First, the normal presumption against pre emption is buttressed here by the fact that the Idaho Supreme Court's dismissal of the appeal rested squarely on a neutral state rule for administering state courts. Howlett v. Rose, 496 U.S. 356, 372 . Second, because the qualified immunity defense's ultimate purpose is to protect the State and its officials from overenforcement of federal rights, Rule 11(a)(1)'s application in this context is less an interference with federal interests, as petitioners claim, than a judgment about how best to balance competing state interests. In arguing that pre emption is necessary to avoid different "outcomes" in §1983 litigation based solely on whether the claim is asserted in state or federal court, petitioners misplace their reliance on Felder v. Casey, 487 U.S. 131, 138 . "[O]utcom[e]," as used there, referred to the ultimate disposition of the case, whereas the postponement of the appeal until after final judgment will not affect the ultimate outcome of this case if petitioners' qualified immunity claim is meritorious. Their argument that Rule 11(a)(1) does not adequately protect their right to prevail on the immunity question in advance of trial also fails, given the precise source and scope of the federal right at issue. In contrast to the right to have the trial court rule on the immunity defense's merits, which presumably has its source in §1983 and is fully protected by Idaho, the right to immediate appellate review of such a ruling in a federal case has its source in §1291, not §1983, see Johnson v. Jones, 515 U.S. 304, 317 , and is a federal procedural right that simply does not apply in a nonfederal forum. Pp. 6-11. </s> Affirmed. </s> Stevens, J., delivered the opinion for a unanimous Court. </s> ---------------------------------------------------------------------------- </s> NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. </s> U.S. Supreme Court </s> No. 96-292 </s> MARIAN JOHNSON, et al., PETITIONERS v. KRISTINE L. FANKELL </s> on writ of certiorari to the supreme court </s> of idaho [June 9, 1997] </s> Justice Stevens delivered the opinion of the Court. </s> The question presented is whether defendants in an action brought under Rev. Stat. 1979, 42 U.S.C. § 1983 in state court have a federal right to an interlocutory appeal from a denial of qualified immunity. We hold that they do not. </s> Petitioners are officials of the Idaho Liquor Dispensary. Respondent, a former liquor store clerk, brought this action for damages under §1983 in the District Court for the County of Bonner, Idaho. She alleged that petitioners deprived her of property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution when they terminated her employment. Petitioners moved to dismiss the complaint on the ground that they were entitled to qualified immunity. They contended that, at the time of respondent's dismissal, they reasonably believed that she was a probationary employee who had no property interest in her job. Accordingly, petitioners argued, her termination did not violate clearly established law. The trial court </s> denied the motion, 1 and petitioners filed a timely notice of appeal to the Supreme Court of the State of Idaho. </s> The State Supreme Court entered an order dismissing the appeal. The Court explained that an order denying a motion for summary judgment is not appealable under Idaho Appellate Rule 11(a)(1) "for the reason it is not from a final order or Judgment." App. 67. It also rejected petitioners' arguments that the order was appealable under 42 U.S.C. § 1983 and Behrens v. Pelletier, 516 U. S. ___ (1996). Petitioners sought rehearing, again arguing that the order was final within the meaning of the Idaho Appellate Rule, and, in the alternative, that they had a right to appeal as a matter of federal law. The Court denied rehearing and dismissed the appeal. </s> Petitioners then filed a petition in this Court seeking either a writ of certiorari or a writ of mandamus. They pointed out that some state courts, unlike the Idaho Supreme Court, allow interlocutory appeals of orders denying qualified immunity on the theory that such review is necessary to protect a substantial federal right, see McLin v. Trimble, 795 P. 2d 1035, 1037-1038 (Okla. 1990); Lakewood v. Brace, 919 P. 2d 231, 238-240 (Colo. 1996). We granted certiorari to resolve the conflict, 519 U. S. ___ (1996), and now affirm. </s> We have recognized a qualified immunity defense for both federal officials sued under the implied cause of action asserted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and state officials sued under 42 U.S.C. § 1983. In both situations, "officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conductdoes not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This "qualified immunity" defense is valuable to officials asserting it for two reasons. First, if it is found applicable at any stage of the proceedings, it determines the outcome of the litigation by shielding the official from damages liability. Second, when the complaint fails to allege a violation of clearly established law or when discovery fails to uncover evidence sufficient to create a genuine issue whether the defendant committed such a violation, it provides the defendant with an immunity from the burdens of trial as well as a defense to liability. 2 Indeed, one reason for adopting the objective test announced in Harlow was to "permit the resolution of many insubstantial claims on summary judgment." Ibid. </s> Consistent with that purpose, we held in Mitchell v. Forsyth, 472 U.S. 511, 524 -530 (1985), that a Federal District Court order rejecting a qualified immunity defense on the ground that the defendant's actions--if proven--would have violated clearly established law may be appealed immediately as a "final decision" within the meaning of the general federal appellate jurisdiction statute, 28 U.S.C. § 1291. 3 If this action had been brought in a federal court, therefore, petitioners would have had a right to take an appeal from the trial court's order denying their motion for summary judgment. </s> Relying on the facts (a) that respondent has asserted a federal claim under a federal statute, and (b) that they are asserting a defense provided by federal law, petitioners submit that the Idaho courts must protect their right to avoid the burdens of trial by allowing the same interlocutory appeal that would be available in a federal court. They support this submission with two different arguments: First, that when the Idaho courts construe their own rules allowing appeals from final judgments, they must accept the federal definition of finality in cases brought under §1983; and second, that if those rules do not authorize the appeal, they are pre empted by federal law. We find neither argument persuasive. </s> We can easily dispense with petitioners' first contention that Idaho must follow the federal construction of a "final decision." Even if the Idaho and federal statutes contained identical language--and they do not 4 --the interpretation of the Idaho statute by the Idaho Supreme Court would be binding on federal courts. Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the state. See, e.g., New York v. Ferber, 458 U.S. 747, 767 (1982); Exxon Corp. v. Department of Revenue of Wis., 447 U.S. 207, 226 , n. 9 (1980); Commissioner v. Bosch, 387 U.S. 456, 465 (1967). This proposition, fundamental to our system of federalism, is applicable to procedural as well as substantive rules. See Wardius v. Oregon, 412 U.S. 470, 477 (1973). </s> The definition of the term "final decision" that weadopted in Mitchell was an application of the "collateral order" doctrine first recognized in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). In that case, as in all of our cases following it, we were construing the federal statutory language of 28 U.S.C. § 1291. 5 While some States have adopted a similar "collateral order" exception when construing their jurisdictional statutes, 6 we have never suggested that federal law compelled them to do so. Indeed, a number of States employ collateral order doctrines that reject the limitations this Court has placed on §1291. 7 Idaho could, ofcourse, place the same construction on its Appellate Rule 11(a)(1) as we have placed on §1291. But that is clearly a choice for that Court to make, not one that we have any authority to command. </s> Petitioners also contend that, to the extent that Idaho Appellate Rule 11(a)(1) does not allow an interlocutory appeal, it is pre empted by §1983. Relying heavily on Felder v. Casey, 487 U.S. 131 (1988), petitioners first assert that pre emption is necessary to avoid "different outcomes in §1983 litigation based solely on whether the claim is asserted in state or federal court," id., at 138. Second, they argue that the state procedure "impermissibly burden[s]" the federal immunity from suit because it does not adequately protect their right to prevail on the immunity question in advance of trial. 8 </s> For two reasons, petitioners have a heavy burden of persuasion in making this argument. First, our normal presumption against pre emption is buttressed by the fact that the Idaho Supreme Court's dismissal of the appeal rested squarely on a neutral state rule regarding the administration of the state courts. 9 As we explained in Howlett v. Rose, 496 U.S. 356, 372 (1990): </s> "When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, we must act with utmost caution before deciding that it is obligated to entertain the claim. See Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1 (1950); Georgia Rail Road & Banking Co. v. Musgrove, 335 U.S. 900 (1949) (per curiam); Herb v. Pitcairn, 324 U.S. 117 (1945); Douglas v. New York, N. H. & H. R. Co., 279 U.S. 377 (1929). The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the State create a court competent to hear the case in which the federal claim is presented. The general rule, `bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.' Hart, [The Relations Between State and Federal Law], 54 Colum. L. Rev. [489, 508 (1954)]; see also Southland Corp. v. Keating, 465 U.S. 1, 33 (1984) (O'Connor, J., dissenting); FERC v. Mississippi, 456 U. S. [742, 774 (1982)] (opinion of Powell, J.) The States thus have great latitude to establish the structure and jurisdiction of their own courts." </s> A second barrier to petitioners' argument arises from the nature of the interest protected by the defense of qualified immunity. Petitioners' argument for pre emption is bottomed on their claims that the Idaho rules are interfering with their federal rights. While it is true that the defense has its source in a federal statute (§1983), the ultimate purpose of qualified immunity is toprotect the state and its officials from overenforcement of federal rights. The Idaho Supreme Court's application of the State's procedural rules in this context is thus less an interference with federal interests than a judgment about how best to balance the competing state interests of limiting interlocutory appeals and providing state officials with immediate review of the merits of their defense. 10 </s> Petitioner's arguments for pre emption are not strong enough to overcome these considerable hurdles. Contrary to petitioners' assertions, Idaho's decision not to provide appellate review for the vast majority of interlocutory orders--including denials of qualified immunity in §1983 cases--is not "outcome determinative" in the sense that we used that term when we held that Wisconsin's notice of claim statute could not be applied to defeat a federal civil rights action brought in state courts under §1983. Felder, 487 U.S., at 153 . The failure to comply with the Wisconsin statute in Felder resulted in a judgment dismissing a complaint that would not have been dismissed--at least not without a judicial determination of the merits of the claim--if the case had been filed in a federal court. One of the primary grounds for our decision was that, because the notice of claim requirement would "frequently and predictably produce different outcomes" depending on whether §1983 claimswere brought in state or federal court, it was inconsistent with the federal interest in uniformity. Id., at 138. 11 </s> Petitioners' reliance on Felder is misplaced because "outcome," as we used the term there, referred to the ultimate disposition of the case. If petitioners' claim to qualified immunity is meritorious, there is no suggestion that the application of the Idaho rules of procedure will produce a final result different from what a federal ruling would produce. Petitioners were able to argue their immunity from suit claim to the trial court, just as they would to a federal court. And the claim will be reviewable by the Idaho Supreme Court after the trial court enters a final judgment, thus providing the petitioners with a further chance to urge their immunity. Consequently, the postponement of the appeal until after final judgment will not affect the ultimate outcome of the case. </s> Petitioners' second argument for pre emption of the state procedural rule is that the rule does not adequately protect their right to prevail in advance of trial. In evaluating this contention, it is important to focus on the precise source and scope of the federal right at issue. The right to have the trial court rule on the merits of the qualified immunity defense presumably has its source in §1983, but the right to immediate appellate review of that ruling in a federal case has its source in §1291. The former right is fully protected by Idaho. The latter right, however, is a federal procedural rightthat simply does not apply in a nonfederal forum. 12 </s> The locus of the right to interlocutory appeal in §1291, rather than in §1983 itself, is demonstrated by our holding in Johnson v. Jones, 515 U.S. 304 (1995). In that case, government officials asserting qualified immunity claimed entitlement to an interlocutory appeal of a District Court order denying their motion for summary judgment on the ground that the record showed a genuine issue of material fact whether the officials actually engaged in the conduct that constituted a clear violation of constitutional law. Id., at 307-308. We concluded that this circumstance was different from that presented in Mitchell, 472 U.S., at 528 , in which the subject of the interlocutory appeal was whether a given set of facts showed a violation of clearly established law, and held that although §1291 did allow an interlocutory appeal in the latter circumstance, such an appeal was not allowed in the former. </s> In so holding, we acknowledged that "whether a district court's denial of summary judgment amounts to (a) a determination about pre existing `clearly established' law, or (b) a determination about `genuine' issues of fact for trial, it still forces public officials to trial." 515 U.S., at 317 . But we concluded that the strong "countervailing considerations" surrounding appropriateinterpretation of §1291 were of sufficient importance to outweigh the officials' interest in avoiding the burdens of litigation. </s> The "countervailing considerations" at issue here are even stronger than those presented in Johnson. When pre emption of state law is at issue, we must respect the "principles [that] are fundamental to a system of federalism in which the state courts share responsibility for the application and enforcement of federal law." Howlett, 496 U.S., at 372 -373. This respect is at its apex when we confront a claim that federal law requires a State to undertake something as fundamental as restructuring the operation of its courts. 13 We therefore cannot agree with petitioners that §1983's recognition of the defense of qualified immunity pre empts a State's consistent application of its neutral procedural rules, even when those rules deny an interlocutory appeal in this context. </s> The judgment of the Supreme Court of the State of Idaho dismissing petitioners' appeal is therefore affirmed. </s> It is so ordered. </s> Footnotes </s> [Footnote 1 Because affidavits had been filed in support of the motion, the court treated it as a motion for summary judgment. </s> [Footnote 2 Of course, when a case can be dismissed on the pleadings or in an early pre trial stage, qualified immunity also provides officials with the valuable protection from "the burdens of broad ranging discovery," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). </s> [Footnote 3 While Mitchell v. Forsyth, 472 U.S. 511 (1985), involved a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), action against a federal official, we have also construed §1291 to authorize similar appeals in actions brought against state officials under §1983. See, e.g., Johnson v. Jones, 515 U.S. 304 (1995). </s> [Footnote 4 %F inal decision" is the operative term of §1291, whereas "[j]udgments, orders and decrees which are final" is the language of Idaho Appellate Rule 11(a)(1). </s> [Footnote 5 Thus, in Mitchell we explained: "In holding these and similar issues of absolute immunity to be appealable under the collateral order doctrine, see Abney v. United States, [431 U.S. 651 (1977)]; Helstoski v. Meanor, 442 U.S. 500 (1979); Nixon v. Fitzgerald, 457 U.S. 731 (1982), the Court has recognized that a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiff's factual allegations in resolving the immunity issue. Accordingly, we hold that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." 472 U.S., at 528 -530 (footnote omitted). </s> [Footnote 6 See, e.g., Richardson v. Chevrefils, 131 N. H. 227, 231, 552 A. 2d 89, 92 (1988) ("Although all of the court's rulings . . . would normally be treated as interlocutory, . . . [w]e have followed Mitchell in accepting the State defendants' appeal from the order denying their motion for summary judgment"); Murray v. White, 155 Vt. 621, 626, 587 A. 2d 975, 977-978 (1991) ("In [Mitchell], the Supreme Court held that a trial court's denial of a claim of qualified immunity met these [collateral order] requirements, and we agree with this determination"); Park County v. Cooney, 845 P. 2d 346, 349 (Wyo. 1992) ("We believe the state decisions which allow appeal, for the reasons detailed in Mitchell . . . are better reasoned; and we therefore hold that an order denying dismissal of a claim based on qualified immunity is an order appealable to this court"). </s> [Footnote 7 See, e.g., Goldston v. American Motors Corp., 326 N. C. 723, 727, 392 S. E. 2d 735, 737 (1990) (disqualification of counsel is appealable under state collateral order doctrine notwithstandingRichardson Merrell, Inc. v. Koller, 472 U.S. 424 (1985)); Hanson v. Federal Signal Corp., 451 Pa. Super. 260, 264-265, 679 A. 2d 785, 787-788 (1996) (same for class certification denial notwithstanding Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)). </s> [Footnote 8 See Brief for Petitioners 22. </s> [Footnote 9 Unlike the notice of claim rule at issue in Felder v. Casey, 487 U.S., at 140 -145, Idaho Appellate Rule 11(a)(1) does not target civil rights claims against the State. See also Howlett v. Rose, 496 U.S. 356, 380 -381 (1990). Instead, it generally permits appeals only of "[j]udgments, orders and decrees which are final," without regard to the identity of the party seeking the appeal or the subject matter of the suit. Petitioners claim that the rule is not neutral because it permits interlocutory appeals in certain limited circumstances but denies an appeal here. But we have never held that a rule must be monolithic to be neutral. Absent evidence that Appellate Rule11(a)(1) discriminates against interlocutory appeals of §1983 qualified immunity determinations by defendants--as compared with other types of appeals--we must deem the state procedure neutral. </s> [Footnote 10 It does warrant observation that Rule 12(a) of the Idaho Appellate Rules provides that the State Supreme Court may grant permission "to appeal from an interlocutory order or decree . . . which is not otherwise appealable under these rules, but which involves a controlling question of law as to which there is substantial grounds for difference of opinion and in which an immediate appeal . . . may materially advance the orderly resolution of the litigation." Presumably, petitioners could have sought review under this permissive provision, and the Idaho Supreme Court might have granted review if, in the view of that court, the officials' claim to immunity was so substantial that the suit should not proceed. </s> [Footnote 11 See also Brown v. Western R. Co. of Ala., 338 U.S. 294, 296 -299 (1949) (Federal Employers' Liability Act pre empted different state pleading requirements when effect was to defeat plaintiff's cause of action); Garrett v. Moore McCormack Co., 317 U.S. 239, 243 -244 (1942) (federal Jones Act pre empted different state burden of proof regarding releases when effect was to defeat plaintiff's cause of action). </s> [Footnote 12 Petitioners' reliance on Dice v. Akron, C. & Y. R. Co., 342 U.S. 359 (1952), is therefore misplaced. In Dice we held that the Federal Employers' Liability Act (FELA) pre empted a state rule denying a right to a jury trial. In that case, however, we made clear that Congress had provided in FELA that the jury trial procedure was to be part of claims brought under the Act. Id., at 363 (citing Bailey v. Central Vermont R. Co., 319 U.S. 350, 354 (1943)). In this case, by contrast, Congress has mentioned nothing about interlocutory appeals in §1983; rather, the right to an immediate appeal in the federal court system is found in §1291, which obviously has no application to state courts. </s> [Footnote 13 We have made it quite clear that it is a matter for each State to decide how to structure its judicial system. See, e.g., M. L. B. v. S. L. J., 519 U. S. ___ (1996) (slip op., at 6) (states under no obligation to provide appellate review) (citing cases); Kohl v. Lehlback, 160 U.S. 293, 299 (1895) ("[T]he right of review in an appellate court is purely a matter of state concern"); McKane v. Durston, 153 U.S. 684, 688 (1894) ("[W]hether an appeal should be allowed, and if so, under what circumstances or on what conditions, are matters for each State to determine for itself").

United States Supreme Court MEMORIAL HOSPITAL v. MARICOPA COUNTY(1974) No. 72-847 Argued: November 6, 1973Decided: February 26, 1974 </s> This is an appeal from a decision of the Arizona Supreme Court upholding the constitutionality of an Arizona statute requiring a year's residence in a county as a condition to an indigent's receiving nonemergency hospitalization or medical care at the county's expense. Held: The durational residence requirement, in violation of Equal Protection Clause, creates an "invidious classification" that impinges on the right of interstate travel by denying newcomers "basic necessities of life." Shapiro v. Thompson, 394 U.S. 618 . Pp. 253-270. </s> (a) Such a requirement, since it operates to penalize indigents for exercising their constitutional right of interstate migration, must be justified by a compelling state interest. Shapiro v. Thompson, supra; Dunn v. Blumstein, 405 U.S. 330 . Pp. 253-262. </s> (b) The State has not shown that the durational residence requirement is "legitimately defensible" in that it furthers a compelling state interest, and none of the purpose asserted as justification for the requirement - fiscal savings, inhibiting migration of indigents generally, deterring indigents from taking up residence in the county solely to utilize the medical facilities, protection of longtime residents who have contributed to the community particularly by paying taxes, maintaining public support of the county hospital, administrative convenience in determining bona fide residence, prevention of fraud, and budget predictability - satisfies the State's burden of justification and insures that the State, in pursuing its asserted objectives, has chosen means that do not unnecessarily impinge on constitutionally protected interests. Pp. 262-269. </s> 108 Ariz. 373, 498 P.2d 461, reversed and remanded. </s> MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, and POWELL, JJ., joined. BURGER, C. J., and BLACKMUN, J., concurred in the result. DOUGLAS, J., filed a separate [415 U.S. 250, 251] opinion, post, p. 270. REHNQUIST, J., filed a dissenting opinion, post, p. 277. </s> Mary M. Schroeder argued the cause for appellants. With her on the brief was John P. Frank. </s> William J. Carter III argued the cause and filed a brief for appellees. * </s> [Footnote * Sandor O. Shuch and John J. Relihan filed a brief for the Legal Aid Society of Maricopa County as amicus curiae urging reversal. </s> MR. JUSTICE MARSHALL delivered the opinion of the Court. </s> This case presents an appeal from a decision of the Arizona Supreme Court upholding an Arizona statute requiring a year's residence in a county as a condition to receiving nonemergency hospitalization or medical care at the county's expense. The constitutional question presented is whether this durational residence requirement is repugnant to the Equal Protection Clause as applied by this Court in Shapiro v. Thompson, 394 U.S. 618 (1969). </s> I </s> Appellant Henry Evaro is an indigent suffering from a chronic asthmatic and bronchial illness. In early June 1971, Mr. Evaro moved from New Mexico to Phoenix in Maricopa County, Arizona. On July 8, 1971, Evaro had a severe respiratory attack and was sent by his attending physician to appellant Memorial Hospital, a nonprofit private community hospital. Pursuant to the Arizona statute governing medical care for indigents, Memorial notified the Maricopa County Board of Supervisors that it had in its charge an indigent who might qualify for county care and requested that Evaro be transferred to the County's public hospital facility. In accordance with the approved procedures, Memorial also [415 U.S. 250, 252] claimed reimbursement from the County in the amount of $1,202.60, for the care and services it had provided Evaro. </s> Under Arizona law, the individual county governments are charged with the mandatory duty of providing necessary hospital and medical care for their indigent sick. 1 But the statute requires an indigent to have been a resident of the County for the preceding 12 months in order to be eligible for free nonemergency medical care. 2 Maricopa County refused to admit Evaro to its public hospital or to reimburse Memorial solely because Evaro had not been a resident of the County for the preceding year. Appellees do not dispute that Evaro is an indigent or that he is a bona fide resident of Maricopa County. 3 </s> This action was instituted to determine whether appellee Maricopa County was obligated to provide medical care for Evaro or was liable to Memorial for the costs it incurred because of the County's refusal to do so. This controversy necessarily requires an adjudication of the constitutionality of the Arizona durational [415 U.S. 250, 253] residence requirement for providing free medical care to indigents. </s> The trial court held the residence requirement unconstitutional as a violation of the Equal Protection Clause. In a prior three-judge federal court suit against Pinal County, Arizona, the District Court had also declared the residence requirement unconstitutional and had enjoined its future application in Pinal County. Valenciano v. Bateman, 323 F. Supp. 600 (Ariz. 1971). 4 Nonetheless, the Arizona Supreme Court upheld the challenged requirement. To resolve this conflict between a federal court and the highest court of the State, we noted probable jurisdiction, 410 U.S. 981 (1973), and we reverse the judgment of the Arizona Supreme Court. </s> II </s> In determining whether the challenged durational residence provision violates the Equal Protection Clause, we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected. 5 The Court considered similar durational [415 U.S. 250, 254] residence requirements for welfare assistance in Shapiro v. Thompson, 394 U.S. 618 (1969). The Court observed that those requirements created two classes of needy residents "indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference the first class [was] granted and second class [was] denied welfare aid upon which may depend the ability . . . to obtain the very means to subsist - food, shelter, and other necessities of life." Id., at 627. The Court found that because this classification impinged on the constitutionally guaranteed right of interstate travel, it was to be judged by the standard of whether it promoted a compelling state interest. 6 Finding such an interest wanting, the Court held the challenged residence requirements unconstitutional. </s> Appellees argue that the residence requirement before us is distinguishable from those in Shapiro, while appellants urge that Shapiro is controlling. We agree with appellants that Arizona's durational residence requirement for free medical care must be justified by a compelling state interest and that, such interests being lacking, the requirement is unconstitutional. </s> III </s> The right of interstate travel has repeatedly been recognized as a basic constitutional freedom. 7 Whatever [415 U.S. 250, 255] its ultimate scope, however, the right to travel was involved in only a limited sense in Shapiro. The Court was there concerned only with the right to migrate, "with intent to settle and abide" 8 or, as the Court put it, "to migrate, resettle, find a new job, and start a new life." Id., at 629. Even a bona fide residence requirement would burden the right to travel, if travel meant merely movement. But, in Shapiro, the Court explained that "[t]he residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites" for assistance and only the latter was held to be unconstitutional. Id., at 636. Later, in invalidating a durational residence requirement for voter registration on the basis of Shapiro, we cautioned that our decision was not intended to "cast doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements." Dunn v. Blumstein, 405 U.S. 330, 342 n. 13 (1972). </s> IV </s> The appellees argue that the instant county residence requirement is distinguishable from the state residence requirements in Shapiro, in that the former penalizes, not interstate, but rather intrastate, travel. Even were we to draw a constitutional distinction between interstate and [415 U.S. 250, 256] intrastate travel, a question we do not now consider, such a distinction would not support the judgment of the Arizona court in the case before us. Appellant Evaro has been effectively penalized for his interstate migration, although this was accomplished under the guise of a county residence requirement. What would be unconstitutional if done directly by the State can no more readily be accomplished by a county at the State's direction. The Arizona Supreme Court could have construed the waiting-period requirements to apply to intrastate but not interstate migrants; 9 but it did not do so, and "it is not our function to construe a state statute contrary to the construction given it by the highest court of a State." O'Brien v. Skinner, 414 U.S. 524, 531 (1974). </s> V </s> Although any durational residence requirement impinges to some extent on the right to travel, the Court in Shapiro did not declare such a requirement to be per se unconstitutional. The Court's holding was conditioned, 394 U.S., at 638 n. 21, by the caveat that some "waiting-period or residence requirements . . . may not be penalties upon the exercise of the constitutional right of interstate travel." The amount of impact required to give [415 U.S. 250, 257] rise to the compelling-state-interest test was not made clear. 10 The Court spoke of the requisite impact in two ways. First, we considered whether the waiting period would deter migration: </s> "An indigent who desires to migrate . . . will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute." Id., at 629. </s> Second, the Court considered the extent to which the residence requirement served to penalize the exercise of the right to travel. </s> The appellees here argue that the denial of nonemergency medical care, unlike the denial of welfare, is not apt to deter migration; but it is far from clear that the challenged statute is unlikely to have any deterrent effect. A person afflicted with a serious respiratory ailment, particularly an indigent whose efforts to provide a living for his family have been inhibited by his incapacitating illness, might well think of migrating to the clean dry air of Arizona, where relief from his disease could also bring relief from unemployment and poverty. But he may hesitate if he knows that he must make the move without the possibility of falling back on the State for medical care should his condition still plague him or grow more severe during his first year of residence. </s> It is true, as appellees argue, that there is no evidence in the record before us that anyone was actually deterred from traveling by the challenged restriction. But neither did the majority in Shapiro find any reason "to dispute the `evidence that few welfare recipients have in fact been [415 U.S. 250, 258] deterred [from moving] by residence requirements.' Indeed, none of the litigants had themselves been deterred." Dunn, 405 U.S., at 340 (citations omitted). An attempt to distinguish Shapiro by urging that a durational residence requirement for voter registration did not deter travel, was found to be a "fundamental misunderstanding of the law" in Dunn, supra, at 339-340: 11 </s> "Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other `right to travel' cases in this Court always relied on the presence of actual deterrence. In Shapiro we explicitly stated that the compelling-state-interest test would be triggered by `any classification which serves to penalize the exercise of that right [to travel] . . . .'" (Emphasis in original; footnote omitted.) </s> Thus, Shapiro and Dunn stand for the proposition that a classification which "operates to penalize those persons . . . who have exercised their constitutional right of interstate migration," must be justified by a compelling state interest. Oregon v. Mitchell, 400 U.S. 112, 238 (1970) (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.) (emphasis added). Although any durational residence requirement imposes a potential cost on migration, the Court in Shapiro cautioned that some [415 U.S. 250, 259] "waiting-period[s] . . . may not be penalties." 394 U.S., at 638 n. 21. In Dunn v. Blumstein, supra, the Court found that the denial of the franchise, "a fundamental political right," Reynolds v. Sims, 377 U.S. 533, 562 (1964), was a penalty requiring application of the compelling-state-interest test. In Shapiro, the Court found denial of the basic "necessities of life" to be a penalty. Nonetheless, the Court has declined to strike down state statutes requiring one year of residence as a condition to lower tuition at state institutions of higher education. 12 </s> Whatever the ultimate parameters of the Shapiro penalty analysis, 13 it is at least clear that medical care is as much "a basic necessity of life" to an indigent as welfare assistance. 14 And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. See, e. g., Shapiro, supra; Goldberg v. Kelly, 397 U.S. 254, 264 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340 -342 (1969). It would be odd, indeed, to find that the State of Arizona was required to afford Evaro welfare assistance to keep him from the discomfort of inadequate housing or the pangs of hunger but could deny him the [415 U.S. 250, 260] medical care necessary to relieve him from the wheezing and gasping for breath that attend his illness. 15 </s> Nor does the fact that the durational residence requirement is inapplicable to the provision of emergency medical care save the challenged provision from constitutional doubt. As the Arizona Supreme Court observed, appellant "Evaro was an indigent person who required continued medical care for the preservation of his health and well being . . .," even if he did not require immediate emergency care. 16 The State could not deny Evaro care [415 U.S. 250, 261] just because, although gasping for breath, he was not in immediate danger of stopping breathing altogether. To allow a serious illness to go untreated until it requires emergency hospitalization is to subject the sufferer to the danger of a substantial and irrevocable deterioration in his health. Cancer, heart disease, or respiratory illness, if untreated for a year, may become all but irreversible paths to pain, disability, and even loss of life. The denial of medical care is all the more cruel in this context, falling as it does on indigents who are often without the means to obtain alternative treatment. 17 </s> Finally, appellees seek to distinguish Shapiro as involving a partially federally funded program. Maricopa County has received federal funding for its public hospital 18 but, more importantly, this Court has held that whether or not a welfare program is federally funded is irrelevant to the applicability of the Shapiro analysis. Pease v. Hansen, 404 U.S. 70 (1971); Graham v. Richardson, 403 U.S. 365 (1971). </s> Not unlike the admonition of the Bible that, "Ye shall have one manner of law, as well for the stranger, as for one of your own country," Leviticus 24:22 (King James Version), the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents. The State of Arizona's durational residence requirement for free medical care penalizes indigents for exercising their right to migrate [415 U.S. 250, 262] to and settle in that State. 19 Accordingly, the classification created by the residence requirement, "unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Shapiro, 394 U.S., at 634 . (Emphasis in original.) </s> VI </s> We turn now to the question of whether the State has shown that its durational residence requirement is "legitimately defensible," 20 in that it furthers a compelling state interest. 21 A number of purposes are asserted to be served by the requirement and we must [415 U.S. 250, 263] determine whether these satisfy the appellees' heavy burden of justification, and insure that the State, in pursuing its asserted objectives, has chosen means that do not unnecessarily burden constitutionally protected interests. NAACP v. Button, 371 U.S. 415, 438 (1963). </s> A </s> The Arizona Supreme Court observed: </s> "Absent a residence requirement, any indigent sick person . . . could seek admission to [Maricopa County's] hospital, the facilities being the newest and most modern in the state, and the resultant volume would cause long waiting periods or severe hardship on [the] county if it tried to tax its property owners to support [these] indigent sick . . . ." 108 Ariz. 373, 376, 498 P.2d 461, 464. </s> The County thus attempts to sustain the requirement as a necessary means to insure the fiscal integrity of its free medical care program by discouraging an influx of indigents, particularly those entering the County for the sole purpose of obtaining the benefits of its hospital facilities. </s> First, a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens, Shapiro, supra, at 633, so appellees must do more than show that denying free medical care to new residents saves money. The conservation of the taxpayers' purse is simply not a sufficient state interest to sustain a durational residence requirement which, in effect, severely penalizes exercise of the right to freely migrate and settle in another State. See Rivera v. Dunn, 329 F. Supp. 554 (Conn. 1971), aff'd, 404 U.S. 1054 (1972). </s> Second, to the extent the purpose of the requirement is to inhibit the immigration of indigents generally, [415 U.S. 250, 264] that goal is constitutionally impermissible. 22 And, to the extent the purpose is to deter only those indigents who take up residence in the County solely to utilize its new and modern public medical facilities, the requirement at issue is clearly overinclusive. The challenged durational residence requirement treats every indigent, in his first year of residence, as if he came to the jurisdiction solely to obtain free medical care. Such a classification is no more defensible than the waiting period in Shapiro, supra, of which the Court said: </s> "[T]he class of barred newcomers is all-inclusive, lumping the great majority who come to the State for other purposes with those who come for the sole purpose of collecting higher benefits." 394 U.S., at 631 . </s> Moreover, "a State may no more try to fence out those indigents who seek [better public medical facilities] than it may try to fence out indigents generally." Ibid. An indigent who considers the quality of public hospital facilities in entering the State is no less deserving than one who moves into the State in order to take advantage of its better educational facilities. Id., at 631-632. </s> It is also useful to look at the other side of the coin - at who will bear the cost of indigents' illnesses if the County does not provide needed treatment. For those newly arrived residents who do receive at least hospital care, the cost is often borne by private nonprofit hospitals, like appellant Memorial - many of which are already in precarious financial straits. 23 When absorbed [415 U.S. 250, 265] by private hospitals, the costs of caring for indigents must be passed on to paying patients and "at a rather inconvenient time" - adding to the already astronomical costs of hospitalization which bear so heavily on the resources of most Americans. 24 The financial pressures under which private nonprofit hospitals operate have already led many of them to turn away patients who cannot pay or to severely limit the number of indigents they will admit. 25 And, for those indigents who receive no care, the cost is, of course, measured by their own suffering. </s> In addition, the County's claimed fiscal savings may well be illusory. The lack of timely medical care could cause a patient's condition to deteriorate to a point where more expensive emergency hospitalization (for which no durational residence requirement applies) is needed. And, the disability that may result from letting an untreated condition deteriorate may well result in the patient and his family becoming a burden on the State's welfare rolls for the duration of his emergency care, or permanently, if his capacity to work is impaired. 26 </s> [415 U.S. 250, 266] </s> The appellees also argue that eliminating the durational residence requirement would dilute the quality of services provided to longtime residents by fostering an influx of newcomers and thus requiring the County's limited public health resources to serve an expanded pool of recipients. Appellees assert that the County should be able to protect its longtime residents because of their contributions to the community, particularly through the past payment of taxes. We rejected this "contributory" rationale both in Shapiro and in Vlandis v. Kline, 412 U.S. 441, 450 n. 6 (1973), by observing: </s> "[Such] reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services." Shapiro, 394 U.S., at 632 -633 (footnote omitted). </s> Appellees express a concern that the threat of an influx of indigents would discourage "the development of modern and effective [public medical] facilities." It is suggested that whether or not the durational residence requirement actually deters migration, the voters think that it protects them from low income families' being attracted by the county hospital; hence, the requirement is necessary for public support of that medical facility. A State may not employ an invidious discrimination to sustain the political viability of its programs. As we [415 U.S. 250, 267] observed in Shapiro, supra, at 641, "[p]erhaps Congress could induce wider state participation in school construction if it authorized the use of joint funds for the building of segregated schools," but that purpose would not sustain such a scheme. See also Cole v. Housing Authority of the City of Newport, 435 F.2d 807, 812-813 (CA1 1970). </s> B </s> The appellees also argue that the challenged statute serves some administrative objectives. They claim that the one-year waiting period is a convenient rule of thumb to determine bona fide residence. Besides not being factually defensible, this test is certainly overbroad to accomplish its avowed purpose. A mere residence requirement would accomplish the objective of limiting the use of public medical facilities to bona fide residents of the County without sweeping within its prohibitions those bona fide residents who had moved into the State within the qualifying period. Less drastic means, which do not impinge on the right of interstate travel, are available and employed 27 to ascertain an individual's true intentions, without exacting a protracted waiting period which may have dire economic and health consequences for certain citizens. See Shelton v. Tucker, 364 U.S. 479, 488 (1960). The Arizona State welfare agency applies criteria other than the duration of residency to determine whether an applicant is a bona fide resident. 28 The Arizona Medical Assistance to the Aged law provides public medical care for certain senior citizens, conditioned only on residence. 29 Pinal County, Arizona, has operated its public hospital without benefit of the [415 U.S. 250, 268] durational residence requirement since the application of the challenged statute in that County was enjoined by a federal court in Valenciano v. Bateman, 323 F. Supp. 600 (Ariz. 1971). 30 </s> The appellees allege that the waiting period is a useful tool for preventing fraud. Certainly, a State has a valid interest in preventing fraud by any applicant for medical care, whether a newcomer or oldtime resident, Shapiro, 394 U.S., at 637 , but the challenged provision is illsuited to that purpose. An indigent applicant, intent on committing fraud, could as easily swear to having been a resident of the county for the preceding year as to being one currently. And, there is no need for the State to rely on the durational requirement as a safeguard against fraud when other mechanisms to serve that purpose are available which would have a less drastic impact on constitutionally protected interests. NAACP v. Button, 371 U.S., at 438 . For example, state law makes it a crime to file an "untrue statement . . . for the purpose of obtaining hospitalization, medical care or outpatient relief" at county expense. Ariz. Rev. Stat. Ann. 11-297C (Supp. 1973-1974). See Dunn, 405 U.S., at 353 -354; U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). </s> Finally, appellees assert that the waiting period is necessary for budget predictability, but what was said in Shapiro is equally applicable to the case before us: </s> "The records . . . are utterly devoid of evidence that [415 U.S. 250, 269] [the County] uses the one-year requirement as a means to predict the number of people who will require assistance in the budget year. [The appellees do not take] a census of new residents . . . . Nor are new residents required to give advance notice of their need for . . . assistance. Thus, the . . . authorities cannot know how many new residents come into the jurisdiction in any year, much less how many of them will require public assistance." 394 U.S., at 634 -635 (footnote omitted). </s> Whatever the difficulties in projecting how many newcomers to a jurisdiction will require welfare assistance, it could only be an even more difficult and speculative task to estimate how many of those indigent newcomers will require medical care during their first year in the jurisdiction. The irrelevance of the one-year residence requirement to budgetary planning is further underscored by the fact that emergency medical care for all newcomers and more complete medical care for the aged are currently being provided at public expense regardless of whether the patient has been a resident of the County for the preceding year. See Shapiro, supra, at 635. </s> VII </s> The Arizona durational residence requirement for eligibility for nonemergency free medical care creates an "invidious classification" that impinges on the right of interstate travel by denying newcomers "basic necessities of life." Such a classification can only be sustained on a showing of a compelling state interest. Appellees have not met their heavy burden of justification, or demonstrated that the State, in pursuing legitimate objectives, has chosen means which do not unnecessarily impinge on constitutionally protected interests. Accordingly, the judgment of the Supreme Court of Arizona is reversed and [415 U.S. 250, 270] the case remanded for further action not inconsistent with this opinion. </s> So ordered. </s> THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN concur in the result. </s> Footnotes [Footnote 1 Ariz. Rev. Stat. Ann. 11-291 (Supp. 1973-1974). </s> [Footnote 2 Section 11-297A (Supp. 1973-1974) provides in relevant part that: </s> "Except in emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb no person shall be provided hospitalization, medical care or outpatient relief under the provisions of this article without first filing with a member of the board of supervisors of the county in which he resides a statement in writing, subscribed and sworn to under oath, that he is an indigent as shall be defined by rules and regulations of the state department of economic security, an unemployable totally dependent upon the state or county `government for financial support, or an employable of sworn low income without sufficient funds to provide himself necessary hospitalization and medical care, and that he has been a resident of the county for the preceding twelve months." (Emphasis added.) </s> [Footnote 3 Thus, the question of the rights of transients to medical care is not presented by this case. </s> [Footnote 4 Arizona's intermediate appellate court had also declared the durational residence requirement unconstitutional in Board of Supervisors, Pima County v. Robinson, 10 Ariz. App. 238, 457 P.2d 951 (1969), but its decision was vacated as moot by the Arizona Supreme Court. 105 Ariz. 280, 463 P.2d 536 (1970). </s> An Arizona one-year durational residence requirement for care at state mental health facilities was declared unconstitutional in Vaughan v. Bower, 313 F. Supp. 37 (Ariz.), aff'd, 400 U.S. 884 (1970). See n. 11, infra. </s> A Florida one-year durational residence requirement for medical care at public expense was found unconstitutional in Arnold v. Halifax Hospital Dist., 314 F. Supp. 277 (MD Fla. 1970), and Crapps v. Duval County Hospital Auth., 314 F. Supp. 181 (MD Fla. 1970). </s> [Footnote 5 E. g., Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 173 (1972); Dunn v. Blumstein, 405 U.S. 330, 335 (1972). </s> [Footnote 6 394 U.S., at 634 . See also id., at 642-644 (STEWART, J., concurring). </s> [Footnote 7 Dunn v. Blumstein, supra; Shapiro v. Thompson, 394 U.S. 618 (1969); see Wyman v. Lopez, 404 U.S. 1055 (1972); Oregon v. Mitchell, 400 U.S. 112, 237 (1970) (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.), 285-286 (STEWART, J., concurring and dissenting, with whom BURGER, C. J., and BLACKMUN, J., joined); Wyman v. Bowens, 397 U.S. 49 (1970); United States v. Guest, 383 U.S. 745, 757 -759 (1966); cf. Griffin v. Breckenridge, 403 U.S. 88, 105 -106 (1971); Demiragh v. DeVos, 476 F.2d 403 (CA2 1973). See generally Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 171-181, 187 et seq. (1956). </s> [Footnote 8 See King v. New Rochelle Municipal Housing Auth., 442 F.2d 646, 648 n. 5 (CA2 1971); Cole v. Housing Authority of the City of Newport, 435 F.2d 807, 811 (CA1 1970); Wellford v. Battaglia, 343 F. Supp. 143, 147 (Del. 1972); cf. Truax v. Raich, 239 U.S. 33, 39 (1915); Note, Shapiro v. Thompson: Travel, Welfare and the Constitution, 44 N. Y. U. L. Rev. 989, 1012 (1969). </s> [Footnote 9 Appellees argue that the County should be able to apply a durational residence requirement to preserve the quality of services provided its longtime residents because of their ties to the community and the previous contributions they have made, particularly through past payment of taxes. It would seem inconsistent to argue that the residence requirement should be construed to bar longtime Arizona residents, even if unconstitutional as applied to persons migrating into Maricopa County from outside the State. Surely, longtime residents of neighboring counties have more ties with Maricopa County and equity in its public programs, as through past payment of state taxes, than do migrants from distant States. This "contributory" rationale is discussed, infra, at 266. </s> [Footnote 10 For a discussion of the problems posed by this ambiguity, see Judge Coffin's perceptive opinion in Cole v. Housing Authority of the City of Newport, 435 F.2d 807 (CA1 1970). </s> [Footnote 11 In Vaughan v. Bower, 313 F. Supp. 37 (Ariz.), aff'd, 400 U.S. 884 (1970), a federal court struck down an Arizona law permitting the director of a state mental hospital to return to the State of his prior residence, any indigent patient who had not been a resident of Arizona for the year preceding his civil commitment. It is doubtful that the challenged law could have had any deterrent effect on migration, since few people consider being committed to a mental hospital when they decide to take up residence in a new State See also Affeldt v. Whitcomb, 319 F. Supp. 69 (ND Ind. 1970). aff'd 405 U.S. 1034 (1972). </s> [Footnote 12 See Vlandis v. Kline, 412 U.S. 441, 452 -453, n. 9 (1973). </s> [Footnote 13 For example, the Shapiro Court cautioned that it meant to "imply no view of the validity of waiting-period or residence requirements determining eligibility [inter alia] to obtain a license to practice a profession, to hunt or fish, and so forth." 394 U.S., at 638 n. 21. </s> [Footnote 14 Dept. of Health, Education, and Welfare (HEW) Report on Medical Resources Available to Meet the Needs of Public Assistance Recipients, House Committee on Ways and Means, 86th Cong., 2d Sess., 74 (Comm. Print 1961). Similarly, President Nixon has observed: "`It is health which is real wealth,' said Ghandi, `and not pieces of gold and silver.'" Health, Message from the President, 92d Cong., 1st Sess., H. R. Doc. No. 92-49, p. 18 (1971). See also materials cited at n. 4, supra. </s> [Footnote 15 Reference to the tuition cases is instructive. The lower courts have contrasted in-state tuition with "necessities of life" in a way that would clearly include medical care in the latter category. The District Court in Starns v. Malkerson, 326 F. Supp. 234, 238 (Minn. 1970), aff'd, 401 U.S. 985 (1971), quoted with approval from Kirk v. Board of Regents, 273 Cal. App. 2d 430, 440, 78 Cal. Rptr. 260, 266-267 (1969), appeal dismissed, 396 U.S. 554 (1970) (emphasis added): </s> "`While we fully recognize the value of higher education, we cannot equate its attainment with food, clothing and shelter. Shapiro involved the immediate and pressing need for preservation of life and health of persons unable to live without public assistance, and their dependent children. Thus, the residence requirement in Shapiro could cause great suffering and even loss of life. The durational residence requirement for attendance at publicly financed institutions of higher learning [does] not involve similar risks. Nor was petitioner . . . precluded from the benefit of obtaining higher education. Charging higher tuition fees to non-resident students cannot be equated with granting of basic subsistence to one class of needy residents while denying it to an equally needy class of residents.'" </s> See also Note, The Constitutionality of Nonresident Tuition, 55 Minn. L. Rev. 1139, 1149-1158 (1971). Moreover, in Vlandis, supra, the Court observed that "special problems [are] involved in determining the bona fide residence of college students who come from out of State to attend [a] public university . . .," since those students are characteristically transient, 412 U.S., at 452 . There is no such ambiguity about whether appellant Evaro is a bona fide resident of Maricopa County. </s> [Footnote 16 108 Ariz. 373, 374, 498 P.2d 461, 462 (emphasis added). </s> [Footnote 17 See Valenciano v. Bateman, 323 F. Supp. 600, 603 (Ariz. 1971). See generally HEW Report on Medical Resources, supra, n. 14, at 73-74; Dept. of HEW, Human Investment Programs: Delivery of Health Services for the Poor (1967). </s> [Footnote 18 See HEW, Hill-Burton Project Register, July 1, 1947-June 30, 1967. HEW Publication No. (HSM) 72-4011, p. 37. Maricopa County has received over $2 million in Hill-Burton (42 U.S.C. 291 et seq.) funds since 1947. </s> [Footnote 19 Medicaid, the primary federal program for providing medical care to indigents at public expense, does not permit participating States to apply a durational residence requirement as a condition to eligibility, 42 U.S.C. 1396a (b) (3), and "this conclusion of a coequal branch of Government is not without significance." Frontiero v. Richardson, 411 U.S. 677, 687 -688 (1973). The State of Arizona does not participate in the Medicaid program. </s> [Footnote 20 Cf. Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1223-1224 (1970); Note, Developments in the Law - Equal Protection, 82 Harv. L. Rev. 1065, 1076-1077 (1969). </s> [Footnote 21 The Arizona Supreme Court observed that because this case involves a governmental benefit akin to welfare, the "reasonable basis" test of Dandridge v. Williams, 397 U.S. 471 (1970), should apply. In upholding a state regulation placing an absolute limit on the amount of welfare assistance to be paid a dependent family regardless of size or actual need, the Court in Dandridge found it "enough that the State's action be rationally based and free from invidious discrimination." Id., at 487. The Court later distinguished Dandridge in Graham v. Richardson, 403 U.S. 365, 376 (1971), where MR. JUSTICE BLACKMUN, writing for the Court, observed that "[a]ppellants' attempted reliance on Dandridge . . . is also misplaced, since the classification involved in that case [did not impinge] upon a fundamental constitutional right. . . ." Strict scrutiny is required here because the challenged classification impinges on the right of interstate travel. Compare Dandridge, supra, at 484 n. 16, with Shapiro v. Thompson, supra. </s> [Footnote 22 Shapiro v. Thompson, 394 U.S., at 629 . </s> [Footnote 23 See Cantor, The Law and Poor People's Access to Health Care, 35 Law & Contemp. Prob. 901, 909-914 (1970); cf. Catholic Medical Center v. Rockefeller, 305 F. Supp. 1256 and 1268 (EDNY 1969), vacated and remanded, 397 U.S. 820 , aff'd on remand, 430 F.2d 1297, appeal dismissed, 400 U.S. 931 (1970). </s> [Footnote 24 HEW Report on Medical Resources, supra, n. 14, at 74. See generally Health, Message from the President, supra, n. 14; E. Kennedy, In Critical Condition: The Crises in America's Health Care (1973); Hearings on The Health Care Crisis in America before the Subcommittee on Health of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess. (1971). </s> [Footnote 25 Cantor, supra, n. 23; See E. Kennedy, supra, n. 24, at 78-94; Note, Working Rules for Assuring Nondiscrimination in Hospital Administration, 74 Yale L. J. 151, 156 n. 32 (1964); cf., e. g., Stanturf v. Sipes, 447 S. W. 2d 558 (Mo. 1969) (hospital refused treatment to frostbite victim who was unable to pay $25 deposit). See generally HEW Report on Medical Resources, supra, n. 14, at 74; Hearings on The Health Care Crisis in America, supra, n. 24. </s> [Footnote 26 "[L]ack of timely hospitalization and medical care for those unable to pay has been considered an economic liability to the patient, the hospital, and to the community in which these citizens [415 U.S. 250, 266] might otherwise be self-supporting . . . ." HEW Report on Medical Resources, supra, n. 14, at 73; Comment, Indigents, Hospital Admissions and Equal Protection, 5 U. Mich. J. L. Reform 502, 515-516 (1972); cf. Battistella & Southby, Crisis in American Medicine, The Lancet 581, 582 (Mar. 16, 1968). </s> [Footnote 27 See Green v. Dept. of Public Welfare of Delaware, 270 F. Supp. 173, 177-178 (Del. 1967). </s> [Footnote 28 Ariz. Rev. Stat. Ann. 46-292 (1) (Supp. 1973-1974). </s> [Footnote 29 46-261.02 (3) (Supp. 1973-1974). </s> [Footnote 30 In addition, Pima County, Arizona, did not apply the durational residence requirement between August 1969, when the requirement was found unconstitutional by the Arizona Court of Appeals, Board of Supervisors, Pima County v. Robinson, 10 Ariz. App. 238, 457 P.2d 951, and September 1970, when that judgment was vacated as moot by the Arizona Supreme Court, 105 Ariz. 280, 463 P.2d 536. </s> MR. JUSTICE DOUGLAS. </s> The legal and economic aspects of medical care 1 are enormous; and I doubt if decisions under the Equal Protection Clause of the Fourteenth Amendment are equal to the task of dealing with these matters. So far as interstate travel per se is considered, I share the doubts of my Brother REHNQUIST. The present case, however, turns for me on a different axis. The problem has many aspects. The therapy of Arizona's atmosphere brings many there who suffer from asthma, bronchitis, arthritis, and tuberculosis. Many coming are indigent or become indigent after arrival. Arizona does not deny medical help to "emergency" cases "when immediate hospitalization or medical care is necessary for the preservation of life or limb," Ariz. Rev. Stat. Ann. 11-297A (Supp. 1973-1974). For others, it requires a 12-month durational residence. </s> The Act is not aimed at interstate travelers; it applies even to a long-term resident who moves from one county to another. As stated by the Supreme Court of Arizona in the present case: "The requirement applies to all citizens within the state including long term residents of one county who move to another county. Thus, the classification does not single out non-residents nor attempt to penalize interstate travel. The requirement is uniformly applied." 108 Ariz. 373, 375, 498 P.2d 461, 463. [415 U.S. 250, 271] </s> What Arizona has done, therefore, is to fence the poor out of the metropolitan countries, such as Maricopa County (Phoenix) and Pima County (Tucson) by use of a durational residence requirement. We are told that eight Arizona counties have no county hospitals and that most indigent care in those areas exists only on a contract basis. In San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 , we had a case where Texas created a scheme by which school districts with a low property tax base, from which they could raise only meager funds, offered a lower quality of education to their students than the wealthier districts. That system was upheld against the charge that the state system violated the Equal Protection Clause. It was a closely divided Court and I was in dissent. I suppose that if a State can fence in the poor in educational programs, it can do so in medical programs. But to allow Arizona freedom to carry forward its medical program we must go one step beyond the San Antonio case. In the latter there was no legal barrier to movement into a better district. Here a one-year barrier to medical care, save for "emergency" care, is erected around the areas that have medical facilities for the poor. </s> Congress has struggled with the problem. In the Kerr-Mills Act of 1960, 74 Stat. 987, 42 U.S.C. 302 (b) (2), it added provisions to the Social Security Act requiring the Secretary of Health, Education, and Welfare to disapprove any state plan for medical assistance to the aged (Medicaid) that excludes "any individual who resides in the state," thus eliminating durational residence requirements. </s> Maricopa County has received over $2 million in federal funds for hospital construction under the Hill-Burton Act, 42 U.S.C. 291 et seq. Section 291c (e) authorizes the issuance of regulations governing the operation [415 U.S. 250, 272] of Hill-Burton facilities. The regulations contain conditions that the facility to be constructed or modernized with the funds "will be made available to all persons residing in the territorial area of the applicant" and that the applicant will render "a reasonable volume of services to persons unable to pay therefor." 2 The conditions of free services for indigents, however, may be waived if "not feasible from a financial viewpoint." </s> Prior to the application the state agency must obtain from the applicant an assurance "that there will be made available in the facility or portion thereof to be constructed or modernized a reasonable volume of services to persons unable to pay therefor. The requirement of an assurance from an applicant shall be waived if the applicant demonstrates to the satisfaction of the State agency, subject to subsequent approval by the Secretary, that such a requirement is not feasible from a financial viewpoint." 42 CFR 53.111 (c) (1). 3 </s> So far as I can ascertain, the durational residence requirement imposed by Maricopa County has not been federally approved as a condition to the receipt of Hill-Burton funds. </s> Maricopa County does argue that it is not financially feasible to provide free nonemergency medical care to new residents. Even so, the federal regulatory framework does not leave the County uncontrolled in determining which indigents will receive the benefit of the resources which are available. It is clear, for example, that the County could not limit such service to whites out of [415 U.S. 250, 273] a professed inability to service indigents of all races because 42 CFR 53.112 (c) prohibits such discrimination in the operation of Hill-Burton facilities. It does not allow racial discrimination even against transients. </s> Moreover, Hill-Burton Act donees are guided by 42 CFR 53.111 (g), which sets out in some detail the criteria which must be used in identifying persons unable to pay for such services. The criteria include the patient's health and medical insurance coverage, personal and family income, financial obligations and resources, and "similar factors." Maricopa County, pursuant to the state law here challenged, employs length of county residence as an additional criterion in identifying indigent recipients of uncompensated nonemergency medical care. The federal regulations, however, do not seem to recognize that as an acceptable criterion. </s> And, as we held in Thorpe v. Housing Authority, 393 U.S. 268 ; Mourning v. Family Publications Service, 411 U.S. 356 , these federal conditions attached to federal grants are valid when "reasonably related to the purposes of the enabling legislation." 393 U.S., at 280 -281. </s> It is difficult to impute to Congress approval of the durational residence requirement, for the implications of such a decision would involve weighty equal protection considerations by which the Federal Government, Bolling v. Sharpe, 347 U.S. 497 , as well as the States, are bound. </s> The political processes 4 rather than equal protection litigation are the ultimate solution of the present problem. But in the setting of this case the invidious discrimination against the poor, Harper v. Virginia Board [415 U.S. 250, 274] of Elections, 383 U.S. 663 , not the right to travel inter-state, is in my view the critical issue. </s> APPENDIX TO OPINION OF DOUGLAS, J. </s> GOURMAND AND FOOD - A FABLE 5 </s> The people of Gourmand loved good food. They ate in good restaurants, donated money for cooking research, and instructed their government to safeguard all matters having to do with food. Long ago, the food industry had been in total chaos. There were many restaurants, some very small. Anyone could call himself a chef or open a restaurant. In choosing a restaurant, one could never be sure that the meal would be good. A commission of distinguished chefs studied the situation and recommended that no one be allowed to touch food except for qualified chefs. "Food is too important to be left to amateurs," they said. Qualified chefs were licensed by the state with severe penalties for anyone else who engaged in cooking. Certain exceptions were made for food preparation in the home, but a person could serve only his own family. Furthermore, to become a qualified chef, a man had to complete at least twenty-one years of training (including four years of college, four years of cooking school, and one year of apprenticeship). All cooking schools had to be first class. </s> These reforms did succeed in raising the quality of cooking. But a restaurant meal became substantially more expensive. A second commission observed that not everyone could afford to eat out. "No one," they said, "should be denied a good meal because of his [415 U.S. 250, 275] income." Furthermore, they argued that chefs should work toward the goal of giving everyone "complete physical and psychological satisfaction." For those people who could not afford to eat out, the government declared that they should be allowed to do so as often as they liked and the government would pay. For others, it was recommended that they organize themselves in groups and pay part of their income into a pool that would undertake to pay the costs incurred by members in dining out. To insure the greatest satisfaction, the groups were set up so that a member could eat out anywhere and as often as he liked, could have as elaborate a meal as he desired, and would have to pay nothing or only a small percentage of the cost. The cost of joining such prepaid dining clubs rose sharply. </s> Long ago, most restaurants would have one chef to prepare the food. A few restaurants were more elaborate, with chefs specializing in roasting, fish, salads, sauces, and many other things. People rarely went to these elaborate restaurants since they were so expensive. With the establishment of prepaid dining clubs, everyone wanted to eat at these fancy restaurants. At the same time, young chefs in school disdained going to cook in a small restaurant where they would have to cook everything. The pay was higher and it was much more prestigious to specialize and cook at a really fancy restaurant. Soon there were not enough chefs to keep the small restaurants open. </s> With prepaid clubs and free meals for the poor, many people started eating their three-course meals at the elaborate restaurants. Then they began to increase the number of courses, directing the chef to "serve the best with no thought for the bill." (Recently a 317-course meal was served.) </s> The costs of eating out rose faster and faster. A new [415 U.S. 250, 276] government commission reported as follows: (1) Noting that licensed chefs were being used to peel potatoes and wash lettuce, the commission recommended that these tasks be handed over to licensed dishwashers (whose three years of dishwashing training included cooking courses) or to some new category of personnel. (2) Concluding that many licensed chefs were overworked, the commission recommended that cooking schools be expanded, that the length of training be shortened, and that applicants with lesser qualifications be admitted. (3) The commission also observed that chefs were unhappy because people seemed to be more concerned about the decor and service than about the food. (In a recent taste test, not only could one patron not tell the difference between a 1930 and a 1970 vintage but he also could not distinguish between white and red wines. He explained that he always ordered the 1930 vintage because he knew that only a really good restaurant would stock such an expensive wine.) </s> The commission agreed that weighty problems faced the nation. They recommended that a national prepayment group be established which everyone must join. They recommended that chefs continue to be paid on the basis of the number of dishes they prepared. They recommended that every Gourmandese be given the right to eat anywhere he chose and as elaborately as he chose and pay nothing. </s> These recommendations were adopted. Large numbers of people spent all of their time ordering incredibly elaborate meals. Kitchens became marvels of new, expensive equipment. All those who were not consuming restaurant food were in the kitchen preparing it. Since no one in Gourmand did anything except prepare or eat meals, the country collapsed. </s> [Footnote 1 See appendix to this opinion, post, p. 274. </s> [Footnote 2 Title 42 CFR 53.111 (b) (8) defines that term to mean "a level of uncompensated services which meets a need for such services in the area served by an applicant and which is within the financial ability of such applicant to provide." </s> [Footnote 3 The waiver of such a requirement requires notice and opportunity for public hearing. 42 CFR 53.111 (c) (2). </s> [Footnote 4 For the impact of "free" indigent care on private hospitals and their paying patients see Dept. of Health, Education, and Welfare (HEW) Report on Medical Resources Available to Meet the Needs of Public Assistance Recipients, House Committee on Ways and Means, 86th Cong., 2d Sess. (Comm. Print 1961). </s> [Footnote 5 Foreword to an article on Medical Care and its Delivery: An Economic Appraisal by Judith R. Lave and Lester B. Lave in 35 Law & Contemp. Prob. 252 (1970). [415 U.S. 250, 277] </s> MR. JUSTICE REHNQUIST, dissenting. </s> I </s> The State of Arizona provides free medical care for indigents. Confronted, in common with its 49 sister States, with the assault of spiraling health and welfare costs upon limited state resources, it has felt bound to require that recipients meet three standards of eligibility. 1 First, they must be indigent, unemployable, or unable to provide their own care. Second, they must be residents of the county in which they seek aid. Third, they must have maintained their residence for a period of one year. These standards, however, apply only to persons seeking nonemergency aid. An exception is specifically provided for "emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb . . . ." </s> Appellant Evaro moved from New Mexico to Arizona in June 1971, suffering from a "chronic asthmatic and bronchial illness." In July 1971 he experienced a respiratory attack, and obtained treatment at the facilities of appellant Memorial Hospital, a privately operated [415 U.S. 250, 278] institution. The hospital sought to recover its expenses from appellee Maricopa County under the provisions of Ariz. Rev. Stat. Ann. 11-297A (Supp. 1973-1974), asserting that Evaro was entitled to receive county care. Since he did not satisfy the eligibility requirements discussed above, 2 appellee declined to assume responsibility for his care, and this suit was then instituted in the State Superior Court. </s> Appellants did not, and could not, claim that there is a constitutional right to nonemergency medical care at state or county expense or a constitutional right to reimbursement for care extended by a private hospital. 3 They asserted, however, that the state legislature, having decided to give free care to certain classes of persons, must give that care to Evaro as well. The Court upholds that claim, holding that the Arizona eligibility requirements burdened Evaro's "right to travel." </s> Unlike many traditional government services, such as police or fire protection, the provision of health care has commonly been undertaken by private facilities and personnel. But as strains on private services become greater, and the costs of obtaining care increase, federal, state, and local governments have been pressed to assume a larger role. Reasonably enough, it seems to me, those governments which now find themselves in the hospital business seek to operate that business primarily for those [415 U.S. 250, 279] persons dependent on the financing locality both by association and by need. </s> Appellants in this case nevertheless argue that the State's efforts, admirable though they may be, are simply not impressive enough. But others excluded by eligibility requirements certainly could make similar protests. Maricopa County residents of many years, paying taxes to both construct and support public hospital facilities, may be ineligible for care because their incomes are slightly above the marginal level for inclusion. These people have been excluded by the State, not because their claim on limited public resources is without merit, but because it has been deemed less meritorious than the claims of those in even greater need. Given a finite amount of resources, Arizona after today's decision may well conclude that its indigency threshold should be elevated since its counties must provide for out-of-state migrants as well as for residents of longer standing. These more stringent need requirements would then deny care to additional persons who until now would have qualified for aid. </s> Those presently excluded because marginally above the State's indigency standards, those who may be excluded in the future because of more stringent indigency requirements necessitated by today's decision, and appellant Evaro, all have a plausible claim to government-supported medical care. The choice between them necessitated by a finite amount of resources is a classic example of the determination of priorities to be accorded conflicting claims, and would in the recent past have been thought to be a matter particularly within the competence of the state legislature to decide. As this Court stated in Dandridge v. Williams, 397 U.S. 471, 487 (1970), "the Constitution does not empower this Court to second-guess state officials charged with the difficult [415 U.S. 250, 280] responsibility of allocating limited public welfare funds among the myriad of potential recipients." </s> The Court holds, however, that the State was barred from making the choice it made because of the burden its choice placed upon Evaro's "right to travel." Although the Court's definition of this "right" is hardly precise, the Court does state: "[T]he right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents." This rationale merits further attention. </s> II </s> The right to travel throughout the Nation has been recognized for over a century in the decisions of this Court. 4 See Crandall v. Nevada, 6 Wall. 35 (1868). But the concept of that right has not been static. To see how distant a cousin the right to travel enunciated in this case is to the right declared by the Court in Crandall, reference need only be made to the language of Mr. Justice Miller, speaking for the Court: </s> "But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are [415 U.S. 250, 281] conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it." Id., at 44. </s> The Court in Crandall established no right to free benefits from every State through which the traveler might pass, but more modestly held that the State could not use its taxing power to impede travel across its borders. 5 </s> Later cases also defined this right to travel quite conservatively. For example, in Williams v. Fears, 179 U.S. 270 (1900), the Court upheld a Georgia statute taxing "emigrant agents" - persons hiring labor for work outside the State - although agents hiring for local work went untaxed. The Court recognized that a right to travel existed, stating: </s> "Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution." Id., at 274. </s> The Court went on, however, to decide that the statute, despite the added cost it assessed against exported labor, affected freedom of egress "only incidentally and remotely." Ibid. 6 </s> [415 U.S. 250, 282] </s> The leading earlier case, Edwards v. California, 314 U.S. 160 (1941), provides equally little support for the Court's expansive holding here. In Edwards the Court invalidated a California statute which subjected to criminal penalties any person "that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person." Id., at 171. Five members of the Court found the statute unconstitutional under the Commerce Clause, finding in the Clause a "prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders." Id., at 173. Four concurring Justices found a better justification for the result in the Fourteenth Amendment's protection of the "privileges of national citizenship." 7 </s> Regardless of the right's precise source and definition, it is clear that the statute invalidated in Edwards was specifically designed to, and would, deter indigent persons from entering the State of California. The imposition of criminal penalties on all persons assisting the entry of an indigent served to block ingress as surely as if the State has posted guards at the border to turn indigents away. It made no difference to the operation of the statute that the indigent, once inside the State, would be supported by federal payments. 8 Furthermore, [415 U.S. 250, 283] the statute did not require that the indigent intend to take up continuous residence within the State. The statute was not therefore an incidental or remote barrier to migration, but was in fact an effective and purposeful attempt to insulate the State from indigents. </s> The statute in the present case raises no comparable barrier. Admittedly, some indigent persons desiring to reside in Arizona may choose to weigh the possible detriment of providing their own nonemergency health care during the first year of their residence against the total benefits to be gained from continuing location within the State, but their mere entry into the State does not invoke criminal penalties. To the contrary, indigents are free to live within the State, to receive welfare benefits necessary for food and shelter, 9 and to receive free emergency medical care if needed. Furthermore, once the indigent has settled within a county for a year, he becomes eligible for full medical care at county expense. To say, therefore, that Arizona's treatment of indigents compares with California's treatment during the 1930's would border on the frivolous. </s> Since those older cases discussing the right to travel are unhelpful to Evaro's cause here, reliance must be placed elsewhere. A careful reading of the Court's opinion discloses that the decision rests almost entirely on two cases of recent vintage: Shapiro v. Thompson, 394 U.S. 618 (1969), and Dunn v. Blumstein, 405 U.S. 330 (1972). In Shapiro the Court struck down statutes requiring one year's residence prior to receiving welfare benefits. In Dunn the Court struck down a statute requiring a year's residence before receiving the right to vote. In placing reliance on these two cases, the Court [415 U.S. 250, 284] must necessarily distinguish or discredit recent cases of this Court upholding statutes requiring a year's residence for lower in-state tuition. 10 The important question for this purpose, according to the Court's analysis, is whether a classification "`operates to penalize those persons . . . who have exercised their constitutional right of interstate migration.'" (Emphasis in Court's opinion.) </s> Since the Court concedes that "some `waiting-period[s] . . . may not be penalties,'" ante, at 258-259, one would expect to learn from the opinion how to distinguish a waiting period which is a penalty from one which is not. Any expense imposed on citizens crossing state lines but not imposed on those staying put could theoretically be deemed a penalty on travel; the toll exacted from persons crossing from Delaware to New Jersey by the Delaware Memorial Bridge is a "penalty" on interstate travel in the most literal sense of all. But such charges, 11 as well as other fees for use of transportation facilities such as taxes on airport users, 12 have been upheld by this Court against attacks based upon the right to travel. It seems to me that the line to be derived from our prior cases is that some financial impositions on interstate travelers have such indirect or inconsequential impact on travel that they simply do not constitute the type of direct purposeful barriers struck down in Edwards and Shapiro. Where the impact is that remote, a State can reasonably require that the citizen bear some proportion of the State's cost in its facilities. I would think that this standard is not only supported by this Court's decisions, but would be [415 U.S. 250, 285] eminently sensible and workable. But the Court not only rejects this approach, it leaves us entirely without guidance as to the proper standard to be applied. </s> The Court instead resorts to ipse dixit, declaring rather than demonstrating that the right to nonemergency medical care is within the class of rights protected by Shapiro and Dunn: </s> "Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least clear that medical care is as much `a basic necessity of life' to an indigent as welfare assistance. And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. See, e. g., Shapiro, supra; Goldberg v. Kelly, 397 U.S. 254, 264 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340 -342 (1969)." Ante, at 259. (Emphasis added; footnotes omitted.) </s> However clear this conclusion may be to the majority, it is certainly not clear to me. The solicitude which the Court has shown in cases involving the right to vote, 13 and the virtual denial of entry inherent in denial of welfare benefits - "the very means by which to live," Goldberg v. Kelly, 397 U.S. 254, 264 (1970) - ought not be so casually extended to the alleged deprivation here. Rather, the Court should examine, as it has done in the past, whether the challenged requirement erects a real and purposeful barrier to movement, or the threat of such a barrier, or whether the effects on travel, viewed realistically, are merely incidental and remote. As the above discussion has shown, the barrier here is hardly [415 U.S. 250, 286] a counterpart to the barriers condemned in earlier cases. That being so, the Court should observe its traditional respect for the State's allocation of its limited financial resources rather than unjustifiably imposing its own preferences. </s> III </s> The Court, in its examination of the proffered state interests, categorically rejects the contention that those who have resided in the county for a fixed period of time may have a greater stake in community facilities than the newly arrived. But this rejection is accomplished more by fiat than by reason. One of the principal factual distinctions between Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), aff'd, 401 U.S. 985 (1971), and Vlandis v. Kline, 412 U.S. 441 (1973), both of which upheld durational residence requirements for in-state university tuition, 14 and Shapiro, which struck them down for welfare recipients, is the nature of the aid which the State or county provides. Welfare benefits, whether in cash or in kind, are commonly funded from current tax revenues, which may well be supported by the very newest arrival as well as by the longtime resident. But universities and hospitals, although demanding operating support from current revenues, require extensive capital facilities which cannot possibly be funded out of current tax revenues. Thus, entirely apart from the majority's conception of whether nonemergency health care is more or less important than continued education, [415 U.S. 250, 287] the interest of longer established residents in capital facilities and their greater financial contribution to the construction of such facilities seems indisputable. 15 </s> Other interests advanced by the State to support its statutory eligibility criteria are also rejected virtually out of hand by the Court. The protection of the county economies is dismissed with the statement that "[t]he conservation of the taxpayers' purse is simply not a sufficient state interest . . . ." 16 The Court points out that the cost of care, if not borne by the Government, may be borne by private hospitals such as appellant Memorial Hospital. While this observation is doubtless true in large part, and is bound to present a problem to any private hospital, it does not seem to me that it thus becomes a constitutional determinant. The Court also observes that the State may in fact save money by providing nonemergency medical care rather than waiting for deterioration of an illness. However valuable a qualified cost analysis might be to legislators drafting eligibility requirements, and however little this speculation may bear on Evaro's condition (which the record does not indicate to have been a deteriorating illness), this sort of judgment has traditionally been confided to legislatures, rather than to courts charged with determining constitutional questions. </s> The Court likewise rejects all arguments based on [415 U.S. 250, 288] administrative objectives. Refusing to accept the assertion that a one-year waiting period is a "convenient rule of thumb to determine bona fide residence," the majority simply suggests its own alternatives. Similar analysis is applied in rejecting the appellees' argument based on the potential for fraud. The Court's declaration that an indigent applicant "intent on committing fraud, could as easily swear to having been a resident of the county for the preceding year as to being one currently" ignores the obvious fact that fabricating presence in the State for a year is surely more difficult than fabricating only a present intention to remain. </s> The legal question in this case is simply whether the State of Arizona has acted arbitrarily in determining that access to local hospital facilities for nonemergency medical care should be denied to persons until they have established residence for one year. The impediment which this quite rational determination has placed on appellant Evaro's "right to travel" is so remote as to be negligible: so far as the record indicates Evaro moved from New Mexico to Arizona three years ago and has remained ever since. The eligibility requirement has not the slightest resemblance to the actual barriers to the right of free ingress and egress protected by the Constitution, and struck down in cases such as Crandall and Edwards. And, unlike Shapiro, it does not involve an urgent need for the necessities of life or a benefit funded from current revenues to which the claimant may well have contributed. It is a substantial broadening of, and departure from, all of these holdings, all the more remarkable for the lack of explanation which accompanies the result. Since I can subscribe neither to the method nor the result, I dissent. </s> [Footnote 1 Ariz. Rev. Stat. Ann. 11-297A (Supp. 1973-1974) reads as follows: </s> "Except in emergency cases when immediate hospitalization or medical care is necessary for the preservation of life or limb no person shall be provided hospitalization, medical care or outpatient relief under the provisions of this article without first filing with a member of the board of supervisors of the county in which he resides a statement in writing, subscribed and sworn to under oath, that he is an indigent as shall be defined by rules and regulations of the state department of economic security, an unemployable totally dependent upon the state or county government for financial support, or an employable of sworn low income without sufficient funds to provide himself necessary hospitalization and medical care, and that he has been a resident of the county for the preceding twelve months." </s> [Footnote 2 The parties stipulated that Mr. Evaro was "an indigent who recently changed his residence from New Mexico to Arizona and who has resided in the state of Arizona for less than twelve months." App. 10. Therefore Mr. Evaro failed to meet only the third requirement discussed in the text. </s> [Footnote 3 This Court has noted that citizens have no constitutional right to welfare benefits. See, e. g., Dandridge v. Williams, 397 U.S. 471 (1970); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33 (1973). </s> [Footnote 4 Although the right to travel has been recognized by this Court for over a century, the origin of the right still remains somewhat obscure. The majority opinion in this case makes no effort to identify the source, simply relying on recent cases which state such a right exists. </s> [Footnote 5 The tax levied by the State of Nevada was upon every person leaving the State. As this Court has since noted, the tax was a direct tax on travel and was not intended to be a charge for the use of state facilities. See Evansville Airport v. Delta Airlines, 405 U.S. 707 (1972). </s> [Footnote 6 The Court also rejected an equal protection argument, concluding: "We are unable to say that such a discrimination, if it existed, [415 U.S. 250, 282] did not rest on reasonable grounds, and was not within the discretion of the state legislature." 179 U.S., at 276 . </s> [Footnote 7 See the concurring opinions of MR. JUSTICE DOUGLAS (with whom Mr. Justice Black and Mr. Justice Murphy joined), 314 U.S., at 177 , and Mr. Justice Jackson, id., at 181. </s> [Footnote 8 The Court in Edwards observed: "After arriving in California [the indigent] was aided by the Farm Security Administration, which . . . is wholly financed by the Federal government." 314 U.S., at 175 . The Court did not express a view at that time as to whether a different result would have been reached if the State bore the financial burden. But cf. Shapiro v. Thompson, 394 U.S. 618 (1969). </s> [Footnote 9 See Ariz. Rev. Stat. Ann. 46-233 (Supp. 1973-1974), which provides that an eligible recipient of general assistance must have "established residence at the time of application." </s> [Footnote 10 See Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), aff'd, 401 U.S. 985 (1971); Vlandis v. Kline, 412 U.S. 441 (1973). </s> [Footnote 11 See, e. g., Interstate Busses Corp. v. Blodgett, 276 U.S. 245 (1928); Hendrick v. Maryland, 235 U.S. 610 (1915). </s> [Footnote 12 See Evansville Airport v. Delta Airlines, 405 U.S. 707 (1972). </s> [Footnote 13 See, e. g., Evans v. Cornman, 398 U.S. 419 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). </s> [Footnote 14 In Vlandis, while striking down a Connecticut statute that in effect prevented a new state resident from obtaining lower tuition rates for the full period of enrollment, we stated that the decision should not "be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status." 412 U.S., at 452 . Starns was cited as support for this position. </s> [Footnote 15 This distinction may be particularly important in a State such as Arizona where the Constitution provides for limitations on state and county debt. See Ariz. Const., Art. 9, 5 (State); Art. 9, 8 (County). See generally Comment, Dulling the Edge of Husbandry: The Special Fund Doctrine in Arizona, 1971 L. & Soc. O. (Ariz. St. L. J.) 555. </s> [Footnote 16 The appellees in this case filed an affidavit indicating that acceptance of appellants' position would impose an added burden on property taxpayers in Maricopa County of over $2.5 million in the first year alone. App. 12-17. </s> [415 U.S. 250, 289]

United States Supreme Court WARD v. ROCK AGAINST RACISM(1989) No. 88-226 Argued: February 27, 1989Decided: June 22, 1989 </s> Respondent Rock Against Racism (RAR), furnishing its own sound equipment and technicians, has sponsored yearly programs of rock music at the Naumberg Acoustic Bandshell in New York City's Central Park. The city received numerous complaints about excessive noise at RAR's concerts from users of the nearby Sheep Meadow, an area designated by the city for passive recreation, from other users of the park, and from residents of areas adjacent to the park. Moreover, when the city shut off the power after RAR ignored repeated requests to lower the volume at one of its concerts, the audience became abusive and disruptive. The city also experienced problems at bandshell events put on by other sponsors, who, due to their use of inadequate sound equipment or sound technicians unskilled at mixing sound for the bandshell area, were unable to provide sufficient amplification levels, resulting in disappointed or unruly audiences. Rejecting various other solutions to the excessive noise and inadequate amplification problems, the city adopted a Use Guideline for the bandshell which specified that the city would furnish high quality sound equipment and retain an independent, experienced sound technician for all performances. After the city implemented this guideline, RAR amended a pre-existing District Court complaint against the city to seek damages and a declaratory judgment striking down the guideline as facially invalid under the First Amendment. The court upheld the guideline, finding, inter alia, that performers who had used the city's sound system and technician had been uniformly pleased; that, although the city's technician ultimately controlled both sound volume and mix, the city's practice was to give the sponsor autonomy as to mix and to confer with him before turning the volume down; and that the city's amplification system was sufficient for RAR's needs. Applying this Court's three-part test for judging the constitutionality of governmental regulation of the time, place, and manner of protected speech, the court found the guideline valid. The Court of Appeals reversed on the ground that such regulations' method and extent must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve the regulations purpose, finding that there were various less restrictive means by which the city could control excessive volume without also intruding on RAR's ability to control sound mix. [491 U.S. 781, 782] </s> Held: </s> The city's sound-amplification guideline is valid under the First Amendment as a reasonable regulation of the place and manner of protected speech. Pp. 790-803. </s> (a) The guideline is content neutral, since it is justified without reference to the content of the regulated speech. The city's principal justification - the desire to control noise in order to retain the sedate character of the Sheep Meadow and other areas of the park and to avoid intrusion into residential areas - has nothing to do with content. The city's other justification, its interest in ensuring sound quality, does not render the guideline content based as an attempt to impose subjective standards of acceptable sound mix on performers, since the city has expressly disavowed any such intent and requires its technician to defer to the sponsor's wishes as to mix. On the record below, the city's sound quality concern extends only to the clearly content-neutral goals of ensuring adequate amplification and avoiding volume problems associated with inadequate mix. There is no merit to RAR's argument that the guideline is nonetheless invalid on its face because it places unbridled discretion in the hands of city enforcement officials. Even granting the doubtful proposition that this claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority, the claim nevertheless fails, since the guideline's own terms in effect forbid officials purposely to select an inadequate system or to vary sound quality or volume based on the performer's message. Moreover, the city has applied a narrowing construction to the guideline by requiring officials to defer to sponsors on sound quality and confer with them as to volume problems, and by mandating that amplification be sufficient for the sound to reach all concert ground listeners. Pp. 791-796. </s> (b) The guideline is narrowly tailored to serve significant governmental interests. That the city has a substantial interest in protecting citizens from unwelcome and excessive noise, even in a traditional public forum such as the park, cannot be doubted. Moreover, it has a substantial interest in ensuring the sufficiency of sound amplification at bandshell events in order to allow citizens to enjoy the benefits of the park, in light of the evidence that inadequate amplification had resulted in the inability of some audiences to hear performances. The Court of Appeals erred in requiring the city to prove that the guideline was the least intrusive means of furthering these legitimate interests, since a "less-restrictive-alternative analysis" has never been - and is here, again, specifically rejected as - a part of the inquiry into the validity of a time, place, or manner regulation. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 ; Regan v. Time, Inc., 468 U.S. 641 . The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be [491 U.S. 781, 783] achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest. If these standards are met, courts should defer to the government's reasonable determination. Here, the city's substantial interest in limiting sound volume is served in a direct and effective way by the requirement that its technician control the mixing board. Absent this requirement, the city's interest would have been served less well, as is evidenced by the excessive noise complaints generated by RAR's past concerts. The city also could reasonably have determined that, overall, its interest in ensuring that sound amplification was sufficient to reach all concert ground listeners would be served less effectively without the guideline than with it, since, by providing competent technicians and adequate equipment, the city eliminated inadequate amplification problems that plagued some performers in the past. Furthermore, in the absence of evidence that the guideline had a substantial deleterious effect on the ability of performers to achieve the quality of sound they desired, there is no merit to RAR's contention that the guideline is substantially broader than necessary to achieve the city's legitimate ends. Pp. 796-802. </s> (c) The guideline leaves open ample alternative channels of communication, since it does not attempt to ban any particular manner or type of expression at a given place and time. Rather, it continues to permit expressive activity in the bandshell and has no effect on the quantity or content of that expression beyond regulating the extent of amplification. That the city's volume limitations may reduce to some degree the potential audience for RAR's speech is of no consequence, since there has been no showing that the remaining avenues of communication are inadequate. Pp. 802-803. </s> 848 F.2d 367, reversed. </s> KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., concurred in the result. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 803. </s> Leonard J. Koerner argued the cause for petitioners. With him on the brief were Peter L. Zimroth, Larry A. Sonnenshein, and Julian L. Kalkstein. </s> William M. Kunstler argued the cause for respondent. With him on the brief was Noah A. Kinigstein. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Bolton, Deputy [491 U.S. 781, 784] Solicitor General Ayer, Stephen L. Nightingale, and John F. Cordes; and for the National League of Cities by Benna Ruth Solomon, Joyce Holmes Benjamin, and Ogden N. Lewis. [491 U.S. 781, 784] </s> JUSTICE KENNEDY delivered the opinion of the Court. </s> In the southeast portion of New York City's Central Park, about 10 blocks upward from the park's beginning point at 59th Street, there is an amphitheater and stage structure known as the Naumberg Acoustic Bandshell. The bandshell faces west across the remaining width of the park. In close proximity to the bandshell, and lying within the directional path of its sound, is a grassy open area called the Sheep Meadow. The city has designated the Sheep Meadow as a quiet area for passive recreations like reclining, walking, and reading. Just beyond the park, and also within the potential sound range of the bandshell, are the apartments and residences of Central Park West. </s> This case arises from the city's attempt to regulate the volume of amplified music at the bandshell so the performances are satisfactory to the audience without intruding upon those who use the Sheep Meadow or live on Central Park West and in its vicinity. </s> The city's regulation requires bandshell performers to use sound-amplification equipment and a sound technician provided by the city. The challenge to this volume control technique comes from the sponsor of a rock concert. The trial court sustained the noise control measures, but the Court of Appeals for the Second Circuit reversed. We granted certiorari to resolve the important First Amendment issues presented by the case. </s> I </s> Rock Against Racism, respondent in this case, is an unincorporated association which, in its own words, is "dedicated to the espousal and promotion of antiracist views." App. to Pet. for Cert. 3. Each year from 1979 through 1986, RAR has sponsored a program of speeches and rock music at the [491 U.S. 781, 785] bandshell. RAR has furnished the sound equipment and sound technician used by the various performing groups at these annual events. </s> Over the years, the city received numerous complaints about excessive sound amplification at respondent's concerts from park users and residents of areas adjacent to the park. On some occasions RAR was less than cooperative when city officials asked that the volume be reduced; at one concert, police felt compelled to cut off the power to the sound system, an action that caused the audience to become unruly and hostile. App. 127-131, 140-141, 212-214, 345-347. </s> Before the 1984 concert, city officials met with RAR representatives to discuss the problem of excessive noise. It was decided that the city would monitor sound levels at the edge of the concert ground, and would revoke respondent's event permit if specific volume limits were exceeded. Sound levels at the concert did exceed acceptable levels for sustained periods of time, despite repeated warnings and requests that the volume be lowered. Two citations for excessive volume were issued to respondent during the concert. When the power was eventually shut off, the audience became abusive and disruptive. </s> The following year, when respondent sought permission to hold its upcoming concert at the bandshell, the city declined to grant an event permit, citing its problems with noise and crowd control at RAR's previous concerts. The city suggested some other city-owned facilities as alternative sites for the concert. RAR declined the invitation and filed suit in United States District Court against the city, its mayor, and various police and parks department officials, seeking an injunction directing issuance of an event permit. After respondent agreed to abide by all applicable regulations, the parties reached agreement and a permit was issued. </s> The city then undertook to develop comprehensive New York City Parks Department Use Guidelines for the Naumberg Bandshell. A principal problem to be addressed by [491 U.S. 781, 786] the guidelines was controlling the volume of amplified sound at bandshell events. A major concern was that at some bandshell performances the event sponsors had been unable to "provide the amplification levels required and `crowds unhappy with the sound became disappointed or unruly.'" Brief for Petitioners 9. The city found that this problem had several causes, including inadequate sound equipment, sound technicians who were either unskilled at mixing sound outdoors or unfamiliar with the acoustics of the bandshell and its surroundings, and the like. Because some performers compensated for poor sound mix by raising volume, these factors tended to exacerbate the problem of excess noise. 1 App. 30, 189, 218-219. </s> The city considered various solutions to the sound-amplification problem. The idea of a fixed decibel limit for all performers using the bandshell was rejected because the impact on listeners of a single decibel level is not constant, but varies in response to changes in air temperature, foliage, audience size, and like factors. Id., at 31, 220, 285-286. The city also rejected the possibility of employing a sound technician to operate the equipment provided by the various sponsors of bandshell events, because the city's technician might have had difficulty satisfying the needs of sponsors while operating unfamiliar, and perhaps inadequate, sound equipment. Id., [491 U.S. 781, 787] at 220. Instead, the city concluded that the most effective way to achieve adequate but not excessive sound amplification would be for the city to furnish high quality sound equipment and retain an independent, experienced sound technician for all performances at the bandshell. After an extensive search the city hired a private sound company capable of meeting the needs of all the varied users of the bandshell. </s> The Use Guidelines were promulgated on March 21, 1986. 2 After learning that it would be expected to comply with the guidelines at its upcoming annual concert in May 1986, respondent returned to the District Court and filed a motion for an injunction against the enforcement of certain aspects of the guidelines. The District Court preliminarily enjoined enforcement of the sound-amplification rule on May 1, 1986. See 636 F. Supp. 178 (SDNY 1986). Under the protection of the injunction, and alone among users of the bandshell in the 1986 season, RAR was permitted to use its own sound equipment [491 U.S. 781, 788] and technician, just as it had done in prior years. RAR's 1986 concert again generated complaints about excessive noise from park users and nearby residents. App. 127, 138. </s> After the concert, respondent amended its complaint to seek damages and a declaratory judgment striking down the guidelines as facially invalid. After hearing five days of testimony about various aspects of the guidelines, the District Court issued its decision upholding the sound-amplification guideline. 3 The court found that the city had been "motivated by a desire to obtain top-flight sound equipment and experienced operators" in selecting an independent contractor to provide the equipment and technician for bandshell events, and that the performers who did use the city's sound system in the 1986 season, in performances "which ran the full cultural gamut from grand opera to salsa to reggae," were uniformly pleased with the quality of the sound provided. 658 F. Supp. 1346, 1352 (SDNY 1987). </s> Although the city's sound technician controlled both sound volume and sound mix by virtue of his position at the mixing board, the court found that "[t]he City's practice for events at the Bandshell is to give the sponsor autonomy with respect to the sound mix: balancing treble with bass, highlighting a particular instrument or voice, and the like," and that the city's sound technician "does all he can to accommodate the sponsor's desires in those regards." Ibid. Even with respect to volume control, the city's practice was to confer with the sponsor before making any decision to turn the volume down. Ibid. In some instances, as with a New York Grand Opera performance, the sound technician accommodated the performers' unique needs by integrating special microphones with the city's equipment. The court specifically found that "[t]he City's implementation of the Bandshell guidelines provides for a sound amplification system capable of meeting [491 U.S. 781, 789] RAR's technical needs and leaves control of the sound `mix' in the hands of RAR." Id., at 1353. Applying this Court's three-part test for judging the constitutionality of government regulation of the time, place, or manner of protected speech, the court found the city's regulation valid. </s> The Court of Appeals reversed. 848 F.2d 367 (CA2 1988). After recognizing that "[c]ontent neutral time, place and manner regulations are permissible so long as they are narrowly tailored to serve a substantial government interest and do not unreasonably limit alternative avenues of expression," the court added the proviso that "the method and extent of such regulation must be reasonable, that is, it must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve a legitimate purpose of the regulation." Id., at 370 (citing United States v. O'Brien, 391 U.S. 367, 377 (1968)). Applying this test, the court determined that the city's guideline was valid only to the extent necessary to achieve the city's legitimate interest in controlling excessive volume, but found there were various alternative means of controlling volume without also intruding on respondent's ability to control the sound mix. For example, the city could have directed respondent's sound technician to keep the volume below specified levels. Alternatively, a volume-limiting device could have been installed; and as a "last resort," the court suggested, "the plug can be pulled on the sound to enforce the volume limit." 848 F.2d, at 372, n. 6. In view of the potential availability of these seemingly less restrictive alternatives, the Court of Appeals concluded that the sound-amplification guideline was invalid because the city had failed to prove that its regulation "was the least intrusive means of regulating the volume." Id., at 371. </s> We granted certiorari, 488 U.S. 816 (1988), to clarify the legal standard applicable to governmental regulation of the time, place, or manner of protected speech. Because the Court of Appeals erred in requiring the city to prove that its regulation was the least intrusive means of furthering its legitimate [491 U.S. 781, 790] governmental interests, and because the ordinance is valid on its face, we now reverse. </s> II </s> Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. See 2 Dialogues of Plato, Republic, bk. 3, pp. 231, 245-248 (B. Jowett transl., 4th ed. 1953) ("Our poets must sing in another and a nobler strain"); Musical Freedom and Why Dictators Fear It, N. Y. Times, Aug. 23, 1981, section 2, p. 1, col. 5; Soviet Schizophrenia toward Stravinsky, N. Y. Times, June 26, 1982, section 1, p. 25, col. 2; Symphonic Voice from China Is Heard Again, N. Y. Times, Oct. 11, 1987, section 2, p. 27, col. 1. The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment. In the case before us the performances apparently consisted of remarks by speakers, as well as rock music, but the case has been presented as one in which the constitutional challenge is to the city's regulation of the musical aspects of the concert; and, based on the principle we have stated, the city's guideline must meet the demands of the First Amendment. The parties do not appear to dispute that proposition. </s> We need not here discuss whether a municipality which owns a bandstand or stage facility may exercise, in some circumstances, a proprietary right to select performances and control their quality. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 570 -574 (1975) (REHNQUIST, J., dissenting). Though it did demonstrate its own interest in the effort to insure high quality performances by providing the equipment in question, the city justifies its guideline as a regulatory measure to limit and control noise. Here the bandshell was open, apparently, to all performers; and we decide [491 U.S. 781, 791] the case as one in which the bandshell is a public forum for performances in which the government's right to regulate expression is subject to the protections of the First Amendment. United States v. Grace, 461 U.S. 171, 177 (1983); see Frisby v. Schultz, 487 U.S. 474, 481 (1988); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). Our cases make clear, however, that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); see Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981) (quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)). We consider these requirements in turn. </s> A </s> The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Community for Creative Non-Violence, supra, at 295. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 -48 (1986). Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of the regulated speech." Community for Creative Non-Violence, supra, at 293 (emphasis added); Heffron, supra, at 648 (quoting Virginia Pharmacy Bd., supra, at [491 U.S. 781, 792] 771); see Boos v. Barry, 485 U.S. 312, 320 -321 (1988) (opinion of O'CONNOR, J.). </s> The principal justification for the sound-amplification guideline is the city's desire to control noise levels at bandshell events, in order to retain the character of the Sheep Meadow and its more sedate activities, and to avoid undue intrusion into residential areas and other areas of the park. This justification for the guideline "ha[s] nothing to do with content," Boos v. Barry, supra, at 320, and it satisfies the requirement that time, place, or manner regulations be content neutral. </s> The only other justification offered below was the city's interest in "ensur[ing] the quality of sound at Bandshell events." 658 F. Supp., at 1352; see 848 F.2d, at 370, n. 3. Respondent urges that this justification is not content neutral because it is based upon the quality, and thus the content, of the speech being regulated. In respondent's view, the city is seeking to assert artistic control over performers at the bandshell by enforcing a bureaucratically determined, value-laden conception of good sound. That all performers who have used the city's sound equipment have been completely satisfied is of no moment, respondent argues, because "[t]he First Amendment does not permit and cannot tolerate state control of artistic expression merely because the State claims that [its] efforts will lead to `top-quality' results." Brief for Respondent 19. </s> While respondent's arguments that the government may not interfere with artistic judgment may have much force in other contexts, they are inapplicable to the facts of this case. The city has disclaimed in express terms any interest in imposing its own view of appropriate sound mix on performers. To the contrary, as the District Court found, the city requires its sound technician to defer to the wishes of event sponsors concerning sound mix. 658 F. Supp., at 1352-1353. On this record, the city's concern with sound quality extends only to the clearly content-neutral goals of ensuring adequate [491 U.S. 781, 793] sound amplification and avoiding the volume problems associated with inadequate sound mix. 4 Any governmental attempt to serve purely esthetic goals by imposing subjective standards of acceptable sound mix on performers would raise serious First Amendment concerns, but this case provides us with no opportunity to address those questions. As related above, the District Court found that the city's equipment and its sound technician could meet all of the standards requested by the performers, including RAR. </s> Respondent argues further that the guideline, even if not content based in explicit terms, is nonetheless invalid on its face because it places unbridled discretion in the hands of city officials charged with enforcing it. See Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769 -772 (1988) (4-to-3 decision); Heffron v. International Society for Krishna Consciousness, Inc., supra, at 649; Freedman v. Maryland, 380 U.S. 51, 56 (1965); Thornhill v. Alabama, 310 U.S. 88, 97 (1940). According to respondent, there is nothing in the language of the guideline to prevent city officials from selecting wholly inadequate sound equipment or technicians, or even from varying the volume and quality of sound based on the message being conveyed by the performers. </s> As a threshold matter, it is far from clear that respondent should be permitted to bring a facial challenge to this aspect of the regulation. Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that "ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity." Plain Dealer, supra, at 755. The grant of discretion that respondent [491 U.S. 781, 794] seeks to challenge here is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny bandshell permits altogether. Rather, respondent contends only that the city, by exercising what is concededly its right to regulate amplified sound, could choose to provide inadequate sound for performers based on the content of their speech. Since respondent does not claim that city officials enjoy unguided discretion to deny the right to speak altogether, it is open to question whether respondent's claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority. Cf. 486 U.S., at 787 (WHITE, J., dissenting) (arguing that facial challenges of this type are permissible only where "the local law at issue require[s] licenses - not for a narrow category of expressive conduct that could be prohibited - but for a sweeping range of First Amendment protected activity"). </s> We need not decide, however, whether the "extraordinary doctrine" that permits facial challenges to some regulations of expression, see id., at 772 (WHITE, J., dissenting), should be extended to the circumstances of this case, for respondent's facial challenge fails on its merits. The city's guideline states that its goals are to "provide the best sound for all events" and to "insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone of [the] Sheep Meadow." App. 375. While these standards are undoubtedly flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity. See Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) ("Condemned to the use of words, we can never expect mathematical certainty in our language"); see also Kovacs v. Cooper, 336 U.S. 77, 79 (1949) (rejecting vagueness challenge to city ordinance forbidding "loud and raucous" sound amplification) (opinion of Reed, J.). By its own terms the [491 U.S. 781, 795] city's sound-amplification guideline must be interpreted to forbid city officials purposely to select inadequate sound systems or to vary the sound quality or volume based on the message being delivered by performers. The guideline is not vulnerable to respondent's facial challenge. 5 </s> Even if the language of the guideline were not sufficient on its face to withstand challenge, our ultimate conclusion would be the same, for the city has interpreted the guideline in such a manner as to provide additional guidance to the officials charged with its enforcement. The District Court expressly found that the city's policy is to defer to the sponsor's desires concerning sound quality. 658 F. Supp., at 1352. With respect to sound volume, the city retains ultimate control, but city officials "mak[e] it a practice to confer with the sponsor if any questions of excessive sound arise, before taking any corrective action." Ibid. The city's goal of ensuring that "the sound amplification [is] sufficient to reach all listeners within the defined concertground," ibid., serves to limit further the discretion of the officials on the scene. Administrative interpretation and implementation of a regulation are, of course, highly relevant to our analysis, for "[i]n evaluating a facial [491 U.S. 781, 796] challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered." Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 , n. 5 (1982); see Plain Dealer, 486 U.S., at 769 -770, and n. 11; United States v. Grace, 461 U.S., at 181 , n. 10; Grayned v. City of Rockford, supra, at 110; Poulos v. New Hampshire, 345 U.S. 395 (1953). Any inadequacy on the face of the guideline would have been more than remedied by the city's narrowing construction. </s> B </s> The city's regulation is also "narrowly tailored to serve a significant governmental interest." Community for Creative Non-Violence, 468 U.S., at 293 . Despite respondent's protestations to the contrary, it can no longer be doubted that government "ha[s] a substantial interest in protecting its citizens from unwelcome noise." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806 (1984) (citing Kovacs v. Cooper, supra); see Grayned, supra, at 116. This interest is perhaps at its greatest when government seeks to protect "`the well-being, tranquility, and privacy of the home,'" Frisby v. Schultz, 487 U.S., at 484 (quoting Carey v. Brown, 447 U.S. 455, 471 (1980)), but it is by no means limited to that context, for the government may act to protect even such traditional public forums as city streets and parks from excessive noise. Kovacs v. Cooper, 336 U.S., at 86 -87 (opinion of Reed, J.); id., at 96-97 (Frankfurter, J., concurring); id., at 97 (Jackson, J., concurring); see Community for Creative Non-Violence, supra, at 296 (recognizing the government's "substantial interest in maintaining the parks . . . in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them"). </s> We think it also apparent that the city's interest in ensuring the sufficiency of sound amplification at bandshell events is a substantial one. The record indicates that inadequate [491 U.S. 781, 797] sound amplification has had an adverse affect on the ability of some audiences to hear and enjoy performances at the bandshell. The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benefits the city parks have to offer, from amplified music to silent meditation. See Community for Creative Non-Violence, supra, at 296. </s> The Court of Appeals recognized the city's substantial interest in limiting the sound emanating from the bandshell. See 848 F.2d, at 370. The court concluded, however, that the city's sound-amplification guideline was not narrowly tailored to further this interest, because "it has not [been] shown . . . that the requirement of the use of the city's sound system and technician was the least intrusive means of regulating the volume." Id., at 371 (emphasis added). In the court's judgment, there were several alternative methods of achieving the desired end that would have been less restrictive of respondent's First Amendment rights. </s> The Court of Appeals erred in sifting through all the available or imagined alternative means of regulating sound volume in order to determine whether the city's solution was "the least intrusive means" of achieving the desired end. This "less-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of a time, place, and manner regulation." Regan v. Time, Inc., 468 U.S. 641, 657 (1984) (opinion of WHITE, J.). Instead, our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid "simply because there is some imaginable alternative that might be less burdensome on speech." United States v. Albertini, 472 U.S. 675, 689 (1985). </s> The Court of Appeals apparently drew its least-intrusive-means requirement from United States v. O'Brien, 391 U.S., at 377 , the case in which we established the standard for judging the validity of restrictions on expressive conduct. See 848 F.2d, at 370. The court's reliance was misplaced, [491 U.S. 781, 798] however, for we have held that the O'Brien test "in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions." Community for Creative Non-Violence, supra, at 298. Indeed, in Community for Creative Non-Violence, we squarely rejected reasoning identical to that of the court below: </s> "We are unmoved by the Court of Appeals' view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the Government interest in preserving park lands. . . . We do not believe . . . that either United States v. O'Brien or the time, place, or manner decisions assign to the judiciary the authority to replace the [parks department] as the manager of the [city's] parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained." 468 U.S., at 299 . </s> Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. 6 </s> [491 U.S. 781, 799] Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." United States v. Albertini, supra, at 689; see also Community for Creative Non-Violence, supra, at 297. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. 7 See Frisby [491 U.S. 781, 800] v. Schultz, 487 U.S., at 485 ("A complete ban can be narrowly tailored but only if each activity within the proscription's scope is an appropriately targeted evil"). So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. "The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests" or the degree to which those interests should be promoted. United States v. Albertini, 472 U.S., at 689 ; see Community for Creative Non-Violence, supra, at 299. </s> It is undeniable that the city's substantial interest in limiting sound volume is served in a direct and effective way by the requirement that the city's sound technician control the mixing board during performances. Absent this requirement, the city's interest would have been served less well, as is evidenced by the complaints about excessive volume generated by respondent's past concerts. The alternative regulatory methods hypothesized by the Court of Appeals reflect nothing more than a disagreement with the city over how much control of volume is appropriate or how that level of control is to be achieved. See Community for Creative Non-Violence, supra, at 299. The Court of Appeals erred in failing to defer to the city's reasonable determination that its interest in controlling volume would be best served by requiring bandshell performers to utilize the city's sound technician. </s> The city's second content-neutral justification for the guideline, that of ensuring "that the sound amplification [is] sufficient to reach all listeners within the defined concert-ground," [491 U.S. 781, 801] 658 F. Supp., at 1352, also supports the city's choice of regulatory methods. By providing competent sound technicians and adequate amplification equipment, the city eliminated the problems of inexperienced technicians and insufficient sound volume that had plagued some bandshell performers in the past. No doubt this concern is not applicable to respondent's concerts, which apparently were characterized by more-than-adequate sound amplification. But that fact is beside the point, for the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case. Here, the regulation's effectiveness must be judged by considering all the varied groups that use the bandshell, and it is valid so long as the city could reasonably have determined that its interests overall would be served less effectively without the sound-amplification guideline than with it. United States v. Albertini, supra, at 688-689; Community for Creative Non-Violence, 468 U.S., at 296 -297. Considering these proffered justifications together, therefore, it is apparent that the guideline directly furthers the city's legitimate governmental interests and that those interests would have been less well served in the absence of the sound-amplification guideline. </s> Respondent nonetheless argues that the sound-amplification guideline is not narrowly tailored because, by placing control of sound mix in the hands of the city's technician, the guideline sweeps far more broadly than is necessary to further the city's legitimate concern with sound volume. According to respondent, the guideline "targets . . . more than the exact source of the `evil' it seeks to remedy." Frisby v. Schultz, supra, at 485. </s> If the city's regulatory scheme had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired, respondent's concerns would have considerable force. The District Court found, [491 U.S. 781, 802] however, that pursuant to city policy, the city's sound technician "give[s] the sponsor autonomy with respect to the sound mix . . . [and] does all that he can to accommodate the sponsor's desires in those regards." 658 F. Supp., at 1352. The court squarely rejected respondent's claim that the city's "technician is not able properly to implement a sponsor's instructions as to sound quality or mix," finding that "[n]o evidence to that effect was offered at trial; as noted, the evidence is to the contrary." App. to Pet. for Cert. 89. In view of these findings, which were not disturbed by the Court of Appeals, we must conclude that the city's guideline has no material impact on any performer's ability to exercise complete artistic control over sound quality. Since the guideline allows the city to control volume without interfering with the performer's desired sound mix, it is not "substantially broader than necessary" to achieve the city's legitimate ends, City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S., at 808 , and thus it satisfies the requirement of narrow tailoring. </s> C </s> The final requirement, that the guideline leave open ample alternative channels of communication, is easily met. Indeed, in this respect the guideline is far less restrictive than regulations we have upheld in other cases, for it does not attempt to ban any particular manner or type of expression at a given place or time. Cf. Frisby, supra, at 482-484; Community for Creative Non-Violence, supra, at 295; Renton v. Playtime Theatres, Inc., 475 U.S., at 53 -54. Rather, the guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification. That the city's limitations on volume may reduce to some degree the potential audience for respondent's speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate. See Taxpayers [491 U.S. 781, 803] for Vincent, supra, at 803, and n. 23, 812, and n. 30; Kovacs, 336 U.S., at 88 -89 (opinion of Reed, J.). </s> III </s> The city's sound-amplification guideline is narrowly tailored to serve the substantial and content-neutral governmental interests of avoiding excessive sound volume and providing sufficient amplification within the bandshell concert ground, and the guideline leaves open ample channels of communication. Accordingly, it is valid under the First Amendment as a reasonable regulation of the place and manner of expression. The judgment of the Court of Appeals is </s> Reversed. </s> JUSTICE BLACKMUN concurs in the result. </s> Footnotes [Footnote 1 The amplified sound heard at a rock concert consists of two components, volume and mix. Sound produced by the various instruments and performers on stage is picked up by microphones and fed into a central mixing board, where it is combined into one signal and then amplified through speakers to the audience. A sound technician is at the mixing board to select the appropriate mix, or balance, of the various sounds produced on stage, and to add other effects as desired by the performers. In addition to controlling the sound mix, the sound technician also controls the overall volume of sound reaching the audience. During the course of a performance, the sound technician is continually manipulating various controls on the mixing board to provide the desired sound mix and volume. The sound technician thus plays an important role in determining the quality of the amplified sound that reaches the audience. </s> [Footnote 2 In pertinent part, the Use Guidelines provide: </s> "SOUND AMPLIFICATION </s> "To provide the best sound for all events Department of Parks and Recreation has leased a sound amplification system designed for the specific demands of the Central Park Bandshell. To insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone of Sheep Meadow, all sponsors may use only the Department of Parks and Recreation sound system. DEPARTMENT OF PARKS AND RECREATION IS TO BE THE SOLE AND ONLY PROVIDER OF SOUND AMPLIFICATION, INCLUDING THOUGH NOT LIMITED TO AMPLIFIERS, SPEAKERS, MONITORS, MICROPHONES, AND PROCESSORS. </s> "Clarity of sound results from a combination of amplification equipment and a sound technician's familiarity and proficiency with that system. Department of Parks and Recreation will employ a professional sound technician [who] will be fully versed in sound bounce patterns, daily air currents, and sound skipping within the Park. The sound technician must also consider the Bandshell's proximity to Sheep Meadow, activities at Bethesda Terrace, and the New York City Department of Environmental Protection recommendations." App. 375-376. </s> [Footnote 3 The court invalidated certain other aspects of the Use Guidelines, but those provisions are not before us. </s> [Footnote 4 As noted above, there is evidence to suggest that volume control and sound mix are interrelated to a degree, in that performers unfamiliar with the acoustics of the bandshell sometimes attempt to compensate for poor sound mix by increasing volume. App. 218, 290-291. By providing adequate sound equipment and professional sound mixing, the city avoids this problem. </s> [Footnote 5 The dissent's suggestion that the guideline constitutes a prior restraint is not consistent with out cases. See post, at 808-809. As we said in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), the regulations we have found invalid as prior restraints have "had this in common: they gave public officials the power to deny use of a forum in advance of actual expression." Id., at 553. The sound-amplification guideline, by contrast, grants no authority to forbid speech, but merely permits the city to regulate volume to the extent necessary to avoid excessive noise. It is true that the city's sound technician theoretically possesses the power to shut off the volume for any particular performer, but that hardly distinguishes this regulatory scheme from any other; government will always possess the raw power to suppress speech through force, and indeed it was in part to avoid the necessity of exercising its power to "pull the plug" on the volume that the city adopted the sound-amplification guideline. The relevant question is whether the challenged regulation authorizes suppression of speech in advance of its expression, and the sound-amplification guideline does not. </s> [Footnote 6 Respondent contends that our decision last Term in Boos v. Barry, 485 U.S. 312 (1988), supports the conclusion that "a regulation is neither precisely drawn nor `narrowly tailored' if less intrusive means than those employed are available." Brief for Respondent 27. In Boos we concluded that the government regulation at issue was "not narrowly tailored; a less restrictive alternative is readily available." 485 U.S., at 329 (citing Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280 , n. 6 (1986) (plurality opinion)). In placing reliance on Boos, however, respondent ignores a crucial difference between that case and this. The regulation we invalidated in Boos was a content-based ban on displaying signs critical of foreign governments; such content-based restrictions on political speech "must be subjected to the most exacting scrutiny." 485 U.S., at 321 . While time, place, or manner regulations must also be "narrowly tailored" in order to survive First Amendment challenge, we have never applied strict scrutiny [491 U.S. 781, 799] in this context. As a result, the same degree of tailoring is not required of these regulations, and least-restrictive-alternative analysis is wholly out of place. For the same reason, the dissent's citation of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), is beside the point. See post, at 806, n. 4. Croson, like Boos, is a strict-scrutiny case; even the dissent does not argue that strict scrutiny is applicable to time, place, or manner regulations. </s> Our summary affirmance of Watseka v. Illinois Public Action Council, 796 F.2d 1547 (CA7 1986), aff'd, 479 U.S. 1048 (1987), is not to the contrary. Although the Seventh Circuit in that case did adopt the least-restrictive-alternative approach, see 796 F.2d, at 1553-1554, its judgment was also supported by the alternative grounds that the regulation at issue did not serve to further the stated governmental interests and did not leave open alternative channels of communication. Id., at 1555-1558. As we have noted on more than one occasion: "A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment." Anderson v. Celebrezze, 460 U.S. 780, 785 , n. 5 (1983). </s> [Footnote 7 The dissent's attempt to analogize the sound-amplification guideline to a total ban on distribution of handbills is imaginative but misguided. See post, at 806-807. The guideline does not ban all concerts, or even all rock concerts, but instead focuses on the source of the evils the city seeks to eliminate - excessive and inadequate sound amplification - and eliminates them without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils. This is the essence of narrow tailoring. A ban on handbilling, of course, would suppress a great quantity of speech that does not cause the evils that it seeks to eliminate, whether they be fraud, crime, litter, traffic congestion, or noise. See Martin v. Struthers, 319 U.S. 141, 145 -146 (1943). For that [491 U.S. 781, 800] reason, a complete ban on handbilling would be substantially broader than necessary to achieve the interests justifying it. </s> JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting. </s> No one can doubt that government has a substantial interest in regulating the barrage of excessive sound that can plague urban life. Unfortunately, the majority plays to our shared impatience with loud noise to obscure the damage that it does to our First Amendment rights. Until today, a key safeguard of free speech has been government's obligation to adopt the least intrusive restriction necessary to achieve its goals. By abandoning the requirement that time, place, and manner regulations must be narrowly tailored, the majority replaces constitutional scrutiny with mandatory deference. The majority's willingness to give government officials a free hand in achieving their policy ends extends so far as to permit, in this case, government control of speech in advance of its dissemination. Because New York City's Use Guidelines (Guidelines) are not narrowly tailored to serve its interest in regulating loud noise, and because they constitute an impermissible prior restraint, I dissent. [491 U.S. 781, 804] </s> I </s> The majority sets forth the appropriate standard for assessing the constitutionality of the Guidelines. A time, place, and manner regulation of expression must be content neutral, serve a significant government interest, be narrowly tailored to serve that interest, and leave open ample alternative channels of communication. See Frisby v. Schultz, 487 U.S. 474, 481 -482 (1988); Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 44 (1983). The Guidelines indisputably are content neutral as they apply to all bandshell users irrespective of the message of their music. App. 375; see Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 20 (1985). 1 They also serve government's significant interest in limiting loud noise in public places, see Grayned v. Rockford, 408 U.S. 104, 116 (1972), by giving the city exclusive control of all sound equipment. </s> My complaint is with the majority's serious distortion of the narrow tailoring requirement. Our cases have not, as the majority asserts, "clearly" rejected a less-restrictive-alternative test. Ante, at 797. On the contrary, just last Term, we held that a statute is narrowly tailored only "if it targets and eliminates no more than the exact source of the `evil' it seeks to remedy." Frisby v. Schultz, supra, at 485. While there is language in a few opinions which, taken out of [491 U.S. 781, 805] context, supports the majority's position, 2 in practice, the Court has interpreted the narrow tailoring requirement to mandate an examination of alternative methods of serving the asserted governmental interest and a determination whether the greater efficacy of the challenged regulation outweighs the increased burden it places on protected speech. See, e. g., Martin v. Struthers, 319 U.S. 141, 147 -148 (1943); Schneider v. State, 308 U.S. 147, 162 (1939). In Schneider, for example, the Court invalidated a ban on handbill distribution on public streets, notwithstanding that it was the most effective means of serving government's legitimate interest in minimizing litter, noise, and traffic congestion, and in preventing fraud. The Court concluded that punishing those who actually litter or perpetrate frauds was a much less intrusive, albeit not quite as effective, means to serve those significant interests. Id., at 162, 164; see also Martin, supra, at 148 (invalidating ban on door-to-door distribution of handbills because directly punishing fraudulent solicitation was a less intrusive, yet still effective, means of serving government's interest in preventing fraud). 3 </s> [491 U.S. 781, 806] </s> The Court's past concern for the extent to which a regulation burdens speech more than would a satisfactory alternative is noticeably absent from today's decision. The majority requires only that government show that its interest cannot be served as effectively without the challenged restriction. Ante, at 799. It will be enough, therefore, that the challenged regulation advances the government's interest only in the slightest, for any differential burden on speech that results does not enter the calculus. Despite its protestations to the contrary, the majority thus has abandoned the requirement that restrictions on speech be narrowly tailored in any ordinary use of the phrase. 4 Indeed, after today's decision, a city could claim that bans on handbill distribution or on door-to-door solicitation are the most effective means of avoiding littering and fraud, or that a ban on loudspeakers and radios in a public park is the most effective means of avoiding loud noise. Logically extended, the majority's analysis would permit such far-reaching restrictions on speech. </s> True, the majority states that "[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ibid. But this means that only those regulations that "engage in the gratuitous inhibition of expression" will be invalidated. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1485 (1975). Moreover, the majority has robbed courts of the necessary analytic tools to make even this limited inquiry. The Court of Appeals examined "how much control of volume is appropriate [and] how that level of control is to be achieved," ante, at 800, but the majority admonishes that court for doing so, stating that it should [491 U.S. 781, 807] have "defer[red] to the city's reasonable determination." Ibid. The majority thus instructs courts to refrain from examining how much speech may be restricted to serve an asserted interest and how that level of restriction is to be achieved. If a court cannot engage in such inquiries, I am at a loss to understand how a court can ascertain whether the government has adopted a regulation that burdens substantially more speech than is necessary. </s> Had the majority not abandoned the narrow tailoring requirement, the Guidelines could not possibly survive constitutional scrutiny. Government's interest in avoiding loud sounds cannot justify giving government total control over sound equipment, any more than its interest in avoiding litter could justify a ban on handbill distribution. In both cases, government's legitimate goals can be effectively and less intrusively served by directly punishing the evil - the persons responsible for excessive sounds and the persons who litter. Indeed, the city concedes that it has an ordinance generally limiting noise but has chosen not to enforce it. See Tr. of Oral. Arg. 5-6. 5 </s> By holding that the Guidelines are valid time, place, and manner restrictions, notwithstanding the availability of less intrusive but effective means of controlling volume, the majority deprives the narrow tailoring requirement of all meaning. 6 Today, the majority enshrines efficacy but sacrifices free speech. [491 U.S. 781, 808] </s> II </s> The majority's conclusion that the city's exclusive control of sound equipment is constitutional is deeply troubling for another reason. It places the Court's imprimatur on a quintessential prior restraint, incompatible with fundamental First Amendment values. See Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). Indeed, just as "[m]usic is one of the oldest forms of human expression," ante, at 790, the city's regulation is one of the oldest forms of speech repression. In 16th- and 17th-century England, government controlled speech through its monopoly on printing presses. See L. Levy, Emergence of a Free Press 6 (1985). Here, the city controls the volume and mix of sound through its monopoly on sound equipment. In both situations, government's exclusive control of the means of communication enables public officials to censor speech in advance of its expression. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975). Under more familiar prior restraints, government officials censor speech "by a simple stroke of the pen," Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Prob. 648, 657 (1955). Here, it is done by a single turn of a knob. </s> The majority's implication that government control of sound equipment is not a prior restraint because city officials do not "enjoy unguided discretion to deny the right to speak altogether," ante, at 794, is startling. In the majority's view, this case involves a question of "different and lesser" magnitude - the discretion to provide inadequate sound for performers. But whether the city denies a performer a bandshell permit or grants the permit and then silences or [491 U.S. 781, 809] distorts the performer's music, the result is the same - the city censors speech. In the words of CHIEF JUSTICE REHNQUIST, the First Amendment means little if it permits government to "allo[w] a speaker in a public hall to express his views while denying him the use of an amplifying system." FEC v. National Conservative Political Action Committee, 470 U.S. 480, 493 (1985); see also Southeastern Promotions, supra, at 556, n. 8 ("A licensing system need not effect total suppression in order to create a prior restraint"). </s> As a system of prior restraint, the Guidelines are presumptively invalid. See Southeastern Promotions, supra, at 558; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). They may be constitutional only if accompanied by the procedural safeguards necessary "to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U.S. 51, 58 (1965). The city must establish neutral criteria embodied in "narrowly drawn, reasonable and definite standards," in order to ensure that discretion is not exercised based on the content of speech. Niemotko v. Maryland, 340 U.S. 268, 271 (1951); see also Lakewood v. Plain Dealer Publishing Co., 486 U.S., 750, 758 (1988); Shuttlesworth v. Birmingham, 394 U.S. 147, 150 -151 (1969). Moreover, there must be "an almost immediate judicial determination" that the restricted material was unprotected by the First Amendment. Bantam Books, supra, at 70; see also Southeastern Promotions, supra, at 560. </s> The Guidelines contain neither of these procedural safeguards. First, there are no "narrowly drawn, reasonable and definite standards" guiding the hands of the city's sound technician as he mixes the sound. The Guidelines state that the goals are "to provide the best sound for all events" and to "insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone." App. 375; see also ante, at 794. But the city never defines "best sound" or "appropriate sound quality." The bandshell program director-manager testified that quality of [491 U.S. 781, 810] sound refers to tone and to sound mix. App. 229, 230. Yet questions of tone and mix cannot be separated from musical expression as a whole. See The New Grove Dictionary of Music and Musicians 51-55 (S. Sadie ed. 1980) (tonality involves relationship between pitches and harmony); F. Everest, Successful Sound System Operation 173 (1985) ("The mixing console . . . must be considered as a creative tool"). Because judgments that sounds are too loud, noiselike, or discordant can mask disapproval of the music itself, 7 government control of the sound-mixing equipment necessitates detailed and neutral standards. </s> The majority concedes that the standards in the Guidelines are "undoubtedly flexible" and that "the officials implementing them will exercise considerable discretion." Ante, at 794. Nevertheless, it concludes that "[b]y its own terms the city's sound-amplification guideline must be interpreted to forbid city officials purposefully to select inadequate sound systems or to vary the sound quality or volume based on the message being delivered by performers." Ante, at 794-795. Although the majority wishes it were so, the language of the Guidelines simply does not support such a limitation on the city's discretion. Alternatively, the majority finds a limitation in the city's practice of deferring to the sponsor with respect to sound mix, and of conferring "with the sponsor if any questions of excessive sound arise, before taking any corrective action." 658 F. Supp. 1346, 1352 (SDNY 1987). A promise to consult, however, does not provide the detailed [491 U.S. 781, 811] "neutral criteria" necessary to prevent future abuses of discretion any more than did the city's promise in Lakewood to deny permit applications only for reasons related to the health, safety, or welfare of Lakewood citizens. Indeed, a presumption that city officials will act in good faith and adhere to standards absent from a regulation's face is "the very presumption that the doctrine forbidding unbridled discretion disallows." Lakewood, supra, at 770. 8 </s> Second, even if there were narrowly drawn guidelines limiting the city's discretion, the Guidelines would be fundamentally flawed. For the requirement that there be detailed standards is of value only so far as there is a judicial mechanism to enforce them. Here, that necessary safeguard is absent. The city's sound technician consults with the performers for several minutes before the performance and then decides how to present each song or piece of music. During the performance itself, the technician makes hundreds of decisions affecting the mix and volume of sound. Tr. of Oral Arg. 13. The music is played immediately after each decision. There is, of course, no time for appeal in the middle of a song. As a result, no court ever determines that a particular restraint on speech is necessary. The city's admission that it does not impose sanctions on violations of its general sound ordinance because the necessary litigation is too costly and time consuming only underscores its contempt for the need for judicial review of restrictions on speech. Id., at 5. With neither prompt judicial review nor detailed and neutral standards fettering the city's discretion to restrict protected [491 U.S. 781, 812] speech, the Guidelines constitute a quintessential, and unconstitutional, prior restraint. </s> III </s> Today's decision has significance far beyond the world of rock music. Government no longer need balance the effectiveness of regulation with the burdens on free speech. After today, government need only assert that it is most effective to control speech in advance of its expression. Because such a result eviscerates the First Amendment, I dissent. </s> [Footnote 1 The majority's reliance on Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), is unnecessary and unwise. That decision dealt only with the unique circumstances of "businesses that purvey sexually explicit materials," Id., at 49, and n. 2. Today, for the first time, a majority of the Court applies Renton analysis to a category of speech far afield from that decision's original limited focus. Given the serious threat to free expression posed by Renton analysis, see Boos v. Barry, 485 U.S. 312, 335 -337 (1988) (BRENNAN, J., concurring in part and concurring in judgment); Renton, supra, at 55 (BRENNAN, J., concurring in part and concurring in judgment), I fear that its broad application may encourage widespread official censorship. </s> [Footnote 2 United States v. Albertini, 472 U.S. 675 (1985), for example, involved a person's right to enter a military base, which, unlike a public park, is not a place traditionally dedicated to free expression. Id., at 687 (commanding officer's power to exclude civilians from a military base cannot "be analyzed in the same manner as government regulation of a traditional public forum"). Nor can isolated language from JUSTICE WHITE's opinion in Regan v. Time, Inc., 468 U.S. 641, 657 (1984), which commanded the votes of only three other Justices, be construed as this Court's definitive explication of the narrow tailoring requirement. </s> [Footnote 3 The majority relies heavily on Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), but in that case, the Court engaged in an inquiry similar to the one the majority now rejects; it considered whether the increased efficacy of the challenged regulation warranted the increased burden on speech. Id., at 299 ("[P]reventing overnight sleeping will avoid a measure of actual or threatened damage"; however, "minimiz[ing] the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage"). </s> [Footnote 4 In marked contrast, Members of the majority recently adopted a far more stringent narrow tailoring requirement in the affirmative-action context. See Richmond v. J. A. Croson Co., 488 U.S. 469, 507 -508 (1989). </s> [Footnote 5 Significantly, the National Park Service relies on the very methods of volume control rejected by the city - monitoring sound levels on the perimeter of an event, communicating with event sponsors, and, if necessary, turning off the power. Brief for United States as Amicus Curiae 21. In light of the Park Service's "experienc[e] with thousands of events over the years," ibid., the city's claims that these methods of monitoring excessive sound are ineffective and impracticable are hard to accept. </s> [Footnote 6 Because I conclude that the Guidelines are not narrowly tailored, there is no need to consider whether there are ample alternative channels for communication. I note only that the availability of alternative channels of communication outside a public park does not magically validate a [491 U.S. 781, 808] government restriction on protected speech within it. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) ("`[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place,'" quoting Schneider v. State, 308 U.S. 147, 163 (1939)). </s> [Footnote 7 "New music always sounds loud to old ears. Beethoven seemed to make more noise than Mozart; Liszt was noisier than Beethoven; Schoenberg and Stravinsky, noisier than any of their predecessors." N. Slonimsky, Lexicon of Musical Invective: Critical Assaults on Composers Since Beethoven's Time 18 (1953). One music critic wrote of Prokofiev: "Those who do not believe that genius is evident in superabundance of noise, looked in vain for a new musical message in Mr. Prokofiev's work. Nor in the Classical Symphony, which the composer conducted, was there any cessation from the orgy of discordant sounds." Id., at 5 (internal quotations omitted). </s> [Footnote 8 Of course, if the city always defers to a performer's wishes in sound mixing, then it is difficult to understand the need for a city technician to operate the mixing console. See Tr. of Oral. Arg. 12 (city concedes that the possibilities for a confrontation over volume are the same whether the city technician directly controls the mixing console or sits next to a performer's technician who operates the equipment). Conversely, if the city can control sound only by using its own equipment and technician, then it must not be heeding all the performer's wishes on sound mixing. </s> [491 U.S. 781, 1]

United States Supreme Court C. ELVIN FELTNER, JR. v. COLUMBIA PICTURES TELEVISION, INC.(1998) No. 96-1768 Argued: January 21, 1998Decided: March 31, 1998 </s> </s> Respondent Columbia Pictures Television, Inc., terminated agreements licensing several television series to three television stations owned by petitioner Feltner after the stations' royalty payments became delinquent. When the stations continued to broadcast the programs, Columbia sued Feltner and others for, inter alia, copyright infringement. Columbia won partial summary judgment as to liability on its copyright infringement claims and then exercised the option afforded by §504(c) of the Copyright Act (Act) to recover statutory damages in lieu of actual damages. The District Court denied Feltner's request for a jury trial, and awarded Columbia statutory damages following a bench trial. The Ninth Circuit affirmed, holding that neither §504(c) nor the Seventh Amendment provides a right to a jury trial on statutory damages. </s> Held: 1. There is no statutory right to a jury trial when a copyright owner elects to recover statutory damages. Section 504(c) makes no mention of a right to a jury trial or to juries at all, providing instead that damages should be assessed in an amount "the court deems just," and that in the event that "the court finds" an infringement that is willful or innocent, "the court in its discretion" may increase or decrease the statutory damages. The word "court" in this context appears to mean judge, not jury. Other remedies provisions in the Act use the term "court" in contexts generally thought to confer authority on a judge, and the Act does not use the term "court" when addressing awards of actual damages and profits, see §504(b), which generally are thought to constitute legal relief, Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477 . Feltner's reliance on Lorillard v. Pons , 434 U.S. 575, 585 , for a contrary interpretation is misplaced. There being no statutory right to a jury trial on statutory damages, the constitutional question must be addressed. See Tull v. United States, 481 U.S. 412, 417 . Pp. 4-7. </s> 2. The Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under §504(c), including the amount itself. Pp. 7-16. </s> (a) The Seventh Amendment applies to both common-law causes of action and to statutory actions more analogous to cases tried in 18th-century courts of law than to suits customarily tried in courts of equity or admiralty. Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 42 . To determine the proper analogue, this Court examines both the nature of the statutory action and the remedy sought. See ibid. Pp. 7-8. </s> (b) There are close 18th-century analogues to §504(c) statutory damages actions. Before the adoption of the Seventh Amendment, the common law and statutes in England and this country granted copyright owners causes of action for infringement. More importantly, copyright suits for monetary damages were tried in courts of law, and thus before juries. There is no evidence that the first federal copyright law, the Copyright Act of 1790, changed this practice; and damages actions under the Copyright Act of 1831 were consistently tried before juries. The Court is unpersuaded by Columbia's contention that, despite this undisputed historical evidence, statutory damages are clearly equitable in nature. Pp. 8-13. </s> (c) The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. There is overwhelming evidence that the consistent common-law practice was for juries to award damages. More specifically, this was the consistent practice in copyright cases. Tull v. United States, supra -in which this Court determined that, although the Seventh Amendment grants a right to a jury trial on liability for civil penalties under the Clean Water Act, Congress could constitutionally authorize trial judges to assess the amount of the civil penalties-is inapposite to this case. In Tull, there was no evidence that juries historically had determined the amount of civil penalties to be paid to the Government, and the awarding of such penalties could be viewed as analogous to sentencing in a criminal proceeding. Here there is no similar analogy, and there is clear and direct historical evidence that juries, both as a general matter and in copyright cases, set the amount of damages awarded to a successful plaintiff. Pp. 13-15. </s> 106 F. 3d 284, reversed and remanded. </s> Cite as: ____ U. S. ____ (1998)3 Syllabus THOMAS , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and STEVENS , O'CONNOR , KENNEDY , SOUTER , GINSBURG , and BREYER , JJ., joined. SCALIA , J., filed an opinion concurring in the judgment. </s> NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. </s> U.S. Supreme Court </s> No. 96-1768 </s> C. ELVIN FELTNER, J R ., PETITIONER v. COLUMBIA PICTURES TELEVISION, INC. </s> ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [March 31, 1998] </s> JUSTICE THOMAS delivered the opinion of the Court. </s> Section 504(c) of the Copyright Act permits a copyright owner "to recover, instead of actual damages and profits, an award of statutory damages . . . , in a sum of not less than $500 or more than $20,000 as the court considers just." 90 Stat. 2585, as amended, 17 U.S.C. § 504(c)(1). In this case, we consider whether §504(c) or the Seventh Amendment grants a right to a jury trial when a copyright owner elects to recover statutory damages. We hold that although the statute is silent on the point, the Seventh Amendment provides a right to a jury trial, which includes a right to a jury determination of the amount of statutory damages. We therefore reverse. </s> I </s> Petitioner C. Elvin Feltner owns Krypton International Corporation, which in 1990 acquired three television stations in the southeastern United States. Respondent Columbia Pictures Television, Inc., had licensed several television series to these stations, including "Who's the Boss," "Silver Spoons," "Hart to Hart," and "T. J. Hooker." After the stations became delinquent in making their royalty payments to Columbia, Krypton and Columbia entered into negotiations to restructure the stations' debt. These discussions were unavailing, and Columbia terminated the stations' license agreements in October 1991. Despite Columbia's termination, the stations continued broadcasting the programs. </s> Columbia sued Feltner, Krypton, the stations, various Krypton subsidiaries, and certain Krypton officers in federal district court alleging, inter alia , copyright infringement arising from the stations' unauthorized broadcasting of the programs. Columbia sought various forms of relief under the Copyright Act of 1976 (Copyright Act), 17 U.S.C. § 101 et seq. , including a permanent injunction, §502; impoundment of all copies of the programs, §503; actual damages or, in the alternative, statutory damages, §504; and costs and attorney's fees, §505. On Columbia's motion, the District Court entered partial summary judgment as to liability for Columbia on its copyright infringement claims. 1 </s> Columbia exercised the option afforded by §504(c) of the Copyright Act to recover "Statutory Damages" in lieu of actual damages. In relevant part, §504(c) provides: </s> "STATUTORY DAMAGES "(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, . . . in a sum of not less than $500 or more than $20,000 as the court considers just. . . ." </s> "(2) In a case where the copyright owner sustains </s> the burden of proving, and the court finds, that in- </s> fringement was committed willfully, the court [in] its </s> discretion may increase the award of statutory dam- </s> ages to a sum of not more than $100,000. In a case </s> where the infringer sustains the burden of proving, </s> and the court finds, that such infringer was not aware </s> and had no reason to believe that his or her acts con- </s> stituted an infringement of copyright, the court in its </s> discretion may reduce the award of statutory damages </s> to a sum of not less than $200. . . ." </s> 17 U.S.C. § 504(c). </s> The District Court denied Feltner's request for a jury trial on statutory damages, ruling instead that such issues would be determined at a bench trial. After two days of trial, the trial judge held that each episode of each series constituted a separate work and that the airing of the same episode by different stations controlled by Feltner constituted separate violations; accordingly, the trial judge determined that there had been a total of 440 acts of infringement. The trial judge further found that Feltner's infringement was willful and fixed statutory damages at $20,000 per act of infringement. Applying that amount to the number of acts of infringement, the trial judge determined that Columbia was entitled to $8,800,000 in statutory damages, plus costs and attorney's fees. </s> The Court of Appeals for the Ninth Circuit affirmed in all relevant respects. Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc. , 106 F. 3d 284 (1997). 2 </s> Most importantly for present purposes, the court rejected Feltner's argument that he was entitled to have a jury determine statutory damages. Relying on Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp. , 562 F. 2d 1157 (CA9 1977)-which held that §25(b) of the Copyright Act of 1909, the statutory predecessor of §504(c), required the trial judge to assess statutory damages 3 </s> -the Court of Appeals held that §504(c) does not grant a right to a jury determination of statutory damages. The Court reasoned that "[i]f Congress intended to overrule Krofft by having the jury determine the proper award of statutory damages, it would have altered" the language "as the court considers just" in §504(c). 106 F. 3d, at 293. The Court of Appeals further concluded that the "Seventh Amendment does not provide a right to a jury trial on the issue of statutory damages because an award of such damages is equitable in nature." Ibid. We granted certiorari. 521 U. S. ___ (1997). </s> II </s> Before inquiring into the applicability of the Seventh Amendment, we must " 'first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.' " Tull v. United States , 481 U.S. 412, 417 , n. 3 (1987) (quoting Curtis v. Loether , 415 U.S. 189, 192 , n. 6 (1974)). Such a construction is not possible here, for we cannot discern "any congressional intent to grant . . . the right to a jury trial," 481 U.S., at 417 , n. 3, on an award of statutory damages. 4 </s> The language of §504(c) does not grant a right to have a jury assess statutory damages. Statutory damages are to be assessed in an amount that "the court considers just." §504(c)(1). Further, in the event that "the court finds" the infringement was willful or innocent, "the court in its discretion" may, within limits, increase or decrease the amount of statutory damages. §504(c)(2). These phrases, like the entire statutory provision, make no mention of a right to a jury trial or, for that matter, to juries at all. </s> The word "court" in this context appears to mean judge, not jury. Cf. F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 232 (1952) (referring to the " judicial discretion" necessary for "the court's choice between a computed measure of damage and that imputed by" the Copyright Act of 1909) (emphasis added). In fact, the other remedies provisions of the Copyright Act use the term "court" in contexts generally thought to confer authority on a judge, rather than a jury. See, e.g. , §502 ("court . . . may . . . grant temporary and final injunctions"); §503(a) ("the court may order the impounding . . . of all copies or phonorecords"); §503(b) ("[a]s part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords"); §505 ("the court in its discretion may allow the recovery of full costs" of litigation and "the court may also award a reasonable attorney's fee"). In contrast, the Copyright Act does not use the term "court" in the subsection addressing awards of actual damages and profits, see §504(b), which generally are thought to constitute legal relief. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477 (1962) (action for damages for trademark infringement "subject to cognizance by a court of law"); see also Arnstein v. Porter , 154 F. 2d 464, 468 (CA2 1946) (copyright action for damages is "triable at 'law' and by a jury as of right"); Video Views, Inc. v. Studio 21, Ltd. , 925 F. 2d 1010, 1014 (CA7 1991) ("little question that the right to a jury trial exists in a copyright infringement action when the copyright owner endeavors to prove and recover its actual damages"); 4 M. Nimmer & D. Nimmer, Nimmer on Copyright §12.10[B] (1997) ("beyond dispute that a plaintiff who seeks to recover actual damages is entitled to a jury trial" (footnotes omitted)). </s> Feltner relies on Lorillard v. Pons , 434 U.S. 575, 585 (1978), in which we held that the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U.S.C. § 621 et seq. , provides a statutory right to a jury trial in an action for unpaid wages even though the statute authorizes "the court . . . to grant such legal or equitable relief as may be appropriate," §626(b). That holding, however, turned on two crucial factors: The ADEA's remedial provisions were expressly to be enforced in accordance with the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 101 et seq. , which had been uniformly interpreted to provide a right to a jury trial, Lorillard v. Pons , 434 U.S., at 580 -581; and the statute used the word "legal," which we found to be a "term of art" used in cases "in which legal relief is available and legal rights are determined" by juries, id. , at 583. Section 504(c), in contrast, does not make explicit reference to another statute that has been uniformly interpreted to provide a right to jury trial and does not use the word "legal" or other language denoting legal relief or rights. 5 </s> We thus discern no statutory right to a jury trial when a copyright owner elects to recover statutory damages. Accordingly, we must reach the constitutional question. </s> III </s> The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . ." U. S. Const., Amdt. 7. Since Justice Story's time, the Court has understood "Suits at common law" to refer "not merely [to] suits, which the common law recognized among its old and settled proceedings, but [to] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Parsons v. Bedford , 3 Pet. 433, 447 (1830) (emphasis in original). The Seventh Amendment thus applies not only to common-law causes of action, but also to "actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty." Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 42 (1989) (citing Curtis v. Loether , 415 U.S., at 193 ). To determine whether a statutory action is more analogous to cases tried in courts of law than to suits tried in courts of equity or admiralty, we examine both the nature of the statutory action and the remedy sought. See 492 U.S., at 42 . </s> Unlike many of our recent Seventh Amendment cases, which have involved modern statutory rights unknown to 18th-century England, see, e.g. , Wooddell v. Electrical Workers, 502 U.S. 93 (1991) (alleged violations of union's duties under Labor Management Relations Act, 1947, and Labor-Management Reporting and Disclosure Act of 1959); Granfinanciera v. Nordberg , supra (action to rescind fraudulent preference under Bankruptcy Act); Tull v. United States , supra (government's claim for civil penalties under Clean Water Act); Curtis v. Loether , supra (claim under Title VIII of Civil Rights Act of 1968), in this case there are close analogues to actions seeking statutory damages under §504(c). Before the adoption of the Seventh Amendment, the common law and statutes in England and this country granted copyright owners causes of action for infringement. More importantly, copyright suits for monetary damages were tried in courts of law, and thus before juries. </s> By the middle of the 17th century, the common law recognized an author's right to prevent the unauthorized publication of his manuscript. See, e.g. , Stationers Co. v. Patentees , Carter's Rep. 89, 124 Eng. Rep. 842 (C.P. 1666). This protection derived from the principle that the manuscript was the product of intellectual labor and was as much the author's property as the material on which it was written. See Millar v. Taylor , 4 Burr. 2303, 2398, 98 Eng. Rep. 201, 252 (K. B. 1769) (Mansfield, J.) (commonlaw copyright derived from principle that "it is just, that an Author should reap the pecuniary Profits of his own ingenuity and Labour"); 1 W. Patry, Copyright Law and Practice 3 (1994). Actions seeking damages for infringement of common-law copyright, like actions seeking damages for invasions of other property rights, were tried in courts of law in actions on the case. See Millar v. Taylor , supra , 2396-2397, 98 Eng. Rep., at 251. Actions on the case, like other actions at law, were tried before juries. See McClenachan v. McCarty, 1 Dall. 375, 378 (C. P. Phila. Cty. 1788); 5 J. Moore, Moore's Federal Practice #26638.11[5] (2d ed. 1996); 1 J. Chitty, Treatise on Pleading and Parties to Actions, at 164 (1892). </s> In 1710, the first English copyright statute, the Statute of Anne, was enacted to protect published books. 8 Anne ch. 19 (1710). Under the Statute of Anne, damages for infringement were set at "one Penny for every Sheet which shall be found in [the infringer's] custody, either printed or printing, published, or exposed to Sale," half ("one Moiety") to go to the Crown and half to the copyright owner, and were "to be recovered . . . by action of Debt, Bill, Plaint, or Information." §1. Like the earlier practice with regard to common-law copyright claims for damages, actions seeking damages under the Statute of Anne were tried in courts of law. See Beckford v. Hood , 7 T. R. 621, 627, 101 Eng. Rep. 1164, 1167 (K. B. 1798) ("[T]he statute having vested that right in the author, the common law gives the remedy by action on the case for the violation of it") (Kenyon, C. J.). </s> The practice of trying copyright damages actions at law before juries was followed in this country, where statutory copyright protections were enacted even before adoption of the Constitution. In 1783, the Continental Congress passed a resolution recommending that the States secure copyright protections for authors. See U. S. Copyright Office, Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright, Bulletin No. 3, p. 1 (rev. ed. 1963) (hereinafter Copyright Enactments). Twelve States (all except Delaware) responded by enacting copyright statutes, each of which provided a cause of action for damages, and none of which made any reference to equity jurisdiction. At least three of these state statutes expressly stated that damages were to be recovered through actions at law, see id. , at 2 (in Connecticut, damages for double the value of the infringed copy "to be recovered . . . in any court of law in this State"); id. , at 17 (in Georgia, similar damages enforceable "in due course of law"); id. , at 19 (in New York, similar damages enforceable in "any court of law"), while four others provided that damages would be recovered in an "action of debt," a prototypical action brought in a court of law before a jury. See F. Maitland, The Forms of Action at Common Law, 357 (1929) (hereinafter Maitland); see Copyright Enactments 4-9 (in Massachusetts, New Hampshire, and Rhode Island, damages enforceable by "action of debt"); id. , at 12 (in South Carolina, damages of one shilling per sheet enforceable by "debt, bill, plaint or information"). Although these statutes were short-lived, and hence few courts had occasion to interpret them, the available evidence suggests that the practice was for copyright actions seeking damages to be tried to a jury. See Hudson & Goodwin v. Patten , 1 Root 133, 134 (Conn. Super. Ct. 1789) (jury awarded copyright owner #243100 under Connecticut copyright statute). </s> Moreover, three of the state statutes specifically authorized an award of damages from a statutory range, just as §504(c) does today. See Copyright Enactments 4 (in Massachusetts, damages of not less than #2435 and not more than #2433,000); id. , at 8 (in New Hampshire, damages of not less than #2435 and not more than #2431,000); id. , at 9 (in Rhode Island, damages of not less than #2435 and not more than #2433,000). Although we have found no direct evidence of the practice under these statutes, there is no reason to suppose that such actions were intended to deviate from the traditional practice: The damages were to be recovered by an "action of debt," see id. , at 4-9, which was an action at law, see Maitland 357. </s> In 1790, Congress passed the first federal copyright statute, the Copyright Act of 1790, which similarly authorized the awarding of damages for copyright infringements. Act of May 31, 1790, ch. 15, §§2, 6, 1 Stat. 124, 125. The Copyright Act of 1790 provided that damages for copyright infringement of published works would be "the sum of fifty cents for every sheet which shall be found in [the infringer's] possession, . . . to be recovered by action of debt in any court of record in the United States, wherein the same is cognizable." §2. Like the Statute of Anne, the Copyright Act of 1790 provided that half ("one moiety") of such damages were to go to the copyright owner and half to the United States. For infringement of an unpublished manuscript, the statute entitled a copyright owner to "all damages occasioned by such injury, to be recovered by a special action on the case founded upon this act, in any court having cognizance thereof." §6. </s> There is no evidence that the Copyright Act of 1790 changed the practice of trying copyright actions for damages in courts of law before juries. As we have noted, actions on the case and actions of debt were actions at law for which a jury was required. See supra , at 9, 11. 6 Moreover, actions to recover damages under the Copyright Act of 1831--which differed from the Copyright Act of 1790 only in the amount (increased to $1 from 50 cents) authorized to be recovered for certain infringing sheets-were consistently tried to juries. See, e.g. , Backus v. Gould, 7 How. 798, 802 (1849) (jury awarded damages of $2,069.75); Reed v. Carusi , 20 F. Cas. 431, 432 (No. 11,642) (CCMd. 1845) (jury awarded damages of $200); Millett v. Snowden , 17 F. Cas. 374, 375 (SDNY 1844) (jury awarded damages of $625); Dwight v. Appleton , 8 F. Cas. 183, 185 (SDNY 1843) (jury awarded damages of $2,000). </s> Columbia does not dispute this historical evidence. In fact, Columbia makes no attempt to draw an analogy between an action for statutory damages under §504(c) and any historical cause of action--including those actions for monetary relief that we have characterized as equitable, such as actions for disgorgement of improper profits. See Teamsters v. Terry, 494 U.S. 558, 570 -571 (1990); Tull v. United States , 481 U.S., at 424 . Rather, Columbia merely contends that statutory damages are clearly equitable in nature. We are not persuaded. We have recognized the "general rule" that monetary relief is legal, Teamsters v. Terry , supra , at 570, and an award of statutory damages may serve purposes traditionally associated with legal relief, such as compensation and punishment. See Curtis v. Loether , 415 U.S., at 196 (actual damages are "traditional form of relief offered in the courts of law"); Tull v. United States , supra , at 422 ("Remedies intended to punish culpable individuals . . . were issued by courts of law, not courts of equity"). Nor, as we have previously stated, is a monetary remedy rendered equitable simply because it is "not fixed or readily calculable from a fixed formula." Id , at 422, n. 7. And there is historical evidence that cases involving discretionary monetary relief were tried before juries. See, e.g. , Coryell v. Colbaugh , 1 N. J. L. 77 (1791) (jury award of "exemplary damages" in an action on a promise of marriage). Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages. </s> The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recog nized that "by the law the jury are judges of the damages." Lord Townshend v. Hughes , 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C. P. 1677). Thus in Dimick v. Schiedt , 293 U.S. 474 (1935), the Court stated that "the common law rule as it existed at the time of the adoption of the Constitution" was that "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it." Id. , at 480 (internal quotationmarks and citations omitted). And there is overwhelming evidence that the consistent practice at common law was for juries to award damages. See, e.g. , Duke of York v. Pilkington , 2 Show. 246, 89 Eng. Rep. 918 (K. B. 1760) (jury award of #243100,000 in a slander action); Wilkes v. Wood , Lofft 1, 19, 98 Eng. Rep. 489, 499 (K. B. 1763) (jury award of #2431,000 in an action of trespass); Huckle v. Money , 2 Wils. 205, 95 Eng. Rep. 768 (K. B. 1763) (upholding jury award of #243300 in an action for trespass, assault and imprisonment); Genay v. Norris , 1 S. C. L. 6, 7 (1784) (jury award of #243400); Coryell v. Colbaugh , supra (sustaining correctness of jury award of exemplary damages in an action on a promise of marriage); see also K. Redden, Punitive Damages §2.2, p. 27 (1980) (describing "primacy of the jury in the awarding of damages"). </s> More specifically, this was the consistent practice in copyright cases. In Hudson & Goodwin v. Patten , 1 Root, at 134, for example, a jury awarded a copyright owner #243100 under the Connecticut copyright statute, which permitted damages in an amount double the value of the infringed copy. In addition, juries assessed the amount of damages under the Copyright Act of 1831, even though that statute, like the Copyright Act of 1790, fixed damages at a set amount per infringing sheet. See Backus v. Gould , supra , at 802 (jury awarded damages of $2,069.75); Reed v. Carusi , supra , at 432 (same, but $200); Dwight v. Appleton , supra , at 185 (same, but $2,000); Millett v. Snowden , supra , at 375 (same, but $625). </s> Relying on Tull v. United States , supra , Columbia contends that the Seventh Amendment does not provide a right to a jury determination of the amount of the award. In Tull , we held that the Seventh Amendment grants a right to a jury trial on all issues relating to liability for civil penalties under the Clean Water Act, 33 U. S. C. §§1251, 1319(d), 7 </s> see 481 U.S., at 425 , but then went on to decide that Congress could constitutionally authorize trial judges to assess the amount of the civil penalties, see id. , at 426-427. 8 </s> According to Columbia, Tull demonstrates that a jury determination of the amount of statutory damages is not necessary "to preserve 'the substance of the common-law right of trial by jury.' " Id. , at 426 (quoting Colgrove v. Battin, 413 U.S. 149, 157 (1973)). </s> In Tull , however, </s> we were presented with no evidence that juries historically had determined the amount of civil penalties to be paid to the Government. 9 </s> Moreover, the awarding of civil penalties to the Government could be viewed as analogous to sentencing in a criminal proceeding. See 481 U.S., at 428 (SCALIA , J., concurring in part and dissenting in part). 10 </s> Here, of course, there is no similar analogy, and there is clear and direct historical evidence that juries, both as a general matter and in copyright cases, set the amount of damages awarded to a successful plaintiff. </s> Tull is thus inapposite. As a result, if a party so demands, a jury must determine the actual amount of statutory damages under §504(c) in order "to preserve 'the substance of the common-law right of trial by jury.' " Id. , at 426. </s> * * * </s> For the foregoing reasons, we hold that the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under §504(c) of the Copyright Act, including the amount itself. The judgment below is reversed, and we remand the case for proceedings consistent with this opinion. </s> It is so ordered. ----- ety") was determined by a jury. </s> Notes </s> 1 During the course of the litigation, Columbia dropped all claims against all parties except its copyright claims against Feltner. </s> 2 The Court of Appeals vacated and remanded (for further explanation) the District Court's award of costs and attorney's fees to Columbia. See 106 F. 3d, at 296. </s> 3 Under the 1909 Act, a copyright plaintiff could recover "in lieu of actual damages and profits, such damages as to the court shall appear to be just, and assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of [$200] nor be less than the sum of [$50], and such damages shall in no other case exceed the sum of [$5,000] nor be less than the sum of [$250] . . ." Act of Mar 4, 1909, §25(b), 35 Stat. 1081 (later amended and codified at 17 U.S.C. § 101(b)). </s> 4 The Courts of Appeals have unanimously held that §504(c) is not susceptible of an interpretation that would avoid the Seventh Amendment question. See, e.g. Cass County Music Co. v. C. H. L. R., Inc. , 88 F. 3d 635, 641 (CA8 1996); Video Views, Inc. v. Studio 21, Ltd. , 925 F. 2d 1010, 1014 (CA7 1991); Gnossos Music v. Mitken Inc. , 653 F. 2d 117, 119 (CA4 1981); see also Oboler v. Goldin , 714 F. 2d 211, 213 (CA2 1983); 4 M. Nimmer & D. Nimmer, Nimmer on Copyright §14.04[C] (1997). </s> 5 In addition, a copyright plaintiff may elect statutory damages "at any time before final judgment is rendered." §504(c)(1). The parties agree, and we have found no indication to the contrary, that election may occur even after a jury has returned a verdict on liability and an award of actual damages. It is at least unlikely that Congress intended that a jury, having already made a determination of actual damages, should be reconvened to make a determination of statutory damages. </s> 6 The Copyright Act of 1790 did not provide for equitable remedies at all, and in Stevens v. Gladding, 17 How. 447 (1855), we held that, even after Congress had provided for equity jurisdiction under the Copyright Act, see Act of Feb. 15, 1819, ch. 19, 3 Stat. 481, the statute's damages provision could not be enforced through a suit in equity. Id. , at 455; see also Callaghan v. Myers, 128 U.S. 617, 663 (1888) ( Stevens v. Gladding determined that "the penalties given by §7 of the copyright act of 1831 cannot be enforced in a suit in equity"). </s> 7 Section 1319(d) of the Clean Water Act provided that violators of certain sections of the Act "shall be subject to a civil penalty not to exceed $10,000 per day" during the period of the violation. 481 U.S., at 414 . </s> 8 This portion of our opinion was arguably dicta, for our holding that there was a right to a jury trial on issues relating to liability required us to reverse the lower court's liability determination. </s> 9 It should be noted that Tull is at least in tension with Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492 (1829), in which the Court held in light of the Seventh Amendment that a jury must determine the amount of compensation for improvements to real estate, and with Dimick v. Schiedt , 293 U.S. 474 (1935), in which the Court held that the Seventh Amendment bars the use of additur. </s> 10 As we have noted, even under the Statute of Anne and the Copyright Act of 1790, the amount awarded to the Government ("one Moi- </s> U.S. Supreme Court </s> No. 96-1768 </s> C. ELVIN FELTNER, J R ., PETITIONER v. COLUMBIA PICTURES TELEVISION, INC. </s> ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [March 31, 1998] </s> JUSTICE SCALIA , concurring in the judgment. </s> It is often enough that we must hold an enactment of Congress to be unconstitutional. I see no reason to do so here-not because I believe that jury trial is not constitutionally required (I do not reach that issue), but because the statute can and therefore should be read to provide jury trial. </s> "[W]here a statute is susceptible of two constructions, by </s> one of which grave and doubtful constitutional questions </s> arise and by the other of which such questions are </s> avoided, our duty is to adopt the latter." </s> United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909). The Copyright Act of 1976 authorizes statutory damages for copyright infringement "in a sum of not less than $500 or more than $20,000 as the court considers just." 17 U.S.C. § 504(c). The Court concludes that it is not "fairly possible," ante , at 4 (internal quotation marks omitted), to read §504(c) as authorizing jury determination of the amount of those damages. I disagree. </s> In common legal parlance, the word "court" can mean "[t]he judge or judges, as distinguished from the counsel or jury." Webster's New International Dictionary 611 (2d ed. 1949) (def. 10d). But it also has a broader meaning, which includes both judge and jury. See, e.g., id., (def. 10b: "The persons duly assembled under authority of law for the administration of justice"); Black's Law Dictionary 318 (5th ed. 1979) (". . . A body organized to administer justice, and including both judge and jury"). We held in Lorillard v. Pons, 434 U.S. 575 (1978), that a statute authorizing "the court . . . to grant such legal or equitable relief as may be appropriate," 29 U.S.C. § 626(b), could fairly be read to afford a right to jury trial on claims for backpay under the Age Discrimination in Employment Act of 1967. </s> As the Court correctly observes, ante , at 6, there was more evidence in Lorillard than there is in the present case that "court" was being used to include the jury. The remedial provision at issue explicitly referred to the " 'powers, remedies, and procedures ' " of the Fair Labor Standards Act, under which "it was well established that there was a right to a jury trial," Lorillard , 434 U.S., at 580 . The provision's reference to "legal . . . relief" also strongly suggested a statutory right to jury trial. Id., at 583. The text of §504(c) lacks such clear indications that "court" is being used in its broader sense. But their absence hardly demonstrates that the broader reading is not "fairly possible," e.g., Tull v. United States, 481 U.S. 412, 417 , n. 3 (1987). The only significant evidence cited by the Court for that proposition is that the "Copyright Act use[s] the term 'court' in contexts generally thought to confer authority on a judge, rather than a jury," ante , at 5, but "does not use the term 'court' in the subsection addressing awards of actual damages and profits, see §504(b), which generally are thought to constitute legal relief," ante , at 56. That is a fair observation, but it is not, in my view, probative enough to compel an interpretation that is constitutionally doubtful. </s> That is at least so in light of contradictory evidence from the statutory history, which the Court chooses to ignore. Section 504(c) is the direct descendant of a remedy created for unauthorized performance of dramatic compositions in an 1856 copyright statute. That statute provided for damages "not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court having cognizance thereof shall appear to be just," enforced through an "action on the case or other equivalent remedy." Act of Aug. 18, 1856, ch. 169, 11 Stat. 138, 139. Because actions on the case were historically tried at law, it seems clear that this original statute permitted juries to assess such damages. See Lorillard, supra , at 583. Although subsequent revisions omitted the reference to "action[s] on the case," they carried forward the language specifying damages "as to the court shall appear to be just." See Act of July 8, 1870, ch. 230, §101, 16 Stat., 214; Act of January 6, 1897, ch. 4, 29 Stat., 482. In 1909, Congress extended those provisions to permit all copyright owners to recover "in lieu of actual damages and profits such damages as to the court shall appear just . . . ." Act of March 4, 1909, ch. 320, §25(b), 35 Stat. 1081. We have recognized that, although the prior statutory damages provisions </s> "were broadened [in 1909] so as to include other copyrights and the limitations were changed in amount, . . . the principle on which they proceeded-that of committing the amount of damages to be recovered to the court's discretion and sense of justice, subject to prescribed limitations-was retained. The new provision, like one of the old, says the damages shall be such 'as to the court shall appear to be just.' " </s> L. A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 107 (1919). </s> If a right to jury trial was consistent with the meaning of the phrase "as to the court . . . shall appear to be just" in the 1856 statutory damages provision, I see no reason to insist that the phrase "as the court considers just" has a different meaning in that provision's latest reenactment. "[W]here, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard , 434 U.S., at 581 . </s> I do not contend that reading "court" to include "jury" is necessarily the best interpretation of this statutory text. The Court is perhaps correct that the indications pointing to a change in meaning from the 1856 statute predominate. As I have written elsewhere, however: </s> "The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one-the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. 'Adopt the interpretation that avoids the constitutional doubt if that is the right one' produces precisely the same result as 'adopt the right interpretation.' Rather, the doctrine of constitutional doubt comes into play when the statute is 'susceptible of' the problem-avoiding interpretation, Delaware & Hudson Co., 213 U.S., at 408 -when that interpretation is reasonable , though not necessarily the best." </s> Almendarez-Torres v. United States , 523 U. S. ___, ___ (SCALIA , J., dissenting). </s> As the majority's discussion amply demonstrates, there would be considerable doubt about the constitutionality of §504(c) if it did not permit jury determination of the amount of statutory damages. Because an interpretation of §540(c) that avoids the Seventh Amendment question is at least "fairly possible," I would adopt that interpretation, prevent the invalidation of this statute, and reserve the constitutional issue for another day.

United States Supreme Court ZATKO v. CALIFORNIA(1991) No. 91-5052 Argued: Decided: November 4, 1991 </s> [Footnote * Together with No. 91-5111, Zatko v. United States District Court for the Northern District of California, No. 91-5166, Zatko v. United States District Court for the Northern District of California, 91-5167, Zatko v. United States, No. 91-5244, Martin v. Mrvos, No. 91-5246, Martin v. Smith, No. 91-5307, Martin v. Delaware Law School of Widener University, Inc., No. 91-5331, Martin v. Walmer, No. 91-5332, Martin v. Townsend, No. 91-5401, Martin v. Supreme Court of New Jersey, No. 91-5416, Zatko v. California, No. 91-5476, Martin v. Bar of the District of Columbia Court of Appeals, No. 91-5583, Martin v. Huyett, No. 91-5594, Zatko v. United States District Court for the Northern District of California, No. 91-5692, Zatko v. United States District Court for the Northern District of California, No. 91-5730, Zatko v. California, and No. 91-5732, Zatko v. California, also on motion for leave to proceed in forma pauperis. </s> Over the past 10 years, petitioner Zatko has filed 73 petitions with this Court, 34 within the last 2 years, and petitioner Martin has filed over 45 petitions, 15 within the last 2 years. </s> Held: </s> Zatko and Martin are denied in forma pauperis status in the instant cases, pursuant to this Court's Rule 39.8. Their patterns of repetitious filings have resulted in an extreme abuse of the system by burdening the office of the Clerk and other members of the Court's staff. </s> Motions denied. </s> PER CURIAM. </s> Last Term, we amended Rule 39 of the Rules of the Supreme Court of the United States to add the following: </s> 39.8 If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis. </s> Because in forma pauperis petitioners lack the financial disincentives - filing fees and attorney's fees - that help to [502 U.S. 16, 17] deter other litigants from filing frivolous petitions, we felt such a rule change was necessary to provide us some control over the in forma pauperis docket. In ordering the amendment, we sought to discourage frivolous and malicious in forma pauperis filings, particularly [from] those few persons whose filings are repetitive with the obvious effect of burdening the office of the Clerk and other members of the Court staff. In re Amendment to Rule 39, 500 U.S. 13 (1991). </s> Today, we invoke Rule 39.8 for the first time, and deny in forma pauperis status to petitioners Vladimir Zatko and James L. Martin. We do not do so casually, however. We deny leave to proceed in forma pauperis only with respect to two petitioners who have repeatedly abused the integrity of our process through frequent frivolous filings. Over the last 10 years, Zatko has filed 73 petitions in this Court; 34 of those filings have come within the last 2 years. Martin has been only slightly less prolific over the same 10-year period, and has filed over 45 petitions, 15 of them within the last 2 years. In each of their filings up to this point, we have permitted Zatko and Martin to proceed in forma pauperis, and we have denied their petitions without recorded dissent. However, this Court's goal of fairly dispensing justice is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests such as these. In re Sindram, 498 U.S. 177 (1991). We conclude that the pattern of repetitious filing on the part of Zatko and Martin has resulted in an extreme abuse of the system. In the hope that our action will deter future similar frivolous practices, we deny Zatko and Martin leave to proceed in forma pauperis in these cases. </s> The dissent complains that, by invoking this rule against Zatko and Martin, we appear to ignore our duty to provide equal access to justice for both the rich and the poor. The message we hope to send is quite the opposite, however. In order to advance the interests of justice, the Court's general [502 U.S. 16, 18] practice is to waive all filing fees and costs for indigent individuals, whether or not the petitions those individuals file are frivolous. As the dissent recognizes, for example, well over half of the numerous in forma pauperis petitions filed since the beginning of this Term are best characterized as frivolous. It is important to observe that we have not applied Rule 39.8 to those frivolous petitions, although the rule might technically apply to them. Instead, we have denied those petitions in the usual manner, underscoring our commitment to hearing the claims, however meritless, of the poor. But "[i]t is vital that the right to file in forma pauperis not be incumbered by those who would abuse the integrity of our process by frivolous filings." In re Amendment to Rule 39, supra, at 13. For that reason we take the limited step of censuring two petitioners who are unique - not merely among those who seek to file in forma paupers, but also among those who have paid the required filing fees - because they have repeatedly made totally frivolous demands on the Court's limited resources. </s> To discourage abusive tactics that actually hinder us from providing equal access to justice for all, we therefore deny leave to proceed in forma pauperis in these cases, pursuant to Rule 39.8. Accordingly, petitioners are allowed until November 25, 1991, within which to pay the docketing fee required by Rule 38 and to submit petitions in compliance with Rule 33 of the Rules of this Court. Future similar filings from these petitioners will merit additional measures. </s> It is so ordered. </s> JUSTICE THOMAS took no part in the consideration or decision of these motions. </s> JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. </s> Last Term, over the dissent of three Justices, the Court amended its Rule 39 for the "vital" purpose of protecting [502 U.S. 16, 19] "the integrity of our process" from those indigent petitioners who file frivolous petitions for certiorari. 1 Since the amended rule became effective on July 1, 1991, indigent litigants have filed almost 1,000 petitions, which this Court has denied without pausing to determine whether they were frivolous within the meaning of Rule 39. In my judgment, well over half of these petitions could have been characterized as frivolous. Nevertheless, under procedures that have been in place for many years, the petitions were denied in the usual manner. The "integrity of our process" was not compromised in the slightest by the Court's refusal to spend valuable time deciding whether to enforce Rule 39 against so many indigent petitioners. </s> The Court has applied a different procedure to the petitioners in these cases. Their multiple filings have enabled the Court to single them out as candidates for enforcement of the amended rule. As a result, the order in their cases denies leave to proceed in forma pauperis pursuant to Rule 39.8, rather than simply denying certiorari. The practical effect of such an order is the same as a simple denial. 2 However, the symbolic effect of the Court's effort to draw distinctions among the multitude of frivolous petitions - none of which will be granted in any event - is powerful. Although the Court may have intended to send a message about the [502 U.S. 16, 20] need for the orderly administration of justice and respect for the judicial process, the message that it actually conveys is that the Court does not have an overriding concern about equal access to justice for both the rich and the poor.[fn3 ] </s> By its action today, the Court places yet another barrier in the way of indigent petitioners. 4 By branding these petitioners under Rule 39.8, the Court increases the chances that their future petitions, which may very well contain a colorable claim, will not be evaluated with the attention they deserve. </s> Because I believe the Court has little to gain and much to lose by applying Rule 39.8 as it does today, I would deny certiorari in these cases, and will so vote in similar cases in the future. </s> Footnotes [Footnote 1 In re Amendment to Rule 39, 500 U.S. 13 (1991). The amended rule, Rule 39.8 of the Rules of the Supreme Court of the United States, provides as follows: </s> "If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis." </s> [Footnote 2 In the past, I have noted that the work of the Court is "facilitated by the practice of simply denying certiorari once a determination is made that there is no merit to the petitioner's claim," rather than determining whether "the form of the order should be a denial or a dismissal" in cases of questionable jurisdiction. Davis v. Jacobs, 454 U.S. 911, 914 -915 (1981) (STEVENS, J., respecting denial of petitions for writs of certiorari). </s> [Footnote 3 Our longstanding tradition of leaving our door open to all classes of litigants is a proud and decent one worth maintaining. See Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1070 (1985) (STEVENS, J., concurring). In re Sindram, 498 U.S. 177 (1991) (Marshall, J., dissenting, joined by BLACKMUN, and STEVENS, JJ.). </s> [Footnote 4 And with each barrier that it places in the way of indigent litigants, . . . the Court can only reinforce in the hearts and minds of our society's less fortunate members the unsettling message that their pleas are not welcome here. In re Demos, 500 U.S. 16, 19 (1991) (Marshall, J., dissenting, joined by BLACKMUN and STEVENS, JJ.). </s> [502 U.S. 16, 21]

United States Supreme Court RABANG v. BOYD(1957) No. 403 Argued: May 1, 1957Decided: May 27, 1957 </s> Petitioner, born in 1910 in the Philippine Islands, has resided in the continental United States since 1930 when he was admitted for permanent residence. He was convicted in February 1951 of violating the federal narcotics laws. After administrative proceedings, he was ordered deported under the Act of February 18, 1931, as amended, which provides for the deportation of "any alien" convicted of violating a federal narcotics law. Petitioner's application for habeas corpus was denied by the Federal District Court and the Court of Appeals affirmed. Held: Petitioner was deportable under the 1931 Act, and the judgment is affirmed. Pp. 428-433. </s> (a) Under 14 of the Philippine Independence Act of 1934, persons born in the Philippine Islands, and who thereby were nationals of the United States, became aliens on July 4, 1946, regardless of permanent residence in the continental United States on that date. Pp. 429-431. </s> (b) "Entry" from a foreign country was not a condition of deportability in the 1931 Act. Barber v. Gonzales, 347 U.S. 637 , distinguished. P. 431. </s> (c) In the provision of the 1931 Act that deportation shall be accomplished "in manner provided in sections 19 and 20" of the Immigration Act of 1917, the reference to the "manner provided" in those sections draws into the 1931 Act not the requirement of "entry," but only the procedural steps for securing deportation set forth in those sections. Pp. 431-432. </s> (d) The requirement of "entry" cannot be said to be implicit in the 1931 Act on the ground that the power to deport depends upon the power to exclude, and the power to exclude did not extend to Filipinos. Congress not only had, but exercised, the power to exclude Filipinos in 8 (a) (1) of the Independence Act. Pp. 432-433. </s> 234 F.2d 904, affirmed. [353 U.S. 427, 428] </s> John Caughlan argued the cause and filed a brief for petitioner. </s> J. F. Bishop argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg. </s> MR. JUSTICE BRENNAN delivered the opinion of the Court. </s> The petitioner, born in 1910 in the Philippine Islands, has lived in the continental United States since 1930, when he was admitted for permanent residence. In February 1951, he was convicted upon a plea of guilty of violating the federal narcotics laws. He was taken into custody in March 1951, and, after administrative proceedings, was ordered deported under the Act of February 18, 1931, as amended, which provided for the deportation of "any alien" convicted of violating a federal narcotics law. 1 </s> Petitioner applied to the District Court for the Western District of Washington for a writ of habeas corpus and declaratory relief from the order of the Immigration and Naturalization Service deporting him to the Philippine [353 U.S. 427, 429] Islands. The District Court denied the petitioner's application, and the Court of Appeals for the Ninth Circuit affirmed. 2 We granted certiorari. 3 </s> The sole issue for decision is whether the petitioner is deportable as an alien within the meaning of the 1931 Act. The parties agree that the petitioner was a national of the United States at birth and when he entered the continental United States for permanent residence. Under the 1898 Treaty of Paris, Spain ceded the Philippine Islands to the United States. 4 Article IX of the Treaty provided that ". . . [t]he civil rights and political status of the native inhabitants . . . shall be determined by the Congress." 5 Pursuant to that Article, the Congress declared, inter alia, in the Act of July 1, 1902, that Filipinos born in the Islands after 1899 were to ". . . be citizens of the Philippine Islands and as such entitled to the protection of the United States . . . ." 6 The Filipinos, as nationals, owed an obligation of permanent allegiance to this country. 7 </s> Upon the proclamation of Philippine independence on July 4, 1946, 8 14 of the Philippine Independence Act of 1934 became operative. Section 14 provided: </s> "Upon the final and complete withdrawal of American sovereignty over the Philippine Islands the [353 U.S. 427, 430] immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries." 48 Stat. 464, 48 U.S.C. (1946 ed.) 1244. </s> The Court of Appeals held that the petitioner lost his status as a national when the United States relinquished its sovereignty over the Islands on July 4, 1946, and that this occurred regardless of his residence in the continental United States on that date. 9 </s> The petitioner argues that his status as a national, acquired at birth under the Treaty and the 1902 statute, bears such close relationship to the constitutionally secured birthright of citizenship acquired by the American-born, that its divestiture should rest only upon the most explicit expression of congressional intention. In the Independence Act, the Congress granted full and complete independence to the Islands, and necessarily severed the obligation of permanent allegiance owed by Filipinos who were nationals of the United States. Anything less than the severance of the ties for all Filipinos, regardless of residence in or out of the continental United States, would not have fulfilled our long-standing national policy to grant independence to the Philippine people. See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 674 -678, 692. Section 14 of the Independence Act in clear language applies "to persons who were born in the Philippine Islands." This language demonstrates, and we hold, as did the courts below, that persons born in the Islands, and who thereby were nationals of the United States, [353 U.S. 427, 431] became aliens on July 4, 1946, regardless of permanent residence in the continental United States on that date. </s> The petitioner contends that, because he was admitted for permanent residence at the time the Islands were a territory of the United States, he did not enter from a foreign country and therefore cannot be an alien within the purview of the 1931 Act. He relies on Barber v. Gonzales, 347 U.S. 637 , where this Court held that a Filipino admitted for permanent residence in 1930 was not deportable under 19 (a) of the Immigration Act of 1917 as an alien sentenced for certain crimes "committed . . . after entry." (Emphasis added.) The word "entry" was held to be significant of a congressional purpose to limit deportation under 19 (a) to aliens arriving "from some foreign port or place," a description which did not fit a territory belonging to the United States. But the 1931 Act differs from the 1917 Act because it is silent as to whether "entry" from a foreign country is a condition of deportability. By its terms, the 1931 Act applies to ". . . any alien . . . who, after . . . [February 18, 1931], shall be convicted . . ." of a federal narcotics offense. It follows that the holding in Gonzales is not applicable. </s> The petitioner argues that the requirement of "entry," as construed in Gonzales, was incorporated into the 1931 Act by the provision that deportation shall be accomplished "in manner provided in sections 19 and 20" of the Immigration Act of 1917. 10 We hold that the reference [353 U.S. 427, 432] to the "manner provided" in those sections draws into the 1931 Act only the procedural steps for securing deportation set forth in those sections. Bugajewitz v. Adams, 228 U.S. 585 . The Congress adopted these procedures by reference instead of spelling them out in the 1931 Act. 11 </s> The petitioner urges finally that the requirement of "entry" is implicit in the 1931 Act. Citing Fong Yue Ting v. United States, 149 U.S. 698 , he argues that the bounds of the power to deport aliens are circumscribed by the bounds of the power to exclude them, and that the power to exclude extends only to "foreigners" and does not embrace Filipinos admitted from the Islands when they were a territory of the United States. It is true that Filipinos were not excludable from the country under any general statute relating to the exclusion of "aliens." See Gonzales v. Williams, 192 U.S. 1, 12 -13; Toyota v. United States, 268 U.S. 402, 411 . </s> But the fallacy in the petitioner's argument is the erroneous assumption that Congress was without power to legislate the exclusion of Filipinos in the same manner as "foreigners." This Court has held that ". . . the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be . . . ." Downes v. Bidwell, 182 U.S. 244, 279 . 12 Congress not only had, but exercised, [353 U.S. 427, 433] the power to exclude Filipinos in the provision of 8 (a) (1) of the Independence Act, which, for the period from 1934 to 1946, provided: </s> "For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13 (c)), this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty. . . ." 48 Stat. 462, 48 U.S.C. (1934 ed.) 1238. </s> The 1931 Act plainly covers the situation of the petitioner, who was an alien, and who was convicted of a federal narcotics offense. Cf. United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 . We therefore conclude that the petitioner was deportable as an alien under that Act. The judgment is </s> Affirmed. </s> Footnotes [Footnote 1 The Act of February 18, 1931, as amended, provided: </s> ". . . [A]ny alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this Act) who, after . . . [February 18, 1931], shall be convicted for violation of or conspiracy to violate any statute of the United States or of any State, Territory, possession, or of the District of Columbia, taxing, prohibiting, or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, or any salt, derivative, or preparation of opium or coca leaves, shall be taken into custody and deported in manner provided in sections 19 and 20 of the Act of February 5, 1917, entitled `An Act to regulate the immigration of aliens to, and the residence of aliens in, the United States.'" 46 Stat. 1171, as amended, 54 Stat. 673, 8 U.S.C. (1946 ed.) 156a. </s> [Footnote 2 234 F.2d 904. </s> [Footnote 3 352 U.S. 906 . </s> [Footnote 4 30 Stat. 1754. </s> [Footnote 5 Id., at 1759. </s> [Footnote 6 32 Stat. 691, 692; compare 39 Stat. 545, 546. </s> [Footnote 7 Compare 101 of the Nationality Act of 1940, which defines the term "national" as follows: </s> "(a) The term `national' means a person owing permanent allegiance to a state. </s> "(b) The term `national of the United States' means . . . (2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. It does not include an alien." 54 Stat. 1137, 8 U.S.C. (1946 ed.) 501. </s> [Footnote 8 Presidential Proclamation No. 2695, 60 Stat. 1352, 11 Fed. Reg. 7517; Presidential Proclamation No. 2696, 60 Stat. 1353, 11 Fed. Reg. 7517. </s> [Footnote 9 The Court of Appeals for the Ninth Circuit has consistently followed this principle. E. g., Resurreccion-Talavera v. Barber, 231 F.2d 524; Gonzales v. Barber, 207 F.2d 398, aff'd on other grounds, 347 U.S. 637 ; Mangaoang v. Boyd, 205 F.2d 553; Cabebe v. Acheson, 183 F.2d 795; cf. Banez v. Boyd, 236 F.2d 934. </s> [Footnote 10 The "manner provided" in 19 of the Immigration Act of 1917, 39 Stat. 889, as amended, 8 U.S.C. (1946 ed.) 155, was "upon the warrant of the Attorney General." Section 20, 39 Stat. 890, as amended, 8 U.S.C. (1946 ed., Supp. IV) 156, related to ports to which aliens are to be deported, costs of deportation and other details. The Attorney General is required by that section to deport "to the country specified by the alien, if it is willing to accept him into its territory." In the administrative proceedings the petitioner specified the Philippine Islands. </s> [Footnote 11 It is not contended that the procedures specified in 19 and 20 were not followed in this case. </s> [Footnote 12 See Magoon, Reports (1902), 120: </s> "The inhabitants of the islands acquired by the United States during the late war with Spain, not being citizens of the United States, do not possess the right of free entry into the United States. That right is appurtenant to citizenship. The rights of immigration into the United States by the inhabitants of said islands are no more than those of aliens of the same race coming from foreign lands." </s> Illustrative of the scope of the congressional power is the treatment afforded Puerto Ricans who were first nationals, 31 Stat. 77, 79, and [353 U.S. 427, 433] who later became citizens, 39 Stat. 951, 953. See also Downes v. Bidwell, 182 U.S. 244, 280 , as to the status of the inhabitants of other territories acquired by the United States. </s> MR. JUSTICE DOUGLAS, dissenting. </s> The Act of February 18, 1931, 8 U.S.C. (1946 ed.) 156a, provided for the deportation of "any alien" convicted of violating a narcotic law after the date of the Act. Petitioner is a citizen of the Philippines and is therefore an alien by virtue of the Philippine Independence Act, 48 Stat. 456, c. 84, 8; and he was convicted of narcotics violation in 1951, which was after his status had been changed from a national to an alien. If the 1931 Act is to be read literally, the deportation of this Filipino is warranted. [353 U.S. 427, 434] But to read the Act literally is, I think, to miss its real import. </s> First. In 1931 the only aliens here were those who had made an "entry" into this country. The condition of "entry" seems, therefore, necessarily implicit in the 1931 Act. Without that condition the Act would have had no application whatsoever at the time of its passage, for at that time every "alien" was a national of another country who had "entered" here. While the Philippine Independence Act later made Filipinos "aliens," that class of "aliens" who were resident here at the time never made an "entry" into this country. As Barber v. Gonzales, 347 U.S. 637 , holds, they were nationals to whom the concept of "entry" was inapplicable. </s> Second. The 1931 Act provides that the offending alien shall be deported "in [the] manner" provided in 19 and 20 of the 1917 Act, 8 U.S.C. (1946 ed.) 155, 156. The words "in [the] manner" are said to refer to the means for securing deportation which, by 19 (a) of the 1917 Act, are described as "upon the warrant of the Attorney General." Bugajewitz v. Adams, 228 U.S. 585, 591 , construed the language of an earlier deportation Act in that way. It held that "in the manner provided" in that Act meant "the means for securing deportation." Yet it is difficult for me to say that by that ruling "in the manner" became words of art in legislative drafting. The Bugajewitz case involved a statute with a very special legislative history. The words "in the manner provided" had been substituted for "as provided." So it was apparent that Congress by the amendment had narrowed the meaning. There is no such special legislative history here. The words "in the manner" seem to me to be synonymous in this setting with "as provided" or "under the conditions of." And the condition of the 1917 Act most relevant here is a crime committed "after entry." [353 U.S. 427, 435] </s> No matter how the case is viewed, the 1931 Act is applicable only to aliens who had made an "entry" in this country. </s> This Filipino came to the United States in 1930 and he has never left here. If the spirit of the 1931 Act is to be observed, he should not be lumped with all other "aliens" who made an "entry." The Filipino alien, who came here while he was a national, stands in a class by himself and should remain there, until and unless Congress extends these harsh deportation measures to his class. </s> [353 U.S. 427, 436]

United States Supreme Court GORDON v. UNITED STATES(1953) No. 182 Argued: Decided: February 2, 1953 </s> Petitioners were convicted in a Federal District Court of unlawfully possessing and transporting goods stolen while in interstate commerce. On cross-examination, a key government witness admitted that (1) prior to the trial, he had given to government agents written statements which conflicted with his testimony incriminating petitioners at the trial, and (2) he had pleaded guilty in another federal court to unlawful possession of the same stolen goods and had not yet been sentenced. Held: </s> 1. In the circumstances of this case, the trial court erred in denying petitioners' motion for the production and inspection of such conflicting written statements in the possession of the Government. Pp. 417-421. </s> 2. The trial court erred in excluding from evidence a transcript of the proceedings in the other court showing that, in accepting the guilty plea and deferring sentence of this witness, the judge had advised him "to tell the probation authorities the whole story even though it might involve others." Pp. 421-422. </s> 3. The combination of these two errors was sufficiently prejudicial to require reversal of petitioners' conviction. Pp. 422-423. </s> 196 F.2d 886, reversed. </s> Petitioners were convicted in a Federal District Court of unlawful possession and transportation of goods stolen while in interstate commerce. The Court of Appeals affirmed. 196 F.2d 886. This Court granted certiorari. 344 U.S. 813 . Reversed, p. 423. </s> George F. Callaghan and Maurice J. Walsh argued the cause and filed a brief for petitioners. </s> John R. Wilkins argued the cause for the United States. With him on the brief were Solicitor General Cummings, Assistant Attorney General Murray and Beatrice Rosenberg. [344 U.S. 414, 415] </s> MR. JUSTICE JACKSON delivered the opinion of the Court. </s> Petitioners Gordon and MacLeod were convicted on an indictment of four counts, two charging unlawful possession of goods stolen while in interstate commerce 1 and two that defendants caused this property to be further transported in interstate commerce. 2 The Court of Appeals affirmed, 3 and we granted certiorari limited to questions concerning production and admission of documentary evidence tending to impeach the testimony of a prosecution witness. 4 </s> The Government proved that film being shipped from Rochester, New York, to Chicago, Illinois, was stolen from a truck in Chicago and that part of it later had been recovered in Detroit. To implicate the two petitioners, it relied principally on one Marshall, who, in Detroit, had pleaded guilty to unlawful possession of the film. Marshall testified that he and a codefendant, Swartz, who died before trial, on several occasions had driven from Detroit to Chicago and back. On each visit they had stopped at petitioner Gordon's Chicago jewelry store. On one trip, according to Marshall, Gordon accompanied them to a garage in that city and there Gordon and a man resembling MacLeod helped to load into Marshall's car film that was stacked in the garage. A week later, Marshall said, he and Swartz again called on Gordon, when the latter sent them to see "Ken" at an address which he wrote on a piece of paper. At this address, MacLeod identified himself as "Ken," and again the three men loaded film from the garage into Marshall's car. [344 U.S. 414, 416] </s> Partial corroboration of Marshall was supplied by a Federal Bureau of Investigation agent, who had been watching the garage. He testified that on the latter occasion he saw Marshall and Swartz drive up to MacLeod's address, whereupon MacLeod removed an old truck from the garage. Later, Swartz and Marshall drove away with film cartons stacked on the back seat of Marshall's car. </s> Both petitioners took the stand and denied complicity in the theft and knowledge that the film was stolen. While their physical movements as recited by them were not materially different from those related by government witnesses, petitioners gave a different and innocent version of the relationship of their acts to the criminal transactions. Gordon testified that the deceased Swartz was a business acquaintance who asked on the first visit if Gordon knew of a garage where a truck could be temporarily stored. Gordon called MacLeod, who was his partner in a rooming-house venture, and told him that he would send two men over who wished to use a garage back of the rooming house. MacLeod testified that he had not known either of the men before they placed a truck in the garage and that, at their request, he had helped load film from the truck into Marshall's car merely as a favor. </s> On cross-examination, Marshall admitted that between his apprehension and his final statement to the Government, which implicated petitioners, he had made three or four statements which did not. Petitioners requested the trial judge to order the Government to produce these earlier statements. The request was denied. Marshall also admitted that, one week before he made any statement incriminating petitioners, he had pleaded guilty to unlawful possession of the film in a federal court in Detroit. He was still unsentenced and no date for sentencing had been set, although nine months had elapsed since this plea was received. He denied that he had received [344 U.S. 414, 417] any promise of immunity or threats which would influence him to testify as he did. Petitioners then sought to introduce from the transcript of the Detroit proceeding this statement made to Marshall by the federal district judge: "Very well, the plea of guilty is accepted. Now, I am going to refer your case to the Probation Department for presentence report. I think I should say to you, as I said to your lawyer yesterday when he and Mr. Smith called upon me in chambers yesterday morning, that it seemed to me that if you intended to plead guilty and expected a recommendation for a lenient sentence or for probation from the Probation Department, that it would be essential that you satisfy the Probation Department that you have given the law enforcement authorities all the information concerning the merchandise involved in this proceeding. . . . I am not holding out any promises to you, but I think you would be well advised to tell the probation authorities the whole story even though it might involve others." This was excluded on the objection that it was immaterial. </s> The trial judge in his charge and the Court of Appeals in its opinion 5 recognized that, where, as here, the Government's case may stand or fall on the jury's belief or disbelief of one witness, his credibility is subject to close scrutiny. But the question for this Court is whether rejection of petitioners' two efforts to impeach the credibility of Marshall did not withhold from the jury information necessary to a discriminating appraisal of his trustworthiness to the prejudice of petitioners' substantial rights. The two issues stand on somewhat different grounds. </s> The request by the accused to order production of Marshall's earlier statements was cast in terms of obtaining access to documentary evidence rather than an offer [344 U.S. 414, 418] that would require a ruling on its admissibility. But the Government apparently concedes, as we think it must, that if it would have been prejudicial error for the trial judge to exclude these statements, had the defense been able to offer them, it was error not to order their production. The relation of admissibility to production for inspection is by no means settled in the various jurisdictions, but we conclude that the Government does not concede enough. Demands for production and offers in evidence raise related issues but independent ones, and production may sometimes be required though inspection may show that the document could properly be excluded. </s> In the absence of specific legislation, questions of this nature are governed "by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." 6 Apparently, earlier common law did not permit the accused to require production of such documents. 7 Some state jurisdictions still recognize no comprehensive right to see documents in the hands of the prosecution merely because they might aid in the preparation or presentation of the defense. 8 We need not consider such broad doctrines in order to resolve this case, which deals with a limited and definite category of documents to which the holdings of this opinion are likewise confined. </s> By proper cross-examination, defense counsel laid a foundation for his demand by showing that the documents were in existence, were in possession of the Government, were made by the Government's witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main [344 U.S. 414, 419] issue being tried: the participation of the accused in the crime. The demand was for production of these specific documents and did not propose any broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up. 9 Nor was this a demand for statements taken from persons or informants not offered as witnesses. 10 The Government did not assert any privilege for the documents on grounds of national security, confidential character, public interest, or otherwise. </s> Despite some contrary holdings on which the courts below may have relied, we think their reasoning is outweighed by that of highly respectable authority in state and lower federal courts in support of the view that an accused is entitled to the production of such documents. 11 Indeed, we would find it hard to withstand the force of Judge Cooley's observation in a similar situation that "The State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons." 12 In the light of our reason and experience, the better rule is that upon the foundation that was laid the court should have overruled the objections which the Government advanced and ordered production of the documents. [344 U.S. 414, 420] </s> The trial court, of course, had no occasion to rule as to their admissibility, and we find it appropriate to consider that question only because the Government argues that the trial judge, in the exercise of his discretion, might have excluded these prior contradictory statements and, since that would not have amounted to reversible error, it was not such to decline their production. We think this misconceives the issue. It is unnecessary to decide whether it would have been reversible error for the trial judge to exclude these statements once they had been produced and inspected. 13 For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule; for rarely can the trial judge understandingly exercise his discretion to exclude a document which he has not seen, and no appellate court could rationally say whether the excluding of evidence unknown to the record was error, or, if so, was harmless. The question to be answered on an application for an order to produce is one of admissibility under traditional canons of evidence, and not whether exclusion might be overlooked as harmless error. </s> The Court of Appeals affirmed on the ground that Marshall's admission, on cross-examination, of the implicit contradiction between the documents and his testimony removed the need for resort to the statements and the admission was all the accused were entitled to demand. We cannot agree. We think that an admission that a contradiction is contained in a writing should not bar admission of the document itself in evidence, providing [344 U.S. 414, 421] it meets all other requirements of admissibility and no valid claim of privilege is raised against it. 14 The elementary wisdom of the best evidence rule rests on the fact that the document is a more reliable, complete and accurate source of information as to its contents and meaning than anyone's description and this is no less true as to the extent and circumstances of a contradiction. We hold that the accused is entitled to the application of that rule, not merely because it will emphasize the contradiction to the jury, but because it will best inform them as to the document's impeaching weight and significance. 15 Traditional rules of admissibility prevent opening the door to documents which merely differ on immaterial matters. The alleged contradictions to this witness' testimony relate not to collateral matters but to the very incrimination of petitioners. Except the testimony of this witness be believed, this conviction probably could not have been had. Yet, his first statement was that he got the film from Swartz; his first four statements did not implicate these petitioners and his fifth did so only after the judicial admonition we will later consider. The weight to be given Marshall's implication of the petitioners was decisive. Since, so far as we are now informed by the record, we think the statements should have been admitted, we cannot accept the Government's contention based on a premise that the court was free to exclude them. It was error to deny the application for their production. </s> The second effort to impeach Marshall was to offer parts already quoted from the transcript of proceedings [344 U.S. 414, 422] in Detroit. Although Marshall admitted pleading guilty to the offense and that nine months later he was still unsentenced, he denied that he had received either promises or threats. The transcript would have shown the jury that a federal judge, who still retained power to fix his sentence, in discussing Marshall's expectation of a "recommendation for a lenient sentence or for probation" had urged him to tell all he knew, "even though it might involve others." Involvement of others, whom Marshall had not theretofore mentioned, soon followed. We think the jury should have heard this warning of the judge, which was an addition to the matter brought out on cross-examination. The question for them is not what the judge intended by the admonition, nor how we, or even they, construe its meaning. We imply no criticism of it, and he expressly stated that he was holding out no promise. But the question for the jury is what effect they think these words had on the mind and conduct of a prisoner whose plea of guilty put him in large measure in the hands of the speaker. They might have regarded it as an incentive to involve others, and to supply a motive for Marshall's testimony other than a duty to recount the facts as best he could remember them. Reluctant as we are to differ with an experienced trial judge on the scope of cross-examination, the importance of this witness constrains us to hold that the transcript was erroneously excluded. </s> We believe, moreover, that the combination of these two errors was sufficiently prejudicial to require reversal. The Government, in its brief, argues strongly for the widest sort of discretion in the trial judge in these matters and urges that even if we find error or irregularity we disregard it as harmless 16 and affirm the conviction. We [344 U.S. 414, 423] are well aware of the necessity that appellate courts give the trial judge wide latitude in control of cross-examination, especially in dealing with collateral evidence as to character. Michelson v. United States, 335 U.S. 469 . But this principle cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony. Reversals should not be based on trivial, theoretical and harmless rulings. But we cannot say that these errors were unlikely to have influenced the jury's verdict. We believe they prejudiced substantial rights and the judgment must be </s> Reversed. </s> Footnotes [Footnote 1 18 U.S.C. (Supp. V) 659. </s> [Footnote 2 18 U.S.C. (Supp. V) 2314. </s> [Footnote 3 196 F.2d 886. </s> [Footnote 4 344 U.S. 813 . </s> [Footnote 5 196 F.2d 886, 888. </s> [Footnote 6 Funk v. United States, 290 U.S. 371 ; Fed. Rules Crim. Proc., 26. </s> [Footnote 7 6 Wigmore on Evidence, 1859g. </s> [Footnote 8 2 Wharton's Criminal Evidence (11th ed.) 785. </s> [Footnote 9 As to the pretrial discovery stage, compare Fed. Rules Civ. Proc., 34, with the narrower provisions of Fed. Rules Crim. Proc., 16. </s> [Footnote 10 In Goldman v. United States, 316 U.S. 129 , the notes sought to be inspected had neither been used in court, nor was there any proof that they would show prior inconsistent statements. </s> [Footnote 11 Asgill v. United States, 60 F.2d 776; United States v. Krulewitch, 145 F.2d 76, 79; People v. Davis, 52 Mich. 569, 18 N. W. 362; State v. Bachman, 41 Nev. 197, 168 P. 733; People v. Schainuck, 286 N. Y. 161, 164, 36 N. E. 2d 94, 95-96; People v. Walsh, 262 N. Y. 140, 186 N. E. 422. </s> [Footnote 12 People v. Davis, 52 Mich. 569, 573, 18 N. W. 362, 363. </s> [Footnote 13 We note in passing that the rules relating to impeachment by prior self-contradiction, which provide that such contradiction may be shown only on a matter material to the substantive issues of the trial, contain within themselves a guarantee against multiplication and confusion of issues. Therefore the discretion of the trial judge in excluding otherwise admissible evidence of this type is not as wide as it is in the vague and amorphous area of cross-examination of character witnesses. See Michelson v. United States, 335 U.S. 469 . </s> [Footnote 14 3 Wigmore on Evidence, 1037; 3 Wharton's Criminal Evidence (11th ed.) 1309. </s> [Footnote 15 The best evidence rule is usually relied upon by one opposing admission, on the ground that the evidence offered by the proponent does not meet its standards. Its merit as an assurance of the most accurate record possible commends its extension to this unique situation where it is the proponent who seeks to rely on it. </s> [Footnote 16 Fed. Rules Crim. Proc., 52 admonishes us that "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." </s> [344 U.S. 414, 424]

United States Supreme Court AUTOMOBILE WORKERS v. BROCK(1986) No. 84-1777 Argued: March 25, 1986Decided: June 25, 1986 </s> To supplement state unemployment insurance benefits, the Trade Act of 1974 (Act) provides federally funded trade readjustment allowance (TRA) benefits to workers laid off because of competition from imports. As authorized by the Act, the Secretary of Labor (Secretary) has contracted out to state unemployment insurance agencies the job of making individual eligibility determinations for the benefits. To qualify for benefits, a worker must have at least 26 weeks of employment in the 52 weeks immediately preceding his layoff. In a 1975 policy handbook, the Secretary advised the state agencies that they should not count toward these 26 weeks leaves of absence, sick leaves, vacations, and military leaves. These guidelines were superseded by a 1981 amendment to the Act that permits inclusion of such periods of nonservice in determining a worker's period of employment, but the amendment was limited to benefits payable for weeks of unemployment beginning after September 30, 1981. Petitioner union and petitioner union members (some of whom had been denied benefits before October 1, 1981, because of the 1975 guidelines and some of whom were defending the award of benefits against appeals by their respective state agencies) filed an action in Federal District Court against the Secretary, claiming that his interpretation of the Act in the 1975 guidelines was incorrect, and seeking declaratory and injunctive relief. On cross-motions for summary judgment, the District Court first rejected the Secretary's argument that the provision of the Act, 19 U.S.C. 2311(d), that makes entitlement determinations reviewable only "in the same manner and to the same extent as determinations under the applicable State law," precluded federal jurisdiction over the action. On the merits, the Court held that the 1975 guidelines were inconsistent with the Act, and granted the requested relief. Without reaching the merits, the Court of Appeals reversed, holding that the union had no standing to bring the action. As to the individual union member plaintiffs, who claim to have been denied benefits because of an improper construction of the Act, the court, relying on 2311(d)'s requirement, held that no relief could properly be awarded because the [477 U.S. 274, 275] plaintiffs had failed to join as party-defendants the state agencies that had denied their claims. </s> Held: </s> 1. Petitioner union has standing to litigate this action. Pp. 281-290. </s> (a) An association has standing to bring suit on behalf of its members when (1) "its members would otherwise have standing to sue in their own right"; (2) "the interests it seeks to protect are germane to the organization's purpose"; and (3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343 . All three of these conditions have been met in this case. As to the first condition, 2311(d) does not preclude a union member or any other aggrieved claimant from challenging the 1975 guidelines. The question is not whether there are any union members who might have circumvented any state administrative and judicial process in order to bring the claims that the union now seeks to litigate, but rather whether there are union members who have yet to receive either benefits they believe are due or a final state judgment that will preclude further consideration of their claims. Such individuals would have the live interest in challenging the guidelines that would support standing in this case. As to the second condition for associational standing, there is little question that the interests the union seeks to protect in this action are "germane" to its purpose of obtaining benefits, including unemployment benefits, for its members. As to the third condition, although the unique facts of each union member's claim will have to be considered by the state authorities before the member can receive the claimed benefits, the union can litigate this action without those individual members' participation and still ensure that the remedy, if granted, will benefit those members actually injured. Pp. 282-288. </s> (b) The principles of associational standing set out in Hunt, supra, are reaffirmed. The Secretary's suggestion that members of an association who wish to litigate common questions of law or fact against the same defendant should be permitted to proceed only pursuant to the class-action provisions of Federal Rule of Civil Procedure 23, fails to recognize the special features distinguishing suits by associations on behalf of their members from class actions. While a class action creates an ad hoc union of injured plaintiffs who may be linked only by their common claims, an association suing to vindicate its members' interests can draw upon a pre-existing reservoir of expertise and capital that can assist both courts and plaintiffs. In addition, the doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with [477 U.S. 274, 276] others. Here, the Secretary has given no reason to doubt the union's ability to proceed on behalf of its aggrieved members. Pp. 288-290. </s> 2. The action can be maintained without the joinder as defendants of the state agencies administering the TRA benefit program. The action is not an appeal from an adverse benefit determination, removed to federal court, but is a challenge to federal guidelines that required that determination. Just as 2311(d) cannot be read to bar federal jurisdiction over a challenge to the guidelines, that section does not demand that the state rules governing review of the entitlement decisions bind the federal court entertaining that challenge. Under circumstances where the state agencies would be bound to comply with the relief ordered here and are reimbursed by the Federal Government for TRA benefits they pay, the state agencies are not "indispensable parties" within the meaning of Federal Rule of Civil Procedure 19(b) whose absence from the action rendered the District Court unable to grant the relief sought. Pp. 290-293. </s> 241 U.S. App. D.C. 106, 746 F.2d 839, reversed and remanded. </s> MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 293. POWELL, J., filed a dissenting opinion, post, p. 296. </s> Marsha S. Berzon argued the cause for petitioners. With her on the briefs were Jordan Rossen, Leonard Page, and Stephen P. Berzon. </s> Deputy Solicitor General Kuhl argued the cause for respondent. With her on the brief were Solicitor General Fried, Assistant Attorney General Willard, Mark I. Levy, Leonard Schaitman, and William G. Cole. * </s> [Footnote * Benjamin W. Heineman, Jr., and Carter G. Phillips filed a brief for the Chamber of Commerce of the United States et al. as amici curiae urging reversal. </s> JUSTICE MARSHALL delivered the opinion of the Court. </s> This suit was brought by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and several of its members challenging the Secretary of Labor's interpretation of the eligibility provisions of the Trade Act of 1974, 88 Stat. 1978, 19 U.S.C. 2101, [477 U.S. 274, 277] which provides benefits to workers laid off because of competition from imports. The issues presented here are whether the Union has standing to sue in federal court on behalf of its affected members and whether such a suit can be maintained without the joinder as defendants of the state agencies that administer the benefit program in question. </s> I </s> To aid workers who have lost their jobs because of import competition, the Trade Act of 1974 established a program of trade readjustment allowance (TRA) benefits as a supplement to state unemployment insurance benefits. 19 U.S.C. 2291. Under the Act's scheme, a group of workers, their union, or some other authorized representative may petition the Secretary of Labor to certify that their firm has been adversely affected by imports. 2271-2273. If the Secretary issues a certificate of eligibility for such a group, workers within that group who meet certain standards of individual eligibility may then apply for and receive TRA benefits. These benefits are funded entirely by the Federal Government, as is the cost of administering the program. </s> While the Secretary of Labor cannot delegate his certification duties, the Act does permit him to contract out the job of making individual eligibility determinations to the state agencies that administer state unemployment insurance programs. The Secretary has in fact entered into such agreements with unemployment insurance agencies in each State and in the District of Columbia and Puerto Rico. Pursuant to the agreements, each of these "cooperating Stat[e] agencies," 2311(a), becomes an "agent of the United States," 2313(a), charged with processing applications and using federal funds to pay TRA benefits to individuals eligible under the Act. Review of eligibility decisions by these agencies is to be "in the same manner and to the same extent as determinations under the applicable State law and only in that [477 U.S. 274, 278] manner and to that extent." 2311(d). In making these eligibility determinations, however, state authorities are bound to apply the relevant regulations promulgated by the Secretary of Labor and the substantive provisions of the Act. 29 CFR 91.51(c) (1985). </s> To qualify for TRA benefits under the Act, a worker must have "had, in the 52 weeks immediately preceding . . . separation, at least 26 weeks of employment at wages of $30 or more a week in adversely affected employment with a single firm or subdivision of a firm." 19 U.S.C. 2291(2) (1976 ed.). In a 1975 policy handbook, the Secretary advised the state agencies that they should not count toward these 26 weeks </s> "[p]eriods in which service is not being performed, such as leave of absence, sick or annual leave or vacation leave, and periods in which service is being performed for other than the adversely affected employer, such as military service, temporary loan or detail to another employer, or work for another employer while attached to the adversely affected employer . . . ." App. 85. </s> These guidelines were superseded in August 1981 by the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub. L. 97-35, 95 Stat. 357, which amended the Trade Act to provide that "leave for purposes of vacation, sickness, injury, maternity, or inactive duty or active duty military service for training" is to be included in determining an individual's period of employment with an adversely affected firm. 19 U.S.C. 2291(a)(2)(A). The effect of this amendment, however, was limited to TRA benefits "payable for weeks of unemployment which begin after September 30, 1981." OBRA, 2514(a)(2)(B), 95 Stat. 889, note following 19 U.S.C. 2291. </s> Shortly after the passage of the OBRA, petitioners, the UAW and 11 of its members - some of whom had been denied benefits for weeks of employment before October 1, 1981, because of the interpretation of 2291 in the 1975 handbook and [477 U.S. 274, 279] some of whom were defending the award of benefits against appeals by their respective state agencies - filed this suit in District Court against the Secretary of Labor. Claiming that the Secretary's interpretation had been incorrect and, to the extent that it related to military leave, in violation of the Veterans' Employment and Readjustment Act of 1972, 38 U.S.C. 2013, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 2014, 2024, petitioners sought a declaration that the interpretation was improper and an injunction requiring the Secretary both to notify all cooperating state agencies of the invalidity of the handbook and to direct those agencies to review and reprocess all cases in which TRA benefits had been denied. </s> On cross-motions for summary judgment, the District Court first rejected the Secretary's argument that 2311(d), which makes entitlement determinations reviewable only "in the same manner and to the same extent as determinations under the applicable State law," precluded federal jurisdiction over the action. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Donovan, 568 F. Supp. 1047, 1050-1052 (DC 1983). It noted: </s> "In the typical case the Act envisions that a disappointed applicant for TRA benefits appeals to the state court the administering agency's application of the pertinent guidelines or regulations to the facts of his case. The instant case, however, is atypical. Here, plaintiffs allege that the guidelines themselves are invalid; they do not contest the particulars of the application of the guidelines to the facts of individual cases." Id., at 1050. </s> On the merits of the complaint, the court held that the 1975 guidelines were indeed inconsistent with the Trade Act and the Veterans' Readjustment Assistance Act of 1972. It therefore ordered the Secretary to notify all cooperating state agencies of the Act's proper construction and to direct those agencies to process anew, applying the proper eligibility [477 U.S. 274, 280] standards, any TRA claims wrongfully denied as a result of the 1975 guidelines. </s> Without reaching the merits, a divided panel of the Court of Appeals reversed. 241 U.S. App. D.C. 106, 746 F.2d 839 (1984). The court first noted that the UAW "is not an appropriate representative of those TRA claimants who were not its members," id., at 109, 746 F.2d, at 842, and that, at this stage of the proceedings, it would be "impressible" to treat the suit as a class action on behalf of all disappointed claimants, id., at 108, 746 F.2d, at 841. The court then held that the UAW could not even represent the interests of those claimants who were union members. It reasoned: </s> "In this case . . ., the Union has alleged no injury to itself; nor are the members' associational rights affected. . . . It seeks standing solely because some of the claimants, but far from all, were members of the Automobile Workers Union. Many of the members of the Union, however, have not had their employment terminated because of increasing imports. They have no interest in this case and no standing to seek any judicial relief. Those members of the Union who were disappointed claimants of the benefits have been injured, or denied advantages, in various amounts. The controversy could draw to a conclusion in these proceedings only if each individual claimant was a party plaintiff." Id., at 109, 746 F.2d, at 842. </s> Turning to the six named plaintiffs who claimed to have been denied administrative awards of benefits because of an improper construction of 2291, the court held that, even assuming that 2311(d) did not preclude federal jurisdiction, "no relief could properly be awarded in this action" because plaintiffs had failed to join as party-defendants the cooperating state agencies that had denied their claims. Id., at 111, 746 F.2d, at 844. Relying on the requirement of 2311(d) "that review of determinations with respect to TRA benefits [477 U.S. 274, 281] must be `in the same manner' as a determination under the state's unemployment insurance law," the court concluded: </s> "Judicial review of a state agency's determination of benefits under its own unemployment insurance law may not be had without the presence of the state agency, [and] since the state agencies are outside the district court's jurisdiction, it may not be had here." Id., at 110, 746 F.2d, at 843. </s> We granted certiorari to consider the procedural issues raised by the Court of Appeals' decision, 474 U.S. 900 (1985). We now reverse. </s> II </s> The first question raised by the Court of Appeals' decision is a simple one: Does the UAW have standing to challenge the 1975 policy directive that allegedly resulted in the denial of TRA benefits to thousands of the Union's members? See Complaint § 69. As the Court of Appeals properly noted, "the Union has alleged no injury to itself; nor are the members' associational rights affected," 241 U.S. App. D.C., at 109, 746 F.2d, at 842. The inquiry here is thus whether the UAW may proceed solely as a representative of those of its members injured by the Secretary's policy. </s> It has long been settled that "[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members. E. g., National Motor Freight Assn. v. United States, 372 U.S. 246 (1963)." Warth v. Seldin, 422 U.S. 490, 511 (1975). While the "possibility of such representational standing . . . does not eliminate or attenuate the constitutional requirement of a case or controversy," ibid.; see Sierra Club v. Morton, 405 U.S. 727 (1972), we have found that, under certain circumstances, injury to an organization's members will satisfy Article III and allow that organization to litigate in federal court on their behalf. See Simon v. Eastern Kentucky Welfare Rights [477 U.S. 274, 282] Organization, 426 U.S. 26, 40 (1976). In Warth, supra, we set out the nature of these circumstances: </s> "The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. . . . So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." Id., at 511. </s> Subsequently, this doctrine was stated as a three-part test: </s> "[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organizations purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). </s> The Court of Appeals here held that the UAW could not litigate its challenge to the Secretary's policy directive on behalf of its members because it found that the third of these conditions was not present in this case. Defending the court's decision, however, the Secretary argues that none of the three has been satisfied. We will consider each in turn. </s> A </s> Addressing the first part of the analysis in Hunt, the Secretary does not dispute petitioner's claim that a large number of UAW members were denied TRA benefits by their respective state agencies as a result of his Department's interpretation of 2291(2) between 1975 and 1981. His argument is not [477 U.S. 274, 283] that all members whom the UAW purports to represent have suffered no injury. Rather, he relies on 19 U.S.C. 2311(d), which makes TRA entitlement determinations by state agencies "subject to review in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent," and maintains that not a single member of the UAW - or any other aggrieved TRA claimant - can challenge the 1975 policy directive without running afoul of settled principles of administrative finality and judicial comity, as well as statutory intent. </s> The reasons the Secretary gives for the preclusion of various UAW members differ, but the end result is the same. TRA claimants who were awarded benefits and whose cases were finally resolved in their favor on judicial review cannot challenge the Secretary's interpretation of the Trade Act because they were not injured by it. At the same time, claimants denied benefits in final state judicial decisions are barred by res judicata from raising any eligibility claim in federal court. As for workers, who, at the time the suit was brought, had claims pending in state court after either favorable or unfavorable administrative determinations, the Secretary argues that it would "be contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts, to allow claimants whose cases were under state judicial review to pretermit that process by proceeding in federal court." Brief for Respondent 16. Workers with claims still pending in state administrative proceedings cannot complain, according to the Secretary, because they have yet to suffer any cognizable injury and may not circumvent state processes. And workers who failed to seek judicial review of adverse administrative determinations should also be barred from coming to federal court because their inaction has allowed those determinations to become final. [477 U.S. 274, 284] </s> The Secretary's arguments simply miss the point of petitioner's claims. The statutory challenges raised here will no doubt affect the outcome of individual entitlement determinations if petitioners are successful on the merits of their suit. However, this action does not directly seek TRA benefits. In accordance with 2231(d), decisions as to the eligibility of individual claimants for benefits will remain the province of state authorities. The question is thus not whether there are any individual members of the UAW who might have circumvented state administrative and judicial processes in order to bring the claims that the UAW now seeks to litigate. Rather, it is whether there are members of the UAW who have yet to receive either the TRA benefits they believe they are due or a final state judgment that would preclude further consideration of their eligibility claims. Such individuals would have the live interest in challenging the Labor Department guidelines that would support standing in this case. And there is no question here that among the UAW's members are many such individuals. </s> At bottom, the Secretary's invocation of administrative exhaustion principles is merely a variant of his argument that 2311(d) irrevocably commits to state processes all claims relating to TRA entitlements. Citing this Court's recent decision in Green v. Mansour, 474 U.S. 64 (1985), he argues that "this suit, like Green, is an impermissible attempt to gain a federal judicial ruling to serve as the predicate for a state claim that could not be brought directly in federal court." Brief for Respondent 21. In Green, this Court held that when the Eleventh Amendment bars a federal court from directly ordering a State to pay damages for a past constitutional violation, the court cannot enter a declaratory judgment that plaintiffs might use as res judicata in state-court damages actions. The Eleventh Amendment bar that precluded equitable relief in Green, however, has little in common with 19 U.S.C. 2311(d). The Trade Act provision does not foreclose review in federal court of every claim [477 U.S. 274, 285] relating to the Act's application by federal and state officials. While the Act vested state courts with exclusive jurisdiction over claims challenging a state agency's application of federal guidelines to the benefit claims of individual employees, there is no indication that Congress intended 2311(d) to deprive federal district courts of subject-matter jurisdiction under 28 U.S.C. 1331(a) (1976 ed.) to hear statutory or constitutional challenges to the federal guidelines themselves. Indeed, we have frequently upheld a contrary principle: that although review of individual eligibility determinations in certain benefit programs may be confined by state and federal law to state administrative and judicial processes, claims that a program is being operated in contravention of a federal statute or the Constitution can nonetheless be brought in federal court. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 (1977); Fusari v. Steinberg, 419 U.S. 379 (1975); Christian v. New York State Dept. of Labor, 414 U.S. 614 (1974); California Dept. of Human Resources Development v. Java, 402 U.S. 121 (1971); cf. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 678 (1986) (judicial review available for challenge to Secretary's regulations even where statute bars review of determinations of specific benefit amounts). In Christian, supra, for example, former employees denied unemployment compensation benefits in state proceedings brought an action in District Court alleging that the Secretary of Labor and the state agency acting as his agent had not adhered to the procedural guarantees of the Unemployment Compensation for Federal Employees Program. Even though the provision governing review of benefit determinations in that program, 5 U.S.C. 8502(d), is nearly identical to 19 U.S.C. 2311(d), we noted that the court had jurisdiction over plaintiffs' claims against both state and federal defendants. 414 U.S., at 617 , n. 3. </s> As we find 2311(d) to pose no bar to petitioners' claims, we see no jurisdictional impediment to this suit in federal [477 U.S. 274, 286] court challenging a federal official's interpretation of a federal statute. In view of the extent to which state agencies are bound to adhere to the Secretary's directives with respect to the administration and interpretation of the Trade Act, see infra, at 292, such a direct challenge is not only proper, but appropriate. </s> B </s> Having found that at least some members of the UAW would have had standing to bring this suit in their own right, we need pause only briefly to consider whether the second of Hunt's preconditions for associational standing has been satisfied here. For there is little question that the interests that the UAW seeks to protect in this suit are "germane to the organization's purpose," Hunt, 432 U.S., at 343 . The UAW's Constitution announces that one of the Union's goals is "to work for legislation on a national scale, having as its object the establishment of real social and unemployment insurance, the expense of which is to be borne by the employer and the Government." Constitution of the International Union, UAW, Art. 2, 4 (quoted in Brief for Petitioners 14-15). In pursuit of that goal, the leadership of the UAW, along with other representatives of organized labor, lobbied hard for the establishment of the TRA benefit program. See, e. g., Trade Reform Act of 1973: Hearings on H. R. 6767 before the House Committee on Ways and Means, 93d Cong., 1st Sess., pt. 3, pp. 849-914 (1973) (testimony of Leonard Woodcock, President of the UAW). </s> Recognizing the interest of organized labor in obtaining benefits for its workers, Congress gave unions a role in the administration of the TRA program, allowing them to petition the Secretary to certify that particular firms have been adversely affected by imports. 19 U.S.C. 2271-2273. Once the issuance of such a certification permits individual union members to file for TRA benefits, a union like the UAW - whose members, we are told, have constituted over 40% of the workers certified as eligible to apply for TRA [477 U.S. 274, 287] benefits between April 1975 and January 1984, Brief for Petitioners 15 - surely maintains an interest in ensuring that its members receive all the benefits available under the Act. </s> C </s> Relying on our decision in Warth v. Seldin, 422 U.S. 490 (1975), the Court of Appeals concluded that the UAW had failed to satisfy the last of the preconditions for associational standing set out in Hunt. In Warth, we noted that even where the members of an association have suffered the sort of injury that might otherwise support a suit by the association, "whether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought." 422 U.S., at 515 . An organization of construction firms, we held, could not seek damages for the profits and business lost by its members because "whatever injury might have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof." Id., at 515-516. Each member therefore had to be a party to the suit, and the association lacked standing to proceed on his behalf. Likening the instant case to Warth, the Court of Appeals noted that because those UAW members "who had suffered an alleged injury had done so in varying amounts requiring individualized proof," the relief sought here could not be obtained unless "each individual claimant was a party plaintiff." 241 U.S. App. D.C., at 109, 746 F.2d, at 842. </s> Like the Secretary in his arguments before this Court, the Court of Appeals misconstrued the nature of petitioners' claims. Neither these claims nor the relief sought required the District Court to consider the individual circumstances of any aggrieved UAW member. The suit raises a pure question of law: whether the Secretary properly interpreted the Trade Act's TRA eligibility provisions. Cf. Schweiker v. Gray Panthers, 453 U.S. 34, 40 , n. 8 (1981). And the relief [477 U.S. 274, 288] requested, and granted by the District Court, leaves any questions regarding the eligibility of individual TRA claimants to the state authorities given jurisdiction over such questions by 19 U.S.C. 2311(d). See Bowen v. City of New York, 476 U.S. 467, 485 (1986) ("[B]y ordering simply that the claims be reopened at the administrative level, the District Court showed proper respect for the administrative process"). Thus, though the unique facts of each UAW member's claim will have to be considered by the proper state authorities before any member will be able to receive the benefits allegedly due him, the UAW can litigate this case without the participation of those individual claimants and still ensure that "the remedy, if granted, will inure to the benefit of those members of the association actually injured," Warth, supra, at 515. </s> III </s> As an alternative basis for affirming the Court of Appeals, the Secretary asks that we reconsider and reject the principles of associational standing set out in Hunt. He suggests that "at least absent a showing of particularized need," members of an association who wish to litigate common questions of law or fact against the same defendant be permitted to proceed only pursuant to the class-action provisions of Federal Rule of Civil Procedure 23. Brief for Respondent 34. * </s> Both associational standing and Rule 23 are "designed to serve precisely the same purpose," according to the Secretary: "to facilitate, in a fair and efficient manner, the collective adjudication of the common rights of an association's members." Id., at 37. Rule 23, however, contains special [477 U.S. 274, 289] safeguards to ensure that the diverse interests of class members are properly represented by the named plaintiff seeking to bring a case on their behalf. No such adequacy of representation, the Secretary argues, is guaranteed by the approach this Court has taken to associational standing in Warth, Hunt, and other cases. Yet an association might prove an inadequate representative of its members' legal interests for a number of reasons. It might lack resources or experience or might bring lawsuits without authorization from its membership. In addition, the litigation strategy selected by the association might reflect the views of only a bare majority - or even an influential minority - of the full membership. </s> The Secretary's presentation, however, fails to recognize the special features, advantageous both to the individuals represented and to the judicial system as a whole, that distinguish suits by associations on behalf of their members from class actions. While a class action creates an ad hoc union of injured plaintiffs who may be linked only by their common claims, an association suing to vindicate the interests of its members can draw upon a pre-existing reservoir of expertise and capital. "Besides financial resources, organizations often have specialized expertise and research resources relating to the subject matter of the lawsuit that individual plaintiffs lack." Note, From Net to Sword: Organizational Representatives Litigating Their Members' Claims, 1974 U. Ill. L. Forum 663, 669. These resources can assist both courts and plaintiffs. As one court observed of an association's role in pending litigation: "[T]he interest and expertise of this plaintiff, when exerted on behalf of its directly affected members, assure `that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.'" Harlem Valley Transportation Assn. v. Stafford, 360 F. Supp. 1057, 1065 (SDNY 1973), quoting Baker v. Carr, 369 U.S. 186, 204 (1962). [477 U.S. 274, 290] </s> In addition, the doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others. "The only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 187 (1951) (Jackson, J., concurring); see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (association "is but the medium through which its individual members seek to make more effective the expression of their views"). The very forces that cause individuals to band together in an association will thus provide some guarantee that the association will work to promote their interests. </s> We are not prepared to dismiss out of hand the Secretary's concern that associations allowed to proceed under Hunt will not always be able to represent adequately the interest of all their injured members. Should an association be deficient in this regard, a judgment won against it might not preclude subsequent claims by the association's members without offending due process principles. And were we presented with evidence that such a problem existed either here or in cases of this type, we would have to consider how it might be alleviated. However, the Secretary has given us absolutely no reason to doubt the ability of the UAW to proceed here on behalf of its aggrieved members, and his presentation has fallen far short of meeting the heavy burden of persuading us to abandon settled principles of associational standing. See Vasquez v. Hillery, 474 U.S. 254, 265 -266 (1986). We therefore reaffirm the principles we set out in Hunt, and hold that the UAW has standing to litigate this action. </s> IV </s> Our conclusion that the UAW has standing would be of little consequence if we agreed with the Court of Appeals [477 U.S. 274, 291] that "the complaint should be dismissed because it was filed without the joinder of necessary parties," namely, the cooperating state agencies whose adverse benefit determinations gave rise to the injuries complained of here. 241 U.S. App. D.C., at 110, 746 F.2d, at 843. Because petitioners appear to have conceded that the state agencies are outside the jurisdiction of the District Court, Brief for Petitioners 44, n. 44, a demand that all the agencies involved be named as defendants would bar the UAW from proceeding any further with this action. However, we believe that the Court of Appeals' resolution of the joinder issue was erroneous. </s> In part, the Court of Appeals' decision was based upon its reading 19 U.S.C. 2311(d) to require that the state procedural rules applicable to the review of individual entitlement determinations be applied in this case. Since, under state law, review of an individual TRA claimant's eligibility determination cannot be had without the joinder of the state agency that made that determination, the Court of Appeals reasoned that a plaintiff could not pursue the claims raised here unless he joined as defendant the state agency whose reliance on the 1975 handbook had allegedly denied him TRA benefits. As should be clear from the foregoing discussion of the standing issue, however, the court's application of 2311(d) was founded on a mischaracterization of this lawsuit. This action is not an appeal from an adverse benefit determination, removed to federal court. It is a challenge to the federal guidelines that required those determinations. And just as 2311(d) cannot be read to bar federal jurisdiction over a challenge to the Secretary's statutory interpretation, so 2311(d) does not demand that the state rules governing review of agency entitlement decisions bind the federal court entertaining that challenge. </s> The second basis of the Court of Appeals' decision was its concern that without the joinder of every state agency whose cooperation was needed to effect the relief granted by the District Court against the Secretary, such relief might "be a futile thing except to the extent that voluntary compliance [477 U.S. 274, 292] [by those agencies] with the request of the Secretary may be expected." 241 U.S. App. D.C., at 111, 746 F.2d, at 844. We do not share this fear. If upon reaching the merits of this case, the Court of Appeals upholds the relief ordered by the District Court, we have little doubt that the state agencies, which have agreed to administer TRA benefits as "agent[s] of the United States," 19 U.S.C. 2311(a), 2313(a), would obey the Secretary's directive to process anew any TRA claims wrongfully denied as a result of the 1975 handbook's interpretation of the Trade Act. </s> Regulations promulgated by the Secretary provide that "[i]n making determinations, redeterminations, and in connection with proceedings for review thereof," a cooperating state agency "shall be an agent of the United States and shall carry out fully the purpose stated in 91.2." 29 CFR 91.51(d) (1985). Among the goals set out in 91.2 of those regulations is "to implement the provisions of the Act uniformly and effectively throughout the United States." State agencies that have entered into agreements with the Secretary would thus be bound to comply with the relief ordered here. Were a state agency to balk at engaging in the reprocessing the Secretary would order pursuant to the court's injunction, it could be found in breach of its agreement. 29 CFR 91.63(e) (1985). Such a finding would cause employers in that agency's State to lose certain tax credits against their liability for the Federal Unemployment Tax. 26 U.S.C. 3302(c)(3). In any event, since state agencies are fully reimbursed by the Federal Government for the TRA benefits they pay and for the administrative costs of processing those payments, it seems unlikely that a directive from the Secretary would meet any resistance from his agents. </s> Under these circumstances, we do not believe that the state agencies should be considered "indispensable parties" within the meaning of Federal Rule of Civil Procedure 19(b), whose absence from this action rendered the District Court unable to grant in full the relief sought by petitioners. Furthermore, [477 U.S. 274, 293] given that the only prejudice to absent third parties suggested here is administrative work for which the agencies will be fully reimbursed, it would be indeed odd were we to prevent this suit from going forward simply because there is a slight chance that petitioners will not be able to obtain the full extent of the relief they seek. </s> V </s> We hold that the UAW has standing to proceed in this case, and that petitioners' failure to join the various cooperating state agencies poses no obstacle to the suit. It remains for the Court of Appeals to consider the merits of the District Court's decision and any procedural issues properly preserved and raised. </s> The judgment of the Court of Appeals is reversed, and the case is remanded to that court for proceedings consistent with this opinion. </s> It is so ordered. </s> [Footnote * Even while contending that UAW members should have brought their claims in the form of a class action, the Secretary argues that, at this stage of the litigation, certification of the members as a class would be inappropriate. Because we find that the UAW has standing to maintain this action on behalf of its affected members, we need not consider whether it would have been proper to treat this suit as a class action once the District Court had entered judgment. </s> JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting. </s> I disagree with the Court's conclusion that the District Court properly exercised jurisdiction over this case. </s> Section 239(d) of the Trade Act of 1974, 19 U.S.C. 2311(d), provides that "[a] determination by a cooperating State agency with respect to entitlement to program benefits . . . is subject to review in the same manner and to the same extent as determinations under the applicable State law [regarding unemployment compensation benefits] and only in that manner and to that extent." The legislative history explains that "[t]he bill would have the effect of channeling all questions arising from determinations by State agencies through the normal State review procedure." S. Rep. No. 93-1298, p. 139 (1974). Congress thus expressed the intent that once a claim for trade readjustment allowance (TRA) benefits is submitted to a cooperating state agency, the agency and state courts shall have exclusive jurisdiction [477 U.S. 274, 294] to determine all questions, legal as well as factual, regarding the claim. </s> The Court treats 239(d) as inapplicable to the present case on the ground that petitioners have not requested federal-court review of any particular benefit determination under the relevant federal guideline, but instead challenge the guideline itself. Ante, at 285. The distinction between a challenge to the guideline and a challenge to benefit determinations might be meaningful if petitioners had only challenged the application of the guideline to as-yet-unsubmitted claims, but that is not this case. At the time the District Court entered its judgment, the guideline at issue had been superseded for nearly 22 months, and the only live controversy related to the cooperating state agencies' applications of the guideline to already-submitted claims. 1 Thus, this suit is precluded by Congress' clearly expressed intent to commit to the state review process the adjudication of all questions regarding TRA benefit claims under submission to a state agency. </s> In explaining its holding that 239(d) does not apply to this case, the Court states that "although review of individual eligibility determinations in certain benefit programs may be confined by state and federal law to state administrative and judicial processes, claims that a program is being operated in contravention of a federal statute or the Constitution can nonetheless be brought in federal court." Ibid. If the Court means that this case could have been brought even if the underlying benefit claims were state unemployment compensation claims, I disagree. In such a case, petitioners' [477 U.S. 274, 295] suit, which seeks declaratory and injunctive relief for the sole purpose of providing a predicate for the recovery of already-accrued benefit claims in state court, would have been barred by the Eleventh Amendment. Green v. Mansour, 474 U.S. 64 (1985). 2 Of course, the Eleventh Amendment does not directly apply in the present case, since TRA benefits are paid entirely from federal funds, but what 239(d) commands a federal court to do is treat questions arising from TRA benefit determinations as if they were questions arising from benefit determinations under state unemployment compensation law. Under that standard, this is not a case that should be adjudicated by the federal courts. 3 Accordingly, I dissent from the Court's decision to address petitioners' claims on the merits. </s> Footnotes [Footnote 1 The claims in this case related to weeks of unemployment beginning prior to October 1, 1981. Brief for Petitioners 4, n. 4. When the District Court entered its judgment on July 28, 1983, the relief granted related only to already-accrued claims for periods 22 months past or older. The record does not indicate that any unadjudicated claims for the period preceding October 1, 1981, remained outstanding at the time the District Court's opinion issued. </s> [Footnote 2 The cases cited by the Court that involve claims for state unemployment compensation benefits - Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 (1977), Fusari v. Steinberg, 419 U.S. 379 (1975), and California Dept. of Human Resources Development v. Java, 402 U.S. 121 (1971) - are not to the contrary. These cases concern requests for declarations or injunctions that pertain at least in part to future claims for benefits, see, e. g., Hodory, supra, at 475, which is not true of petitioners' suit as of the time the District Court issued its judgment, see n. 1, supra. Also, whether or not the Eleventh Amendment might have been a bar to any aspect of the relief sought in Hodory, Fusari, or Java, the defendant state agency failed to raise the issue. </s> [Footnote 3 Christian v. New York Dept. of Labor, 414 U.S. 614 (1974), is not sound support for the Court's conclusion that the present case is properly in federal court. In Christian, the Court never directly considered the jurisdictional implications of 5 U.S.C. 8502, the analogue of 239(d) in this case. The only jurisdictional question the Court squarely addressed was whether mandamus jurisdiction lay against the Secretary of Labor, and the Secretary in fact conceded that such jurisdiction was proper. Id., at 617, n. 3. Arguably, any bar to federal-court adjudication presented by the jurisdictional statute in Christian is, like an Eleventh Amendment bar, waivable by the defendant. In any event, the Court's failure to squarely consider the jurisdictional question in Christian makes it inappropriate to rely on that case for guidance in determining the jurisdictional question here. [477 U.S. 274, 296] </s> JUSTICE POWELL, dissenting. </s> The Court today holds that petitioner UAW has standing to proceed in a suit challenging the Secretary of Labor's interpretation of the eligibility provisions of the Trade Act, codified at 19 U.S.C. 2291, because those members of the UAW who have claims pending before a state administrative agency would have standing to bring a similar suit. The record, however, provides no information as to how many members of the UAW fall within this potential class. There is the danger that ultimately the number of members that the UAW can represent will be quite small. The Union may therefore lack the incentive to provide the adequate representation needed by the courts. </s> It is well settled that an association can represent its members' interest in a third-party action when an association has alleged a related injury. E. g., Warth v. Seldin, 422 U.S. 490 (1975). Moreover, in appropriate circumstances this Court has conferred standing upon an association whose members have suffered an alleged injury, even though the organization itself has not suffered an injury. In Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977), the Court stated: </s> "[W]e have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Id., at 343. </s> It is undisputed that achieving unemployment benefits under the program of trade readjustment allowance is "germane" to the UAW's purpose in the sense that one of its goals is to secure such benefits for its workers. I do not believe, however, that a determination of "germane" in this formalistic [477 U.S. 274, 297] sense should be sufficient to confer standing upon the UAW here. </s> A consistent concern of our standing cases has been the adequacy of representation of the organization purportedly acting on behalf of the injured parties, especially when the organization itself has not suffered injury. This Court has repeatedly expressed its reluctance to confer standing on third parties for fear of inadequate representation. "The courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them." Singleton v. Wulff, 428 U.S. 106, 114 (1976) (opinion of BLACKMUN, J.). See, e. g., Baker v. Carr, 369 U.S. 186, 204 (1962) (standing requirement aimed at "assur[ing] that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends"); Holden v. Hardy, 169 U.S. 366, 397 (1898) (assertion of third parties' rights would come with "greater cogency" from the third parties themselves). </s> Since the concept of organizational representation is based on a theoretical identity between the organization and its members, the organization's interest in the outcome is based on the members' stake in the outcome. The number of members in the organization with a concrete stake in the outcome, however, may be so small that this theoretical identity disappears. It may develop in this case, in fact, that the great majority of members in the Union have little or no interest in the litigation. Moreover, a union may have reasons for instituting a suit - such as the publicity that attends a major case - other than to assert rights of its members. In such a case, the "concrete adverseness" required throughout a litigation by our cases may be absent. * </s> [477 U.S. 274, 298] </s> In the light of these dangers of inadequate representation, I would not find - on the basis of the record before us - that the UAW had standing based on an amorphous and unenumerated group of injured parties. Accordingly, I dissent. </s> [Footnote * It is, of course, true that many organizations have financial resources, expertise, and research ability that individual plaintiffs or ad hoc groups lack. But absent the requisite interest of the organization itself, the presence of these resources does not ensure adequacy of representation. It also may be noted that organizational standing differs in controlling [477 U.S. 274, 298] respects from the typical class action. In the latter, there must be an identity of interests among all plaintiffs before the court - an identity that can be counted upon to assure adequate representation. </s> [477 U.S. 274, 299]

United States Supreme Court SANTORO v. UNITED STATES(1968) No. 1219 Argued: Decided: June 10, 1968 </s> Certiorari granted; 388 F.2d 113, vacated and remanded. </s> Robert S. Bailey for petitioner. </s> Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Kirby W. Patterson for the United States. </s> PER CURIAM. </s> The petition for a writ of certiorari is granted. The judgment of the Court of Appeals for the Ninth Circuit is vacated and the case is remanded to that court for further consideration in light of Bruton v. United States, 391 U.S. 123 . See Roberts v. Russell, ante, p. 293. </s> MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for the reasons stated in MR. JUSTICE WHITE'S dissenting opinion in Bruton v. United States, 391 U.S. 123, 138 (1968). </s> MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. </s> [392 U.S. 301, 302]

United States Supreme Court JOHNSON v. CALIFORNIA(2005) No. 04-6964 Argued: April 18, 2005Decided: June 13, 2005 </s> Petitioner Johnson, a black man, was convicted in a California state court of assaulting and murdering a white child. During jury selection, a number of prospective jurors were removed for cause until 43 eligible jurors remained, three of whom were black. The prosecutor used 3 of his 12 peremptory challenges to remove the prospective black jurors, resulting in an all-white jury. Defense counsel objected to those strikes on the ground that they were unconstitutionally based on race. The trial judge did not ask the prosecutor to explain his strikes, but instead simply found that petitioner had failed to establish a prima facie case of purposeful discrimination under the governing state precedent, People v. Wheeler, which required a showing of a strong likelihood that the exercise of peremptory challenges was based on group bias. The judge explained that, although the case was close, his review of the record convinced him that the prosecutor's strikes could be justified by race-neutral reasons. The California Court of Appeal set aside the conviction, but the State Supreme Court reinstated it, stressing that Batson v. Kentucky, 476 U.S. 79, permits state courts to establish the standards used to evaluate the sufficiency of prima facie cases of purposeful discrimination in jury selection. Reviewing Batson, Wheeler, and their progeny, the court concluded that Wheeler's "strong likelihood" standard is entirely consistent with Batson. Under Batson, the court held, a state court may require the objector to present not merely enough evidence to permit an inference that discrimination has occurred, but sufficiently strong evidence to establish that the challenges, if not explained, were more likely than not based on race. Applying that standard, the court acknowledged that the exclusion of all three black prospective jurors looked suspicious, but deferred to the trial judge's ruling. Held: California's "more likely than not" standard is an inappropriate yardstick by which to measure the sufficiency of a prima facie case of purposeful discrimination in jury selection. This narrow but important issue concerns the scope of the first of three steps Batson enumerated: (1) Once the defendant has made out a prima facie case and (2) the State has satisfied its burden to offer permissible race-neutral justifications for the strikes, e.g., 514 U.S. 765. Batson does not permit California to require at step one that the objector show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias. The Batson Court held that a prima facie case can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives "rise to an inference of discriminatory purpose." 476 U.S., at 94. The Court explained that to establish a prima facie case, the defendant must show that his membership in a cognizable racial group, the prosecutor's exercise of peremptory challenges to remove members of that group, the indisputable fact that such challenges permit those inclined to discriminate to do so, and any other relevant circumstances raise an inference that the prosecutor excluded venire members on account of race. Id., at 96. The Court assumed that the trial judge would have the benefit of all relevant circumstances, including the prosecutor's explanation, before deciding whether it was more likely than not that the peremptory challenge was improperly motivated. The Court did not intend the first step to be so onerous that a defendant would have to persuade the judge--on the basis of all the facts, some of which are impossible for the defendant to know with certainty--that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies Batson's first step requirements by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. The facts of this case illustrate that California's standard is at odds with the prima facie inquiry mandated by Batson. The permissible inferences of discrimination, which caused the trial judge to comment that the case was close and the California Supreme Court to acknowledge that it was suspicious that all three black prospective jurors were removed, were sufficient to establish a prima facie case. Pp. 10-11. Reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Rehnquist, C.J., and O'Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer,J., filed a concurring opinion. Thomas, J., filed a dissenting opinion. </s> JAY SHAWN JOHNSON, PETITIONER v. CALIFORNIA on writ of certiorari to the court of appeal of california, first appellate district [June 13, 2005] </s> Justice Stevens delivered the opinion of the Court. </s> The Supreme Court of California and the United States Court of Appeals for the Ninth Circuit have provided conflicting answers to the following question: "Whether to establish a prima facie case under Batson v. Kentucky, 476 U.S. 79 (1986), the objector must show that it is more likely than not that the other party's peremptory challenges, if unexplained, were based on impermissible group bias?" Pet. for Cert. i. Because both of those courts regularly review the validity of convictions obtained in California criminal trials, respondent, the State of California, agreed to petitioner's request that we grant certiorari and resolve the conflict. We agree with the Ninth Circuit that the question presented must be answered in the negative, and accordingly reverse the judgment of the California Supreme Court. I </s> Petitioner Jay Shawn Johnson, a black male, was convicted in a California trial court of second-degree murder and assault on a white 19-month-old child, resulting in death. During jury selection, a number of prospective jurors were removed for cause until 43 eligible jurors remained, 3 of whom were black. The prosecutor used 3 of his 12 peremptory challenges to remove the black prospective jurors. The resulting jury, including alternates, was all white. After the prosecutor exercised the second of his three peremptory challenges against the prospective black jurors, defense counsel objected on the ground that the challenge was unconstitutionally based on race under both the California and United States Constitutions. People v. Johnson, 30 Cal. 4th 1302, 1307, 71 P.3d 270, 272-273 (2003).1 Defense counsel alleged that the prosecutor "had no apparent reason to challenge this prospective juror 'other than [her] racial identity.'" Ibid. (alteration in original). The trial judge did not ask the prosecutor to explain the rationale for his strikes. Instead, the judge simply found that petitioner had failed to establish a prima facie case under the governing state precedent, People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978), reasoning "'that there's not been shown a strong likelihood that the exercise of the peremptory challenges were based upon a group rather than an individual basis,'" 30 Cal. 4th, at 1307, 71 P.3d, at 272 (emphasis added). The judge did, however, warn the prosecutor that "'we are very close.'" People v. Johnson, 105 Cal. Rptr. 2d 727, 729 (2001). </s> Defense counsel made an additional motion the next day when the prosecutor struck the final remaining prospective black juror. 30 Cal. 4th, at 1307, 71 P.3d, at 272. Counsel argued that the prosecutor's decision to challenge all of the prospective black jurors constituted a "systematic attempt to exclude African-Americans from the jury panel." 105 Cal. Rptr. 2d, at 729. The trial judge still did not seek an explanation from the prosecutor. Instead, he explained that his own examination of the record had convinced him that the prosecutor's strikes could be justified by race-neutral reasons. Specifically, the judge opined that the black venire members had offered equivocal or confused answers in their written questionnaires. 30 Cal. 4th, at 1307-1308, 71 P.3d, at 272-273. Despite the fact that "'the Court would not grant the challenges for cause, there were answers ... at least on the questionnaires themselves [such] that the Court felt that there was sufficient basis'" for the strikes. Id., at 1308, 71 P.3d, at 273 (brackets added). Therefore, even considering that all of the prospective black jurors had been stricken from the pool, the judge determined that petitioner had failed to establish a prima facie case. </s> The California Court of Appeal set aside the conviction. People v. Johnson, 105 Cal. Rptr. 2d 727 (2001). Over the dissent of one judge, the majority ruled that the trial judge had erred by requiring petitioner to establish a "strong likelihood" that the peremptory strikes had been impermissibly based on race. Instead, the trial judge should have only required petitioner to proffer enough evidence to support an "inference" of discrimination.2 The Court of Appeal's holding relied on decisions of this Court, prior California case law, and the decision of the United States Court of Appeals for the Ninth Circuit in Wade v. Terhune, 202 F.3d 1190 (2000). Applying the proper "reasonable inference" standard, the majority concluded that petitioner had produced sufficient evidence to support a prima facie case. </s> Respondent appealed, and the California Supreme Court reinstated petitioner's conviction over the dissent of two justices. The court stressed that Batson v. Kentucky, 476 U.S. 79 (1986), left to state courts the task of establishing the standards used to evaluate the sufficiency of defendants' prima facie cases. 30 Cal. 4th, at 1314, 71 P.3d, at 277. The court then reviewed Batson, Wheeler, and those decisions' progeny, and concluded that "Wheeler's terms 'strong likelihood' and 'reasonable inference' state the same standard"--one that is entirely consistent with Batson. 30 Cal. 4th, at 1313, 71 P.3d, at 277. A prima facie case under Batson establishes a "'legally mandatory, rebuttable presumption,'" it does not merely constitute "enough evidence to permit the inference" that discrimination has occurred. 30 Cal. 4th, at 1315, 71 P.3d, at 278. Batson, the court held, "permits a court to require the objector to present, not merely 'some evidence' permitting the inference, but 'strong evidence' that makes discriminatory intent more likely than not if the challenges are not explained." 30 Cal. 4th, at 1316, 71 P.3d, at 278. The court opined that while this burden is "not onerous," it remains "substantial." Ibid., 71 P.3d, at 279. </s> Applying that standard, the court acknowledged that the case involved the "highly relevant" circumstance that a black defendant was "charged with killing 'his White girlfriend's child,'" and that "it certainly looks suspicious that all three African-American prospective jurors were removed from the jury." Id., at 1326, 71 P.3d, at 286. Yet petitioner's Batson showing, the court held, consisted "primarily of the statistical disparity of peremptory challenges between African-Americans and others." 30 Cal. 4th, at 1327, 71 P.3d, at 287. Although those statistics were indeed "troubling and, as the trial court stated, the question was close," id., at 1328, 71 P.3d, at 287, the court decided to defer to the trial judge's "carefully considered ruling." Ibid.3 We granted certiorari, but dismissed the case for want of jurisdiction because the judgment was not yet final. Johnson v. California, 541 U.S. 428 (2004) (per curiam). After the California Court of Appeal decided the remaining issues, we again granted certiorari. 543 U.S. ___ (2005). II </s> The issue in this case is narrow but important. It concerns the scope of the first of three steps this Court enumerated in Batson, which together guide trial courts' constitutional review of peremptory strikes. Those three Batson steps should by now be familiar. First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." 426 U.S. 229, 239-242 (1976)).4 Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. 405 U.S. 625, 632 (1972). Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). The question before us is whether Batson permits California to require at step one that "the objector must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias." 30 Cal. 4th, at 1318, 71 P.3d, at 280. Although we recognize that States do have flexibility in formulating appropriate procedures to comply with Batson, we conclude that California's "more likely than not" standard is an inappropriate yardstick by which to measure the sufficiency of a prima facie case. </s> We begin with Batson itself, which on its own terms provides no support for California's rule. There, we held that a prima facie case of discrimination can be made out by offering a wide variety of evidence,5 so long as the sum of the proffered facts gives "rise to an inference of discriminatory purpose." 476 U.S., at 94. We explained that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Id., at 96 (citations omitted) (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)). </s> Indeed, Batson held that because the petitioner had timely objected to the prosecutor's decision to strike "all black persons on the venire," the trial court was in error when it "flatly rejected the objection without requiring the prosecutor to give an explanation for his action." 476 U.S., at 100. We did not hold that the petitioner had proved discrimination. Rather, we remanded the case for further proceedings because the trial court failed to demand an explanation from the prosecutor--i.e., to proceed to Batson's second step--despite the fact that the petitioner's evidence supported an inference of discrimination. Ibid. </s> Thus, in describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor's explanation, before deciding whether it was more likely than not that the challenge was improperly motivated. We did not intend the first step to be so onerous that a defendant would have to persuade the judge--on the basis of all the facts, some of which are impossible for the defendant to know with certainty--that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. </s> Respondent, however, focuses on Batson's ultimate sentence: "If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed." Ibid. For this to be true, respondent contends, a Batson claim must prove the ultimate facts by a preponderance of the evidence in the prima facie case; otherwise, the argument goes, a prosecutor's failure to respond to a prima facie case would inexplicably entitle a defendant to judgment as a matter of law on the basis of nothing more than an inference that discrimination may have occurred. Brief for Respondent 13-18. </s> Respondent's argument is misguided. Batson, of course, explicitly stated that the defendant ultimately carries the "burden of persuasion" to "'prove the existence of purposeful discrimination.'" 385 U.S. 545, 550 (1967)). This burden of persuasion "rests with, and never shifts from, the opponent of the strike." Purkett, 514 U.S., at 768. Thus, even if the State produces only a frivolous or utterly nonsensical justification for its strike, the case does not end--it merely proceeds to step three. Ibid.6 The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant's constitutional claim. "It is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, supra, at 768.7 </s> Batson's purposes further support our conclusion. The constitutional interests Batson sought to vindicate are not limited to the rights possessed by the defendant on trial, see 100 U.S. 303, 308 (1880). Undoubtedly, the overriding interest in eradicating discrimination from our civic institutions suffers whenever an individual is excluded from making a significant contribution to governance on account of his race. Yet the "harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson, 311 U.S. 128, 130 (1940) ("For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but it is at war with our basic concepts of a democratic society and a representative government" (footnote omitted)). </s> The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. See 500 U.S. 352, 358-359 (1991) (opinion of Kennedy, J.). </s> The disagreements among the state-court judges who reviewed the record in this case illustrate the imprecision of relying on judicial speculation to resolve plausible claims of discrimination. In this case the inference of discrimination was sufficient to invoke a comment by the trial judge "that 'we are very close,'" and on review, the California Supreme acknowledged that "it certainly looks suspicious that all three African-American prospective jurors were removed from the jury." 30 Cal. 4th, at 1307, 1326, 71 P.3d, at 273, 286. Those inferences that discrimination may have occurred were sufficient to establish a prima facie case under Batson. </s> The facts of this case well illustrate that California's "more likely than not" standard is at odds with the prima facie inquiry mandated by Batson. The judgment of the California Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered </s> JAY SHAWN JOHNSON, PETITIONER v. CALIFORNIA on writ of certiorari to the court of appeal of california, first appellate district [June 13, 2005] </s> Justice Breyer, concurring. </s> I join the Court's opinion while maintaining here the views I set forth in my concurring opinion in Miller-El v. Dretke, post, p.___. </s> JAY SHAWN JOHNSON, PETITIONER v. CALIFORNIA on writ of certiorari to the court of appeal of california, first appellate district [June 13, 2005] </s> Justice Thomas, dissenting. </s> The Court says that States "have flexibility in formulating appropriate procedures to comply with Batson [v. Kentucky, 476 U.S. 79 (1986)]," ante, at 6, but it then tells California how to comply with "the prima facie inquiry mandated by Batson," ante, at 11. In Batson itself, this Court disclaimed any intent to instruct state courts on how to implement its holding. 481 U.S. 551, 555 (1987), States have "wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult problems of policy," Smith v. Robbins, 528 U.S. 259, 273 (2000); Dickerson v. United States, 530 U.S. 428, 438-439 (2000). California's procedure falls comfortably within its broad discretion to craft its own rules of criminal procedure, and I therefore respectfully dissent. </s> FOOTNOTESFootnote 1Petitioner's state objection was made under People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978). Footnote 2In reaching this holding, the Court of Appeal rejected the notion that a showing of a "'strong likelihood'" is equivalent to a "'reasonable inference.'" To conclude so would "be as novel a proposition as the idea that 'clear and convincing evidence' has always meant a 'preponderance of the evidence.'" 105 Cal. Rptr. 2d, at 733. Footnote 3In dissent, Justice Kennard argued that "[r]equiring a defendant to persuade the trial court of the prosecutor's discriminatory purpose at the first Wheeler-Batson stage short-circuits the process, and provides inadequate protection for the defendant's right to a fair trial...." 30 Cal. 4th, at 1333, 71 P.3d, at 291. The proper standard for measuring a prima facie case under Batson is whether the defendant has identified actions by the prosecutor that, "if unexplained, permit a reasonable inference of an improper purpose or motive." 30 Cal. 4th, at 1339, 71 P.3d, at 294. Trial judges, Justice Kennard argued, should not speculate when it is not "apparent that the [neutral] explanation was the true reason for the challenge." Id., at 1340, 71 P.3d, at 295. Footnote 4An "inference" is generally understood to be a "conclusion reached by considering other facts and deducing a logical consequence from them." Black's Law Dictionary 781 (7th ed. 1999). Footnote 5In Batson, we spoke of the methods by which prima facie cases could be proved in permissive terms. A defendant may satisfy his prima facie burden, we said, "by relying solely on the facts concerning [the selection of the venire] in his case." 429 U.S. 252, 266, n. 14 (1977)). Footnote 6In the unlikely hypothetical in which the prosecutor declines to respond to a trial judge's inquiry regarding his justification for making a strike, the evidence before the judge would consist not only of the original facts from which the prima facie case was established, but also the prosecutor's refusal to justify his strike in light of the court's request. Such a refusal would provide additional support for the inference of discrimination raised by a defendant's prima facie case. Cf. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 111 (1927). Footnote 7This explanation comports with our interpretation of the burden-shifting framework in cases arising under Title VII of the Civil Rights Act of 1964. See, e.g., Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (noting that the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), framework "is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination"); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509-510, and n.3 (1993) (holding that determinations at steps one and two of the McDonnell Douglas framework "can involve no credibility assessment" because "the burden-of-production determination necessarily precedes the credibility-assessment stage," and that the burden-shifting framework triggered by a defendant's prima face case is essentially just "a means of 'arranging the presentation of evidence'" (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988)).

United States Supreme Court COHEN v. CALIFORNIA(1971) No. 299 Argued: February 22, 1971Decided: June 7, 1971 </s> Appellant was convicted of violating that part of Cal. Penal Code 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction. Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 22-26. </s> 1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed. </s> HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C. J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 27. </s> Melville B. Nimmer argued the cause for appellant. With him on the brief was Laurence R. Sperber. </s> Michael T. Sauer argued the cause for appellee. With him on the brief was Roger Arnebergh. </s> Anthony G. Amsterdam filed a brief for the American Civil Liberties Union of Northern California as amicus curiae urging reversal. </s> MR. JUSTICE HARLAN delivered the opinion of the Court. </s> This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance. [403 U.S. 15, 16] </s> Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . ." 1 He was given 30 days' imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows: </s> "On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words `Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. </s> "The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct [403 U.S. 15, 17] in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest." 1 Cal. App. 3d 94, 97-98, 81 Cal. Rptr. 503, 505 (1969). </s> In affirming the conviction the Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and that the State had proved this element because, on the facts of this case, "[i]t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket." 1 Cal. App. 3d, at 99-100, 81 Cal. Rptr., at 506. The California Supreme Court declined review by a divided vote. 2 We brought the case here, postponing the consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits. 399 U.S. 904 . We now reverse. </s> The question of our jurisdiction need not detain us long. Throughout the proceedings below, Cohen consistently [403 U.S. 15, 18] claimed that, as construed to apply to the facts of this case, the statute infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution. That contention has been rejected by the highest California state court in which review could be had. Accordingly, we are fully satisfied that Cohen has properly invoked our jurisdiction by this appeal. 28 U.S.C. 1257 (2); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 (1921). </s> I </s> In order to lay hands on the precise issue which this case involves, it is useful first to canvass various matters which this record does not present. </s> The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only "conduct" which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon "speech," cf. Stromberg v. California, 283 U.S. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U.S. 367 (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U.S. 298 (1957). [403 U.S. 15, 19] </s> Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech" protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here. </s> In the first place, Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. See Edwards v. South Carolina, 372 U.S. 229, 236 -237, and n. 11 (1963). Cf. Adderley v. Florida, 385 U.S. 39 (1966). No fair reading of the phrase "offensive conduct" can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created. 3 </s> In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of [403 U.S. 15, 20] instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U.S. 476 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket. </s> This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v. Connecticut, 310 U.S. 296, 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951); Terminiello v. Chicago, 337 U.S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result. [403 U.S. 15, 21] </s> Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e. g., Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e. g., Rowan v. Post Office Dept., 397 U.S. 728 (1970), we have at the same time consistently stressed that "we are often `captives' outside the sanctuary of the home and subject to objectionable speech." Id., at 738. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections. </s> In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in [403 U.S. 15, 22] being free from unwanted expression in the confines of one's own home. Cf. Keefe, supra. Given the subtlety and complexity of the factors involved, if Cohen's "speech" was otherwise entitled to constitutional protection, we do not think the fact that some unwilling "listeners" in a public building may have been briefly exposed to it can serve to justify this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant's conduct did in fact object to it, and where that portion of the statute upon which Cohen's conviction rests evinces no concern, either on its face or as construed by the California courts, with the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all "offensive conduct" that disturbs "any neighborhood or person." Cf. Edwards v. South Carolina, supra. 4 </s> II </s> Against this background, the issue flushed by this case stands out in bold relief. It is whether California can excise, as "offensive conduct," one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, [403 U.S. 15, 23] may properly remove this offensive word from the public vocabulary. </s> The rationale of the California court is plainly untenable. At most it reflects an "undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression." Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508 (1969). We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves. Cf. Ashton v. Kentucky, 384 U.S. 195, 200 (1966); Cox v. Louisiana, 379 U.S. 536, 550 -551 (1965). </s> Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic. 5 We [403 U.S. 15, 24] think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint. </s> At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions, discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U.S. 357, 375 -377 (1927) (Brandeis, J., concurring). </s> To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and [403 U.S. 15, 25] even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," Winters v. New York, 333 U.S. 507, 528 (1948) (Frankfurter, J., dissenting), and why "so long as the means are peaceful, the communication need not meet standards of acceptability," Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). </s> Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. </s> Additionally, we cannot overlook the fact, because it [403 U.S. 15, 26] is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures - and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 673 -674 (1944). </s> Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results. </s> It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be </s> Reversed. </s> Footnotes [Footnote 1 The statute provides in full: </s> "Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court." </s> [Footnote 2 The suggestion has been made that, in light of the supervening opinion of the California Supreme Court in In re Bushman, 1 Cal. 3d 767, 463 P.2d 727 (1970), it is "not at all certain that the California Court of Appeal's construction of 415 is now the authoritative California construction." Post, at 27 (BLACKMUN, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated: </s> "[One] may . . . be guilty of disturbing the peace through `offensive' conduct [within the meaning of 415] if by his actions he wilfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal. App. 3d 94, 101, [81 Cal. Rptr. 503].)" 1 Cal. 3d, at 773, 463 P.2d, at 730. </s> We perceive no difference of substance between the Bushman construction and that of the Court of Appeal, particularly in light of the Bushman court's approving citation of Cohen. </s> [Footnote 3 It is illuminating to note what transpired when Cohen entered a courtroom in the building. He removed his jacket and stood with it folded over his arm. Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so and Cohen was arrested by the officer only after be emerged from the courtroom. App. 18-19. </s> [Footnote 4 In fact, other portions of the same statute do make some such distinctions. For example, the statute also prohibits disturbing "the peace or quiet . . . by loud or unusual noise" and using "vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner." See n. 1, supra. This second-quoted provision in particular serves to put the actor on much fairer notice as to what is prohibited. It also buttresses our view that the "offensive conduct" portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed or intended to make fine distinctions between differently situated recipients. </s> [Footnote 5 The amicus urges, with some force, that this issue is not properly before us since the statute, as construed, punishes only conduct that might cause others to react violently. However, because the opinion below appears to erect a virtually irrebuttable presumption that use of this word will produce such results, the statute as thus construed appears to impose, in effect, a flat ban on the public utterance of this word. With the case in this posture, it does not seem inappropriate [403 U.S. 15, 24] to inquire whether any other rationale might properly support this result. While we think it clear, for the reasons expressed above, that no statute which merely proscribes "offensive conduct" and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because it is not so patently clear that acceptance of the justification presently under consideration would render the statute overbroad or unconstitutionally vague, and because the answer to appellee's argument seems quite clear, we do not pass on the contention that this claim is not presented on this record. [403 U.S. 15, 27] </s> MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK join. </s> I dissent, and I do so for two reasons: </s> 1. Cohen's absurd and immature antic, in my view, was mainly conduct and little speech. See Street v. New York, 394 U.S. 576 (1969); Cox v. Louisiana, 379 U.S. 536, 555 (1965); Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal. App. 3d 94, 100, 81 Cal. Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court's agonizing over First Amendment values seems misplaced and unnecessary. </s> 2. I am not at all certain that the California Court of Appeal's construction of 415 is now the authoritative California construction. The Court of Appeal filed its opinion on October 22, 1969. The Supreme Court of California declined review by a four-to-three vote on December 17. See 1 Cal. App. 3d, at 104. A month later on January 27, 1970, the State Supreme Court in another case construed 415, evidently for the first time. In re Bushman, 1 Cal. 3d 767, 463 P.2d 727. Chief Justice Traynor, who was among the dissenters to his court's refusal to take Cohen's case, wrote the majority opinion. He held that 415 "is not unconstitutionally vague and overbroad" and further said: </s> "[T]hat part of Penal Code section 415 in question here makes punishable only wilful and malicious conduct that is violent and endangers public safety and order or that creates a clear and present danger that others will engage in violence of that nature. [403 U.S. 15, 28] </s> ". . . [It] does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence . . . ." 1 Cal. 3d, at 773-774, 463 P.2d, at 731. </s> Cohen was cited in Bushman, 1 Cal. 3d, at 773, 463 P.2d, at 730, but I am not convinced that its description there and Cohen itself are completely consistent with the "clear and present danger" standard enunciated in Bushman. Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State's highest tribunal in Bushman. </s> MR. JUSTICE WHITE concurs in Paragraph 2 of MR. JUSTICE BLACKMUN'S dissenting opinion. </s> [403 U.S. 15, 29]

United States Supreme Court ZATKO v. CALIFORNIA(1991) No. 91-5052 Argued: Decided: November 4, 1991 </s> [Footnote * Together with No. 91-5111, Zatko v. United States District Court for the Northern District of California, No. 91-5166, Zatko v. United States District Court for the Northern District of California, 91-5167, Zatko v. United States, No. 91-5244, Martin v. Mrvos, No. 91-5246, Martin v. Smith, No. 91-5307, Martin v. Delaware Law School of Widener University, Inc., No. 91-5331, Martin v. Walmer, No. 91-5332, Martin v. Townsend, No. 91-5401, Martin v. Supreme Court of New Jersey, No. 91-5416, Zatko v. California, No. 91-5476, Martin v. Bar of the District of Columbia Court of Appeals, No. 91-5583, Martin v. Huyett, No. 91-5594, Zatko v. United States District Court for the Northern District of California, No. 91-5692, Zatko v. United States District Court for the Northern District of California, No. 91-5730, Zatko v. California, and No. 91-5732, Zatko v. California, also on motion for leave to proceed in forma pauperis. </s> Over the past 10 years, petitioner Zatko has filed 73 petitions with this Court, 34 within the last 2 years, and petitioner Martin has filed over 45 petitions, 15 within the last 2 years. </s> Held: </s> Zatko and Martin are denied in forma pauperis status in the instant cases, pursuant to this Court's Rule 39.8. Their patterns of repetitious filings have resulted in an extreme abuse of the system by burdening the office of the Clerk and other members of the Court's staff. </s> Motions denied. </s> PER CURIAM. </s> Last Term, we amended Rule 39 of the Rules of the Supreme Court of the United States to add the following: </s> 39.8 If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis. </s> Because in forma pauperis petitioners lack the financial disincentives - filing fees and attorney's fees - that help to [502 U.S. 16, 17] deter other litigants from filing frivolous petitions, we felt such a rule change was necessary to provide us some control over the in forma pauperis docket. In ordering the amendment, we sought to discourage frivolous and malicious in forma pauperis filings, particularly [from] those few persons whose filings are repetitive with the obvious effect of burdening the office of the Clerk and other members of the Court staff. In re Amendment to Rule 39, 500 U.S. 13 (1991). </s> Today, we invoke Rule 39.8 for the first time, and deny in forma pauperis status to petitioners Vladimir Zatko and James L. Martin. We do not do so casually, however. We deny leave to proceed in forma pauperis only with respect to two petitioners who have repeatedly abused the integrity of our process through frequent frivolous filings. Over the last 10 years, Zatko has filed 73 petitions in this Court; 34 of those filings have come within the last 2 years. Martin has been only slightly less prolific over the same 10-year period, and has filed over 45 petitions, 15 of them within the last 2 years. In each of their filings up to this point, we have permitted Zatko and Martin to proceed in forma pauperis, and we have denied their petitions without recorded dissent. However, this Court's goal of fairly dispensing justice is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests such as these. In re Sindram, 498 U.S. 177 (1991). We conclude that the pattern of repetitious filing on the part of Zatko and Martin has resulted in an extreme abuse of the system. In the hope that our action will deter future similar frivolous practices, we deny Zatko and Martin leave to proceed in forma pauperis in these cases. </s> The dissent complains that, by invoking this rule against Zatko and Martin, we appear to ignore our duty to provide equal access to justice for both the rich and the poor. The message we hope to send is quite the opposite, however. In order to advance the interests of justice, the Court's general [502 U.S. 16, 18] practice is to waive all filing fees and costs for indigent individuals, whether or not the petitions those individuals file are frivolous. As the dissent recognizes, for example, well over half of the numerous in forma pauperis petitions filed since the beginning of this Term are best characterized as frivolous. It is important to observe that we have not applied Rule 39.8 to those frivolous petitions, although the rule might technically apply to them. Instead, we have denied those petitions in the usual manner, underscoring our commitment to hearing the claims, however meritless, of the poor. But "[i]t is vital that the right to file in forma pauperis not be incumbered by those who would abuse the integrity of our process by frivolous filings." In re Amendment to Rule 39, supra, at 13. For that reason we take the limited step of censuring two petitioners who are unique - not merely among those who seek to file in forma paupers, but also among those who have paid the required filing fees - because they have repeatedly made totally frivolous demands on the Court's limited resources. </s> To discourage abusive tactics that actually hinder us from providing equal access to justice for all, we therefore deny leave to proceed in forma pauperis in these cases, pursuant to Rule 39.8. Accordingly, petitioners are allowed until November 25, 1991, within which to pay the docketing fee required by Rule 38 and to submit petitions in compliance with Rule 33 of the Rules of this Court. Future similar filings from these petitioners will merit additional measures. </s> It is so ordered. </s> JUSTICE THOMAS took no part in the consideration or decision of these motions. </s> JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. </s> Last Term, over the dissent of three Justices, the Court amended its Rule 39 for the "vital" purpose of protecting [502 U.S. 16, 19] "the integrity of our process" from those indigent petitioners who file frivolous petitions for certiorari. 1 Since the amended rule became effective on July 1, 1991, indigent litigants have filed almost 1,000 petitions, which this Court has denied without pausing to determine whether they were frivolous within the meaning of Rule 39. In my judgment, well over half of these petitions could have been characterized as frivolous. Nevertheless, under procedures that have been in place for many years, the petitions were denied in the usual manner. The "integrity of our process" was not compromised in the slightest by the Court's refusal to spend valuable time deciding whether to enforce Rule 39 against so many indigent petitioners. </s> The Court has applied a different procedure to the petitioners in these cases. Their multiple filings have enabled the Court to single them out as candidates for enforcement of the amended rule. As a result, the order in their cases denies leave to proceed in forma pauperis pursuant to Rule 39.8, rather than simply denying certiorari. The practical effect of such an order is the same as a simple denial. 2 However, the symbolic effect of the Court's effort to draw distinctions among the multitude of frivolous petitions - none of which will be granted in any event - is powerful. Although the Court may have intended to send a message about the [502 U.S. 16, 20] need for the orderly administration of justice and respect for the judicial process, the message that it actually conveys is that the Court does not have an overriding concern about equal access to justice for both the rich and the poor.[fn3 ] </s> By its action today, the Court places yet another barrier in the way of indigent petitioners. 4 By branding these petitioners under Rule 39.8, the Court increases the chances that their future petitions, which may very well contain a colorable claim, will not be evaluated with the attention they deserve. </s> Because I believe the Court has little to gain and much to lose by applying Rule 39.8 as it does today, I would deny certiorari in these cases, and will so vote in similar cases in the future. </s> Footnotes [Footnote 1 In re Amendment to Rule 39, 500 U.S. 13 (1991). The amended rule, Rule 39.8 of the Rules of the Supreme Court of the United States, provides as follows: </s> "If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis." </s> [Footnote 2 In the past, I have noted that the work of the Court is "facilitated by the practice of simply denying certiorari once a determination is made that there is no merit to the petitioner's claim," rather than determining whether "the form of the order should be a denial or a dismissal" in cases of questionable jurisdiction. Davis v. Jacobs, 454 U.S. 911, 914 -915 (1981) (STEVENS, J., respecting denial of petitions for writs of certiorari). </s> [Footnote 3 Our longstanding tradition of leaving our door open to all classes of litigants is a proud and decent one worth maintaining. See Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1070 (1985) (STEVENS, J., concurring). In re Sindram, 498 U.S. 177 (1991) (Marshall, J., dissenting, joined by BLACKMUN, and STEVENS, JJ.). </s> [Footnote 4 And with each barrier that it places in the way of indigent litigants, . . . the Court can only reinforce in the hearts and minds of our society's less fortunate members the unsettling message that their pleas are not welcome here. In re Demos, 500 U.S. 16, 19 (1991) (Marshall, J., dissenting, joined by BLACKMUN and STEVENS, JJ.). </s> [502 U.S. 16, 21]

United States Supreme Court UNITED STATES v. GEORGIA et al.(2006) No. 04-1203 Argued: November 9, 2005Decided: January 10, 2006 </s> Goodman, petitioner in No. 04-1236, is a paraplegic who sued respondent state defendants and others, challenging the conditions of his confinement in a Georgia prison under, inter alia, 42 U.S.C. §1983 and Title II of the Americans with Disability Act of 1990. As relevant here, the Federal District Court dismissed the §1983 claims because Goodman's allegations were vague, and granted respondents summary judgment on the Title II money damages claims because they were barred by state sovereign immunity. The United States, petitioner in No. 04-1203, intervened on appeal. The Eleventh Circuit affirmed the District Court's judgment as to the Title II claims, but reversed the §1983 ruling, finding that Goodman had alleged facts sufficient to support a limited number of Eighth Amendment claims against state agents and should be permitted to amend his complaint. This Court granted certiorari to decide the validity of Title II's abrogation of state sovereign immunity. Held:Insofar as Title II creates a private cause of action for damages against States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. Pp.5-8. (a)Because this Court assumes that the Eleventh Circuit correctly held that Goodman had alleged actual Eighth Amendment violations for purposes of §1983, and because respondents do not dispute Goodman's claim that this same conduct violated Title II, Goodman's Title II money damages claims were evidently based, at least in part, on conduct that independently violated §1 of the Fourteenth Amendment. No one doubts that §5 grants Congress the power to enforce the Fourteenth Amendment's provisions by creating private remedies against the States for actual violations of those provisions. This includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the States. Thus, the Eleventh Circuit erred in dismissing those of Goodman's claims based on conduct that violated the Fourteenth Amendment. Pp.5-7. </s> (b)Once Goodman's complaint is amended, the lower courts will be best situated to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such conduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity in such contexts is nevertheless valid. Pp.7-8. 120 Fed. Appx. 785, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. </s> UNITED STATES, PETITIONER </s> 04-1203v. </s> GEORGIA etal. </s> TONY GOODMAN, PETITIONER </s> 04-1236v. </s> GEORGIA etal. on writs of certiorari to the united states court of appeals for the eleventh circuit [January 10, 2006] </s> Justice Scalia delivered the opinion of the Court. </s> We consider whether a disabled inmate in a state prison may sue the State for money damages under Title II of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 337, as amended, 42 U.S.C. §12131 et seq. (2000 ed. and Supp. II). I A </s> Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." §12132 (2000 ed.). A "'qualified individual with a disability'" is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." §12131(2). The Act defines "'public entity'" to include "any State or local government" and "any department, agency, ... or other instrumentality of a State," §12131(1). We have previously held that this term includes state prisons. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1998). Title II authorizes suits by private citizens for money damages against public entities that violate §12132. See 42 U.S.C. §12133 (incorporating by reference 29 U.S.C. §794a). In enacting the ADA, Congress "invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment ...." 42 U.S.C. §12101(b)(4). Moreover, the Act provides that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter." §12202. We have accepted this latter statement as an unequivocal expression of Congress's intent to abrogate state sovereign immunity. See Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-364 (2001). B </s> Petitioner in No. 04-1236, Tony Goodman, is a paraplegic inmate in the Georgia prison system who, at all relevant times, was housed at the Georgia State Prison in Reidsville. After filing numerous administrative grievances in the state prison system, Goodman filed a pro se complaint in the UnitedStates District Court for the Southern District of Georgia challenging the conditions of his confinement. He named as defendants the State of Georgia and the Georgia Department of Corrections (state defendants) and several individual prison officials. He brought claims under Rev. Stat. §1979, 42 U.S.C. §1983, Title II of the ADA, and other provisions not relevant here, seeking both injunctive relief and money damages against all defendants. Goodman's pro se complaint and subsequent filings in the District Court included many allegations, both grave and trivial, regarding the conditions of his confinement in the Reidsville prison. Among his more serious allegations, he claimed that he was confined for 23-to-24 hours per day in a 12-by-3-foot cell in which he could not turn his wheelchair around. He alleged that the lack of accessible facilities rendered him unable to use the toilet and shower without assistance, which was often denied. On multiple occasions, he asserted, he had injured himself in attempting to transfer from his wheelchair to the shower or toilet on his own, and, on several other occasions, he had been forced to sit in his own feces and urine while prison officials refused to assist him in cleaning up the waste. He also claimed that he had been denied physical therapy and medical treatment, and denied access to virtually all prison programs and services on account of his disability. </s> The District Court adopted the Magistrate Judge's recommendation that the allegations in the complaint were vague and constituted insufficient notice pleading as to Goodman's §1983 claims. It therefore dismissed the §1983 claims against all defendants without providing Goodman an opportunity to amend his complaint. The District Court also dismissed his Title II claims against all individual defendants. Later, after our decision in Garrett, the District Court granted summary judgment to the state defendants on Goodman's Title II claims for money damages, holding that those claims were barred by state sovereign immunity. </s> Goodman appealed to the United States Court of Appeals for the Eleventh Circuit. The United States, petitioner in No. 04-1203, intervened to defend the constitutionality of Title II's abrogation of state sovereign immunity. The Eleventh Circuit determined that the District Court had erred in dismissing all of Goodman's §1983 claims, because Goodman's multiple pro se filings in the District Court alleged facts sufficient to support "a limited number of Eighth-Amendment claims under §1983" against certain individual defendants. App. to Pet. for Cert. in No. 04-1236, p.17a, judgt. order reported at 120 Fed. Appx. 785 (2004). The Court of Appeals held that the District Court should have given Goodman leave to amend his complaint to develop three Eighth Amendment claims relating to his conditions of confinement: "First, Goodman alleges that he is not able to move his wheelchair in his cell. If Goodman is to be believed, this effectively amounts to some form of total restraint twenty-three to twenty-four hours-a-day without penal justification. Second, Goodman has alleged several instances in which he was forced to sit in his own bodily waste because prison officials refused to provide assistance. Third, Goodman has alleged sufficient conduct to proceed with a §1983 claim based on the prison staff's supposed 'deliberate indifference' to his serious medical condition of being partially paraplegic ...." App. to Pet. for Cert. in No. 04-1236, pp. 18a-19a (citation and footnote omitted). </s> The Court remanded the suit to the District Court to permit Goodman to amend his complaint, while cautioning Goodman not to reassert all the §1983 claims included in his initial complaint, "some of which [we]re obviously frivolous." Id., at 18a. </s> The Eleventh Circuit did not address the sufficiency of Goodman's allegations under Title II. Instead, relying on its prior decision in Miller v. King, 384 F.3d 1248 (2004), the Court of Appeals affirmed the District Court's holding that Goodman's Title II claims for money damages against the State were barred by sovereign immunity. We granted certiorari to consider whether Title II of the ADA validly abrogates state sovereign immunity with respect to the claims at issue here. 544 U.S. ___ (2005). II </s> In reversing the dismissal of Goodman's §1983 claims, the Eleventh Circuit held that Goodman had alleged actual violations of the Eighth Amendment by state agents on the grounds set forth above. See App. to Pet. for Cert. in No. 04-1236, pp.18a-19a. The State does not contest this holding, see Brief for Respondents 41-44, and we did not grant certiorari to consider the merits of Goodman's Eighth Amendment claims; we assume without deciding, therefore, that the Eleventh Circuit's treatment of these claims was correct. Moreover, Goodman urges, and the State does not dispute, that this same conduct that violated the Eighth Amendment also violated Title II of the ADA. See Brief for Petitioner in No. 04-1236, p.46; Brief for Respondents 41-44. In fact, it is quite plausible that the alleged deliberate refusal of prison officials to accommodate Goodman's disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constituted "exclu[sion] from participation in or ... den[ial of] the benefits of" the prison's "services, programs, or activities." 42 U.S.C. §12132; see also Yeskey, 329 U.S. 459, 463 (1947) (the Due Process Clause of the Fourteenth Amendment incorporates the Eighth Amendment's guarantee against cruel and unusual punishment). In this respect, Goodman differs from the claimants in our other cases addressing Congress's ability to abrogate sovereign immunity pursuant to its §5 powers. See Tennessee v. Lane, 541 U.S. 509, 543, n.4 (2004) (Rehnquist, C.J., dissenting) (respondents were not actually denied constitutional rights); Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 752, 755 (2003) (Kennedy, J., dissenting) (Nevada provided family leave "on a gender-neutral basis"--"a practice which no one contends suffers from a constitutional infirmity"); Garrett, 528 U.S. 62, 69-70, 83-84 (2000) (most petitioners raised nonconstitutional disparate-impact challenges to the State's age-related policies); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 643-644, and n.9 (1999) (Florida satisfied due process by providing remedies for patent infringement by state actors); City of Boerne v. Flores, 521 U.S. 507, 512 (1997) (church building permit denied under neutral law of general applicability). While the Members of this Court have disagreed regarding the scope of Congress's "prophylactic" enforcement powers under §5 of the Fourteenth Amendment, see, e.g., Lane, 427 U.S. 445, 456 (1976) ("In [§5] Congress is expressly granted authority to enforce ... the substantive provisions of the Fourteenth Amendment" by providing actions for money damages against the States (emphasis added)); Ex parte Virginia, 100 U.S. 339, 346 (1880) ("The prohibitions of the Fourteenth Amendment are directed to the States .... It is these which Congress is empowered to enforce ..."). This enforcement power includes the power to abrogate state sovereign immunity by authorizing private suits for damages against the States. See Fitzpatrick, supra, at 456. Thus, insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity. The Eleventh Circuit erred in dismissing those of Goodman's Title II claims that were based on such unconstitutional conduct. </s> From the many allegations in Goodman's pro se complaint and his subsequent filings in the District Court, it is not clear precisely what conduct he intended to allege in support of his Title II claims. Because the Eleventh Circuit did not address the issue, it is likewise unclear to what extent the conduct underlying Goodman's constitutional claims also violated Title II. Moreover, the Eleventh Circuit ordered that the suit be remanded to the District Court to permit Goodman to amend his complaint, but instructed him to revise his factual allegations to exclude his "frivolous" claims--some of which are quite far afield from actual constitutional violations (under either the Eighth Amendment or some other constitutional provision), or even from Title II violations. See, e.g., App. 50 (demanding a "steam table" for Goodman's housing unit). It is therefore unclear whether Goodman's amended complaint will assert Title II claims premised on conduct that does not independently violate the Fourteenth Amendment. Once Goodman's complaint is amended, the lower courts will be best situated to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. *  *  * The judgment of the Eleventh Circuit is reversed, and the suit is remanded for further proceedings consistent with this opinion. It is so ordered. </s> UNITED STATES, PETITIONER </s> 04-1203v. </s> GEORGIA etal. </s> TONY GOODMAN, PETITIONER </s> 04-1236v. </s> GEORGIA etal. on writs of certiorari to the united states court of appeals for the eleventh circuit [January 10, 2006] </s> Justice Stevens, with whom Justice Ginsburg joins, concurring. </s> The Court holds that Title II of the Americans with Disabilities Act of 1990 validly abrogates state sovereign immunity at least insofar as it creates a private cause of action for damages against States for conduct that violates the Constitution. Ante, at 7. And the state defendants have correctly chosen not to challenge the Eleventh Circuit's holding that Title II is constitutional insofar as it authorizes prospective injunctive relief against the State. See Brief for Respondents 6; see also Miller v. King, 384 F. 3d 1248, 1264 (CA11 2004). Rather than attempting to define the outer limits of Title II's valid abrogation of state sovereign immunity on the basis of the present record, the Court's opinion wisely permits the parties, guided by Tennessee v. Lane, 541 U.S. 509 (2004), to create a factual record that will inform that decision.** I therefore join the opinion. </s> It is important to emphasize that although petitioner Goodman's Eighth Amendment claims provide a sufficient basis for reversal, our opinion does not suggest that this is the only constitutional right applicable in the prison context and therefore relevant to the abrogation issue. As we explain, when the District Court and the Court of Appeals revisit that issue, they should analyze Goodman's claims to see whether they state "actual constitutional violations (under either the Eighth Amendment or some other constitutional provision)," ante, at 7 (emphasis added), and to evaluate whether "Congress's purported abrogation of sovereign immunity in such contexts is nevertheless valid," ante, at 8. This approach mirrors that taken in Lane, which identified a constellation of "basic constitutional guarantees" that Title II seeks to enforce and ultimately evaluated whether Title II was an appropriate response to the "class of cases" at hand. 541 U.S., at 522-523, 531. The Court's focus on Goodman's Eighth Amendment claims arises simply from the fact that those are the only constitutional violations the Eleventh Circuit found him to have alleged properly. See App. to Pet. for Cert. in No. 04-1236, pp. 18a-19a. </s> Moreover, our approach today is fully consistent with our recognition that the history of mistreatment leading to Congress' decision to extend Title II's protections to prison inmates was not limited to violations of the Eighth Amendment. See Lane, 531 U.S. 356, 391-424 (2001) (Appendixes to opinion of Breyer, J., dissenting) (listing submissions made to Congress by the Task Force on the Rights and Empowerment of Americans with Disabilities showing, for example, that prisoners with developmental disabilities were subject to longer terms of imprisonment than other prisoners); 2 House Committee on Education and Labor, Legislative History of Public Law 101-336: The Americans with Disabilities Act, 101st Cong., 2d Sess., p. 1331 (Comm. Print 1990) (stating that persons with hearing impairments "have been arrested and held in jail over night without ever knowing their rights nor what they are being held for"); id., at 1005 (stating that police arrested a man with AIDS and "[i]nstead of putting the man in jail, the officers locked him inside his car to spend the night"); California Dept. of Justice, Attorney General's Commission on Disability: Final Report 103 (Dec. 1989) (finding that inmates with disabilities were unnecessarily "confined to medical units where access to work, job training, recreation and rehabilitation programs is limited"). In fact, as the Solicitor General points out in his brief arguing that Title II's damage remedy constitutes appropriate prophylactic legislation in the prison context, the record of mistreatment of prison inmates that Congress reviewed in its deliberations preceding the enactment of Title II was comparable in all relevant respects to the record that we recently held sufficient to uphold the application of that title to the entire class of cases implicating the fundamental right of access to the courts. See Lane, 445 U.S. 480 (1980) (procedural due process); May v. Sheahan, 226 F. 3d 876 (CA7 2000) (access to judicial process, lawyers, legal materials, and reading materials); Littlefield v. Deland, 641 F. 2d 729 (CA10 1981) (access to reading and writing materials); Nolley v. County of Erie, 776 F.Supp. 715 (WDNY 1991) (access to law library and religious services). </s> Indeed, given the constellation of rights applicable in the prison context, it is clear that the Eleventh Circuit has erred in identifying only the Eighth Amendment right to be free from cruel and unusual punishment in performing the first step of the "congruence and proportionality" inquiry set forth in City of Boerne v. Flores, 521 U.S. 507 (1997). See Miller, 384 F.3d, at 1272, and n. 28 (declining to entertain United States' argument that Lane requires consideration of constitutional rights beyond those provided by the Eighth Amendment); App. to Pet. for Cert. in No. 04-1236, p. 19a (relying on Miller to find Goodman's Title II claims for money damages barred by the Eleventh Amendment). By reversing the Eleventh Circuit's decision in this case and remanding for further proceedings, we not only provide the parties an opportunity to create a more substantial factual record, but also provide the District Court and the Court of Appeals the opportunity to apply the Boerne framework properly. Given these benefits, I agree with the Court's decision to await further proceedings before trying to define the extent to which Title II validly abrogates state sovereign immunity in the prison context. </s> FOOTNOTESFootnote *Together with No. 04-1236, Goodman v. Georgia etal., also on certiorari to the same court. FOOTNOTESFootnote **Such definition is necessary because Title II prohibits "'a somewhat broader swath of conduct'" than the Constitution itself forbids. Lane, 528 U.S. 62, 81 (2000)). While a factual record may not be absolutely necessary to our resolution of the question, it will surely aid our understanding of issues such as how, in practice, Title II's "reasonableness" requirement applies in the prison context, cf. Lane, 541 U.S., at 531-532 (explaining that Title II requires only "'reasonable modifications'"), and therefore whether certain of Goodman's claims are even covered by Title II, cf. App. 83 (complaining of lack of access to, among other things, "television, phone calls, [and] entertainment").

United States Supreme Court PHILIP MORRIS USA INC., PETITIONER v. MAYOLA WILLIAMS, PERSONAL REPRESENTATIVE OF THE ESTATE OF JESSE D. WILLIAMS, DECEASED(2009) No. 07-1216 Argued: Decided: March 31, 2009 </s> Per Curiam. </s> The writ of certiorari is dismissed as improvidently granted. It is so ordered.

United States Supreme Court SERIO v. UNITED STATES(1968) No. 200 Argued: Decided: June 10, 1968 </s> Certiorari granted; 126 U.S. App. D.C. 297, 377 F.2d 936, vacated and remanded. </s> Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg, and Paul C. Summitt for the United States. </s> PER CURIAM. </s> The motion to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the United States Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded to that court for further consideration in light of Bruton v. United States, 391 U.S. 123 . See Roberts v. Russell, ante, p. 293. </s> MR. JUSTICE BLACK dissents. </s> MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for the reasons stated in MR. JUSTICE WHITE'S dissenting opinion in Bruton v. United States, 391 U.S. 123, 138 (1968). </s> MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. </s> [392 U.S. 305, 306]

United States Supreme Court UNITED STATES v. BODCAW CO.(1979) No. 78-551 Argued: Decided: February 26, 1979 </s> Respondent property owner's expenses in securing appraisals of the land involved in the United States' easement condemnation action held not to constitute part of the "just compensation" required by the Fifth Amendment for the taking of private property for public use. Since this litigation no more than reflects the rather typical situation where the landowner is dissatisfied with the Government's valuation, the case does not qualify as an exception to the general rule that indirect costs to the property owner caused by the taking of his land are generally not part of the just compensation to which he is constitutionally entitled. </s> Certiorari granted; 574 F.2d 238, reversed and remanded. </s> PER CURIAM. </s> The United States brought this condemnation action to acquire a permanent easement in land owned by the respondent. The jury determined that just compensation for the easement was $146,206, a sum about halfway between the Government's offer and the respondent's claim. The District Court granted the respondent's motion to increase the award by $20,512.50 to compensate it for the expenses of securing appraisals of the land and for the fees of expert witnesses. A divided panel of the Court of Appeals for the Fifth Circuit affirmed the award in part, holding that the appraisal fees in this case were an appropriate part of the compensation required by the Fifth Amendment: </s> "Under the facts of this case, we cannot conclude that the Bodcaw Company has been made whole for the Government's taking of its land if the large amount expended by it for appraisals in order to demonstrate the unfairness of the price offered by the United States is not considered [440 U.S. 202, 203] an element of just compensation." United States v. 1,380.09 Acres of Land, 574 F.2d 238, 241 (1978). 1 </s> The Fifth Amendment forbids the taking of "private property . . . for public use, without just compensation." This Court has often faced the problem of defining just compensation. One principle from which it has not deviated is that just compensation "is for the property, and not to the owner." Monongahela Navigation Co. v. United States, 148 U.S. 312, 326 (1893). As a result, indirect costs to the property owner caused by the taking of his land are generally not part of the just compensation to which he is constitutionally entitled. See, e. g., Dohany v. Rogers, 281 U.S. 362 (1930); Mitchell v. United States, 267 U.S. 341 (1925); Joslin Mfg. Co. v. Providence, 262 U.S. 668 (1923). See generally 4A J. Sackman, Nichols' Law of Eminent Domain, ch. 14 (rev. 3d ed. 1977). Thus, "[a]ttorneys' fees and expenses are not embraced within just compensation . . . ." Dohany v. Rogers, supra, at 368. </s> There may be exceptions to this general rule. This case, however, does not qualify as such an exception. 2 As the dissenting judge in the Court of Appeals described this litigation, it no more than reflects "the rather typical, oft-recurring situation where the landowner is dissatisfied with the Government's valuation." 574 F.2d, at 242. The court, therefore, was in error in holding that the respondent was entitled to compensation for the costs of the appraisals it had had made. 3 </s> [440 U.S. 202, 204] </s> Perhaps it would be fair or efficient to compensate a landowner for all the costs he incurs as a result of a condemnation action. See Ayer, Allocating the Costs of Determining "Just Compensation," 21 Stan. L. Rev. 693 (1969). Congress moved in that direction with Pub. L. 91-646, 84 Stat. 1894, codified at 42 U.S.C. 4601-4655. Among other costs which the Act placed on the Government were the property owner's reasonable litigation expenses (including attorney's fees) when a condemnation action is dismissed as being unauthorized, when the Government abandons a condemnation, or when the property owner has recovered through an inverse condemnation action under the Tucker Act. 42 U.S.C. 4654. But such compensation is a matter of legislative grace rather than constitutional command. The respondent's appraisal expenses were not part of the "just compensation" required by the Fifth Amendment. </s> The petition for certiorari is granted, the judgment is reversed, and the case is remanded to the Court of Appeals for the Fifth Circuit for proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 The Court of Appeals reduced the award by the amount of compensation allowed by the trial court for expert witness fees. </s> [Footnote 2 The Court of Appeals relied on its previous decision in United States v. Lee, 360 F.2d 449 (1966). In that case the court allowed as part of a compensation award the owner's expenses in having a survey made of the land to be taken. But the Lee case involved misrepresentation on the part of the Government as to the amount of land to be taken. Even if correctly decided, therefore, that case presented a situation quite different from the present case, where no such misrepresentation was alleged. </s> [Footnote 3 The Court of Appeals necessarily rested its decision on constitutional grounds. It is settled that litigation costs cannot be assessed against the [440 U.S. 202, 204] United States in the absence of statutory authorization. United States v. Worley, 281 U.S. 339, 344 (1930). Although Congress has provided that court costs may sometimes be assessed against the Government when the opposing party prevails, 28 U.S.C. 2412, that authorization does not apply to condemnation cases. Fed. Rule Civ. Proc. 71A (l); United States v. 2,186.63 Acres of Land, 464 F.2d 676 (CA10 1972); United States ex rel. TVA v. An Easement, 452 F.2d 729 (CA6 1971). Thus, even if the appraisal expenses in this case were to be considered "costs," they could not be taxed to the United States. Congress has provided that appraisal fees will be paid by the Government in some condemnation cases, but this case does not fall within the scope of that provision. 42 U.S.C. 4654. </s> [440 U.S. 202, 205]

United States Supreme Court DATA PROCESSING SERVICE v. CAMP(1970) No. 85 Argued: November 18, 1969Decided: March 3, 1970 </s> Petitioners, which provide data processing services to businesses generally, challenge a ruling by the Comptroller of the Currency permitting national banks, such as respondent bank, as an incident to their banking services, to make data processing services available to other banks and bank customers. The District Court dismissed the complaint, holding that petitioners lacked standing to bring the suit, and the Court of Appeals affirmed. Held: </s> 1. Petitioners have standing to maintain the action. Pp. 151-156, 157. </s> (a) Petitioners satisfy the "case" or "controversy" test of Article III of the Constitution, as they allege that the banks' competition causes them economic injury. Pp. 152-153. </s> (b) The interest sought to be protected by petitioners is arguably within the zone of interests to be protected or regulated by the statute and petitioners are "aggrieved" persons under 702 of the Administrative Procedure Act. Pp. 153-156, 157. </s> 2. Congress did not preclude judicial review of the Comptroller's rulings as to the scope of activities statutorily available to national banks. Pp. 156-157. </s> 406 F.2d 837, reversed and remanded. </s> Bert M. Gross argued the cause for petitioners. With him on the brief were Milton R. Wessel and Felix M. Phillips. </s> Alan S. Rosenthal argued the cause for respondents. With him on the brief for respondent Camp were Solicitor [397 U.S. 150, 151] General Griswold, Assistant Attorney General Ruckelshaus, and Peter L. Strauss. Fallon Kelly filed a brief for respondent American National Bank & Trust Co. </s> Matthew P. Mitchell and Leland R. Selna, Jr., filed a brief for the Sierra Club as amicus curiae urging reversal. </s> Matthew Hale filed a brief for the American Bankers Association as amicus curiae urging affirmance. </s> MR. JUSTICE DOUGLAS delivered the opinion of the Court. </s> Petitioners sell data processing services to businesses generally. In this suit they seek to challenge a ruling by respondent Comptroller of the Currency that, as an incident to their banking services, national banks, including respondent American National Bank & Trust Company, may make data processing services available to other banks and to bank customers. The District Court dismissed the complaint for lack of standing of petitioners to bring the suit. 279 F. Supp. 675. The Court of Appeals affirmed. 406 F.2d 837. The case is here on a petition for writ of certiorari which we granted. 395 U.S. 976 . </s> Generalizations about standing to sue are largely worthless as such. One generalization is, however, necessary and that is that the question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to "cases" and "controversies." As we recently stated in Flast v. Cohen, 392 U.S. 83, 101 , "[I]n terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be [397 U.S. 150, 152] adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Flast was a taxpayer's suit. The present is a competitor's suit. And while the two have the same Article III starting point, they do not necessarily track one another. </s> The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise. There can be no doubt but that petitioners have satisfied this test. The petitioners not only allege that competition by national banks in the business of providing data processing services might entail some future loss of profits for the petitioners, they also allege that respondent American National Bank & Trust Company was performing or preparing to perform such services for two customers for whom petitioner Data Systems, Inc., had previously agreed or negotiated to perform such services. The petitioners' suit was brought not only against the American National Bank & Trust Company, but also against the Comptroller of the Currency. The Comptroller was alleged to have caused petitioners injury in fact by his 1966 ruling which stated: </s> "Incidental to its banking services, a national bank may make available its data processing equipment or perform data processing services on such equipment for other banks and bank customers." Comptroller's Manual for National Banks § 3500 (October 15, 1966). </s> The Court of Appeals viewed the matter differently, stating: </s> "[A] plaintiff may challenge alleged illegal competition when as complainant it pursues (1) a legal interest by reason of public charter or contract, . . . [397 U.S. 150, 153] (2) a legal interest by reason of statutory protection, . . . or (3) a `public interest' in which Congress has recognized the need for review of administrative action and plaintiff is significantly involved to have standing to represent the public . . . ." 406 F.2d, at 842-843. 1 </s> Those tests were based on prior decisions of this Court, such as Tennessee Power Co. v. TVA, 306 U.S. 118 , where private power companies sought to enjoin TVA from operating, claiming that the statutory plan under which it was created was unconstitutional. The Court denied the competitors' standing, holding that they did not have that status "unless the right invaded is a legal right, - one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege." Id., at 137-138. </s> The "legal interest" test goes to the merits. The question of standing is different. It concerns, apart from the "case" or "controversy" test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus the Administrative Procedure Act grants standing to a person "aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. 702 [397 U.S. 150, 154] (1964 ed., Supp. IV). That interest, at times, may reflect "aesthetic, conservational, and recreational" as well as economic values. Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 616; Office of Communication of United Church of Christ v. FCC, 123 U.S. App. D.C. 328, 334-340, 359 F.2d 994, 1000-1006. A person or a family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. Abington School District v. Schempp, 374 U.S. 203 . We mention these noneconomic values to emphasize that standing may stem from them as well as from the economic injury on which petitioners rely here. Certainly he who is "likely to be financially" injured, FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477 , may be a reliable private attorney general to litigate the issues of the public interest in the present case. </s> Apart from Article III jurisdictional questions, problems of standing, as resolved by this Court for its own governance, have involved a "rule of self-restraint." Barrows v. Jackson, 346 U.S. 249, 255 . Congress can, of course, resolve the question one way or another, save as the requirements of Article III dictate otherwise. Muskrat v. United States, 219 U.S. 346 . </s> Where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action. The whole drive for enlarging the category of aggrieved "persons" is symptomatic of that trend. In a closely analogous case we held that an existing entrepreneur had standing to challenge the legality of the entrance of a newcomer into the business, because the established business was allegedly protected by a valid city ordinance that protected it from unlawful competition. Chicago v. Atchison, T. & S. F. R. Co., [397 U.S. 150, 155] 357 U.S. 77, 83 -84. In that tradition was Hardin v. Kentucky Utilities Co., 390 U.S. 1 , which involved a section of the TVA Act designed primarily to protect, through area limitations, private utilities against TVA competition. We held that no explicit statutory provision was necessary to confer standing, since the private utility bringing suit was within the class of persons that the statutory provision was designed to protect. </s> It is argued that the Chicago case and the Hardin case are relevant here because of 4 of the Bank Service Corporation Act of 1962, 76 Stat. 1132, 12 U.S.C. 1864, which provides: </s> "No bank service corporation may engage in any activity other than the performance of bank services for banks." </s> The Court of Appeals for the First Circuit held in Arnold Tours, Inc. v. Camp, 408 F.2d 1147, 1153, that by reason of 4 a data processing company has standing to contest the legality of a national bank performing data processing services for other banks and bank customers: </s> "Section 4 had a broader purpose than regulating only the service corporations. It was also a response to the fears expressed by a few senators, that without such a prohibition, the bill would have enabled `banks to engage in a nonbanking activity,' S. Rep. No. 2105, [87th Cong., 2d Sess., 7-12] (Supplemental views of Senators Proxmire, Douglas, and Neuberger), and thus constitute `a serious exception to the accepted public policy which strictly limits banks to banking.' (Supplemental views of Senators Muskie and Clark). We think Congress has provided the sufficient statutory aid to standing even though the competition may not be the precise kind Congress legislated against." [397 U.S. 150, 156] </s> We do not put the issue in those words, for they implicate the merits. We do think, however, that 4 arguably brings a competitor within the zone of interests protected by it. </s> That leaves the remaining question, whether judicial review of the Comptroller's action has been precluded. We do not think it has been. There is great contrariety among administrative agencies created by Congress as respects "the extent to which, and the procedures by which, different measures of control afford judicial review of administrative action." Stark v. Wickard, 321 U.S. 288, 312 (Frankfurter, J., dissenting). The answer, of course, depends on the particular enactment under which review is sought. It turns on "the existence of courts and the intent of Congress as deduced from the statutes and precedents." Id., at 308. </s> The Administrative Procedure Act provides that the provisions of the Act authorizing judicial review apply "except to the extent that - (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. 701 (a) (1964 ed., Supp. IV). </s> In Shaughnessy v. Pedreiro, 349 U.S. 48, 51 , we referred to "the generous review provisions" of that Act; and in that case as well as in others (see Rusk v. Cort, 369 U.S. 367, 379 -380) we have construed that Act not grudgingly but as serving a broadly remedial purpose. </s> We read 701 (a) as sympathetic to the issue presented in this case. As stated in the House Report: </s> "The statutes of Congress are not merely advisory when they relate to administrative agencies, any more than in other cases. To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. [397 U.S. 150, 157] The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review." H. R. Rep. No. 1980, 79th Cong., 2d Sess., 41. </s> There is no presumption against judicial review and in favor of administrative absolutism (see Abbott Laboratories v. Gardner, 387 U.S. 136, 140 ), unless that purpose is fairly discernible in the statutory scheme. Cf. Switchmen's Union v. National Mediation Board, 320 U.S. 297 . </s> We find no evidence that Congress in either the Bank Service Corporation Act or the National Bank Act 2 sought to preclude judicial review of administrative rulings by the Comptroller as to the legitimate scope of activities available to national banks under those statutes. Both Acts are clearly "relevant" statutes within the meaning of 702. The Acts do not in terms protect a specified group. But their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable. It is clear that petitioners, as competitors of national banks which are engaging in data processing services, are within that class of "aggrieved" persons who, under 702, are entitled to judicial review of "agency action." [397 U.S. 150, 158] </s> Whether anything in the Bank Service Corporation Act or the National Bank Act gives petitioners a "legal interest" that protects them against violations of those Acts, and whether the actions of respondents did in fact violate either of those Acts, are questions which go to the merits and remain to be decided below. </s> We hold that petitioners have standing to sue and that the case should be remanded for a hearing on the merits. </s> Reversed and remanded. </s> [For opinion of MR. JUSTICE BRENNAN, see post, p. 167.] </s> Footnotes [Footnote 1 The first two tests applied by the Court of Appeals required a showing of a "legal interest." But the existence or non-existence of a "legal interest" is a matter quite distinct from the problem of standing. Barlow v. Collins, post, p. 159. The third test mentioned by the Court of Appeals, which rests on an explicit provision in a regulatory statute conferring standing and is commonly referred to in terms of allowing suits by "private attorneys general," is inapplicable to the present case. See FCC v. Sanders Bros. Radio Station, 309 U.S. 470 ; Associated Industries v. Ickes, 134 F.2d 694, vacated on suggestion of mootness, 320 U.S. 707 . </s> [Footnote 2 Petitioners allege that the Comptroller's ruling violates the National Bank Act, Rev. Stat. 5136, 12 U.S.C. 24 Seventh, which provides that national banks have power to exercise "all such incidental powers as shall be necessary to carry on the business of banking." We intimate no view, under the decisions rendered today here and in Barlow v. Collins, supra, on the issue of standing involved in No. 835, National Association of Securities Dealers v. SEC, and No. 843, Investment Company Institute v. Camp, now pending on petitions for writs of certiorari. </s> [397 U.S. 150, 159]

United States Supreme Court LORANCE v. AT&T TECHNOLOGIES, INC.(1989) No. 87-1428 Argued: March 20, 1989Decided: June 12, 1989 </s> Before 1979 collective-bargaining agreements between respondents AT&T Technologies, Inc., and Local 1942, International Brotherhood of Electrical Workers, AFL-CIO, had determined a worker's seniority on the basis of years of plantwide service, and plantwide seniority was transferable upon promotion to a more skilled "tester" position. A new agreement executed in 1979 changed this by making seniority in tester jobs dependent upon the amount of time spent as a tester. In 1982 petitioners - women employees who were promoted to tester positions between 1978 and 1980 - received demotions that they would not have sustained had the former seniority system remained in place. They filed charges with the Equal Employment Opportunity Commission in 1983, and after receiving right-to-sue letters filed the present action in the District Court, alleging that respondents had violated Title VII of the Civil Rights Act of 1964 by adopting the new seniority system with the purpose and effect of protecting incumbent testers - jobs traditionally dominated by men - from female employees who had greater plantwide seniority and who were becoming testers in increasing numbers. The court granted summary judgment for respondents on the ground that the charges had not been filed within the required period "after the alleged unlawful employment practice occurred," 706(e) of Title VII, 42 U.S.C. 2000e-5(e), and the Court of Appeals affirmed. </s> Held: </s> Under 703(h) of Title VII, 42 U.S.C. 2000e-2(h), the operation of a seniority system having a disparate impact on men and women is not unlawful unless discriminatory intent is proved. E. g., Pullman-Standard v. Swint, 456 U.S. 273, 289 ; American Tobacco Co. v. Patterson, 456 U.S. 63, 65 , 69; Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 82 . It is not disputed that the seniority system at issue is facially nondiscriminatory (treats similarly situated employees alike) and is nondiscriminatorily applied. Its alleged invalidity rests on the claim that intentional discrimination produced the unfavorable change in petitioners' contractual seniority rights when respondents adopted the new system in 1979. The limitations period under 706(e) therefore commenced at that point. Delaware State College v. Ricks, 449 U.S. 250 ; United Air Lines, Inc. v. Evans, 431 U.S. 553 . This rule strikes a balance [490 U.S. 900, 901] between the interest in having valid claims vindicated and the interest in not adjudicating stale claims, which is heightened in this context by the special reliance interests that are protected by seniority systems. Pp. 904-913. </s> 827 F.2d 163, affirmed. </s> SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, and KENNEDY, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 913. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 913. O'CONNOR, J., took no part in the consideration or decision of the case. </s> Barry Goldstein argued the cause for petitioners. With him on the briefs were Julius LeVonne Chambers, Bridget Arimond, and Patrick O. Patterson. </s> Charles A. Shanor argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Deputy Solicitor General Ayer, Richard J. Lazarus, Gwendolyn Young Reams, and Donna J. Brusoski. </s> David W. Carpenter argued the cause for respondents. With him on the brief were Rex E. Lee, Patrick S. Casey, Gerald D. Skoning, Charles C. Jackson, Michael H. Gottesman, Robert M. Weinberg, Joel A. D'Alba, and Stephen J. Feinberg. * </s> [Footnote * Robert E. Williams, Douglas S. McDowell, and Katrina Grider filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance. </s> JUSTICE SCALIA delivered the opinion of the Court. </s> Respondent AT&T Technologies, Inc. (AT&T), manufactures electronics products at its Montgomery Works plant. The three petitioners, all of whom are women, have worked as hourly wage employees in that facility since the early 1970's, and have been represented by respondent Local 1942, International Brotherhood of Electrical Workers, AFL-CIO. Until 1979 all hourly wage earners accrued competitive seniority exclusively on the basis of years spent in the plant, [490 U.S. 900, 902] and a worker promoted to the more highly skilled and better paid "tester" positions retained this plantwide seniority. A collective-bargaining agreement executed by respondents on July 23, 1979, altered the manner of calculating tester seniority. 1 Thenceforth a tester's seniority was to be determined not by length of plantwide service, but by time actually spent as a tester (though it was possible to regain full plantwide seniority after spending five years as a tester and completing a prescribed training program). The present action arises from that contractual modification. </s> Petitioners became testers between 1978 and 1980. During a 1982 economic downturn their low seniority under the 1979 collective-bargaining agreement caused them to be selected for demotion; they would not have been demoted had the former plantwide seniority system remained in place. Claiming that the present seniority system was the product of an intent to discriminate on the basis of sex, petitioners filed complaints with the Equal Employment Opportunity Commission (EEOC) in April 1983. After the EEOC issued right-to-sue letters, petitioners in September 1983 filed the present lawsuit in the District Court for the Northern District of Illinois, and sought certification as class representatives for women employees of AT&T's Montgomery Works plant who had lost plantwide seniority or whom the new system had deterred from seeking promotions to tester positions. Their complaint alleged that among hourly wage earners the tester positions had traditionally been held almost exclusively by men, and nontester positions principally by women, but that in the 1970's an increasing number of women took the steps necessary to qualify for tester positions [490 U.S. 900, 903] and exercised their seniority rights to become testers. They claimed that the 1979 alteration of the rules governing tester seniority was the product of a "conspir[acy] to change the seniority rules, in order to protect incumbent male testers and to discourage women from promoting into the traditionally-male tester jobs," and that "[t]he purpose and the effect of this manipulation of seniority rules has been to protect male testers from the effects of the female testers' greater plant seniority, and to discourage women from entering the traditionally-male tester jobs." App. 20, 21-22. </s> On August 27, 1986, before deciding whether to certify the proposed class, the District Court granted respondents' motion for summary judgment on the ground that petitioners had not filed their complaints with the EEOC within the applicable limitations period. 2 44 FEP Cases 1817, 1821. A divided panel of the Court of Appeals for the Seventh Circuit affirmed, concluding that petitioners' claims were time barred because "the relevant discriminatory act that triggers the period of limitations occurs at the time an employee becomes subject to a facially neutral but discriminatory seniority system that the employee knows, or reasonably should know, is discriminatory." 827 F.2d 163, 167 (1987). We granted certiorari, 488 U.S. 887 (1988), to resolve a Circuit conflict on when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied. Compare, e. g., case below with Cook v. Pan American [490 U.S. 900, 904] World Airways, 771 F.2d 635, 646 (CA2 1985), cert. denied, 474 U.S. 1109 (1986). </s> Section 706(e) of Title VII of the Civil Rights Act of 1964, 78 Stat. 260, as amended, provides that "[a] charge . . . shall be filed [with the EEOC] within [the applicable period] after the alleged unlawful employment practice occurred." 42 U.S.C. 2000e-5(e). Assessing timeliness therefore "requires us to identify precisely the `unlawful employment practice' of which [petitioners] complai[n]." Delaware State College v. Ricks, 449 U.S. 250, 257 (1980). Under 703(a) of Title VII, it is an "unlawful employment practice" for an employer </s> "(1) . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or </s> "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(a). </s> Petitioners' allegation of a disparate impact on men and women would ordinarily suffice to state a claim under 703 (a)(2), since that provision reaches "practices that are fair in form, but discriminatory in operation," Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); see Connecticut v. Teal, 457 U.S. 440, 446 (1982). "[S]eniority systems," however, "are afforded special treatment under Title VII," Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81 (1977), by reason of 703(h), which states: </s> "Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, [490 U.S. 900, 905] or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . ." 42 U.S.C. 2000e-2(h). </s> We have construed this provision to mean that "absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences." Hardison, supra, at 82; see American Tobacco Co. v. Patterson, 456 U.S. 63, 65 , 69 (1982). Thus, for liability to be incurred "there must be a finding of actual intent to discriminate on [statutorily proscribed] grounds on the part of those who negotiated or maintained the [seniority] system." Pullman-Standard v. Swint, 456 U.S. 273, 289 (1982). </s> Petitioners do not allege that the seniority system treats similarly situated employees differently or that it has been operated in an intentionally discriminatory manner. Rather, they claim that its differential impact on the sexes is unlawful because the system "ha[d] its genesis in [sex] discrimination." Teamsters v. United States, 431 U.S. 324, 356 (1977). Specifically, the complaint alleges that respondents "conspired to change the seniority rules, in order to protect incumbent male testers," and that the resulting agreement effected a "manipulation of seniority rules" for that "purpose." See App. 20-22 (emphasis added). This is in essence a claim of intentionally discriminatory alteration of their contractual rights. Seniority is a contractual right, Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532, 1533 (1962), and a competitive seniority system establishes a "hierarchy [of such rights] . . . according to which . . . various employment benefits are distributed," Franks v. Bowman Transportation Co., 424 U.S. 747, 768 (1976). Under the collective-bargaining agreements in effect prior to 1979, each petitioner had earned the [490 U.S. 900, 906] right to receive a favorable position in the hierarchy of seniority among testers (if and when she became a tester), and respondents eliminated those rights for reasons alleged to be discriminatory. Because this diminution in employment status occurred in 1979 - well outside the period of limitations for a complaint filed with the EEOC in 1983 - the Seventh Circuit was correct to find petitioners' claims time barred under 706(e). </s> We recognize, of course, that it is possible to establish a different theoretical construct: to regard the employer as having been guilty of a continuing violation which "occurred," for purposes of 706(e), not only when the contractual right was eliminated but also when each of the concrete effects of that elimination was felt. Or it would be possible to interpret 703 in such fashion that when the proviso of 703(h) is not met ("provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin") and that subsection's protection becomes unavailable, nothing prevents suits against the later effects of the system on disparate-impact grounds under 703(a)(2). The answer to these alternative approaches is that our cases have rejected them. </s> The continuing violation theory is contradicted most clearly by two decisions, Delaware State College v. Ricks, 449 U.S. 250 (1980), and United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977). In Ricks, we treated an allegedly discriminatory denial of tenure - rather than the resulting nondiscriminatory termination of employment one year later - as the act triggering the limitations period under 706(e). Because Ricks did not claim that "the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure," we held that "the only alleged discrimination occurred - and the filing limitations periods therefore commenced - at the time the tenure decision was made and communicated to Ricks." 449 U.S., at [490 U.S. 900, 907] 258. "That is so," we found, "even though one of the effects of the denial of tenure - the eventual loss of a teaching position - did not occur until later." Ibid. (emphasis in original). We concluded that "`[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.'" 3 Ibid. (emphasis in original); accord, Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per curiam). </s> In Evans, United Air Lines had discriminatorily dismissed the plaintiff after she had worked several years as a flight attendant, and when it rehired her some years later, gave her no seniority credit for her earlier service. Evans conceded [490 U.S. 900, 908] that the discriminatory dismissal was time barred, but claimed that the seniority system impermissibly gave "present effect to a past act of discrimination." 431 U.S., at 558 . While agreeing with that assessment, we concluded under 703(h) that "a challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer." Id., at 560. Like Evans, petitioners in the present case have asserted a claim that is wholly dependent on discriminatory conduct occurring well outside the period of limitations, and cannot complain of a continuing violation. </s> The second alternative theory mentioned above would view 703(h) as merely providing an affirmative defense to a cause of action brought under 703(a)(2), rather than as making intentional discrimination an element of any Title VII action challenging a seniority system. The availability of this affirmative defense would not alter the fact that the claim asserted is one of discriminatory impact under 703(a)(2), causing the statute of limitations to run from the time that impact is felt. As an original matter this is a plausible, and perhaps even the most natural, reading of 703(h). (We have construed 703(e), 42 U.S.C. 2000e-2(e) - which deals with bona fide occupational qualifications - in this fashion. See Dothard v. Rawlinson, 433 U.S. 321, 333 (1977).) But such an interpretation of 703(h) is foreclosed by our cases, which treat the proof of discriminatory intent as a necessary element of Title VII actions challenging seniority systems. At least as concerns seniority plans, we have regarded subsection (h) not as a defense to the illegality described in subsection (a)(2), but as a provision that itself "delineates which employment practices are illegal and thereby prohibited and which are not." Franks, 424 U.S., at 758 . Thus, in American Tobacco Co. we determined 703(h) to mean that "the fact that a seniority system has a discriminatory impact is not [490 U.S. 900, 909] alone sufficient to invalidate the system; actual intent to discriminate must be proved." 456 U.S., at 65 (emphasis added). "To be cognizable," we held, "a claim that a seniority system has discriminatory impact must be accompanied by proof of a discriminatory purpose." Id., at 69 (emphasis added); accord, Pullman-Standard, 456 U.S., at 277 , 289; Hardison, 432 U.S., at 82 . Indeed, in California Brewers Assn. v. Bryant, 444 U.S. 598 (1980), after deciding that a challenged policy was part of a seniority system, we noted that on remand to the District Court the plaintiff would "remain free to show that . . . the seniority system . . . is not `bona fide' or that the differences in employment conditions that it has produced are `the result of an intention to discriminate because of race,'" id., at 610-611. Thus, petitioners' claim depends on proof of intentionally discriminatory adoption of the system, which occurred outside the limitations period. </s> That being the case, Machinists v. NLRB, 362 U.S. 411 (1960), establishes that the limitations period will run from the date the system was adopted (at least where the adoption occurred after the effective date of Title VII, and a cause of action against it was available). Machinists was a decision under the National Labor Relations Act (NLRA), but we have often observed that the NLRA was the model for Title VII's remedial provisions, and have found cases interpreting the former persuasive in construing the latter. See Ford Motor Co. v. EEOC, 458 U.S. 219, 226 , n. 8 (1982); Teamsters, 431 U.S., at 366 ; Franks, supra, at 768-770; Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 (1975). Such reliance is particularly appropriate in the context presented here, since the highly unusual feature of requiring an administrative complaint before a civil action can be filed against a private party is common to the two statutes. The NLRA's statute of limitations - which provides that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with [490 U.S. 900, 910] the Board," 29 U.S.C. 160(b) - is even substantively similar to 706(e) - which states that "[a] charge . . . shall be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful employment practice occurred," 42 U.S.C. 2000e-5(e). In Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), we specifically relied on cases construing the NLRA's timely filing requirement in determining whether 706(e) - the very provision we construe here - constituted a waivable statute of limitations or rather a jurisdictional prerequisite to a Title VII action. "Because the time requirement for filing an unfair labor practice charge under the National Labor Relations Act operates as a statute of limitations subject to recognized equitable doctrines and not as a restriction of the jurisdiction of the National Labor Relations Board," we said, "the time limitations under Title VII should be treated likewise." 455 U.S., at 395 , n. 11 (citations omitted). </s> Machinists considered and rejected an approach to the limitations period identical to that advanced here. The suit involved the timeliness of an unfair labor practice complaint directed at a so-called "union security clause," which required all employees to join the union within 45 days of the contract's execution. Under the NLRB's precedents, agreeing to such a clause when the union lacked majority status constituted an unfair labor practice, as did continued enforcement of the clause. 362 U.S., at 413 -414. The agreement at issue in Machinists had been adopted more than six months before the complaint issued (outside the limitations period), but had been enforced well within the period of limitations. "Conceding that a complaint predicated on the execution of the agreement here challenged was barred by limitations," the NLRB contended that "its complaint was nonetheless timely since it was `based upon' the parties' continued enforcement, within the period of limitations, of the union security clause." Id., at 415 (emphasis in original). We found, [490 U.S. 900, 911] however, that "the entire foundation of the unfair labor practice charged was the Union's time-barred lack of majority status when the original collective-bargaining agreement was signed," and that "[i]n the absence of that fact enforcement of this otherwise valid union security clause was wholly benign." Id., at 417. "[W]here a complaint based upon that earlier event is time-barred," we reasoned, "to permit the event itself" "to cloak with illegality that which was otherwise lawful" "in effect results in reviving a legally defunct unfair labor practice." Ibid. 4 This analysis is squarely in point here. Because the claimed invalidity of the facially nondiscriminatory and neutrally applied tester seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitations period. </s> In holding that, when a seniority system is nondiscriminatory in form and application, it is the allegedly discriminatory adoption which triggers the limitations period, we respect not only 706(e)'s general "`value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale [claims],'" Ricks, 449 U.S., at 260 (citation omitted), but also the considerations underlying the "special treatment" accorded to seniority systems under 703(h), see [490 U.S. 900, 912] Hardison, 432 U.S., at 81 . This "special treatment" strikes a balance between the interests of those protected against discrimination by Title VII and those who work - perhaps for many years - in reliance upon the validity of a facially lawful seniority system. There is no doubt, of course, that a facially discriminatory seniority system (one that treats similarly situated employees differently) can be challenged at any time, 5 and that even a facially neutral system, if it is adopted with unlawful discriminatory motive, can be challenged within the prescribed period after adoption. But allowing a facially neutral system to be challenged, and entitlements under it to be altered, many years after its adoption would disrupt those valid reliance interests that 703(h) was meant to protect. In the context of the present case, a female tester could defeat the settled (and worked-for) expectations of her co-workers whenever she is demoted or not promoted under the new system, be that in 1983, 1993, 2003, or beyond. Indeed, a given plaintiff could in theory sue successively for not being promoted, for being demoted, for being laid off, and for not being awarded a sufficiently favorable pension, so long as these acts - even if nondiscriminatory in themselves - could be attributed to the 1979 change in seniority. Our past cases, to [490 U.S. 900, 913] which we adhere today, have declined to follow an approach that has such disruptive implications. </s> * * * </s> For the foregoing reasons, the judgment of the Court of Appeals is </s> Affirmed. </s> JUSTICE O'CONNOR took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 The type of seniority at issue here is not "benefit seniority," which is used to "compute noncompetitive benefits earned under the contract of employment," Franks v. Bowman Transportation Co., 424 U.S. 747, 766 (1976) (emphasis added), but "competitive seniority," which is "used to allocate entitlements to scarce benefits" such as promotion or nondemotion, id., at 766-767. </s> [Footnote 2 Under 42 U.S.C. 2000e-5(e), a charge must be filed with the EEOC within 180 days of the alleged unfair employment practice unless the complainant has first instituted proceedings with a state or local agency, in which case the period is extended to a maximum of 300 days. Neither the District Court nor the Court of Appeals ruled on the applicable limitations period in the present case, since both courts concluded that petitioners' claims were time barred even if the applicable period was 300 days. See 827 F.2d 163, 165, and n. 2 (CA7 1987). We may for the same reason avoid ruling on that point here. </s> [Footnote 3 The dissent attempts to distinguish Delaware State College v. Ricks on the ground that there "[t]he allegedly discriminatory denial of tenure . . . served notice to the plaintiff that his termination a year later would come as a `delayed, but inevitable, consequence.'" Post, at 917 (emphasis in original; citation omitted). This builds on its earlier criticism that "[o]n the day AT&T's seniority system was adopted, there was no reason to believe that a woman who exercised her plantwide seniority to become a tester would ever be demoted as a result of the new system," so that at that point the prospect of petitioners' suffering "concret[e] harm" was "speculative." Post, at 914 (emphasis in original). Of course the benefits of a seniority system, like those of an insurance policy payable upon the occurrence of a noninevitable event, are by their nature speculative - if only because they depend upon the employee's continuing desire to work for the particular employer. But it makes no more sense to say that no "concrete harm" occurs when an employer provides a patently less desirable seniority guarantee than what the law requires, than it does to say that no concrete harm occurs when an insurance company delivers an accident insurance policy with a face value of $10,000, when what has been paid for is a face value of $25,000. It is true that the injury to the employee becomes substantially more concrete when the less desirable seniority system causes his demotion, just as the injury to the policyholder becomes substantially more concrete when the accident occurs and the payment is $15,000 less than it should be. But that is irrelevant to whether there was any concrete injury at the outset. What the dissent means by "concrete harm" is what Ricks, 449 U.S., at 258 , referred to as the point at which the injury becomes "most painful" - and that case rejected it as the point of reference for liability. Accord, Chardon v. Fernandez, 454 U.S. 6, 8 1981) (per curiam). </s> [Footnote 4 Like Ricks and United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), our decision in Machinists v. NLRB also rejected an attempt to cure untimeliness by asserting a continuing violation: "The applicability of these principles cannot be avoided here by invoking the doctrine of continuing violation. It may be conceded that the continued enforcement, as well as the execution, of this collective bargaining agreement constitutes an unfair labor practice, and that these are two logically separate violations, independent in the sense that they can be described in discrete terms. Nevertheless, the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agreement invalid on its face or with one validly executed, but unlawfully administered." 362 U.S., at 422 -423. </s> [Footnote 5 The dissent is mistaken to equate the application of a facially neutral but discriminatorily adopted system with the application of a system that is facially discriminatory. See post, at 916-917. With a facially neutral system the discriminatory act occurs only at the time of adoption, for each application is nondiscriminatory (seniority accrues for men and women on an identical basis). But a facially discriminatory system (e. g., one that assigns men twice the seniority that women receive for the same amount of time served) by definition discriminates each time it is applied. This is a material difference for purposes of the analysis we employed in Evans and Ricks - which focuses on the timing of the discriminatory acts for purposes of the statute of limitations. It is also why the dissent's citation, post, at 915, of Bazemore v. Friday, 478 U.S. 385 (1986) - in which "[e]ach week's paycheck . . . deliver[ed] less to a black than to a similarly situated white," id., at 395 - is misplaced. </s> JUSTICE STEVENS, concurring. </s> Although I remain convinced that the Court misconstrued Title VII in American Tobacco Co. v. Patterson, 456 U.S. 63 (1982), see id., at 86-90 (dissenting opinion), and in Delaware State College v. Ricks, 449 U.S. 250 (1980), see id., at 265-267 (dissenting opinion), the Court has correctly applied those decisions to the case at hand. And it is the Court's construction of the statute - rather than the views of an individual Justice - that becomes a part of the law. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 644 (1987) (STEVENS, J., concurring); Dougherty County Bd. of Education v. White, 439 U.S. 32, 47 (1978) (STEVENS, J., concurring). Accordingly, I join the Court's opinion. </s> JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join, dissenting. </s> The majority holds today that, when it is alleged that an employer and a union have negotiated and adopted a new seniority system with the intention of discriminating against women in violation of Title VII, 42 U.S.C. 2000e et seq., the limitations period set forth in 706(e), 2000e-5(e), begins to run immediately upon the adoption of that system. Ante, at 909-911. This is so even if the employee who subsequently challenges that system could not reasonably have expected to be demoted or otherwise concretely harmed by the [490 U.S. 900, 914] new system at the time of its adoption, and, indeed, even if the employee was not working in the affected division of the company at the time of the system's adoption. This severe interpretation of 706(e) will come as a surprise to Congress, whose goals in enacting Title VII surely never included conferring absolute immunity on discriminatorily adopted seniority systems that survive their first 300 days. 1 Because the harsh reality of today's decision, requiring employees to sue anticipatorily or forever hold their peace, is so glaringly at odds with the purposes of Title VII, and because it is compelled neither by the text of the statute nor our precedents interpreting it, I respectfully dissent. </s> The facts of this case illustrate the austere practical consequences of the majority's holding. On the day AT&T's seniority system was adopted, there was no reason to believe that a woman who exercised her plantwide seniority to become a tester would ever be demoted as a result of the new system. Indeed, under the new system, after five years a woman tester would regain her plantwide seniority; only in the intervening five years was she potentially endangered. Patricia Lorance, who was already a tester when the new system was adopted, almost made it; only after four years as a tester was she demoted under the terms of the new system. That the new system would concretely harm petitioners Janice King and Carol Bueschen was even more speculative. They became testers several months after the seniority system was modified, and like Lorance, they were not adversely affected by the restructured seniority system until 1982. (Indeed, absent the nationwide recession in the early 1980's, the petitioners might never have been affected.) Today, however, the majority concludes that these women are barred from bringing this suit because they failed to anticipate, within 300 days of the new system's adoption, that [490 U.S. 900, 915] these contingencies would one day place them among the new system's casualties. </s> Nothing in the text of Title VII compels this result. On the contrary, even the majority concedes that a plausible reading of Title VII would regard the employer as having violated 703(a)(1), 42 U.S.C. 2000e-2(a)(1), the disparate-treatment wing of the statute, not only at the time of the system's adoption, but also when each concrete effect of that system is felt. Ante, at 906; see also 827 F.2d 163, 166 (CA7 1987) (describing this interpretation as "logically appealing"). Under this continuing violation theory, each time a discriminatory seniority system is applied, like each time a discriminatory salary structure is applied, an independent "unlawful employment practice" under 703(a)(1) takes place, triggering the limitations period anew. See Bazemore v. Friday, 478 U.S. 385, 395 -396 (1986) ("Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII"); cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982) ("Where the challenged violation is a continuing one, the staleness concern disappears"). Viewing each application of a discriminatory system as a new violation serves the equal opportunity goals of Title VII by ensuring that victims of discrimination are not prevented from having their day in court. </s> Today's decision is the latest example of how this Court, flouting the intent of Congress, has gradually diminished the application of Title VII to seniority systems. First, the Court held that 703(h), 42 U.S.C. 2000e-2(h), requires special treatment for bona fide seniority systems under Title VII so that "absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 82 (1977); see also Pullman-Standard v. Swint, [490 U.S. 900, 916] 456 U.S. 273, 289 (1982). 2 Then, the Court held by a narrow margin that 703(h) protects even those seniority systems put into place after the passage of Title VII. American Tobacco Co v. Patterson, 456 U.S. 63, 71 (1982). </s> The majority contends that the result it reaches today is dictated by these and other ill-advised precedents involving seniority systems, but in my view, today's decision compounds the Court's prior decisional errors by giving them unnecessarily broad scope. This extension is particularly inappropriate because it forces the Court to reach such a bizarre and impractical result. Never have we held or even intimated that, in the context of a statute of limitations inquiry, one must evaluate challenges to a seniority system born of discriminatory intent as of the moment of its adoption. Indeed, had we so held, the majority's concession that a worker may at any time challenge a facially discriminatory seniority plan under 703(a)(1) would be flatly contradicted by precedent. Ante, at 912. The discriminatory intent that goes into the creation of even a facially flawed seniority plan is, after all, no different than the discriminatory intent that informs the creation of a facially neutral one. To impute ongoing intent in the former situation but not in the latter is untenable. [490 U.S. 900, 917] The distinction the majority erects today serves only to reward those employers ingenious enough to cloak their acts of discrimination in a facially neutral guise, identical though the effects of this system may be to those of a facially discriminatory one. </s> Neither United Air Lines Inc. v. Evans, 431 U.S. 553 (1977), nor Delaware State College v. Ricks, 449 U.S. 250 (1980), on which the majority premises its rejection of the continuing violation theory, compels today's result. In Evans, unlike the instant case, the plaintiff never alleged that the seniority system itself was set up in order to discriminate. Indeed, we observed that Evans "does not attack the bona fides of United's seniority system" and "makes no charge that the system is intentionally designed to discriminate." 431 U.S., at 560 ; see also id., at 557. The sole discrimination alleged in Evans was in the plaintiff's prior discharge, the impact of which, she alleged, had been enhanced upon her return to work by the failure of the seniority system to accord her credit for time she would have served had she not been discharged. In denying her challenge to that system, we held that "a challenge to a neutral system may not be predicated on the mere fact that a past event [Evan's prior discharge] which has no present legal significance has affected the calculation of seniority credit." Id., at 560. That holding is plainly inapposite here, where the very essence of petitioners' claim is that AT&T's discriminatorily adopted seniority system is not neutral. Thus, the majority's conclusion that the "past event" cited in this case - the discriminatory adoption of the very seniority system under legal challenge - has "`no present legal significance,'" ibid., quoted ante, at 908, is ipse dixit. </s> Ricks is likewise inapposite. The allegedly discriminatory denial of tenure in that case served notice to the plaintiff that his termination a year later would come as a "delayed, but inevitable consequence," 449 U.S., at 257 -258 (emphasis added). It was thus appropriate, as in so many areas involving [490 U.S. 900, 918] statutes of limitations doctrine, to set the limitations clock running upon the plaintiff's discovery of harm to herself. Petitioners Lorance, King, and Bueschen, however, were given no such advance warning. For them, the majority holds, the limitations clock began running, and ran out, long before it was apparent that they would be demoted by AT&T's discriminatory system. Like Evans, Ricks stands for the proposition that neutral employment practices that passively perpetuate the consequences of prior, time-barred discrimination but are not themselves bred of discriminatory intent do not constitute actionable wrongs under Title VII. Neither case suggests that the operation of a seniority system set up in order to discriminate should be treated the same way as a legitimate seniority (or tenure) system, born of nondiscriminatory motives, which in a particular case may have the effect of passively reinforcing prior time-barred acts of discrimination. </s> Nor, finally, is it correct to say that Machinists v. NLRB, 362 U.S. 411 (1960), "establishes that the limitations period will run from the date the system was adopted," ante, at 909, and therefore controls this case. Initially, it bears mention that Machinists arose under a different statute, the National Labor Relations Act (NLRA), 29 U.S.C. 151-169, and that Machinists did not involve a seniority system, but instead a union security clause which, it was alleged, had been defectively adopted. Significant though the role of the NLRA was as a model for Title VII's remedial provisions, these are hardly the indicia of a controlling precedent. Moreover, sound reasons support the finding of a time bar in Machinists, but no time bar here. In Machinists, as in Ricks, the enforcement of the challenged security clause was the inevitable consequence of its execution. The clause affected all nonunion employees alike, and from its very inception there was no mystery about which employees would be affected and about the impact it would have on them. By contrast, in this case, the very essence of petitioners' claim is [490 U.S. 900, 919] that AT&T's new seniority system was designed to have a long-range discriminatory impact, hurting women employees as a group but, as of the time of its inception, only theoretically hurting particular woman employees. Unlike Machinists, there is no indication that anyone employed at AT&T was, during the limitations period chosen by the majority, so tangibly affected by the new plan as to create any incentive to sue. 3 </s> The majority today continues the process of immunizing seniority systems from the requirements of Title VII. In addition to the other hurdles previously put in place by the Court, employees must now anticipate, and initiate suit to prevent, future adverse applications of a seniority system, no matter how speculative or unlikely these applications may be. This Court's observation that "limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes," Ricks, supra, at 262, n. 16, has an increasingly hollow ring. Because I do not believe that Congress, in framing Title VII, even remotely contemplated putting employees into the predicament which the majority today makes inevitable, I dissent. </s> [Footnote 1 Or, in the case of a complaint not previously filed with a state or local agency, systems that survive their first 180 days. 42 U.S.C. 2000e-(5)(e); ante, at 903, n. 2. </s> [Footnote 2 It remains astonishing to me that seniority systems are sheltered from disparate-impact claims, see Teamsters v. United States, 431 U.S. 324, 377 -394 (1977) (opinion of MARSHALL, J.). Even the majority concedes that "[a]s an original matter . . . a plausible, and perhaps even the most natural, reading of 703(h)" regards that subsection as merely providing an affirmative defense to a disparate-impact action brought under 703(a) (2). Ante, at 908. But even accepting our precedents, I do not believe, as the majority does, that they prohibit the Court from finding that petitioners have made a timely and colorable claim of disparate impact under 703(a)(2). 42 U.S.C. 2000e-2(a)(2). In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), we held only that bona fide seniority systems were exempted by 703(h) from disparate-impact claims. Accepting as true petitioners' allegation that AT&T and its union restructured the seniority system for discriminatory reasons, this system should not qualify as a bona fide one entitled to immunity from disparate-impact claims. </s> [Footnote 3 Tellingly, none of the Courts of Appeals presented with a claim of a continuing violation has reached the result the majority today reaches. Indeed, two of the Courts of Appeals have interpreted our precedents to permit claims of continuing violation. Cook v. Pan American World Airways, Inc., 771 F.2d 635, 646 (CA2 1985); cf. Johnson v. General Electric, 840 F.2d 132, 135 (CA1 1988). Even the Seventh Circuit, finding petitioners' claim time barred in the judgment under review, adopted a far narrower interpretation than the majority, under which the limitations period begins to run on the date when the employee first becomes subject to the seniority system. 827 F.2d 163, 167 (1987). </s> [490 U.S. 900, 920]

United States Supreme Court NACIREMA CO. v. JOHNSON(1969) No. 16 Argued: March 25, 1969Decided: December 9, 1969 </s> [Footnote * Together with No. 16, Traynor et al., Deputy Commissioners v. Johnson et al., also on certiorari to the same court. </s> One longshoreman was killed and two others were injured on piers permanently affixed to shore in accidents that occurred while they were attaching cargo from railroad cars to ships' cranes. The District Court upheld denial of compensation claims under the Longshoremen's and Harbor Workers' Compensation Act of 1927. The Court of Appeals reversed. Held: </s> 1. The Longshoremen's Act, which covers injuries occurring "upon navigable waters," and furnishes a remedy only "if recovery . . . through workmen's compensation proceedings may not validly be provided by state law," does not provide compensation to workmen injured on a pier permanently affixed to the land and hence clearly within the jurisdiction of the States. Pp. 214-221. </s> 2. Though the Extension of Admiralty Jurisdiction Act extends admiralty tort jurisdiction to ship-caused injuries on a pier, it does not enlarge the coverage of the Longshoremen's Act. Pp. 221-223. </s> 398 F.2d 900, reversed. </s> Randall C. Coleman argued the cause for petitioners in No. 9 on the original argument and on the reargument. With him on the briefs was William B. Eley. Solicitor General Griswold argued the cause for petitioners in No. 16 on the original argument and on the reargument. With him on the brief were Assistant Attorney General Ruckelshaus and Lawrence G. Wallace. </s> John J. O'Connor, Jr., argued the cause and filed briefs for respondents Johnson et al. on the original argument [396 U.S. 212, 213] and on the reargument in both cases. Ralph Rabinowitz argued the cause and filed a brief for respondent Avery on the original argument and on the reargument in both cases. </s> E. D. Vickery, Francis A. Scanlan, Scott H. Elder, and J. Stewart Harrison filed a brief for the National Maritime Compensation Committee as amicus curiae urging reversal in both cases. </s> Briefs of amici curiae urging affirmance in both cases were filed by Louis Waldman and Seymour M. Waldman for the International Longshoremen's Association, AFL-CIO, and by Paul S. Edelman for the American Trial Lawyers Association. </s> MR. JUSTICE WHITE delivered the opinion of the Court. </s> The single question of statutory construction presented by these cases is whether injuries to longshoremen occurring on piers permanently affixed to shore are compensable under the Longshoremen's and Harbor Workers' Compensation Act of 1927 (Longshoremen's Act), 44 Stat. 1424, 33 U.S.C. 901-950. </s> Johnson and Klosek were employed by the Nacirema Operating Company as longshoremen; Avery was similarly employed by the Old Dominion Stevedoring Corporation. All three men were engaged at the time of their accidents in performing similar operations as "slingers," attaching cargo from railroad cars located on piers 1 to ships' cranes for removal to the ships. Klosek was killed, and each of the other men was injured, when cargo hoisted by the ship's crane swung back and knocked him to the pier or crushed him against the side of the [396 U.S. 212, 214] railroad car. Deputy Commissioners of the United States Department of Labor denied claims for compensation in each case on the ground that the injuries had not occurred "upon the navigable waters of the United States" as required by the Act. 2 The District Courts upheld the Deputy Commissioners' decisions. 243 F. Supp. 184 (D.C. Md. 1965); 245 F. Supp. 51 (D.C. E. D. Va. 1965). The Court of Appeals for the Fourth Circuit, sitting en banc, reversed. 3 398 F.2d 900 (1968). We granted certiorari, 393 U.S. 976 (1968), to resolve the resulting conflict with decisions in other circuits holding that pier injuries are not covered by the Act. 4 We have concluded from an examination of the language, purpose, and legislative history of the Act, as well as prior decisions of this Court, that the judgment of the Court of Appeals must be reversed. </s> Since long before the Longshoremen's Act was passed, it has been settled law that structures such as wharves [396 U.S. 212, 215] and piers, permanently affixed to land, are extensions of the land. 5 Thus, literally read, a statute that covers injuries "upon the navigable waters" would not cover injuries on a pier even though the pier, like a bridge, extends over navigable waters. 6 </s> Respondents urge, however, that the 1927 Act, though it employs language that determines coverage by the "situs" of the injury, was nevertheless aimed at broader coverage: coverage of the "status" of the longshoreman employed in performing a maritime contract. We do not agree. Congress might have extended coverage to all longshoremen by exercising its power over maritime contracts. 7 But the language of the Act is to the contrary [396 U.S. 212, 216] and the background of the statute leaves little doubt that Congress' concern in providing compensation was a narrower one. </s> Ten years before the Act was passed this Court in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917), held that a State was without power to extend a compensation remedy to a longshoreman injured on the gangplank between the ship and the pier. The decision left longshoremen injured on the seaward side of the pier without a compensation remedy, while longshoremen injured on the pier enjoyed the protection of state compensation acts. State Industrial Commission v. Nordenholt Corp., 259 U.S. 263 (1922). </s> Twice Congress attempted to fill this gap by passing legislation that would have extended state compensation remedies beyond the line drawn in Jensen. 8 Each time, this Court struck down the statute as an unlawful delegation of congressional power. Washington v. Dawson & Co., 264 U.S. 219 (1924); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920). Finally, responding to this Court's suggestion that what Congress could not empower the States to do, it could do itself, 9 Congress passed the Longshoremen's Act. The clear implication is that in enacting its own compensation statute, Congress [396 U.S. 212, 217] was trying to do what it had failed to do in earlier attempts: to extend a compensation remedy to workmen injured beyond the pier and hence beyond the jurisdiction of the States. This purpose was clearly expressed in the language limiting coverage to injuries occurring "upon the navigable waters," and permitting recovery only "if recovery . . . through workmen's compensation proceedings may not validly be provided by State law." 10 </s> This conclusion is fully supported by the legislative history. As originally drafted, 3 extended coverage to injuries "on a place within the admiralty jurisdiction of the United States, except employment of local concern and of no direct relation to navigation and commerce." 11 During the hearings, it was repeatedly emphasized and apparently assumed by representatives from both the shipping industry and the unions that a "place within the admiralty jurisdiction" did not include a dock or pier. 12 In fact, a representative of the Labor Department [396 U.S. 212, 218] objected to the bill precisely for that reason, urging the Committee to extend coverage to embrace the contract, "and not the man simply when he is on the ship." 13 If Congress had intended to adopt that suggestion, it could not have chosen a more inappropriate way of expressing its intent than by substituting the words "upon the navigable waters" for the words "within the admiralty jurisdiction." 14 Indeed, the Senate Report that accompanied the revised bill, containing the language of the present Act, makes clear that the suggestion was rejected, rather than adopted: "[I]njuries occurring in [396 U.S. 212, 219] loading or unloading are not covered unless they occur on the ship or between the wharf and the ship so as to bring them within the maritime jurisdiction of the United States." S. Rep. No. 973, 69th Cong., 1st Sess., 16. We decline to ignore these explicit indications of a design to provide compensation only beyond the pier where the States could not reach. "That is the gap that we are trying to fill." 15 In filling that gap Congress did not extend coverage to longshoremen like those respondents whose injuries occurred on the landward side of the Jensen line, [396 U.S. 212, 220] clearly entitling them to protection under state compensation Acts. 16 </s> Decisions of this Court have more than once embraced this interpretation. Swanson v. Marra Bros., Inc., 328 U.S. 1 (1946), held that neither the Jones Act nor the Longshoremen's Act covered a longshoreman injured on the dock in the course of his employment even if the injury was caused by a vessel on navigable waters. Parker v. Motor Boat Sales, 314 U.S. 244, 249 (1941), concluded that the purpose of the Act "was to provide for federal compensation in the area which the specific decisions referred to placed beyond the reach of the states." Davis v. Dept. of Labor & Industries, 317 U.S. 249, 256 (1942), noted that in passing the Longshoremen's Act, Congress had specifically adopted the Jensen line. The interpretation endorsed by these cases is also reflected in a consistent course of administrative construction commencing immediately after the enactment of the Act. Employees' Compensation Commission Opinions Nos. 5 and 16, 1927 A. M. C. 1558 and 1855; No. 30, 1928 A. M. C. 417. </s> It is true that since Jensen this Court has permitted recovery under state remedies in particular situations seaward of the pier, Parker v. Motor Boat Sales, supra, and in Calbeck v. Travelers Insurance Co., 370 U.S. 114 (1962), approved recovery under the Longshoremen's Act for injuries occurring on navigable waters which might also have been compensable under state law. Calbeck made it clear that Congress intended to exercise its full jurisdiction seaward of the Jensen line [396 U.S. 212, 221] and to cover all injuries on navigable waters, whether or not state compensation was also available in particular situations. The proviso to 3 (a) conditioning coverage on the unavailability of state remedies was not meant to deny federal relief where the injury occurred on navigable waters. But removing uncertainties as to the Act's coverage of injuries occurring on navigable waters is a far cry from construing the Act to reach injuries on land traditionally within the ambit of state compensation acts. </s> Indeed, Calbeck freely cited the Parker and Davis declarations that the Longshoremen's Act adopted the Jensen line, and Calbeck's holding rejected the notion that the line should advance or recede simply because decisions of this Court had permitted state remedies in narrow areas seaward of that line. Otherwise, the reach of the federal Act would be subject to uncertainty, and its coverage would "expand and recede in harness with developments in constitutional interpretation as to the scope of state power to compensate injuries on navigable waters," with the result "that every litigation raising an issue of federal coverage would raise an issue of constitutional dimension, with all that that implies . . . ." 370 U.S., at 126 . As in Calbeck, we refuse to impute to Congress the intent of burdening the administration of compensation by perpetuating such confusion. </s> Nor can we agree that what Congress did not do in 1927, it did in 1948 when it passed the Extension of Admiralty Jurisdiction Act (Extension Act), 62 Stat. 496, 46 U.S.C. 740. In pertinent part, that Act provides: </s> "The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused [396 U.S. 212, 222] by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." </s> By its very choice of language, the Act re-enforces the conclusion that Congress was well aware of the distinction between land injuries and water injuries and that when it limited recovery to injuries on navigable waters, it did not mean injuries on land. The Act no doubt extended the admiralty tort jurisdiction to ship-caused injuries on a pier. But far from modifying the clear understanding in the law that a pier was an extension of land and that a pier injury was not on navigable waters but on land, the Act accepts that rule and nevertheless declares such injuries to be maritime torts if caused by a vessel on navigable waters. </s> The Extension Act was passed to remedy the completely different problem that arose from the fact that parties aggrieved by injuries done by ships to bridges, docks, and the like could not get into admiralty at all. 17 There is no evidence that Congress thereby intended to amend or affect the coverage of the Longshoremen's Act or to overrule Swanson v. Marra Bros., supra, decided just two years earlier. 18 While the Extension [396 U.S. 212, 223] Act may have the effect of permitting respondents to maintain an otherwise unavailable libel in admiralty, 19 see Gutierrez v. Waterman S. S. Corp., 373 U.S. 206 (1963), the Act has no bearing whatsoever on their right to a compensation remedy under the Longshoremen's Act. </s> There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen's Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act. And construing the Longshoremen's Act to coincide with the limits of admiralty jurisdiction - whatever they may be and however they may change - simply replaces one line with another whose uncertain contours can only perpetuate on the landward side of the Jensen line, the same confusion that previously existed on the seaward side. While we have no doubt that Congress had the power to choose either of these paths in defining the coverage of its [396 U.S. 212, 224] compensation remedy, the plain fact is that it chose instead the line in Jensen separating water from land at the edge of the pier. The invitation to move that line landward must be addressed to Congress, not to this Court. </s> Reversed. </s> Footnotes [Footnote 1 The piers involved extended from shore into the Patapsco River at Sparrows Point, Maryland, and into the Elizabeth River at Norfolk, Virginia. </s> [Footnote 2 3 (a) of the Act, 33 U.S.C. 903 (a), provides in relevant part: "(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. . . ." </s> [Footnote 3 The three cases were consolidated on appeal. In a fourth case, an award to a longshoreman who had drowned after being knocked off a pier into the water was affirmed by the District Court and the Court of Appeals. Marine Stevedoring Corp. v. Oosting, 238 F. Supp. 78 (D.C. E. D. Va. 1965). </s> [Footnote 4 Nicholson v. Calbeck, 385 F.2d 221 (C. A. 5th Cir. 1967), cert. denied, 389 U.S. 1051 (1968); Houser v. O'Leary, 383 F.2d 730 (C. A. 9th Cir. 1967), cert. denied, 390 U.S. 954 (1968); Travelers Insurance Co. v. Shea, 382 F.2d 344 (C. A. 5th Cir. 1967), cert. denied sub nom. McCollough v. Travelers Insurance Co., 389 U.S. 1050 (1968); Michigan Mutual Liability Co. v. Arrien, 344 F.2d 640 (C. A. 2d Cir.), cert. denied, 382 U.S. 835 (1965). </s> [Footnote 5 Swanson v. Marra Bros., Inc., 328 U.S. 1 (1946); Minnie v. Port Huron Terminal Co., 295 U.S. 647 (1935); T. Smith & Son, Inc. v. Taylor, 276 U.S. 179 (1928); State Industrial Commission v. Nordenholt Corp., 259 U.S. 263 (1922); Cleveland Terminal & Valley R. Co. v. Cleveland S. S. Co., 208 U.S. 316 (1908); The Plymouth, 3 Wall. 20 (1866); 1 E. Benedict, The Law of American Admiralty 28, 29 (6th ed. 1940); G. Gilmore & C. Black, The Law of Admiralty 6-46, 7-17 (1957); G. Robinson, Handbook of Admiralty Law in the United States 11 (1939). </s> [Footnote 6 We reject the alternative holding of the Court of Appeals that all injuries on these piers, despite settled doctrine to the contrary, may now be considered injuries on navigable waters - a proposition rejected implicitly by a unanimous Court just last Term. See Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 360 , 366 (1969). Piers, like bridges, are not transformed from land structures into floating structures by the mere fact that vessels may pass beneath them. </s> [Footnote 7 The admiralty jurisdiction in tort was traditionally "bounded by locality," De Lovio v. Boit, 7 F. Cas. 418, 444 (No. 3776) (C. C. D. Mass. 1815) (Story, J.) (followed in Insurance Co. v. Dunham, 11 Wall. 1 (1871)), encompassing all torts that took place on navigable waters. By contrast, admiralty contract jurisdiction "extends over all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations,) which relate to the navigation, business or commerce of the sea." De Lovio v. Boit, supra, at 444. Since a workmen's compensation act combines [396 U.S. 212, 216] elements of both tort and contract, Congress need not have tested coverage by locality alone. As the text indicates, however, the history of the Act shows that Congress did indeed do just that. </s> [Footnote 8 Act of October 6, 1917, 40 Stat. 395; Act of June 10, 1922, 42 Stat. 634. </s> [Footnote 9 Washington v. Dawson & Co., 264 U.S. 219, 227 (1924). The passage from Dawson & Co. was referred to in the hearings in both the Senate and the House. See Hearings on S. 3170 before a Subcommittee of the Senate Committee on the Judiciary, 69th Cong., 1st Sess., 18, 31, 103 and n. 3 (1926) (hereinafter "Senate Hearings"); Hearing on H. R. 9498 before the House Committee on the Judiciary, 69th Cong., 1st Sess., ser. 16, pp. 18, 119 and n. 3 (1926) (hereinafter "House Hearing"). </s> [Footnote 10 Drydocks were conceded to be within the admiralty jurisdiction in both the hearings and the debates, even though such structures are not always floating structures. See House Hearing 34; 68 Cong. Rec. 5403 (1927). If Congress had thought the words "upon the navigable waters" were broad enough to embrace the limits of admiralty jurisdiction, there would have been no need to add the parenthetical "(including any dry dock)." </s> [Footnote 11 See Senate Hearings 2. </s> [Footnote 12 Mr. Dempsey, representing the International Longshoremen's Association, testified that the bill would cover injuries on the dock as well as on the ship. When pressed as to how injuries on the dock could come within the admiralty jurisdiction, he confessed he did not understand the legal theory, and would defer to the longshoremen's attorney, Mr. Austin. Mr. Austin proceeded to testify: that the dock was not within the admiralty jurisdiction; that injuries on the dock were compensable under state law; that the problem arose because the longshoreman was left "high and dry" once he left the State's jurisdiction and stepped on the gangplank; and that "[t]hat is the gap that we are trying to fill . . . ." Senate Hearings 28, 30-31. Testimony that longshoremen injured on the docks would [396 U.S. 212, 218] not be covered by the Act also came from representatives of the shipbuilders. See Senate Hearings 58, 95, 103. See also n. 15, infra; Hearing on S. 3170 before the House Committee on the Judiciary, 69th Cong., 1st Sess., ser. 16, pt. 2, pp. 141, 157 (1926) (testimony on the revised bill, containing the language of the present 3). </s> [Footnote 13 Senate Hearings 40. </s> [Footnote 14 While the reason for the change in the language concerning the bill's coverage is not expressly indicated, it appears to have been a response to objections that the original language, carving out an exception for employment of "local concern," was too vague to define clearly the line being drawn, and might even encounter problems once again at the hands of this Court. See Senate Hearings 56-57, 95; House Hearing 77, 100. In fact, the same spokesman for the shipbuilders who objected to the vagueness of the "local concern" exception, also objected that the bill as written might "upset all the present arrangements with respect to compensating men on the dock." Senate Hearings 57. The implication is that no one expected the federal law to extend into the area of the State's jurisdiction on the dock, but that confusion existed as to whether, conversely, state remedies would be exclusive as to injuries "on navigable waters" but within the "maritime but local" exception created by Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922). This reading of the legislative history was adopted in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 121 -127 (1962), where the Court concluded that the Act did not prevent recovery for injuries on navigable waters, even though a state remedy would also have been available under Rohde. </s> [Footnote 15 See n. 12, supra. Other indications that Congress had no intention of replacing or overlapping state compensation remedies for dockside injuries can be found throughout the hearings. At one point, in attempting to calculate the increased costs involved in the federal Act, Senator Cummins, Chairman of the Committee, pointed out that "we are proceeding on the theory that these people can not be compensated under the New York compensation law or any other compensation law." "[T]he purpose of this law," he agreed with a witness, was simply to cover the men who "are going to be exposed a part of the time on board vessels . . . and therefore will have to be compensated in some other way where the New York law is not the remedy available." Senate Hearings 84-85. Similarly, Representative Graham, Chairman of the House Committee, agreed that "the real necessity for this legislation" was to provide workers with compensation when they stepped from dock to ship. House Hearing 25. In fact, the labor representative who was testifying at that point in the hearing insisted that the legislation sought was only for "[t]hose who are injured on board vessels at the dock." Those injured on the dock "are taken care of under the State law." Id., at 28. There was also testimony by a longshoremen's representative that "65 per cent of the accidents in the courts of New York happen on board ships or on gangplanks; . . . therefore . . . 65 per cent of the accidents of the men who are injured by performing this work will be compensable under this bill." Id., at 35. See also id., at 44. Another noted that "our men that are working on the dock are protected, and well protected, under the New York compensation act, but our men on board ship are not protected. We feel that Congress wants to protect them . . . ." Senate Hearings 42. </s> [Footnote 16 Both Johnson and Klosek's widow and minor children have filed claims, and are concededly entitled to benefits, under the Maryland Workmen's Compensation Act. Avery has already been awarded benefits under the Virginia Workmen's Compensation Law. </s> [Footnote 17 See Gilmore & Black, supra, n. 5, 7-17. </s> [Footnote 18 The legislative history of the Extension Act is devoid of any reference to the Longshoremen's Act, as might well be expected in an Act dealing with a wholly unrelated problem. See S. Rep. No. 1593, 80th Cong., 2d Sess. (1948); H. R. Rep. No. 1523, 80th Cong., 2d Sess. (1948). The House Report accompanying the Extension Act notes that "the bill will not create new causes of action," id., at 3, and the statute speaks of extending jurisdiction to suits "in rem or in personam" for "damage" to "person or property" - concepts wholly at odds with the theory of workmen's compensation - awards made in an administrative proceeding. The conclusion of the District Court [396 U.S. 212, 223] is inescapable. "The two statutes do not deal with the same subject matter, are inherently inconsistent with each other, and cannot be read as being in pari materia." 243 F. Supp. 184, 194 (1965). It is worth noting that a contemporaneous amendment of the Longshoremen's Act contains no cross reference to the Extension Act. See Act of June 24, 1948, 62 Stat. 602 (a bill to increase benefits under the Longshoremen's Act, passed five days after the Extension Act). And, a House Report dated July 28, 1958 - 10 years after enactment of the Extension Act - points out that employees "on the navigable waters of the United States" are covered under the Longshoremen's Act, but are under state protection "when performing work on docks and in other shore areas." H. R. Rep. No. 2287, 85th Cong., 2d Sess., 2 (accompanying a bill to provide safety programs for longshoremen). </s> [Footnote 19 We were informed in argument that two of the parties have in fact already commenced actions against the shipowner. </s> MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concur, dissenting. </s> We dissent for the reasons stated by Judge Sobeloff speaking for the Court of Appeals sitting en banc. 398 F.2d 900. As he says, the Longshoremen's and Harbor Workers' Compensation Act is not restricted to conventional "admiralty tort jurisdiction" but is "status oriented, reaching all injuries sustained by longshoremen in the course of their employment." Id., at 904. The matter should be at rest after Calbeck v. Travelers Insurance Co., 370 U.S. 114 . In that suit under this Act we said that "`Congress intended the compensation act to have a coverage co-extensive with the limits of its authority.'" Id., at 130, quoting from De Bardeleben Coal Corp. v. Henderson, 142 F.2d 481, 483. Judge Sobeloff in the instant cases, while answering the argument that Calbeck was not concerned with the meaning of "upon the navigable waters," referred to Judge Palmieri's opinion in Michigan Mutual Liability Co. v. Arrien, 233 F. Supp. 496, 500, aff'd, 344 F.2d 640: </s> "What is just as important as the actual holding in Calbeck is the general approach to the [Longshoremen's Compensation] Act taken by the Court. No longer is the Act viewed as merely filling in the interstices around the shore line of the state acts, but rather as an affirmative exercise of admiralty jurisdiction." [396 U.S. 212, 225] </s> Judge Sobeloff went on to say: </s> "This affirmative exercise of the admiralty power of Congress `to the fullest extent' of its jurisdiction, creating `a coverage co-extensive with the limits of its authority,' can only mean that Congress effectively enacted a law to protect all who could constitutionally be brought within the ambit of its maritime authority. Again, in the words of Judge Palmieri, `it thus appears that "upon navigable waters" is to be equated with "admiralty jurisdiction."'" 398 F.2d, at 905. </s> In addition to the cases being reviewed here, the Court of Appeals affirmed a judgment in favor of the widow of a longshoreman (238 F. Supp. 78), who, while working on the pier, was struck by a cable and knocked into the water where he died. It is incongruous to us that in an accident on a pier over navigable waters coverage of the Act depends on where the body falls after the accident has happened. For this and the other reasons stated by Judge Sobeloff, we dissent from a reversal of these judgments. </s> [396 U.S. 212, 226]

United States Supreme Court THERMTRON PRODUCTS, INC., v. HERMANSDORFER(1976) No. 74-206 Argued: October 7, 1975Decided: January 20, 1976 </s> Title 28 U.S.C. 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 to the federal district court, and 1446 provides the removal procedure. Section 1447 (c) provides for remand to the state court on the ground that the case was removed "improvidently and without jurisdiction," and 1447 (d) imposes a general bar against appellate review of a remand order. After two citizens of Kentucky had brought a damages action against petitioners, an Indiana corporation and its employee, a citizen of Indiana, petitioners removed the action to the Federal District Court under 1441 (a) and 1446. Thereafter respondent, the District Judge, though conceding that petitioners had the statutory right to remove the action to federal court, ordered the case remanded to the state court for trial, solely on the ground that his heavy docket would unjustly delay the plaintiffs from going to trial on the merits. Petitioners then filed in the Court of Appeals an alternative petition for a writ of mandamus or prohibition on the ground that the action had been properly removed and that respondent lacked authority to remand the case on the ground that he had asserted. The Court of Appeals denied the petition after concluding that (1) the District Court had jurisdiction to enter the remand order and (2) the Court of Appeals because of 1447 (d) had no jurisdiction to review that order. Petitioners concede that 1447 (d) prohibits appellate review of all remand orders issued pursuant to 1447 (c), whether erroneous or not, but maintain that the bar does not apply to remand on a ground not authorized by 1447 (c). Held: </s> 1. The District Court exceeded its authority in remanding the case on grounds not permitted by 1447 (c). Pp. 342-345. </s> 2. Section 1447 (d), when construed as it must be in conjunction with 1447 (c), does not bar appellate review by mandamus of a remand order made on grounds not specified in 1447 (c), [423 U.S. 336, 337] there being no indication either in the language or the legislative history of the provision that Congress intended to extend the bar against review to reach remand orders not based on statutory grounds. Pp. 345-352. </s> 3. Here, where the District Court had refused to adjudicate a case, and had remanded it on grounds not authorized by the removal statutes, mandamus was the proper remedy to compel the District Court to entertain the remanded action. Pp. 352-353. </s> Reversed and remanded. </s> WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and STEWART, J., joined, post, p. 353. STEVENS, J., took no part in the consideration or decision of the case. </s> Frank G. Dickey, Jr., argued the cause and filed a brief for petitioners. </s> C. Kilmer Combs argued the cause and filed a brief for respondent. </s> MR. JUSTICE WHITE delivered the opinion of the Court. </s> The questions in this case are whether a Federal District Judge may remand a properly removed diversity case for reasons not authorized by statute, and, if not, whether such remand order may be remedied by writ of mandamus. </s> I </s> On April 9, 1973, two citizens and residents of Kentucky filed an action in a Kentucky state court against Thermtron Products, Inc., an Indiana corporation without office or place of business in Kentucky, and one Larry Dean Newhard, an employee of Thermtron and a citizen and resident of Indiana, seeking damages for injuries arising out of an automobile accident between plaintiff's automobile and a vehicle driven by Newhard. [423 U.S. 336, 338] Service on the defendants, who are petitioners here, was by substituted service on the Secretary of State of the Commonwealth, pursuant to Kentucky law. Later that month, petitioners removed the cause to the United States District Court for the Eastern District of Kentucky pursuant to 28 U.S.C. 1441 1 and 1446. 2 The [423 U.S. 336, 339] case was assigned a number, and the defendants filed their answer and later proceeded with discovery. On February 5, 1974, respondent judge issued an order in the case which recited that the action "was removed from the Pike Circuit Court, Pike County, Kentucky, on April 30, 1973, pursuant to the provisions of 28 U.S.C. 1446," that his court had reviewed its entire civil docket and found "that there is no available time in which to try the above-styled action in the foreseeable future" and that an adjudication of the merits of the case would be expedited in the state court. Record 31. The order then called upon the defendants to show cause "why the ends of justice do not require this matter [to] be remanded to the Pike Circuit Court . . . ." Ibid. In response to the [423 U.S. 336, 340] order, petitioners asserted that they believed they could not have a fair and impartial trial in the state courts, that the cause had been properly removed pursuant to the applicable statutes, that petitioners had a federal right to have the cause tried in the federal court, that respondent had no discretion to remand the case merely because of a crowded docket, and that there was no other legal ground for the remand. </s> On March 22, 1974, respondent filed a memorandum opinion and order remanding the case to the Pike Circuit Court. The opinion noted petitioners' contention that they had a "right" to remove the action by properly invoking 28 U.S.C. 1441, and remarked that "[t]he court must concede that fact." Record 36. That right, the opinion then stated, nevertheless had to be "balanced against the plaintiffs' right to a forum of their choice and their right to a speedy decision on the merits of their cause of action." Ibid. Because of the District Court's crowded docket and because other cases had priority on available trial time, 3 "plaintiffs' right of redress [423 U.S. 336, 341] is being severely impaired," which "would not be the case if the cause had not been removed from the state courts." Id., at 37. Remarking that the purpose of the removal statute was to prevent prejudice in local courts and being of the view that petitioners had made no showing of possible prejudice that might follow from remand, respondent then ordered the case remanded. 4 </s> Petitioners then filed in the Court of Appeals for the Sixth Circuit their alternative petition for writ of mandamus or prohibition, requesting relief on the ground that the action had been properly removed and that respondent had no authority or discretion whatsoever to remand the case on the ground asserted by him. Based on the petition and respondent's response, the Court of Appeals denied the petition after concluding (1) that the District Court had jurisdiction to enter the order for remand and (2) that the Court of Appeals [423 U.S. 336, 342] had no jurisdiction to review that order or to issue mandamus because of the prohibition against appellate review contained in 28 U.S.C. 1447 (d). We granted the petition for certiorari, 420 U.S. 923 (1975), and now reverse. </s> II </s> Title 28 U.S.C. 1441 (a) provides that unless otherwise expressly provided by Act of Congress, "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 to the district court of the United States. 5 Section 1446 provides the procedure for removal; 6 and a case removed under that section may be remanded only in accordance with 1447 which governs procedure after removal. Section 1447 (c) provides in part: </s> "If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs." </s> The following section, 1447 (d), generally forbids review of remand orders: </s> "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it is removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise." 7 </s> [423 U.S. 336, 343] </s> It is unquestioned in this case and conceded by petitioners that this section prohibits review of all remand orders issued pursuant to 1447 (c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ. This has been the established rule under 1447 (d) and its predecessors stretching back to 1887. See, e. g., In re Pennsylvania Co., 137 U.S. 451 (1890); Ex parte Matthew Addy S. S. Co., 256 U.S. 417 (1921); Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 (1937); United States v. Rice, 327 U.S. 742 (1946). If a trial judge purports to remand a case on the ground that it was removed "improvidently and without jurisdiction," his order is not subject to challenge in the court of appeals by appeal, by mandamus, or otherwise. </s> The issue before us now is whether 1447 (d) also bars review where a case has been properly removed and the remand order is issued on grounds not authorized by 1447 (c). Here, respondent did not purport to proceed on the basis that this case had been removed "improvidently and without jurisdiction." Neither the propriety of the removal nor the jurisdiction of the court [423 U.S. 336, 344] was questioned by respondent in the slightest. 8 Section 1447 (c) was not even mentioned. Instead, the District Court's order was based on grounds wholly different from those upon which 1447 (c) permits remand. The determining factor was the District Court's heavy docket, which respondent thought would unjustly delay plaintiffs in going to trial on the merits of their action. This consideration, however, is plainly irrelevant to whether the District Court would have had jurisdiction of the case had it been filed initially in that court, to the removability of a case from the state court under 1441, and hence to the question whether this cause was removed "improvidently and without jurisdiction" within the meaning of the statute. </s> Removal of cases from state courts has been allowed since the first Judiciary Act, and the right to remove has never been dependent on the state of the federal court's docket. It is indeed unfortunate if the judicial manpower provided by Congress in any district is insufficient to try with reasonable promptness the cases properly filed in or removed to that court in accordance with the applicable statutes. But an otherwise properly removed action may no more be remanded because the district court considers itself too busy to try it than an action properly filed in the federal court in the first instance may be dismissed or referred to state courts for such reason. McClellan v. Carland, 217 U.S. 268 </s> [423 U.S. 336, 345] (1910); Chicot County v. Sherwood, 148 U.S. 529 (1893); Hyde v. Stone, 20 How. 170 (1858). </s> We agree with petitioners: The District Court exceeded its authority in remanding on grounds not permitted by the controlling statute. 9 </s> III </s> Although the Court of Appeals, erroneously we think, held that the District Court had jurisdiction to enter its remand order, the Court of Appeals did not mention 1447 (c), did not suggest that the District Court had proceeded under that section, properly or improperly, and did not itself suggest that this case was not removable under 1441 or that it had been improvidently removed from the state court for want of jurisdiction or otherwise. In the face of petitioners' position that the remand was for reasons not authorized by the statute, the Court of Appeals acted solely on the ground that under 1447 (d) it had no jurisdiction to entertain a petition for writ of mandamus challenging the remand order issued by respondent in this case. </s> We disagree with that conclusion. Section 1447 (d) is not dispositive of the reviewability of remand orders in and of itself. That section and 1447 (c) must be construed together, as this Court has said of the predecessors to these two sections in Employers Reinsurance Corp. v. Bryant, supra, at 380-381, and Kloeb v. Armour & Co., 311 U.S. 199, 202 (1940). These provisions, like their predecessors, "are in pari materia [and] are to be [423 U.S. 336, 346] construed accordingly rather than as distinct enactments . . . ." Employers Reinsurance Corp. v. Bryant, supra, at 380. This means that only remand orders issued under 1447 (c) and invoking the grounds specified therein - that removal was improvident and without jurisdiction - are immune from review under 1447 (d). </s> Section 1447 (d) has its roots in the Act of Mar. 3, 1887, 24 Stat. 552. Prior to 1875, orders of remand were not reviewable by appeal or writ of error for want of a final judgment. Railroad Co. v. Wiswall, 23 Wall. 507 (1875). Section 5 of the Judiciary Act of 1875, 18 Stat. 472, provided that if the trial court became satisfied at any time during the pendency of a case brought in or removed to that court that the case did not really or substantially involve a dispute or controversy properly within its jurisdiction, the action was to be either dismissed or remanded to the court from which it was removed as justice might require. The section expressly provided that the order dismissing or remanding the cause was to be reviewable on writ of error or appeal. 10 The Act of Mar. 3, 1887, however, while not disturbing [423 U.S. 336, 347] the provision for dismissal or remand for want of jurisdiction, not only repealed the provision in 5 of the 1875 Act providing for appellate review of remand orders but contained a provision that "improperly removed" cases should be remanded and that "no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed." 24 Stat. 553. 11 (Emphasis added.) </s> These provisions for the disposition of removed cases where jurisdiction was lacking or removal was otherwise improper, together with the prohibition of appellate review, were later included in 28 and 37 of the Judicial Code of 1911, appeared in 28 U.S.C. 71 and 80 (1946 ed.), 36 Stat. 1094, 1098, and endured until 1948 12 when [423 U.S. 336, 348] 28 U.S.C. 1447 was enacted - minus, however, the prohibition against appellate review. The omission was corrected in 1949 when the predecessor of the present subsection (d) came into being. 13 </s> Until 1948, then, district courts were authorized to remand cases over which they had no jurisdiction or which had been otherwise "improperly" removed, and district court orders "so remanding" were not appealable. It was held that a case remanded for want of jurisdiction under 80, which itself contained no prohibition of appellate review, was an "improperly" removed case under 71 and hence subject to the reviewability bar of that section. Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 (1937). But under the plain language of 71, a case was "so remanded" and within the reviewability prohibition only if it had been improperly removed. Insofar as we are advised, no case in this Court ever held that 71 prohibited appellate review by mandamus of a remand order not purporting to be based on the statutory ground. 14 </s> [423 U.S. 336, 349] </s> Sections 1447 (c) and (d) represent the 1948 recodification of 71 and 80. They were intended to restate the prior law with respect to remand orders and their [423 U.S. 336, 350] reviewability. 15 There is no indication whatsoever that Congress intended to extend the prohibition against review to reach remand orders entered on grounds not provided by the statute. [423 U.S. 336, 351] </s> There is no doubt that in order to prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues, United States v. Rice, 327 U.S., at 751 , Congress immunized from all forms of appellate review any remand order issued on the grounds specified in 1447 (c), whether or not that order might be deemed erroneous by an appellate court. But we are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute. That justice may move more slowly in some federal courts than in their state counterparts is not one of the considerations that Congress has permitted the district courts to recognize in passing on remand issues. Because the District Judge remanded a properly removed case on grounds that he had no authority to consider, he exceeded his statutorily defined power; and issuance of the writ of mandamus was not barred by 1447 (d). </s> In so holding we neither disturb nor take issue with the well-established general rule that 1447 (d) and its [423 U.S. 336, 352] predecessors were intended to forbid review by appeal or extraordinary writ of any order remanding a case on the grounds permitted by the statute. But this Court has not yet construed the present or past prohibition against review of remand orders so as to extinguish the power of an appellate court to correct a district court that has not merely erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching the propriety of the removal. We decline to construe 1447 (d) so woodenly as to reach that result now. </s> IV </s> There remains the question whether absent the bar of 1447 (d) against appellate review, the writ of mandamus is an appropriate remedy to require the District Court to entertain the remanded action. The answer is in the affirmative. </s> A "traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943); Ex parte Peru, 318 U.S. 578, 584 (1943); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953). "Repeated decisions of this Court have established the rule . . . that the writ will lie in a proper case to direct a subordinate Federal court to decide a pending cause," Insurance Co. v. Comstock, 16 Wall. 258, 270 (1873), or to require "a Federal court of inferior jurisdiction to reinstate a case, and to proceed to try and adjudicate the same." McClellan v. Carland, 217 U.S., at 280 . </s> In accordance with the foregoing cases, this Court has declared that because an order remanding a removed [423 U.S. 336, 353] action does not represent a final judgment reviewable by appeal, "[t]he remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done." Railroad Co. v. Wiswall, 23 Wall., at 508. Absent statutory prohibitions, when a remand order is challenged by a petition for mandamus in an appellate court, "the power of the court to issue the mandamus would be undoubted." In re Pennsylvania Co., 137 U.S., at 453 . There is nothing in our later cases dealing with the extraordinary writs that leads us to question the availability of mandamus in circumstances where the district court has refused to adjudicate a case, and has remanded it on grounds not authorized by the removal statutes. See Will v. United States, 389 U.S. 90 (1967); Schlagenhauf v. Holder, 379 U.S. 104 (1964); La Buy v. Howes Leather Co., 352 U.S. 249 (1957); McCullough v. Cosgrave, 309 U.S. 634 (1940); Los Angeles Brush Corp. v. James, 272 U.S. 701 (1927). On the contrary, these cases would support the use of mandamus to prevent nullification of the removal statutes by remand orders resting on grounds having no warrant in the law. </s> The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. </s> So ordered. </s> MR. JUSTICE STEVENS took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 Title 28 U.S.C. 1441 provides: "(a) Except as otherwise expressly provided by Act of Congress, 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. "(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. "(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction." </s> [Footnote 2 Title 28 U.S.C. 1446 provides: "(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them or removal together with a copy of all process, pleadings and orders served upon him or them in such action. "(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and [423 U.S. 336, 339] is not required to be served on the defendant, whichever period is shorter. "If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. "(c) The petition for removal of a criminal prosecution may be filed at any time before trial. "(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed. "(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. "(f) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court." </s> [Footnote 3 The condition of respondent's docket and the priority for trial of cases on the docket were explained by respondent in the memorandum opinion and order, Record 36-37: "At the close of business on February 28, 1974 there were pending on the dockets for which this Court has primary responsibility a total of eighty (80) criminal actions and three hundred ninety-four (394) civil actions. These cases have been assigned various priorities. The first priority is granted criminal actions. Social Security and Black Lung cases[*] have a priority second only to criminal cases. Webb v. Richardson, 472 F.2d 529, 538 (6th Cir. 1972). A third priority is granted those actions in which the United States is a party. The lowest priority, as a matter of necessity, is assigned private civil actions. Consequently, the period between the filing of such actions and the time in which they are assigned for trial must, regrettably, continually be extended." "[*] At the present time the Eastern District of Kentucky is experiencing an influx of Black Lung related actions. The Department [423 U.S. 336, 341] of Health, Education and Welfare predicts that a total in excess of four thousand (4,000) of these actions will ultimately be filed in this District." </s> [Footnote 4 Apparently respondent entered similar orders of remand in other diversity cases removed to his court. Petitioners stated in their petition for a writ of mandamus in the Court of Appeals that they believed "upon information only, that the Respondent herein has entered similar Orders of Remand in approximately 28 other actions, which actions either were removed to the United States District Court for the Eastern District of Kentucky, at Pikeville, in 1973, or which actions constitute all cases removed to said Court during the year 1973." Id., at 8-9. At oral argument before this Court, petitioners' counsel stated that during 1973, 14 cases had been removed from the Pike Circuit Court to respondent's court and that in every case respondent had issued orders to defendants to show cause why the cases should not be remanded to the state court. Petitioners' counsel further stated that respondent had entered orders of remand to the state court in all but two of those cases. Tr. of Oral Arg. 8. </s> [Footnote 5 See n. 1, supra. </s> [Footnote 6 See n. 2, supra. </s> [Footnote 7 Title 28 U.S.C. 1443 provides: "Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the [423 U.S. 336, 343] district court of the United States for the district and division embracing the place wherein it is pending: "(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; "(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law." Title 28 U.S.C. 1447 (d), as amended in 1949, was further amended in 1964 to provide expressly for review "by appeal or otherwise" of orders remanding cases that had been removed pursuant to 1443. 901 of Civil Rights Act of 1964, 78 Stat. 266. See Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966). </s> [Footnote 8 So far as the record reveals, it has not been questioned in this case that the cause is between citizens of different States, that it involves a claim of over $10,000 exclusive of interest and costs, that it is within the so-called diversity jurisdiction of the District Court and that it could have been initially filed in the District Court pursuant to 28 U.S.C. 1331. It also seems common ground that there is no express statutory provision forbidding the removal of this action and that the cause was timely removed in strict compliance with 28 U.S.C. 1446. </s> [Footnote 9 Lower federal courts have uniformly held that cases properly removed from state to federal court within the federal court's jurisdiction may not be remanded for discretionary reasons not authorized by the controlling statute. Romero v. ITE Imperial Corp., 332 F. Supp. 523, 526 (PR 1971); Isbrandtsen Co. v. Dist. 2, Marine Engineers Ben. Assn., 256 F. Supp. 68, 77 (EDNY 1966); Davis v. Joyner, 240 F. Supp. 689, 690 (EDNC 1964); Vann v. Jackson, 165 F. Supp. 377, 381 (EDNC 1958). </s> [Footnote 10 Section 5 of the Judiciary Act of 1875, 18 Stat. 472, provided: "That if, in any suit commenced in a circuit court or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just; but the order of said circuit court dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be." </s> [Footnote 11 The Act of Mar. 3, 1887, c. 373, 24 Stat. 553, provided in part: "`Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.'" </s> [Footnote 12 Title 28 U.S.C. 71 (1946 ed.), which was effective until the 1948 revision, provided in part: "Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal from the decision of the district court so remanding such cause shall be allowed." Title 28 U.S.C. 80 (1946 ed.), which was also effective until the 1948 revision, provided: "If in any suit commenced in a district court, or removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not [423 U.S. 336, 348] really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." </s> [Footnote 13 As amended in 1949, 28 U.S.C. 1447 (d) (1946 ed., Supp. III) provided: "(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." The subsection took its present form in 1964, when Congress amended the subsection to provide for review of cases removed pursuant to 28 U.S.C. 1443. See n. 7, supra. </s> [Footnote 14 Kloeb v. Armour & Co., 311 U.S. 199 (1940), upon which respondent relies, plainly did not do so. There, various suits were [423 U.S. 336, 349] filed in the Ohio state courts against Armour and an individual. Armour's removal petitions, filed in the state courts in accordance with the then-controlling procedure and asserting the right to remove because of a separable controversy between it and the plaintiffs, were denied by the trial court. The Ohio Supreme Court reversed, holding that the controversy with Armour was separable and that its removal petitions should have been granted. The trial court complied, and the cases were removed; but a motion to remand was then granted in the Federal District Court on the ground that in its view there was no separable controversy and hence no federal jurisdiction. The Court of Appeals for the Sixth Circuit granted Armour's mandamus petition, holding that the District Court had no power to determine the separable-controversy issue because that question had been finally determined by the Ohio Supreme Court. The Court of Appeals deemed inapplicable the prohibition against review by appeal or mandamus where the action of the District Court flouted not only the doctrine of res judicata but also the statutes directing courts to give full faith and credit to the decisions of state tribunals. The view of the Court of Appeals was that the prohibition against review contained in 71 barred review of erroneous decisions but not of those beyond the power of the District Court. In reversing, this Court could not agree with "[t]he suggestion that the federal district court had no power to consider the entire record and pass upon the question of separability, because this point had been finally settled by the Supreme Court of Ohio." 311 U.S., at 204 . Although the Ohio Supreme Court had held that the state trial court should have relinquished jurisdiction, the federal court was required by the controlling statute to consider its own jurisdiction, which it had proceeded to do in determining that "the controversy was not within the jurisdiction of that court" and that the case should be remanded. The remand order was thus deemed by this Court to be strictly within the power conferred upon the District Court by the statute, inasmuch as it was based on a determination of jurisdiction over the case. Mandamus was therefore barred by 71. It is apparent that Kloeb does not control this case. Kloeb did not hold that mandamus would not lie to challenge an order based [423 U.S. 336, 350] upon grounds that the District Court was not empowered by statute to consider. To the contrary, Kloeb held that the District Court was not bound by the state court's jurisdictional determination, and that the District Court's remand order, entered for want of jurisdiction in compliance with the controlling statute, was not reviewable by mandamus. In contrast to Kloeb, where the remand for want of jurisdiction was expressly authorized by the statute, here the District Court did not purport to comply with the removal and remand statutes at all. Its remand was on wholly unauthorized grounds. </s> [Footnote 15 When the Judicial Code was revised in 1948, 28 U.S.C. 1447 (e) (1946 ed., Supp. II) (now 1447 (c)) provided: "If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case." There was no express provision, as there had been under former 71, prohibiting review of such order. The Reviser's Note stated: "Subsection (e) [now subsec. (c)] is derived from sections 71 and 80 of title 28, U.S.C., 1940 ed. Such subsection is rewritten to eliminate the cumbersome procedure of remand." Note following 28 U.S.C. 1447. There was no intent to change the prior law substantively, although the prohibition of appellate review of remand orders contained in 71 of the old Code was inexplicably omitted. The omission was quickly rectified by the 1949 amendments to the Code. Section 1447 (c) (1946 ed., Supp. III), which had been 1447 (e) (1946 ed., Supp. II) in the 1948 revision, took its present form and 1447 (d) (1946 ed., Supp. III) was enacted. The House Report on the 1949 amendments explained the addition of 1447 (d): "This section strikes out subsections (c) and (d) of section 1447 of title 28, U.S.C., as covered by the Federal Rules of Civil Procedure, and adds a new subsection to such section 1447 to remove any doubt that the former law as to the finality of an order of remand to a State court is continued." H. R. Rep. No. 352, 81st Cong., 1st Sess., 15. The plain intent of Congress, which was accomplished with the 1949 [423 U.S. 336, 351] amendment, was to recodify the pre-1948 law without material change insofar as the provisions of 71 and 80 of the old Code here relevant were concerned. That the word "improperly" in the old law was changed to "improvidently" in 1447 (c) (1946 ed., Supp. III) with reference to the criteria for remanding cases removed from state and federal court is of no moment. "[N]o changes of law or policy are to be presumed from changes of language in the 1948. revision [of the Judicial Code] unless an intent to make such changes is clearly expressed." Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227 (1957) (footnote omitted). What this Court said in Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 (1937), with respect to the in pari materia construction of 71 and 80 of the pre-1948 Judicial Code is equally true today of 1447 (c) and (d) in light of the identical substantive content of the two sets of statutory provisions. </s> MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting. </s> The Court begins its discussion in this case by asking the wrong questions, and compounds its error by arriving at the wrong answer to at least one of the questions thus posed. The principal, and in my view only, issue presented [423 U.S. 336, 354] for review is whether the Court of Appeals was correct in concluding that it was without jurisdiction to review the order of remand entered by the District Court for the Eastern District of Kentucky. If no jurisdiction existed, it of course follows that there was no power in the Court of Appeals to examine the merits of petitioners' contentions that the order of remand exceeded respondent's authority, and that its order denying relief must be affirmed. Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379 (1884). As I think it plain that Congress, which has unquestioned authority to do so, Sheldon v. Sill, 8 How. 441 (1850), has expressly prohibited the review sought by petitioners, I dissent. </s> I </s> The Court of Appeals not unreasonably believed that 28 U.S.C. 1447 (d) means what it says. It says: </s> "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . ." </s> Nor was the Court of Appeals confronted with a question of first impression. As the Court recognizes, the limitation found in 1447 (d) has remained substantially unchanged since its enactment in 1887, and this Court has consistently ruled that the provision prohibits any form of review of remand orders. </s> Congress' purpose in barring review of all remand orders has always been very clear - to prevent the additional delay which a removing party may achieve by seeking appellate reconsideration of an order of remand. The removal jurisdiction extended by Congress works a significant interference in the conduct of litigation commenced in state court. While Congress felt that making available a federal forum in appropriate instances justifies some such interruption and delay, it obviously [423 U.S. 336, 355] thought it equally important that when removal to a federal court is not warranted the case should be returned to the state court as expeditiously as possible. If this balanced concern is disregarded, federal removal provisions may become a device affording litigants a means of substantially delaying justice. </s> It is clear that the ability to invoke appellate review, even if ultimately unavailing on the merits, provides a significant opportunity for additional delay. Congress decided that this possibility was an unacceptable source of additional delay and therefore made the district courts the final arbiters of whether Congress intended that specific actions were to be tried in a federal court. </s> I do not doubt that the district courts may occasionally err in making these decisions, and certainly Congress was not unaware of these probabilities. All decisionmakers err from time to time, and judicial systems frequently provide some review to remedy some of those errors. But such review is certainly not compelled. Congress balanced the continued disruption and delay caused by further review against the minimal possible harm to the party attempting removal - who will still receive a trial on the merits before a state court which cannot be presumed to be unwilling or unable to afford substantial justice - and concluded that no review should be permitted in these cases. Congress has explicitly indicated its intent to achieve this result; indeed "[i]t is difficult to see what more could be done to make the action of [remand] final, for all the purposes of the removal, and not the subject of review . . . ." Morey v. Lockhart, 123 U.S. 56, 57 (1887). Yet the Court today holds that Congress did not mean what it so plainly said. </s> The majority attempts to avoid the plain language of 1447 (d) by characterizing the bar to review as limited to only those remand orders entered pursuant [423 U.S. 336, 356] to the directive of 1447 (c), i. e., those cases "removed improvidently and without jurisdiction." But such a crabbed reading of the statute ignores the undoubted purpose behind the congressional prohibition. If the party opposing a remand order may obtain review to litigate whether the order was properly pursuant to the statute, his ability to delay and to frustrate justice is wide ranging indeed. By permitting such a result here, the Court effectively undermines the accepted rule established by Congress and adhered to for almost 90 years. </s> Nor is it any more than a naive hope to suppose, as the Court apparently does, that the effect of today's decision will be limited to the unique circumstances of this case. According to the Court, this case is beyond the reach of 1447 (d) by virtue of the fact that respondent appears to have expressly premised his remand of the case before him on a ground not authorized by Congress, a conclusion purportedly drawn from the face of respondent's order. I may agree, arguendo, that an order of remand based upon the clogged docket of the district court and a desire to obtain for the parties a trial in some forum without unreasonable delay, however salutary the motivation behind it, is not within the discretion placed in district courts by Congress. But I fail to see how such an order of remand is any more unauthorized than one where the district court erroneously concludes that an action was removed "improvidently and without jurisdiction." Surely such an error equally contravenes congressional intent to extend a "right" of removal to those within the statute's terms. Yet such an error, until today, never has been thought subject to challenge by appeal or extraordinary writ. </s> The Court seems to believe the instant case different because it has determined to its satisfaction that respondent's order was not merely an erroneous application [423 U.S. 336, 357] of 1447 (c), but was based upon considerations district courts are not empowered to evaluate. I think the Court's purported distinction both unworkable and portentous of the significant impairment of Congress' carefully worked out scheme. The Court relies upon its belief that respondent's order made clear that he was not acting in accordance with 1447 (c). But there was no requirement that respondent issue any explanation of the grounds for his remand order, and there is no reason to expect that district courts will always afford such explanations. If they do not, is there now jurisdiction in the courts of appeals to compel an explanation so as to evaluate potential claims that the lower court was not acting pursuant to subsection (c)? And what if the district court does state that it finds no jurisdiction, using the rubric of 1447 (c), but the papers plainly demonstrate such a conclusion to be absurd? Are potential challengers to such an order entitled to seek the aid of the court of appeals, first to demonstrate that the order entered by the lower court was a sham and second to block that order pursuant to today's decision? If the Court's grant of certiorari and order of reversal in this case are to have any meaning, it would seem that such avenues of attack should clearly be open to potential opponents of orders of remand. Yet it is equally clear that such devices would soon render meaningless Congress' express, and heretofore fully effective, directive prohibiting such tactics because of their potential for abuse by those seeking only to delay. </s> II </s> The majority's only support for its conclusion that 1447 (d) no longer means what everyone thought it did is the fact that the predecessor statute provided: </s> "Whenever any cause shall be removed from any State court into any district court of the United [423 U.S. 336, 358] States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal from the decision of the district court so remanding such cause shall be allowed." 28 U.S.C. 71 (1946 ed.). </s> In the Court's view the words "so remanding" limited the bar of the prior statute. But this appears a novel construction of the former 71. If "so remanding" had any limiting effect upon the prohibition against review, it would seem to have restricted the bar to only those cases which a district court determined to have been "improperly removed," as described in the above-quoted sentence. Yet this Court early held that the original prohibition against review of remand orders contained in the Act of Mar. 3, 1887, 24 Stat. 553, applied to bar review not only of remands of removals taken on account of prejudice or local influence - which were not remanded because "improperly removed" but rather pursuant to independent statutory directives requiring the district courts to remand such cases unless they found the opposing party could not obtain justice in the state court - but also of all other remands entered by a district court. Rejecting an argument essentially identical to that advanced by the majority, the Court there held: </s> "The fact that it is found at the end of the section, and immediately after the provision for removals on account of prejudice or local influence, has, to our minds, no special significance. Its language is broad enough to cover all cases, and such was evidently the purpose of Congress." Morey, 123 U.S., at 58 . [423 U.S. 336, 359] </s> In Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 (1937), the Court reiterated its Morey holding, ruling that even though the 1911 revision of the Judicial Code had split removal and remand provisions into various sections, the prohibition against review continued to bar all attempts to challenge orders of remand. The majority characterizes Bryant as holding that orders of remand issued pursuant to former 28 U.S.C. 80 (1946 ed.) were cases "improperly removed" within the meaning of 71 of that Title. Ante, at 348. But there is no such statement anywhere in Bryant, and that case's clearly stated holding is that the prohibitions against review of remand orders originally enacted in 1887 (and still in effect) "are intended to reach and include all cases removed from a state court into a federal court and remanded by the latter." 299 U.S., at 381 . See United States v. Rice, 327 U.S. 742, 752 (1946). </s> Even if one were to accept the majority's theory that "so remanding" somehow limited the otherwise universal prohibition against review, there is no such phrase in the current statute. The majority attempts to avoid this by contending that Congress "intended to restate the prior law with respect to remand orders and their reviewability." Ante, at 349-350. But this assertion flies in the face of the fact that in revising and codifying Title 28, Congress intended to, and did, work significant changes in prior law governing the Judicial Code and the judiciary. The House Committee made clear that the proposed revisions to the removal provisions effectuated a substantially altered and less cumbersome scheme of removal, in which several prior avenues to federal court had been removed so as to restrict federal jurisdiction. H. R. Rep. No. 308, 80th Cong., 1st Sess., 6, A133-A134. [423 U.S. 336, 360] And with respect to the section at issue here, 1447, the House Judiciary Committee noted that the new </s> "[s]ection consolidates procedural provisions of sections 71, 72, 74, 76, 80, 81 and 83 of title 28, U.S.C. 1940 ed., with important changes in substance and phraseology." Id., at A-136. </s> It is difficult to see how changes thus described by the Committee can have had no effect on the law. </s> The Court stresses that the 1949 reintroduction of the bar to review, apparently inadvertently omitted from the 1948 revision of the Judicial Code, was intended to enact the same rule of finality previously in effect. Ante, at 350 n. 15. I agree with this interpretation, but not with the Court's application of it. The "former law as to finality" which was continued by subsection (d) is that which had been in effect from 1887. Congress has made all judgments "remanding a cause to the state court final and conclusive." In re Pennsylvania Co., 137 U.S. 451, 454 (1890); Bryant, supra. Until today it has not been doubted that </s> "Congress, by the adoption of these provisions, . . . established the policy of not permitting interruption of the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed. This was accomplished by denying any form of review of an order of remand . . . ." United States v. Rice, supra, at 751. </s> III </s> Finally, I perceive no justification for the Court's decision to ignore the express directive of Congress in favor of what it personally perceives to be "justice" in this case. If anything is clear from the history of the prohibition against review, it is that Congress decided that potential [423 U.S. 336, 361] errors in individual cases did not justify permitting litigants to challenge remand orders. To carry out its policy of avoiding further interruption of the litigation of removed causes, properly begun in state courts, see Rice, supra, at 751-752, Congress decided to place final responsibility for implementation of its removal scheme with the district courts. It is not for this Court to strike that balance anew. </s> Congress has demonstrated its ability to protect against judicial abuses of removal rights when it thought it necessary to do so. See Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood v. Peacock, 384 U.S. 808 (1966). And it is apparent that the judiciary is not without the means of dealing with such errors as pose some danger of repetition. * Rather than leaving future repetition of cases such as this to Congress, the Court sets out to right a perceived wrong in this individual case. In the process of doing so it reopens an avenue for dilatory litigation which Congress had explicitly closed. Because I am convinced that both the Court of Appeals and this Court are without jurisdiction to consider the merits of petitioners' claims, I would affirm the judgment below. </s> [Footnote * The panel of the Court of Appeals below indicated its intention to report respondent's actions "to the Circuit Council for the Sixth Circuit, which has supervisory powers over the District Court." </s> [423 U.S. 336, 362]

United States Supreme Court HALLIBURTON OIL WELL CEMENTING CO. v. WALKER(1946) No. 24 Argued: Decided: November 18, 1946 </s> [ Halliburton Oil Well Cementing Co. v. Walker 329 U.S. 1 (1946) Mr.Earl Babcock, of Duncan, Okl. (Harry C. Robb, of Washington, D.C., on the brief), for petitioner. Mr. Harold W. Mattingly, of Los Angeles, Cal., for respondents. </s> Mr. Justice BLACK delivered the opinion of the Court. Cranford P. Walker, owner of Patent No. 2,156,519, and the other respondents, licensees under the patent, brought this suit in a federal district court alleging that petitioner, Halliburton Oil Well Cementing Company, had infringed certain of the claims of the Walker patent. The district court held the claims in issue valid and infringed by Halliburton. The circuit court of appeals affirmed, 9 Cir., 146 F.2d 817, and denied Halliburton's petition for rehearing. 149 F.2d 896. Petitioner's application to this Court for certiorari urged, among other grounds, that the claims held valid failed to make the 'full, clear, concise, and exact' description of the alleged invention required by Rev.Stat. 4888, 35 U.S. C. 33, 35 U.S.C.A. 33,1 as that statute was [329 U.S. 1, 3] interpreted by us in General Electric Co. v. Wabash Appliance Corporation, 304 U.S. 364 , 58 S.Ct. 899.2 This statutory requirement of distinctness and certainty in claims is important in patent law. We granted certiorari to consider whether it was correctly applied in this case. 326 U.S. 705 , 66 S.Ct. 90.3 The patent in suit was sustained as embodying an improvement over a past patent of Lehr and Wyatt (No. 2,047,974) upon an apparatus designed to facilitate the pumping of oil out of wells which do not have sufficient natural pressures to force the oil to gush. An outline of the background and setting of these patents is helpful to an understanding of the problem presented. In order to operate a pump in an oil well most efficiently, cheaply, and with the least waste, the pump must be placed in an appropriate relationship to the fluid surface of the oil. Properly to place the pump in this relationship requires knowledge of the distance from the well top to the fluid surface. At least by the latter 1920's problems [329 U.S. 1, 4] of waste and expense in connection with non-gusher oil wells pressed upon the industry. See Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573 , 60 S.Ct. 1021; Burford v. Sun Oil Co., 319 U.S. 315 , 63 S.Ct. 1098. It became apparent that inefficient pumping, one cause of waste, was in some measure attributable to lack of accurate knowledge of distance from well top to fluid surface. Ability to measure this distance in each separate non-gusher oil well became an obvious next step in the solution of this minor aspect of the problem of waste. The surface and internal machinery and the corkscrew conformation of some oil wells make it impractical to measure depth by the familiar method of lowering a rope or cable. In casting about for an alternative method it was quite natural to hit upon the possibility of utilizing a sound-echo- time method. Unknown distances had frequently been ascertained by this method. Given the time elapsing between the injection of a sound into an oil well and the return of its echo from the fluid surface, and assuming the velocity of the sound to be about 1,100 feet per second, as it is in the open air, it would be easy to find the distance. Not only had this sound-echo-time method been long known and generally used to find unknown distances, but in 1898 Batcheller, in Patent No. 602,422, had described an apparatus to find a distance in a tubular space. Obviously an oil well is such a space. He described a device whereby the noise from a gun might be injected into a tube; the returning echoes from obstructions agitated a diaphragm, which in turn moved a stylus. The stylus recorded on a piece of paper a graph or diagram showing the variant movements of the diaphragm caused by its response to all the different echo waves. In the late 1920's the oil industry began to experiment in the use of this same sound-echo-time method for measur- [329 U.S. 1, 5] ing the distance to the fluid surface in deep oil wells. A product of this experimentation was the Lehr and Wyatt patent, upon which the present patent claims to be an improvement. It proposed to measure the distance by measuring the time of travel of the echo of 'an impulse wave' generated by a 'sudden change in pressure.' The apparatus described included a gas cylinder with a quick operating valve by means of which a short blast of gas could be injected into a well. It was stated in the patent that the time elapsing between the release of the gas and the return of the echo of the waves produced by it could be observed in any desired manner. But the patentee's application and drawings noted that the wave impulses could be recorded by use of a microphone which might include an amplifier and an appropriate device to record a picture of the wave impulses. This Lehr and Wyatt patent, it is therefore apparent, simply provided an apparatus composed of old and well-known devices to measure the time required for pressure waves to move to and back from the fluid surface of an oil well. But the assumption that sound and pressure waves would travel in oil wells at open-air velocity of 1,100 feet per second proved to be erroneous. For this reason the timevelocity computation of Lehr and Wyatt for measuring the distance to the fluid surface produced inaccurate results. After conferences with Lehr, Walker undertook to search for a method which would more accurately indicate the sound and pressure wave velocity in each well. Walker was familiar with the structure of oil wells. The oil flow pipe in a well, known as a tubing string, is jointed and where these joints occur there are collars or shoulders. There are also one or more relatively prominent projections on the oil flow pipe known as tubing catchers. [329 U.S. 1, 6] In wells where the distance to the tubing catcher is known, Walker observed that the distance to the fluid surface could be measured by a simple time-distance proportion formula. 4 For those wells in which the distance to the tubing catcher was unknown, Walker also suggested another idea. The sections of tubing pipe used in a given oil well are generally of equal length. Therefore the shoulders in a given well ordinarily are at equal intervals from each other. But the section length and therefore the interval may vary from well to well. Walker concluded that he could measure the unknown distance to the tubing catcher if he could observe and record the shoulder echo waves. Thus multiplication of the number of shoulders observed by the known length of a pipe section would produce the distance to the tubing catcher. With this distance, he could solve the distance to the fluid surface by the same proportion formula used when the distance to the tubing catcher was a matter of record. The Lehr and Wyatt instrument could record all these echo waves. But the potential usefulness of the echoes from the shoulders and the tubing catcher which their machine recorded had not occurred to Lehr and Wyatt and consequently they had made no effort better to observe and record them. Walker's contribution which he claims to be invention was in effect to add to Lehr and Wyatt's apparatus a well-known device which would make the regularly appearing [329 U.S. 1, 7] shoulder echo waves more prominent on the graph and easier to count. The device added was a mechanical acoustical resonator. This was a short pipe which would receive wave impulses at the mouth of the well. Walker's testimony was, and his specifications state, that by making the length of this tubal resonator one-third the length of the tubing joints, the resonator would serve as a tuner, adjusted to the frequency of the shoulder echo waves. It would simultaneously amplify these echo waves and eliminate unwanted echoes from other obstructions thus producing a clearer picture of the shoulder echo waves. His specifications show, attached to the tubal resonator, a coupler, the manipulation of which would adjust the length of the tube to one-third of the interval between shoulders in a particular well. His specifications and drawings also show the physical structure of a complete apparatus, designed to inject pressure impulses into a well, and to receive, note, record and time the impulse waves. The District Court held the claims here in suit valid upon its finding that Walker's 'apparatus differs from and is an improvement over the prior art in the incorporation in such apparatus of a tuned acoustical means which performs the functions of a sound filter ....' The circuit court of appeals affirmed this holding, stating that the trial court had found 'that the only part of this patent constituting invention over the prior art is the 'tuned acoustical means which performs the functions of a sound filter." For our purpose in passing upon the sufficiency of the claims against prohibited indefiniteness we can accept without ratifying the findings of the lower court that the addition of '(a) tuned acoustical means' performing the 'functions of a sound filter' brought about a new patentable combination, even though it advanced only a narrow [329 U.S. 1, 8] step beyond Lehr and Wyatt's old combination. 5 We must, however, determine whether, as petitioner charges, the claims here held valid run afoul of Rev.Stat. 4888 because they do not describe the invention but use 'conveniently functional language at the exact point of novelty.' General Electric Co. v. Wabash Appliance Corporation supra, 304 U.S. at page 371, 58 S.Ct. at page 903 </s> Walker, in some of his claims, e.g., claims 2 and 3, does describe the tuned acoustical pipe as an integral part of his invention, showing its structure, its working arrangement in the alleged new combination, and the manner of its connection with the other parts. But no one of the claims on which this judgment rests has even suggested the physical structure of the acoustical resonator. 6 No one of these claims describes the physical relation of the Walker addition to the old Lehr and Wyatt machine. No one of these claims describes the manner in which the Walker addition will operate together with the old Lehr and Wyatt machine so as to make the 'new' unitary apparatus perform its designed function. Thus the claims failed adequately to depict the structure, mode, and operation of the parts in combination. A claim typical of all of those held valid only describes the resonator and its relation with the rest of the apparatus as 'means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing section to clearly distinguish the echoes of said couplings from [329 U.S. 1, 9] each other.' 7 The language of the claim thus describes this most crucial element in the 'new' combination in terms of what it will do rather than in terms of its own physical characteristics or its arrangement in the new combination apparatus. We have held that a claim with such a description of a product is invalid as a violation of Rev.Stat. 4888. Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 256 , 257 S., 48 S.Ct. 474, 478, 479; General Electric Co. v. Wabash Appliance Corporation, supra. We understand that the circuit court of appeals held that the same rigid standards of description required for product claims is not required for a combination patent embodying old elements only. We have a different view. Rev.Stat. 4888 pointedly provides that 'in the case of a machine, he (the patentee) shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctively claim the part, improvement, or combination which he claims as his invention or discovery.' It has long been held that the word 'machine' includes a combination. Corning et al. v. Burden, 15 How. 252, 267. We are not persuaded that the public and those affected by patents [329 U.S. 1, 10] should lose the protection of this statute merely because the patented device is a combination of old elements. Patents on machines which join old and well-known devices with the declared object of achieving new results, or patents which add an old element to improve a preexisting combination, easily lend themselves to abuse. And to prevent extension of a patent's scope beyond what was actually invented, courts have viewed claims to combinations and improvements or additions to them with very close scrutiny. Cf. Lincoln Engineering Co. of Illinois v. Stewart Warner Corporation, 303 U.S. 545 , 549-551, 58 S.Ct. 662. For the same reason, courts have qualified the scope of what is meant by the equivalent of an ingredient of a combination of old elements. Gill v. Wells, 22 Wall. 1, 28, 29. Fuller v. Yentzer, 94 U.S. 288, 297 , 298 S.. It is quite consistent with this strict interpretation of patents for machines which combine old elements to require clear description in combination claims. This view, clearly expressed in Gill v. Wells, supra, is that 'Where the ingredients are all old the invention ... consists entirely in the combination, and the requirement of the Patent Act that the invention shall be fully and exactly described applies with as much force to such an invention as to any other class, because if not fulfilled all three of the great ends intended to be accomplished by that requirement would be defeated. ... (1.) That the Government may know what they have granted and what will become public property when the term of the monopoly expires. (2.) That licensed persons desiring to practice the invention may know, during the term, how to make, construct, and use the invention. (3.) That other inventors may know what part of the field of invention is unoccupied. </s> 'Purposes such as these are of great importance in every case, but the fulfillment of them is never more [329 U.S. 1, 11] necessary than when such inquiries arise in respect to a patent for a machine which consists of a combination of old ingredients. Patents of that kind are much more numerous than any other, and consequently it is of the greatest importance that the description of the combination, which is the invention, should be full, clear, concise, and exact.' Gill v. Wells, supra, 22 Wall. at pages 25, 26. </s> These principles were again emphasized in Merrill v. Yeomans, 94 U.S. 568 , 570, where it was said that '... in cases where the invention is a new combination of old devices, he (the patentee) is bound to describe with particularity all these old devices, and then the new mode of combining them, for which he desires a patent.' This view has most recently been reiterated in General Electric Co. v. Wabash Appliance Corporation, supra, 304 U.S. at pages 368, 369, 58 S.Ct. at pages 901, 902. Cogent reasons would have to be presented to persuade us to depart from this established doctrine. The facts of the case before us, far from undermining our confidence in these earlier pronouncements, reinforce the conclusion that the statutory requirement for a clear description of claims applies to a combination of old devices. This patent and the infringement proceedings brought under it illustrate the hazards of carving out an exception to the sweeping demand Congress made in Rev.Stat. 4888. Neither in the specification, the drawing, nor in the claims here under consideration, was there any indication that the patentee contemplated any specific structural alternative for the acoustical resonator or for the resonator's relationship to the other parts of the machine. Petitioner was working in a field crowded almost, if not completely, to the point of exhaustion. In 1920, Tucker, in Patent No. 1,451,356, had shown a tuned acoustical resonator in a sound detecting device which measured distances. Lehr and Wyatt had provided for amplification of their waves. Sufficient amplification and exaggeration of all the differ- [329 U.S. 1, 12] ent waves which Lehr and Wyatt recorded on their machine would have made it easy to distinguish the tubing catcher and regular shoulder waves from all others. For, even without this amplification, the echo waves from tubing collars could by proper magnification have been recorded and accurately counted, had Lehr and Wyatt recognized their importance in computing the velocity. Cf. General Electric Co. v. Jewel Incandescent Lamp Co., 326 U.S. 242 , 66 S.Ct. 81. Under these circumstances the broadness, ambiguity, and overhanging threat of the functional claim of Walker become apparent. What he claimed in the court below and what he claims here is that his patent bars anyone from using in an oil well any device heretofore or hereafter invented which combined with the Lehr and Wyatt machine performs the function of clearly and distinctly catching and recording echoes from tubing joints with regularity. Just how many different devices there are of various kinds and characters which would serve to emphasize these echoes, we do not know. The Halliburton device, alleged to infringe, employs an electric filter for this purpose. In this age of technological development there may be many other devices beyond our present information or indeed our imagination which will perform that function and yet fit these claims. And unless frightened from the course of experimentation by broad functional claims like these, inventive genius may evolve many more devices to accomplish the same purpose. See United Carbon Co. et al. v. Binney & Smith Co., 317 U.S. 228, 236 , 63 S.Ct. 165, 170; Burr v. Duryee, 1 Wall. 531, 568; O'Reilly et al. v. Morse et al., 15 How. 62, 112, 113. Yet if Walker's blanket claims be valid, no device to clarify echo waves, now known or hereafter invented, whether the device be an actual equivalent of Walker's ingredient or not, could be used in a combination such as this, during the life of Walker's patent. [329 U.S. 1, 13] Had Walker accurately described the machine he claims to have invented, he would have had no such broad rights to bar the use of all devices now or hereafter known which could accent waves. For had he accurately described the resonator together with the Lehr and Wyatt apparatus, and sued for infringement, charging the use of something else used in combination to accent the waves, the alleged infringer could have prevailed if the substituted device (1) performed a substantially different function; (2) was not known at the date of Walker's patent as a proper substitute for the resonator; or (3) had been actually invented after the date of the patent. Fuller v. Yentzer, supra, 94 U.S. at pages 296, 297; Gill v. Wells, supra, 22 Wall. at page 29. Certainly, if we are to be consistent with Rev.Stat. 4888, a patentee cannot obtain greater coverage by failing to describe his invention than by describing it as the statute commands. It is urged that our conclusion is in conflict with the decision of Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 , 28 S.Ct. 748. In that case, however, the claims structurally described the physical and operating relationship of all the crucial parts of the novel combination. 8 </s> [329 U.S. 1, 14] The court there decided only that there had been an infringement of this adequately described invention. That case is not authority for sustaining the claims before us which fail adequately to describe the alleged invention. REVERSED. Mr. Justice FRANKFURTER concurs with the Court's opinion in so far as it finds this claim lacking in the definiteness required by Rev.Stat. 4888, 35 U.S.C. 33, 35 U.S.C.A. 33, but reserves judgment as to considerations that may be peculiar to combination patents in satisfying that requirement. Mr. Justice BURTON dissents. </s> Footnotes </s> [Footnote 1 '33. Application for Patent; Description; Specification and Claim. Before any inventor or discoverer shall receive a patent for his invention or discovery he shall make application therefor, in writing, to the Commissioner of Patents, and shall file in the Patent Office a written description of the same, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, he shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. ...' </s> [Footnote 2 Other alleged errors were urged in the application for certiorari and have been argued here, but since we find the question of definiteness of the claim decisive of the controversy, we shall not further advert to the other contentions. [Footnote 3 This case was previously affirmed by a divided court, 326 U.S. 696 , 66 S.Ct. 482, and upon petition for rehearing was restored to the docket for reargument. 327 U.S. 812 , 66 S.Ct. 677. </s> [Footnote 4 The known distance from well top to the tubing catcher is to the unknown distance from well top to the fluid surface as the time an echo requires to travel from the tubing catcher is to the time required for an echo to travel from the fluid surface. Walker's patent emphasizes that his invention solves the velocity of sound waves in wells of various pressures in which sound did not travel at open-air or a uniform speed. Mathematically, of course, his determination of the distance by proportions determines the distance to the fluid surface directly without necessarily considering velocity in feet per second as a factor. </s> [Footnote 5 See Hailes v. Van Wormer, 20 Wall. 353; Knapp v. Morss, 150 U.S. 221, 227 , 228 S., 14 S.Ct. 81, 83, 84; Textile Machine Works v. Louis Hirsch Textile Machines, Inc., 302 U.S. 490 , 58 S. Ct. 291; Lincoln Engineering Co. of Illinois v. Stewart- Warner Corp., 303 U.S. 545, 549 , 550 S., 58 S.Ct. 662, 664, 665. [Footnote 6 Halliburton does not challenge the adequacy of the description of any other features of the 'new combination.' The elements of Walker's apparatus other than the filter are so nearly identical to what Lehr and Wyatt patented that we can speak of these other elements as the 'Lehr and Wyatt machine.' </s> [Footnote 7 Both parties have used Claim 1 as a typical example for purposes of argument throughout the litigation. Other claims need not be set out. Claim 1 is as follows: 'In an apparatus for determining the location of an obstruction in a well having therein a string of assembling tubing sections inter-connected with each other by coupling collars, means communicating with said well for creating a pressure impulse in said well, echo receiving means including a pressure responsive device exposed to said well for receiving pressure impulses from the well and for measuring the lapse of time between the creation of the impulse and the arrival at said receiving means of the echo from said obstruction, and means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing sections to clearly distinguish the echoes from said couplings from each other.' </s> [Footnote 8 The typical claim there in suit was as follows: '2. In a paper bag machine, the combination of the rotating cylinder provided with one or more pairs of sidefolding fingers adapted to be moved toward or from each other, a forming plate also provided with side-forming fingers adapted to be moved toward or from each other, means for operating said fingers at definite times during the formative action upon the bag tube, operating means for the forming plate adapted to cause the said plate to oscillate about its rear edge upon the surface of the cylinder during the rotary movement of said cylinder for the purpose of opening and forming the bottom of the bag tube, a finger moving with the forming plate for receiving the upper sheet of the tube and lifting it during the formative action, power devices for returning the forming plate to its original position to receive a new bag tube, and means to move the bag tube with the cylinder.' Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 , 417, n. 1, 28 S.Ct. 748, 750.

United States Supreme Court HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON(1995) No. 94-749 Argued: April 25, 1995Decided: June 19, 1995 </s> Petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various veterans groups, was authorized by the city of Boston to organize and conduct the St. Patrick's Day-Evacuation Day Parade. The Council refused a place in the 1993 event to respondent GLIB, an organization formed for the purpose of marching in the parade in order to express its members' pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York St. Patrick's Day parade. GLIB and some of its members filed this suit in state court, alleging that the denial of their application to march violated, inter alia, a state law prohibiting discrimination on account of sexual orientation in places of public accommodation. In finding such a violation and ordering the Council to include GLIB in the parade, the trial court, among other things, concluded that the parade had no common theme other than the involvement of the participants, and that, given the Council's lack of selectivity in choosing parade participants and its failure to circumscribe the marchers' messages, the parade lacked any expressive purpose, such that GLIB's inclusion therein would not violate the Council's First Amendment rights. The Supreme Judicial Court of Massachusetts affirmed. </s> Held: </s> The state courts' application of the Massachusetts public accommodations law to require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey violates the First Amendment. Pp. 8-24. Page II </s> (a) Confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the realm of non-expressive conduct, this Court has a constitutional duty to conduct an independent examination of the record as a whole, without deference to those courts, to assure that their judgment does not constitute a forbidden intrusion on the field of free expression. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 285 . Pp. 8-10. </s> (b) The selection of contingents to make a parade is entitled to First Amendment protection. Parades such as petitioners' are a form of protected expression because they include marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Cf., e.g., Gregory v. Chicago, 394 U.S. 111, 112 . Moreover, such protection is not limited to a parade's banners and songs, but extends to symbolic acts. See, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632 , 642. Although the Council has been rather lenient in admitting participants to its parade, a private speaker does not forfeit constitutional protection simply by combining multifarious voices, by failing to edit their themes to isolate a specific message as the exclusive subject matter of the speech, or by failing to generate, as an original matter, each item featured in the communication. Thus, petitioners are entitled to protection under the First Amendment. GLIB's participation as a unit in the parade was equally expressive, since the organization was formed to celebrate its members' sexual identities and for related purposes. Pp. 10-13. </s> (c) The Massachusetts law does not, as a general matter, violate the First or Fourteenth Amendments. Its provisions are well within a legislature's power to enact when it has reason to believe that a given group is being discriminated against. And the statute does not, on its face, target speech or discriminate on the basis of its content. Pp. 13-14. </s> (d) The state court's application, however, had the effect of declaring the sponsors' speech itself to be the public accommodation. Since every participating parade unit affects the message conveyed by the private organizers, the state courts' peculiar application of the Massachusetts law essentially forced the Council to alter the parade's expressive content and thereby violated the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say. Petitioners' claim to the benefit of this principle is sound, since the Council selects the expressive units of the parade from potential participants and clearly decided to exclude a message it Page III did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another, free from state interference. The constitutional violation is not saved by Turner Broadcasting System, Inc. v. FCC, 512 U.S. ___. The Council is a speaker in its own right; a parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience; and there is no assertion here that some speakers will be destroyed in the absence of the Massachusetts law. Nor has any other legitimate interest been identified in support of applying that law in the way done by the state courts to expressive activity like the parade. Prune Yard Shopping Center v. Robins, 447 U.S. 74, 87 , and New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 13 , distinguished. Pp. 14-23. </s> 418 Mass. 238, 636 N. E. 2d 1293, reversed and remanded. </s> SOUTER, J., delivered the opinion for a unanimous Court. </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE SOUTER delivered the opinion of the Court. </s> The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment. </s> I </s> March 17 is set aside for two celebrations in South Boston. As early as 1737, some people in Boston observed the feast of the apostle to Ireland, and since 1776 the day has marked the evacuation of royal troops and Loyalists from the city, prompted by the guns captured at Ticonderoga and set up on Dorchester Heights under General Washington's command. Washington himself reportedly drew on the earlier tradition in choosing "St. Patrick" as the response to "Boston," the password used in the colonial lines on evacuation day. See J. Crimmins, St. Patrick's Day: Its Celebration in New York and other American Places, 1737-1845, pp. 15, 19 (1902); see generally 1 H.S. Commager & R. Morris, The Spirit of 'Seventy Six 138-183 (1958); The </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 2] </s> American Book of Days 262-265 (J. Hatch ed., 3d ed. 1978). Although the General Court of Massachusetts did not officially designate March 17 as Evacuation Day until 1938, see Mass. Gen. Laws 6:12K (1992), the City Council of Boston had previously sponsored public celebrations of Evacuation Day, including notable commemorations on the centennial in 1876, and on the 125th anniversary in 1901, with its parade, salute, concert, and fireworks display. See Celebration of the Centennial Anniversary of the Evacuation of Boston by the British Army (G. Ellis ed. 1876); Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston et al., Civ. Action No. 92-1516 (Super. Ct., Mass., Dec. 15, 1993), reprinted in App. to Pet. for Cert. B1, B8-B9. </s> The tradition of formal sponsorship by the city came to an end in 1947, however, when Mayor James Michael Curley himself granted authority to organize and conduct the St. Patrick's Day-Evacuation Day Parade to the petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various South Boston veterans groups. Every year since that time, the Council has applied for and received a permit for the parade, which at times has included as many as 20,000 marchers and drawn up to 1 million watchers. No other applicant has ever applied for that permit. Id., at B9. Through 1992, the city allowed the Council to use the city's official seal, and provided printing services as well as direct funding. </s> 1992 was the year that a number of gay, lesbian, and bisexual descendants of the Irish immigrants joined together with other supporters to form the respondent organization, GLIB, to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to demonstrate that there are such men and women among those so descended, and to express their solidarity with like individuals </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 3] </s> who sought to march in New York's St. Patrick's Day Parade. Id., at B3; App. 51. Although the Council denied GLIB's application to take part in the 1992 parade, GLIB obtained a state-court order to include its contingent, which marched "uneventfully" among that year's 10,000 participants and 750,000 spectators. App. to Pet. for Cert. B3, and n. 4. </s> In 1993, after the Council had again refused to admit GLIB to the upcoming parade, the organization and some of its members filed this suit against the Council, the individual petitioner John J. "Wacko" Hurley, and the City of Boston, alleging violations of the State and Federal Constitutions and of the state public accommodations law, which prohibits "any distinction, discrimination or restriction on account of . . . sexual orientation . . . relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws 272:98. After finding that "[f]or at least the past 47 years, the Parade has traveled the same basic route along the public streets of South Boston, providing entertainment, amusement, and recreation to participants and spectators alike," App. to Pet. for Cert. B5-B6, the state trial court ruled that the parade fell within the statutory definition of a public accommodation, which includes "any place . . . which is open to and accepts or solicits the patronage of the general public and, without limiting the generality of this definition, whether or not it be . . . (6) a boardwalk or other public highway [or] . . . (8) a place of public amusement, recreation, sport, exercise or entertainment," Mass. Gen. Laws 272:92A. The court found that the Council had no written criteria and employed no particular procedures for admission, voted on new applications in batches, had occasionally admitted groups who simply showed up at the parade without having submitted an application, and did "not generally inquire into the specific messages or views of each </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 4] </s> applicant." App. to Pet. for Cert. B8-B9. The court consequently rejected the Council's contention that the parade was "private" (in the sense of being exclusive), holding instead that "the lack of genuine selectivity in choosing participants and sponsors demonstrates that the Parade is a public event." Id., at B6. It found the parade to be "eclectic," containing a wide variety of "patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes," as well as conflicting messages. Id., at B24. While noting that the Council had indeed excluded the Ku Klux Klan and ROAR (an antibusing group), id., at B7, it attributed little significance to these facts, concluding ultimately that "[t]he only common theme among the participants and sponsors is their public involvement in the Parade," id., at B24. </s> The court rejected the Council's assertion that the exclusion of "groups with sexual themes merely formalized [the fact] that the Parade expresses traditional religious and social values," id., at B3, and found the Council's "final position [to be] that GLIB would be excluded because of its values and its message, i.e., its members' sexual orientation," id., at B4, n. 5, citing Tr. of Closing Arg. 43, 51-52 (Nov. 23, 1993). This position, in the court's view, was not only violative of the public accommodations law but "paradoxical" as well, since "a proper celebration of St. Patrick's and Evacuation Day requires diversity and inclusiveness." App. to Pet. for Cert. B24. The court rejected the notion that GLIB's admission would trample on the Council's First Amendment rights since the court understood that constitutional protection of any interest in expressive association would "requir[e] focus on a specific message, theme, or group" absent from the parade. Ibid. "Given the [Council's] lack of selectivity in choosing participants and failure to circumscribe the marchers' message," the court found it "impossible to discern any specific expressive </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 5] </s> purpose entitling the Parade to protection under the First Amendment." Id., at B25. It concluded that the parade is "not an exercise of [the Council's] constitutionally protected right of expressive association," but instead "an open recreational event that is subject to the public accommodations law." Id., at B27. </s> The court held that because the statute did not mandate inclusion of GLIB but only prohibited discrimination based on sexual orientation, any infringement on the Council's right to expressive association was only "incidental" and "no greater than necessary to accomplish the statute's legitimate purpose" of eradicating discrimination. Id., at B25, citing Roberts v. United States Jaycees, 468 U.S. 609, 628 -629 (1984). Accordingly, it ruled that "GLIB is entitled to participate in the Parade on the same terms and conditions as other participants." Id., at B27. 1 </s> The Supreme Judicial Court of Massachusetts affirmed, seeing nothing clearly erroneous in the trial judge's findings that GLIB was excluded from the parade based on the sexual orientation of its members, that it was impossible to detect an expressive purpose in the parade, that there was no state action, and that the parade was a public accommodation within the meaning of 272:92A. Irish-American Gay, Lesbian and Bisexual Group of Boston v. Boston, 418 Mass. 238, 242-248, 636 </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 6] </s> N. E. 2d 1293, 1295-1298 (1994). 2 Turning to petitioners' First Amendment claim that application of the public accommodations law to the parade violated their freedom of speech (as distinguished from their right to expressive association, raised in the trial court), the court's majority held that it need not decide on the particular First Amendment theory involved "because, as the [trial] judge found, it is `impossible to discern any specific expressive purpose entitling the parade to protection under the First Amendment.'" Id., at 249, 636 N. E. 2d, at 1299 (footnote omitted). The defendants had thus failed at the trial level "to demonstrate that the parade truly was an exercise of . . . First Amendment rights," id., at 250, 636 N. E. 2d, at 1299, citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 , n. 5 (1984), and on appeal nothing indicated to the majority of the Supreme Judicial Court that the trial judge's assessment of the evidence on this point was clearly erroneous, ibid. The court rejected petitioners' further challenge to the law as overbroad, holding that it does not, on its face, regulate speech, does not let public officials examine the content of speech, and would not be interpreted as reaching speech. Id., at 251-252, 636 N. E. 2d, at 1300. Finally, the court rejected the challenge that the public accommodations law was unconstitutionally vague, holding that this case did not present an issue of speech and that the law gave persons of ordinary intelligence a reasonable opportunity to know what was prohibited. Id., at 252, 636 N. E. 2d, at 1300-1301. </s> Justice Nolan dissented. In his view, the Council "does not need a narrow or distinct theme or message in its parade for it to be protected under the First Amendment." </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 7] </s> Id., at 256, 636 N. E. 2d, at 1303. First, he wrote, even if the parade had no message at all, GLIB's particular message could not be forced upon it. Id., at 257, 636 N. E. 2d, at 1303, citing Wooley v. Maynard, 430 U.S. 705, 717 (1977) (state requirement to display "Live Free or Die" on license plates violates First Amendment). Second, according to Justice Nolan, the trial judge clearly erred in finding the parade devoid of expressive purpose. Ibid. He would have held that the Council, like any expressive association, cannot be barred from excluding applicants who do not share the views the Council wishes to advance. Id., at 257-259, 636 N. E. 2d, at 1303-1304, citing Roberts v. United States Jaycees, 468 U.S. 609 (1984). Under either a pure speech or associational theory, the State's purpose of eliminating discrimination on the basis of sexual orientation, according to the dissent, could be achieved by more narrowly drawn means, such as ordering admission of individuals regardless of sexual preference, without taking the further step of prohibiting the Council from editing the views expressed in their parade. Id., at 256, 258, 636 N. E. 2d, at 1302, 1304. In Justice Nolan's opinion, because GLIB's message was separable from the status of its members, such a narrower order would accommodate the State's interest without the likelihood of infringing on the Council's First Amendment rights. Finally, he found clear error in the trial judge's equation of exclusion on the basis of GLIB's message with exclusion on the basis of its members' sexual orientation. To the dissent this appeared false in the light of "overwhelming evidence" that the Council objected to GLIB on account of its message and a dearth of testimony or documentation indicating that sexual orientation was the bar to admission. Id., at 260, 636 N. E. 2d, at 1304. The dissent accordingly concluded that the Council had not even violated the State's public accommodations law. </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 8] </s> We granted certiorari to determine whether the requirement to admit a parade contingent expressing a message not of the private organizers' own choosing violates the First Amendment. 513 U.S. ___ (1995). We hold that it does and reverse. </s> II </s> Given the scope of the issues as originally joined in this case, it is worth noting some that have fallen aside in the course of the litigation, before reaching us. Although the Council presents us with a First Amendment claim, respondents do not. Neither do they press a claim that the Council's action has denied them equal protection of the laws in violation of the Fourteenth Amendment. While the guarantees of free speech and equal protection guard only against encroachment by the government and "erec[t] no shield against merely private conduct," Shelley v. Kraemer, 334 U.S. 1, 13 (1948); see Hudgens v. NLRB, 424 U.S. 507, 513 (1976), respondents originally argued that the Council's conduct was not purely private, but had the character of state action. The trial court's review of the city's involvement led it to find otherwise, however, and although the Supreme Judicial Court did not squarely address the issue, it appears to have affirmed the trial court's decision on that point as well as the others. In any event, respondents have not brought that question up either in a cross-petition for certiorari or in their briefs filed in this Court. When asked at oral argument whether they challenged the conclusion by the Massachusetts' courts that no state action is involved in the parade, respondents' counsel answered that they "do not press that issue here." Tr. of Oral Arg. 22. In this Court, then, their claim for inclusion in the parade rests solely on the Massachusetts public accommodations law. </s> There is no corresponding concession from the other side, however, and certainly not to the state courts' </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 9] </s> characterization of the parade as lacking the element of expression for purposes of the First Amendment. Accordingly, our review of petitioners' claim that their activity is indeed in the nature of protected speech carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984). The "requirement of independent appellate review . . . is a rule of federal constitutional law," id., at 510, which does not limit our deference to a trial court on matters of witness credibility, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989), but which generally requires us to "review the finding of facts by a State court . . . where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," Fiske v. Kansas, 274 U.S. 380, 385-386 (1927). See also Niemotko v. Maryland, 340 U.S. 268, 271 (1951); Jacobellis v. Ohio, 378 U.S. 184, 189 (1964) (opinion of Brennan, J.). This obligation rests upon us simply because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection. See Bose Corp., supra, at 503. Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52(a) that "[f]indings of fact . . . shall not be set aside unless clearly erroneous," we are obliged to make a fresh examination of crucial facts. Hence, in this case, though we are confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the vast realm of non-expressive conduct, our obligation is to "`make an independent examination of the whole record,' . . . so as </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 10] </s> to assure ourselves that th[is] judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (footnote omitted), quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963). </s> III </s> A </s> If there were no reason for a group of people to march from here to there except to reach a destination, they could make the trip without expressing any message beyond the fact of the march itself. Some people might call such a procession a parade, but it would not be much of one. Real "[p]arades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration." S. Davis, Parades and Power: Street Theatre in Nineteenth-Century Philadelphia 6 (1986). Hence, we use the word "parade" to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed a parade's dependence on watchers is so extreme that nowadays, as with Bishop Berkeley's celebrated tree, "if a parade or demonstration receives no media coverage, it may as well not have happened." Id., at 171. Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches. In Gregory v. Chicago, 394 U.S. 111, 112 (1969), for example, petitioners had taken part in a procession to express their grievances to the city government, and we held that such a "march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment." Similarly, in Edwards v. South Carolina, 372 U.S. 229, 235 (1963), where petitioners had joined in a march of protest and pride, carrying placards and singing The </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 11] </s> Star Spangled Banner, we held that the activities "reflect an exercise of these basic constitutional rights in their most pristine and classic form." Accord, Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969). </s> The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943), our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), id., at 632, 642, wearing an arm band to protest a war, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 -506 (1969), displaying a red flag, Stromberg v. California, 283 U.S. 359, 369 (1931), and even "[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, 418 U.S. 405, 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll. </s> Not many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them. Spectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages (e.g., "England get out of Ireland," "Say no to drugs"); marching bands and pipers play, floats are pulled along, and the whole show is broadcast over Boston television. See Record, Exh. 84 (video). To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 12] </s> rather lenient in admitting participants. But a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication. Cable operators, for example, are engaged in protected speech activities even when they only select programming originally produced by others. Turner Broadcasting System, Inc. v. FCC, 512 U.S. ___, ___ (1994) (slip op., at 11) ("Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment"). For that matter, the presentation of an edited compilation of speech generated by other persons is a staple of most newspapers' opinion pages, which, of course, fall squarely within the core of First Amendment security, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974), as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper, see New York Times, 376 U.S., at 265 -266. The selection of contingents to make a parade is entitled to similar protection. </s> Respondents' participation as a unit in the parade was equally expressive. GLIB was formed for the very purpose of marching in it, as the trial court found, in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade. App. to Pet. for Cert. B3. The organization distributed a fact sheet describing the members' intentions, App. A51, and the record otherwise corroborates the expressive nature of GLIB's participation, see Record, Exh. 84; App. A67 </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 13] </s> (photograph). In 1993, members of GLIB marched behind a shamrock-strewn banner with the simple inscription "Irish American Gay, Lesbian and Bisexual Group of Boston." GLIB understandably seeks to communicate its ideas as part of the existing parade, rather than staging one of its own. </s> B </s> The Massachusetts public accommodations law under which respondents brought suit has a venerable history. At common law, innkeepers, smiths, and others who "made profession of a public employment," were prohibited from refusing, without good reason, to serve a customer. Lane v. Cotton, 12 Mod. 472, 484-485, 88 Eng. Rep. 1458, 1464-1465 (K.B. 1701) (Holt, C. J.); see Bell v. Maryland, 378 U.S. 226, 298 , n. 17 (1964) (Goldberg, J., concurring); Lombard v. Louisiana, 373 U.S. 267, 277 (1963) (Douglas, J., concurring). As one of the 19th century English judges put it, the rule was that "[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants." Rex v. Ivens, 7 Car. & P. 213, 219, 173 Eng. Rep. 94, 96 (N.P. 1835); M. Konvitz & T. Leskes, A Century of Civil Rights 160 (1961). </s> After the Civil War, the Commonwealth of Massachusetts was the first State to codify this principle to ensure access to public accommodations regardless of race. See Act Forbidding Unjust Discrimination on Account of Color or Race, 1865 Mass. Acts, ch. 277 (May 16, 1865); Konvitz & Leskes, supra, at 155-56; L.G. Lerman & A. Sanderson, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 238 (1978); F. Fox, Discrimination and </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 14] </s> Antidiscrimination in Massachusetts Law, 44 B. U. L. Rev. 30, 58 (1964). In prohibiting discrimination "in any licensed inn, in any public place of amusement, public conveyance or public meeting," 1865 Mass. Acts, ch. 277, 1, the original statute already expanded upon the common law, which had not conferred any right of access to places of public amusement, Lerman & Anderson, supra, at 248. As with many public accommodations statutes across the Nation, the legislature continued to broaden the scope of legislation, to the point that the law today prohibits discrimination on the basis of "race, color, religious creed, national origin, sex, sexual orientation . . ., deafness, blindness or any physical or mental disability or ancestry" in "the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws 272:98. 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. See, e.g., New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 11 -16 (1988); Roberts v. United States Jaycees, 468 U.S. 609, 624 -626 (1984); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 -262 (1964). Nor is this statute unusual in any obvious way, since it does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds. </s> C </s> In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 15] </s> units admitted to the parade. The petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march. Instead, the disagreement goes to the admission of GLIB as its own parade unit carrying its own banner. See App. to Pet. for Cert. B26-B27, and n. 28. Since every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade. Although the state courts spoke of the parade as a place of public accommodation, see, e.g., 418 Mass., at 247-248, 636 N. E. 2d, at 1297-1298, once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. </s> "Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say," id., at 16. Although the State may at times "prescribe what shall be orthodox in commercial </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 16] </s> advertising" by requiring the dissemination of "purely factual and uncontroversial information," Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985); see Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386 -387 (1973), outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Barnette, 319 U.S., at 642 . Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, McIntyre v. Ohio Elections Comm'n, 514 U.S. ___, ___ (1995) (slip op., at 6-7); Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 797 -798 (1988), subject, perhaps, to the permissive law of defamation, New York Times, 376 U.S. 254 ; Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 -349 (1974); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. See Brandenburg v. Ohio, 395 U.S. 444 (1969); Terminiello v. Chicago, 337 U.S. 1 (1949). </s> Petitioners' claim to the benefit of this principle of autonomy to control one's own speech is as sound as the South Boston parade is expressive. Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 17] </s> exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control. </s> Respondents argue that any tension between this rule and the Massachusetts law falls short of unconstitutionality, citing the most recent of our cases on the general subject of compelled access for expressive purposes, Turner Broadcasting, 512 U.S. ___. There we reviewed regulations requiring cable operators to set aside channels for designated broadcast signals, and applied only intermediate scrutiny. Id., at ___ (slip op., at 38). Respondents contend on this authority that admission of GLIB to the parade would not threaten the core principle of speaker's autonomy because the Council, like a cable operator, is merely "a conduit" for the speech of participants in the parade "rather than itself a speaker." Brief for Respondent 21. But this metaphor is not apt here, because GLIB's participation would likely be </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 18] </s> perceived as having resulted from the Council's customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well. A newspaper, similarly, "is more than a passive receptacle or conduit for news, comment, and advertising," and we have held that "[t]he choice of material . . . and the decisions made as to limitations on the size and content . . . and treatment of public issues . . . - whether fair or unfair - constitute the exercise of editorial control and judgment" upon which the State can not intrude. Tornillo, 418 U.S., at 258 . Indeed, in Pacific Gas & Electric, we invalidated coerced access to the envelope of a private utility's bill and newsletter because the utility "may be forced either to appear to agree with [the intruding leaflet] or to respond." 475 U.S., at 15 (plurality) (citation omitted). The plurality made the further point that if "the government [were] freely able to compel . . . speakers to propound political messages with which they disagree, . . . protection [of a speaker's freedom] would be empty, for the government could require speakers to affirm in one breath that which they deny in the next." Id., at 16. Thus, when dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised. </s> In Turner Broadcasting, we found this problem absent in the cable context, because "[g]iven cable's long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator." 512 U.S., at ___ (slip op., at 31). We stressed that the viewer is frequently apprised of the identity of the broadcaster whose signal is being received via cable and that it is "common practice for broadcasters to disclaim any identity of viewpoint between the management and the </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 19] </s> speakers who use the broadcast facility." Ibid. (slip op., at 31) (citation omitted); see id., at ___ (slip op., at 11) (O'CONNOR, J., concurring in part and dissenting in part) (noting that Congress "might . . . conceivably obligate cable operators to act as common carriers for some of their channels"). </s> Parades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed. Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow "any identity of viewpoint" between themselves and the selected participants. Practice follows practicability here, for such disclaimers would be quite curious in a moving parade. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 87 (1980) (owner of shopping mall "can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand"). Without deciding on the precise significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole. </s> An additional distinction between Turner Broadcasting and this case points to the fundamental weakness of any attempt to justify the state court order's limitation on the Council's autonomy as a speaker. A cable is not only a conduit for speech produced by others and selected by cable operators for transmission, but a franchised channel giving monopolistic opportunity to </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 20] </s> shut out some speakers. This power gives rise to the government's interest in limiting monopolistic autonomy in order to allow for the survival of broadcasters who might otherwise be silenced and consequently destroyed. The government's interest in Turner Broadcasting was not the alteration of speech, but the survival of speakers. In thus identifying an interest going beyond abridgment of speech itself, the defenders of the law at issue in Turner Broadcasting addressed the threshold requirement of any review under the Speech Clause, whatever the ultimate level of scrutiny, that a challenged restriction on speech serve a compelling, or at least important, governmental object, see, e.g., Pacific Gas & Electric, supra, at 19; Turner Broadcasting, supra, at ___ (slip op., at 38); United States v. O'Brien, 391 U.S. 367, 377 (1968). </s> In this case, of course, there is no assertion comparable to the Turner Broadcasting claim that some speakers will be destroyed in the absence of the challenged law. True, the size and success of petitioners' parade makes it an enviable vehicle for the dissemination of GLIB's views, but that fact, without more, would fall far short of supporting a claim that petitioners enjoy an abiding monopoly of access to spectators. See App. to Pet. for Cert. B9; Brief for Respondents 10 (citing trial court's finding that no other applicant has applied for the permit). Considering that GLIB presumably would have had a fair shot (under neutral criteria developed by the city) at obtaining a parade permit of its own, respondents have not shown that petitioners enjoy the capacity to "silence the voice of competing speakers," as cable operators do with respect to program providers who wish to reach subscribers, Turner Broadcasting, supra, at ___ (slip op., at 32). Nor has any other legitimate interest been identified in support of applying the Massachusetts statute in this way to expressive activity like the parade. </s> The statute, Mass. Gen. Laws 272:98, is a piece of </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 21] </s> protective legislation that announces no purpose beyond the object both expressed and apparent in its provisions, which is to prevent any denial of access to (or discriminatory treatment in) public accommodations on proscribed grounds, including sexual orientation. On its face, the object of the law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor's exercise of personal preference. When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. But in the absence of some further, legitimate end, this object is merely to allow exactly what the general rule of speaker's autonomy forbids. </s> It might, of course, have been argued that a broader objective is apparent: that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases. Requiring access to a speaker's message would thus be not an end in itself, but a means to produce speakers free of the biases, whose expressive conduct would be at least neutral toward the particular classes, obviating any future need for correction. But if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective. Having availed itself of the public thoroughfares "for purposes of assembly [and] communicating thoughts between citizens," the Council is engaged in a use of the streets that has "from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.). Our tradition of free speech </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 22] </s> commands that a speaker who takes to the street corner to express his views in this way should be free from interference by the State based on the content of what he says. See, e.g., Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972); cf. H. Kalven, Jr., A Worthy Tradition 6-19 (1988); O. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1408-1409 (1986). The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis. See, e.g., Barnette, 319 U.S., at 642 ; Pacific Gas & Electric, 475 U.S., at 20 . While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government. </s> Far from supporting GLIB, then, Turner Broadcasting points to the reasons why the present application of the Massachusetts law can not be sustained. So do the two other principal authorities GLIB has cited. In PruneYard, 447 U.S. 74 , to be sure, we sustained a state law requiring the proprietors of shopping malls to allow visitors to solicit signatures on political petitions without a showing that the shopping mall owners would otherwise prevent the beneficiaries of the law from reaching an audience. But we found in that case that the proprietors were running "a business establishment that is open to the public to come and go as they please," that the solicitations would "not likely be identified with those of the owner," and that the proprietors could "expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand." Id., at 87. Also, in </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 23] </s> Pacific Gas & Electric, supra, at 12, we noted that PruneYard did not involve "any concern that access to this area might affect the shopping center owner's exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets . . . ." The principle of speaker's autonomy was simply not threatened in that case. </s> New York State Club Association is also instructive by the contrast it provides. There, we turned back a facial challenge to a state antidiscrimination statute on the assumption that the expressive associational character of a dining club with over 400 members could be sufficiently attenuated to permit application of the law even to such a private organization, but we also recognized that the State did not prohibit exclusion of those whose views were at odds with positions espoused by the general club memberships. 487 U.S., at 13 ; see also Roberts, 468 U.S., at 627 . In other words, although the association provided public benefits to which a State could ensure equal access, it was also engaged in expressive activity; compelled access to the benefit, which was upheld, did not trespass on the organization's message itself. If we were to analyze this case strictly along those lines, GLIB would lose. Assuming the parade to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members. </s> IV </s> Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of </s> [ HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON, ___ U.S. ___ (1995) </s> , 24] </s> the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court is reversed and the case remanded for proceedings not inconsistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 The court dismissed the public accommodations law claim against the city because it found that the city's actions did not amount to inciting or assisting in the Council's violations of 272:98. App. to Pet. for Cert. B12-B13. It also dismissed respondents' First and Fourteenth Amendment challenge against the Council for want of state action triggering the proscriptions of those Amendments. Id., at B14-B22. Finally, the court did not reach the state constitutional questions, since respondents had apparently assumed in their arguments that those claims, too, depended for their success upon a finding of state action and because of the court's holding that the public accommodation statutes apply to the parade. Id., at B22. </s> [Footnote 2 Since respondents did not cross-appeal the dismissal of their claims against the city, the Supreme Judicial Court declined to reach those claims. 418 Mass., at 245, n. 12, 636 N. E. 2d, at 1297. Page I

United States Supreme Court U.S. v. BALL CONSTRUCTION CO.(1958) No. 97 Argued: January 27, 1958Decided: March 3, 1958 </s> 1. In the circumstances of this case, an "assignment" made by a subcontractor to his performance-bond surety of all sums to become due for performance of the subcontract, as security for any indebtedness or liability thereafter incurred by the subcontractor to the surety, did not constitute the surety a "mortgagee" of those sums within the meaning of 3672 (a) of the Internal Revenue Code of 1939, as amended, providing that a federal tax lien shall not be valid as against any "mortgagee" until notice thereof has been filed by the collector. </s> 2. In the circumstances of this case, an allowance of attorney's fees to an interpleader, who was the debtor of the taxpayer-assignor, was not entitled to priority in the interpleaded fund as against a federal tax lien which had previously attached to the fund. </s> 239 F.2d 384, reversed. </s> Alexander F. Prescott argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and George F. Lynch. </s> Josh H. Groce argued the cause for respondents. With him on the brief was Jack Hebdon for the United Pacific Insurance Co., respondent. Mr. Groce also filed a brief for the R. F. Ball Construction Co., Inc., respondent. </s> PER CURIAM. </s> The judgment is reversed. The instrument involved being inchoate and unperfected, the provisions of 3672 (a), Revenue Act of 1939, 53 Stat. 449, as amended, 53 Stat. 882, 56 Stat. 957, do not apply. See United States v. Security Trust & Savings Bank, 340 U.S. 47 ; United [355 U.S. 587, 588] States v. City of New Britain, 347 U.S. 81, 86 -87. The claim of the interpleader for its costs is controlled by United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215 . </s> MR. JUSTICE WHITTAKER, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON and MR. JUSTICE HARLAN join, dissenting. </s> The question presented is whether an "assignment" made by a subcontractor to his performance-bond surety of all sums to become due for performance of the subcontract, as security for any indebtedness or liability thereafter incurred by the subcontractor to the surety, constituted the surety a "mortgagee" of those sums within the meaning of 3672 (a) of the Internal Revenue Code of 1939, as amended. </s> Ball Construction Company had contracted to construct a housing project in San Antonio, Texas. On July 17, 1951, it entered into a subcontract with Jacobs under which the latter agreed to do the necessary painting and decorating of the buildings, and to furnish the labor and materials required, for a stipulated price. The terms of the subcontract required Jacobs to furnish to Ball a corporate surety bond, in the amount of $229,029, guaranteeing performance of the subcontract. On July 21, 1951, Jacobs, to induce respondent, United Pacific Insurance Company, to sign the bond as surety, assigned to the surety all sums due or to become due under the subcontract, as collateral security to the surety for any liability it might sustain under its bond through nonperformance of the subcontract, and for "the payment of any other indebtedness or liability of the [subcontractor to the surety] whether [t]heretofore or [t]hereafter incurred," not exceeding the penalty of the bond. On April 30, 1953, a balance of $13,228.55 became due from [355 U.S. 587, 589] Ball under the subcontract, but, because of outstanding claims of materialmen against Jacobs, Ball did not pay the debt. In May, June, and September, 1953, the District Director of Internal Revenue filed, in the proper state office, federal tax liens against Jacobs, aggregating $17,010.85. Between December 1953 and March 1954 - thus during the coexistent period of the bond and the assignment - Jacobs incurred indebtedness, independent of the subcontract, to the surety in the amount of $12,971.88. </s> The surety, contending that its assignment of July 21, 1951, constituted it a "mortgagee" within the meaning of 3672 (a), claimed priority of right to the $13,228.55 fund over the subsequently filed federal tax liens. The Government disputed the claim and asserted a superior right to the fund under its tax liens. Several creditors of Jacobs, holding unpaid claims for materials furnished for and used in performing the subcontract, asserted priority to a portion of the fund over the claims of both the surety and the Government. Because of these rival claims, Ball instituted this interpleader action, under which he impleaded the surety, the Government, and the materialmen, and paid the fund into the registry of the court to abide the judgment. Before conclusion of the trial the materialmen's claims were satisfied. The District Court held that, by the terms of the "assignment" and on its date of July 21, 1951, the surety became a mortgagee of the fund and that its right thereto was superior, under 3672 (a), to the subsequently filed federal tax liens. 140 F. Supp. 60. The Court of Appeals, adopting that opinion, affirmed. 239 F.2d 384. </s> This Court now reverses summarily, citing United States v. City of New Britain, 347 U.S. 81 , and United States v. Security Trust & Savings Bank, 340 U.S. 47 . We believe those cases are not in point nor in any way controlling. Neither of them even involve either the question [355 U.S. 587, 590] here presented or the statute here conceded by the parties to be controlling. Rather, they involved entirely different facts, presented very different questions, and were controlled by and decided upon other statutes. They were controlled by and decided upon 3670 and 3671 of the Internal Revenue Code of 1939, 1 which, in pertinent part, provided: "If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount . . . shall be a lien in favor of the United States upon all property and rights to property . . . belonging to such person" ( 3670) from the time ". . . the assessment list was received by the collector . . . ." ( 3671.) Whereas the statute governing this case, as the parties concede, is 3672 (a) of the Internal Revenue Code of 1939, as amended, 2 which, in pertinent part, provided: "Such lien shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector - (1) . . . in the office in which the filing of such notice is authorized by the law of the State . . . in which the property subject to the lien is situated . . . ." </s> The controversy in New Britain was over that portion of the proceeds of a real estate mortgage foreclosure sale which exceeded the amount of the mortgage. The City of New Britain, in virtue of its unpaid annual ad valorem tax liens which attached to the real estate on October 1 in each of the years 1947 through 1951, and its water-rent liens which had accrued from December 1, 1947, to June 1, 1951, claimed priority of right to the fund over general federal tax liens against the mortgagor which had been effected under 3670 and 3671 by deposit of assessment [355 U.S. 587, 591] lists in the Collector's office on various dates between April 26, 1948, and September 21, 1950. Thus, some of the City's liens had attached to the real estate prior to receipt by the Collector of the assessment lists and some had not. </s> This Court was not there dealing with any mortgage, pledge or other contractual lien, but was only dealing, as it said, with "statutory liens" (id., at 84); and in deciding the issue of their priority it observed that, although 3670 and 3671 created a lien in favor of the United States upon all property of the taxpayer as of the time the assessment list was received by the Collector, "Congress [had] failed to expressly provide for federal priority . . ." (id., at 85) under those sections, and the Court held ". . . that priority of these statutory liens is [to be] determined by [the] principle of law [that] `the first in time is the first in right.'" Ibid. The Court then vacated the judgment of the state court and remanded the case for determination of the order of priority of the various liens asserted, in accordance with the opinion. </s> We think it is not only apparent that 3672 (a) had no application to that case but also that the Court expressly so declared. It noted that the City of New Britain contended that, because applicable state statutes provided that real estate tax and water-rent liens should take precedence over all other liens and encumbrances and 3672 (a) subordinated federal tax liens to antecedent mortgages, the Court should hold that the City's tax and water-rent liens - having priority over mortgages - were prior in rank to the federal tax liens; but the Court disagreed, saying: "There is nothing in the language of 3672 [(a)] to show that Congress intended antecedent federal tax liens to rank behind any but the specific categories of interests set out therein . . . ." Id., at 88. (Emphasis supplied.) As we have observed. [355 U.S. 587, 592] supra, "the specific categories of interests set out" in 3672 (a) were and are those of "any mortgagee, pledgee, purchaser or judgment creditor." </s> In the Security Trust case a creditor instituted a suit in California against one Styliano on a note and, on October 17, 1946, pursuant to provisions of the California Code of Civil Procedure, procured an attachment of a parcel of real estate owned by Styliano. While the attachment suit was pending the Government, on December 3, 5 and 10, 1946, filed notices of federal tax liens against Styliano in the proper state office. Thereafter. on April 24, 1947, judgment was rendered against Styliano in the attachment suit, thus perfecting the attachment lien on the real estate. Subsequently Styliano sold the real estate, subject to these liens, and the purchaser filed a suit to quiet his title, impleaded the attachment lienor and the Government, and paid the purchase price into the registry of the court to abide the judgment. The California trial court ordered the fund to be applied, first, in payment of the attachment lien, and, second, in payment of the federal tax liens. The California District Court of Appeal affirmed. On certiorari this Court reversed, pointing out that, under the law of California as declared in Puissegur v. Yarbrough, 29 Cal. 2d 409, 412, 175 P.2d 830, 831-832, an attaching creditor obtains "only a potential right or a contingent lien" until a judgment perfecting the lien is rendered, and that meanwhile the lien "is contingent or inchoate - merely a lis pendens notice that a right to perfect a lien exists." Id., at 50. Naturally, in those circumstances, the tax liens which became perfected in December 1946 were superior to the attachment lien which did not become perfected until May 1947. There, as in New Britain, this Court was not dealing with any mortgage, pledge or other contractual lien, or with any question of priority of an antecedent mortgage over subsequently filed tax liens. [355 U.S. 587, 593] </s> It thus seems quite clear to us that the New Britain and Security Trust cases did not involve the question here presented nor deal with the statute here conceded to be controlling and, therefore, they do not in any way support the Court's decision here. </s> We also think that, under the law and the facts in this record, the "assignment" was in legal effect a "mortgage," and inasmuch as it antedated the filing of the federal tax liens it was superior to them under the expressed terms of 3672 (a). That section does not define the term "mortgagee" and, hence, we must assume that it was there used in its ordinary and common-law sense. United States v. Gilbert Associates, Inc., 345 U.S. 361, 364 ; United States v. Security Trust & Savings Bank, supra, at 52 (concurring opinion). Substance, not form or labels, controls the nature and effect of legal instruments. "State law creates legal interests and rights." Morgan v. Commissioner, 309 U.S. 78, 80 . The law of Texas, where the questioned assignment was made and was to be performed, makes such an "assignment" a valid mortgage. Southern Surety Co. v. Bering Mfg. Co., 295 S. W. 337, 341; Williams v. Silliman, 74 Tex. 626, 12 S. W. 534. Although the relation of a state-created right to federal laws for the collection of federal credits is a federal question, the State's classification of state-created rights must be given weight. United States v. Security Trust & Savings Bank, supra, at 49-50. Here, the State's determination that such assignments are mortgages in legal effect, and its classification of them accordingly, is not met by anything of countervailing weight. The period of the assignment was coextensive with the bond. The bond remained effective throughout the period here involved and, hence, so did the assignment. The fact that the assignment was of property to be afterwards acquired did not affect its validity as a "mortgage," Conard v. Atlantic Ins. Co., 1 Pet. 386, 448, nor did uncertainty [355 U.S. 587, 594] in the amount (not exceeding the fixed maximum) of the generally identified obligation, so secured, do so. Ibid. Neither does the fact that the instrument was not recorded under the State's fraudulent conveyance statutes - thus to impart constructive notice to subsequent purchasers, mortgagees and the like - make any difference here, for the instrument was valid between the parties to it, and Congress, by 3672 (a), expressly subordinated federal tax liens to antecedent mortgages. The questioned assignment conveyed to the surety all sums then due and thereafter to become due under, and for performance of, the then existing subcontract - performance of which was guaranteed by the surety's bond - as security for the payment of sufficiently identified but contingent and unliquidated obligations which the subcontractor might incur to the surety during the coextensive period of the bond and the assignment. In these circumstances, I think it is clear that the assignment was in legal effect a mortgage, completely perfected on its date, in all respects choate, and valid between the parties; and inasmuch as it antedated the filing of the federal tax liens it was expressly made superior to those liens by the terms of 3672 (a). </s> For these reasons, I dissent and would affirm the decision and judgment of the Court of Appeals. </s> Footnotes [Footnote 1 53 Stat. 448 and 449, 26 U.S.C. (1952 ed.) 3670 and 3671. </s> [Footnote 2 53 Stat. 449, as amended by 401 of the Revenue Act of 1939, c. 247, 53 Stat. 882, and 505 of the Revenue Act of 1942, c. 619, 56 Stat. 957, 26 U.S.C. 3672 (a). </s> [355 U.S. 587, 595]

United States Supreme Court MILLIKEN v. BRADLEY(1977) No. 76-447 Argued: March 22, 1977Decided: June 27, 1977 </s> After this Court in Milliken v. Bradley, 418 U.S. 717 (Milliken I), determined that an interdistrict remedy for de jure segregation in the Detroit school system exceeded the constitutional violation, and remanded the case for formulation of a decree, the District Court promptly ordered submission of desegregation plans limited to the Detroit school system. After extensive hearings the court, in addition to a plan for student assignment, included in its decree educational components, proposed by the Detroit School Board, in the areas of reading, in-service teacher training, testing, and counseling. The court determined that these components were necessary to carry out desegregation, and directed that the costs were to be borne by the Detroit School Board and the State. The Court of Appeals affirmed the District Court's order concerning the implementation of and cost sharing for the four educational components. Held: </s> 1. As part of a desegregation decree a district court can, if the record warrants, order compensatory or remedial educational programs for schoolchildren who have been subjected to past acts of de jure segregation. Here the District Court, acting on substantial evidence in the record, did not abuse its discretion in approving a remedial plan going beyond pupil assignments and adopting specific programs that had been proposed by local school authorities. Pp. 279-288. </s> (a) "In fashioning and effectuating [desegregation] decrees, the courts will be guided by equitable principles," Brown v. Board of Education, 349 U.S. 294, 300 , and in applying such principles, federal courts are to focus on the nature and scope of the violation, the fact that the decree must be remedial, and the interests of state and local authorities in managing their own affairs. Pp. 280-281. </s> (b) Where, as here, a constitutional violation has been found, the remedy does not "exceed" the violation if the remedy is tailored to cure the "condition that offends the Constitution," Milliken I, supra, at 738, i. e., Detroit's de jure segregated school system. Matters other than pupil assignment must on occasion be addressed by federal courts to eliminate the effects of prior segregation, United States v. Montgomery [433 U.S. 267, 268] County Board of Education, 395 U.S. 225 , and federal courts have, over the years, required inclusion of remedial programs in desegregation plans, when the record warrants, to remedy the direct consequences of dual school systems. Pp. 281-288. </s> 2. The requirement that the state defendants pay one-half the additional costs attributable to the four educational components does not violate the Eleventh Amendment, since the District Court was authorized to provide prospective equitable relief, even though such relief requires the expenditure of money by the State. Edelman v. Jordan, 415 U.S. 651, 668 . Pp. 288-290. </s> 3. The Tenth Amendment's reservation of non delegated powers to the States is not implicated by a federal court's judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment, nor are principles of federalism abrogated by the decree. P. 291. </s> 540 F.2d 229, affirmed. </s> BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a concurring opinion, post, p. 291. POWELL, J., filed an opinion concurring in the judgment, post, p. 292. </s> Frank J. Kelley, Attorney General of Michigan, argued the cause for petitioners. With him on the briefs were Robert A. Derengoski, Solicitor General, and Gerald F. Young, George L. McCargar, and Mary Kay Bottecelli, Assistant Attorneys General. </s> Nathaniel R. Jones argued the cause for Bradley respondents. With him on the brief were Paul R. Dimond, Louis R. Lucas, Robert A. Murphy, William E. Caldwell, and Richard S. Kohn. George T. Roumell, Jr., argued the cause for respondent Detroit Board of Education. With him on the brief were Jane K. Souris and Thomas M. J. Hathaway. * </s> [Footnote * Robert P. Kane, Attorney General, and Jeffrey Cooper and J. Justin Blewitt, Deputy Attorneys General, filed a brief for the Commonwealth of Pennsylvania as amicus curiae urging reversal. </s> Briefs of amici curiae urging affirmance were filed by Acting Solicitor General Friedman, Assistant Attorney General Days, Deputy Solicitor General Wallace, Brian K. Landsberg, and Judith E. Wolf for the United [433 U.S. 267, 269] States; and by Herbert Teitelbaum, Robert Hermann, and Vilma Martinez for Aspira of America, Inc., et al. </s> John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Thomas W. Choate, Special Assistant Attorney General, filed a brief for the State of Texas as amicus curiae. [433 U.S. 267, 269] </s> MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. </s> We granted certiorari in this case to consider two questions concerning the remedial powers of federal district courts in school desegregation cases, namely, whether a District Court can, as part of a desegregation decree, order compensatory or remedial educational programs for schoolchildren who have been subjected to past acts of de jure segregation, and whether, consistent with the Eleventh Amendment, a federal court can require state officials found responsible for constitutional violations to bear part of the costs of those programs. </s> I </s> This case is before the Court for the second time, following our remand, Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I); it marks the culmination of seven years of litigation over de jure school segregation in the Detroit public school system. For almost six years, the litigation has focused exclusively on the appropriate remedy to correct official acts of racial discrimination committed by both the Detroit School Board and the State of Michigan. No challenge is now made by the State or the local school board to the prior findings of de jure segregation. 1 </s> [433 U.S. 267, 270] </s> A </s> In the first stage of the remedy proceedings, which we reviewed in Milliken I, supra, the District Court, after reviewing several "Detroit-only" desegregation plans, concluded that an interdistrict plan was required to "`achieve the greatest degree of actual desegregation . . . [so that] no school, grade or classroom [would be] substantially disproportionate to the overall pupil racial composition.'" 345 F. Supp., 914, 918 (ED Mich. 1972), quoted in Milliken I, supra, at 734. On those premises, the District Court ordered the parties to submit plans for "metropolitan desegregation" and appointed a nine-member panel to formulate a desegregation plan, which would encompass a "desegregation area" consisting of 54 school districts. </s> In June 1973, a divided Court of Appeals, sitting en banc, upheld, 484 F.2d 215 (CA6), the District Court's determination that a metropolitan wide plan was essential to bring about what the District Court had described as "the greatest degree of actual desegregation . . . ." 345 F. Supp., at 918. We reversed, holding that the order exceeded appropriate limits of federal equitable authority as defined in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24 (1971), by concluding that "as a matter of substantive constitutional right, [a] particular degree of racial balance" is required, and by subjecting other school districts, uninvolved with and unaffected by any constitutional violations, to the court's remedial powers. Milliken I, supra. Proceeding from the Swann standard "that the scope of the remedy is determined by the nature and extent of the constitutional violation," we held that, on the record before us, there was no interdistrict violation [433 U.S. 267, 271] calling for an interdistrict remedy. Because the District Court's "metropolitan remedy" went beyond the constitutional violation, we remanded the case for further proceedings "leading to prompt formulation of a decree directed to eliminating the segregation found to exist in the Detroit city schools, a remedy which has been delayed since 1970." 418 U.S., at 753 . 2 </s> B </s> Due to the intervening death of Judge Stephen J. Roth, who had presided over the litigation from the outset, the case on remand was reassigned to Judge Robert E. DeMascio. Judge DeMascio promptly ordered respondent Bradley and the Detroit Board to submit desegregation plans limited to the Detroit school system. On April 1, 1975, both parties submitted their proposed plans. Respondent Bradley's plan was limited solely to pupil reassignment; the proposal called for extensive transportation of students to achieve the plan's ultimate goal of assuring that every school within the district reflected, within 15 percentage points, the racial ratio of the school district as a whole. 3 In contrast to respondent Bradley's [433 U.S. 267, 272] proposal, the Detroit Board's plan provided for sufficient pupil reassignment to eliminate "racially identifiable white elementary schools," while ensuring that "every child will spend at least a portion of his education in either a neighborhood elementary school or a neighborhood junior and senior high school." 402 F. Supp. 1096, 1116 (1975). By eschewing racial ratios for each school, the Board's plan contemplated transportation of fewer students for shorter distances than respondent Bradley's proposal. 4 </s> In addition to student reassignments, the Board's plan called for implementation of 13 remedial or compensatory programs, referred to in the record as "educational components." These compensatory programs, which were proposed in addition to the plan's provisions for magnet schools and vocational high schools, included three of the four components at issue in this case - in-service training for teachers and administrators, guidance and counseling programs, and revised testing procedures. 5 Pursuant to the District Court's direction, the State Board of Education 6 on April 21, 1975, [433 U.S. 267, 273] submitted a critique of the Detroit Board's desegregation plan; in its report, the State Board opined that, although "[i]t is possible that none of the thirteen `quality education' components is essential . . . to correct the constitutional violation . . .," 8 of the 13 proposed programs nonetheless deserved special consideration in the desegregation setting. Of particular relevance here, the State Board said: </s> "Within the context of effectuating a pupil desegregation plan, the in-service training [and] guidance and counseling . . . components appear to deserve special emphasis." 4 Record, Doc. 591, pp. 38-39. 7 </s> After receiving the State Board's critique, 8 the District Court conducted extensive hearings on the two plans over a two-month period. Substantial testimony was adduced with respect to the proposed educational components, including testimony by petitioners' expert witnesses. 9 Based on this [433 U.S. 267, 274] evidence and on reports of court-appointed experts, the District Court on August 11, 1975, approved, in principle, the Detroit Board's inclusion of remedial and compensatory educational components in the desegregation plan. 10 </s> "We find that the majority of the educational components included in the Detroit Board plan are essential for a school district undergoing desegregation. While it is true that the delivery of quality desegregated educational services is the obligation of the school board, nevertheless this court deems it essential to mandate educational components where they are needed to remedy effects of past segregation, to assure a successful desegregative effort and to minimize the possibility of resegregation." 402 F. Supp., at 1118. </s> The District Court expressly found that the two components of testing and counseling, as then administered in Detroit's [433 U.S. 267, 275] schools, were infected with the discriminatory bias of a segregated school system: </s> "In a segregated setting many techniques deny equal protection to black students, such as discriminatory testing [and] discriminatory counseling . . . ." Ibid. </s> The District Court also found that, to make desegregation work, it was necessary to include remedial reading programs and in-service training for teachers and administrators: </s> "In a system undergoing desegregation, teachers will require orientation and training for desegregation. . . . Additionally, we find that . . . comprehensive reading programs are essential . . . to a successful desegregative effort." Ibid. </s> Having established these general principles, the District Court formulated several "remedial guidelines" to govern the Detroit Board's development of a final plan. Declining "to substitute its authority for the authority of elected state and local officials to decide which educational components are beneficial to the school community," id., at 1145, the District Judge laid down the following guidelines with respect to each of the four educational components at issue here: </s> (a) Reading. Concluding that "[t]here is no educational component more directly associated with the process of desegregation than reading," id., at 1138, the District Court directed the General Superintendent of Detroit's schools to institute a remedial reading and communications skills program "[t]o eradicate the effects of past discrimination . . . ." Ibid. The content of the required program was not prescribed by the court; rather, formulation and implementation of the program was left to the Superintendent and to a committee to be selected by him. </s> (b) In-Service Training. The court also directed the Detroit Board to formulate a comprehensive in-service teacher [433 U.S. 267, 276] training program, an element "essential to a system undergoing desegregation." Id., at 1139. In the District Court's view, an in-service training program for teachers and administrators, to train professional and instructional personnel to cope with the desegregation process in Detroit, would tend to ensure that all students in a desegregated system would be treated equally by teachers and administrators able, by virtue of special training, to cope with special problems presented by desegregation, and thereby facilitate Detroit's conversion to a unitary system. </s> (c) Testing. Because it found, based on record evidence, that Negro children "are especially affected by biased testing procedures," the District Court determined that, frequently, minority students in Detroit were adversely affected by discriminatory testing procedures. Unless the school system's tests were administered in a way "free from racial, ethnic and cultural bias," the District Court concluded that Negro children in Detroit might thereafter be impeded in their educational growth. Id., at 1142. Accordingly, the court directed the Detroit Board and the State Department of Education to institute a testing program along the lines proposed by the local school board in its original desegregation plan. Ibid. </s> (d) Counseling and Career Guidance. Finally, the District Court addressed what expert witnesses had described as psychological pressures on Detroit's students in a system undergoing desegregation. Counselors were required, the court concluded, both to deal with the numerous problems and tensions arising in the change from Detroit's dual system, and, more concretely, to counsel students concerning the new vocational and technical school programs available under the plan through the cooperation of state and local officials. 11 </s> [433 U.S. 267, 277] </s> Nine months later, on May 11, 1976, the District Court entered its final order. Emphasizing that it had "been careful to order only what is essential for a school district undergoing desegregation," App. to Pet. for Cert. 117a, the court ordered the Detroit Board and the state defendants to institute comprehensive programs as to the four educational components by the start of the September 1976 school term. The cost of these four programs, the court concluded, was to be equally borne by the Detroit School Board and the State. To carry out this cost sharing, the court directed the local board to calculate its highest budget allocation in any prior year for the several educational programs and, from that base, any excess cost attributable to the desegregation plan was to be paid equally by the two groups of defendants responsible for prior constitutional violations, i. e., the Detroit Board and the state defendants. </s> C </s> On appeal, the Court of Appeals for the Sixth Circuit affirmed the District Court's order concerning the implementation of and cost sharing for the four educational components. 12 540 F.2d 229 (1976). The Court of Appeals expressly [433 U.S. 267, 278] approved the District Court's findings as to the necessity for these compensatory programs: </s> "This finding . . . is not clearly erroneous, but to the contrary is supported by ample evidence. </s> "The need for in-service training of the educational staff and development of nondiscriminatory testing is obvious. The former is needed to insure that the teachers and administrators will be able to work effectively in a desegregated environment. The latter is needed to insure that students are not evaluated unequally because of built-in bias in the tests administered in formerly segregated schools. </s> "We agree with the District Court that the reading and counseling programs are essential to the effort to combat the effects of segregation. </s> . . . . . </s> "Without the reading and counseling components, black students might be deprived of the motivation and achievement levels which the desegregation remedy is designed to accomplish." Id., at 241. </s> After reviewing the record, the Court of Appeals confirmed that the District Court relied largely on the Detroit School Board in formulating the decree: </s> "This is not a situation where the District Court `appears to have acted solely according to its own notions of good educational policy unrelated to the demands of the Constitution.'" Id., at 241-242, quoting Keyes v. School Dist. No. 1, Denver, Colo., 521 F.2d 465, 483 (CA10 1975), cert. denied, 423 U.S. 1066 (1976). </s> After upholding the remedial-components portion of the plan, the Court of Appeals went on to affirm the District Court's allocation of costs between the state and local officials. Analyzing this Court's decision in Edelman v. Jordan, 415 U.S. 651 (1974), which reaffirmed the rule that the Eleventh [433 U.S. 267, 279] Amendment bars an ordinary suit for money damages against the State without its consent, the Court of Appeals held: </s> "[The District Court's order] imposes no money judgment on the State of Michigan for past de jure segregation practices. Rather, the order is directed toward the State defendants as a part of a prospective plan to comply with a constitutional requirement to eradicate all vestiges of de jure segregation." 540 F.2d, at 245. (Emphasis supplied.) </s> The Court of Appeals remanded the case for further consideration of the three central city regions untouched by the District Court's pupil reassignment plan. See n. 12, supra. </s> The state defendants then sought review in this Court, challenging only those portions of the District Court's comprehensive remedial order dealing with the four educational components and with the State's obligation to defray the costs of those programs. We granted certiorari, 429 U.S. 958 (1976), and we affirm. </s> II </s> This Court has not previously addressed directly the question whether federal courts can order remedial education programs as part of a school desegregation decree. 13 However, the general principles governing our resolution of this issue are well settled by the prior decisions of this Court. In the first case concerning federal courts' remedial powers in eliminating de jure school segregation, the Court laid down the basic rule which governs to this day: "In fashioning and [433 U.S. 267, 280] effectuating the [desegregation] decrees, the courts will be guided by equitable principles." Brown v. Board of Education, 349 U.S. 294, 300 (1955) (Brown II). </s> A </s> Application of those "equitable principles," we have held, requires federal courts to focus upon three factors. In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S., at 16 . The remedy must therefore be related to "the condition alleged to offend the Constitution . . . ." Milliken I, 418 U.S., at 738 . 14 Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible "to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Id., at 746. 15 Third, the federal courts in devising a remedy must [433 U.S. 267, 281] take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. In Brown II the Court squarely held that "[s]chool authorities have the primary responsibility for elucidating, assessing, and solving these problems . . . ." 349 U.S., at 299 . (Emphasis supplied.) If, however, "school authorities fail in their affirmative obligations . . . judicial authority may be invoked." Swann, supra, at 15. Once invoked, "the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Ibid. </s> B </s> In challenging the order before us, petitioners do not specifically question that the District Court's mandated programs are designed, as nearly as practicable, to restore the schoolchildren of Detroit to the position they would have enjoyed absent constitutional violations by state and local officials. And, petitioners do not contend, nor could they, that the prerogatives of the Detroit School Board have been abrogated by the decree, since of course the Detroit School Board itself proposed incorporation of these programs in the first place. Petitioners' sole contention is that, under Swann, the District Court's order exceeds the scope of the constitutional violation. Invoking our holding in Milliken I, petitioners claim that, since the constitutional violation found by the District Court was the unlawful segregation of students on the basis of race, the court's decree must be limited to remedying unlawful pupil assignments. This contention misconceives the principle petitioners seek to invoke, and we reject their argument. </s> The well-settled principle that the nature and scope of [433 U.S. 267, 282] the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation, see Pasadena Bd. of Education v. Spangler, 427 U.S. 424 (1976), or if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation, as in Milliken I, supra. Hills v. Gautreaux, 425 U.S. 284, 292 -296 (1976). But where, as here, a constitutional violation has been found, the remedy does not "exceed" the violation if the remedy is tailored to cure the "`condition that offends the Constitution.'" Milliken I, supra, at 738. (Emphasis supplied.) </s> The "condition" offending the Constitution is Detroit's de jure segregated school system, which was so pervasively and persistently segregated that the District Court found that the need for the educational components flowed directly from constitutional violations by both state and local officials. These specific educational remedies, although normally left to the discretion of the elected school board and professional educators, were deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education had these four components been provided in a nondiscriminatory manner in a school system free from pervasive de jure racial segregation. </s> In the first case invalidating a de jure system, a unanimous Court, speaking through Mr. Chief Justice Warren, held in Brown v. Board of Education, 347 U.S. 483, 495 (1954) (Brown I): "Separate educational facilities are inherently unequal." And in United States v. Montgomery County Bd. of Educ., 395 U.S. 225 (1969), the Court concerned itself not with pupil assignment, but with the desegregation of faculty and staff as part of the process of dismantling a dual [433 U.S. 267, 283] system. In doing so, the Court, there speaking through Mr. Justice Black, focused on the reason for judicial concerns going beyond pupil assignment: "The dispute . . . deals with faculty and staff desegregation, a goal that we have recognized to be an important aspect of the basic task of achieving a public school system wholly free from racial discrimination." Id., at 231-232. (Emphasis supplied.) </s> Montgomery County therefore stands firmly for the proposition that matters other than pupil assignment must on occasion be addressed by federal courts to eliminate the effects of prior segregation. Similarly, in Swann we reaffirmed the principle laid down in Green v. County School Bd., 391 U.S. 430 (1968), that "existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system." 402 U.S., at 18 . In a word, discriminatory student assignment policies can themselves manifest and breed other inequalities built into a dual system founded on racial discrimination. Federal courts need not, and cannot, close their eyes to inequalities, shown by the record, which flow from a longstanding segregated system. </s> C </s> In light of the mandate of Brown I and Brown II, federal courts have, over the years, often required the inclusion of remedial programs in desegregation plans to overcome the inequalities inherent in dual school systems. In 1966, for example, the District Court for the District of South Carolina directed the inclusion of remedial courses to overcome the effects of a segregated system: </s> "Because the weaknesses of a dual school system may have already affected many children, the court would be remiss in its duty if any desegregation plan were approved which did not provide for remedial education courses. They shall be included in the plan." Miller v. School [433 U.S. 267, 284] District 2, Clarendon County, S. C., 256 F. Supp. 370, 377 (1966). </s> In 1967, the Court of Appeals for the Fifth Circuit, then engaged in overseeing the desegregation of numerous school districts in the South, laid down the following requirement in an en banc decision: </s> "The defendants shall provide remedial education programs which permit students attending or who have previously attended segregated schools to overcome past inadequacies in their education." United States v. Jefferson County Board of Education, 380 F.2d 385, 394, cert. denied, 389 U.S. 840 (1967). (Emphasis supplied.) </s> See also Stell v. Board of Public Education of Savannah, 387 F.2d 486, 492, 496-497 (CA5 1967); Hill v. Lafourche Parish School Board, 291 F. Supp. 819, 823 (ED La. 1967); Redman v. Terrebonne Parish School Board, 293 F. Supp. 376, 379 (ED La. 1967); Lee v. Macon County Board of Education, 267 F. Supp. 458, 489 (MD Ala. 1967); Graves v. Walton County Board of Education, 300 F. Supp. 188, 200 (MD Ga. 1968), aff'd, 410 F.2d 1153 (CA5 1969). Two years later, the Fifth Circuit again adhered to the rule that district courts could properly seek to overcome the built-in inadequacies of a segregated educational system: </s> "The trial court concluded that the school board must establish remedial programs to assist students who previously attended all-Negro schools when those students transfer to formerly all-white schools . . . . The remedial programs . . . are an integral part of a program for compensatory education to be provided Negro students who have long been disadvantaged by the inequities and discrimination inherent in the dual school system. The requirement that the School Board institute remedial programs so far as they are feasible is a proper exercise of the court's discretion." Plaquemines Parish School Bd. v. [433 U.S. 267, 285] United States, 415 F.2d 817, 831 (1969). (Emphasis supplied.) </s> In the same year the United States District Court for the Eastern District of Louisiana required school authorities to come forward with a remedial educational program as part of a desegregation plan. "The defendants shall provide remedial education programs which permit students . . . who have previously attended all-Negro schools to overcome past inadequacies in their education.'" Smith v. St. Tammany Parish School Board, 302 F. Supp. 106, 110 (1969), aff'd, 448 F.2d 414 (CA5 1971). See also Moore v. Tangipahoa Parish School Board, 304 F. Supp. 244, 253 (ED La. 1969); Moses v. Washington Parish School Board, 302 F. Supp. 362, 367 (ED La. 1969). </s> In the 1970's, the pattern has been essentially the same. The Fifth Circuit has, when the fact situation warranted, continued to call for remedial education programs in desegregation plans. E. g., United States v. Texas, 447 F.2d 441, 448 (1971), stay denied sub nom. Edgar v. United States, 404 U.S. 1206 (1971) (Black, J., in chambers). To that end, the approved plan in United States v. Texas required: </s> "[C]urriculum offerings and programs shall include specific educational programs designed to compensate minority group children for unequal educational opportunities resulting from past or present racial and ethnic isolation . . . ." 447 F.2d, at 448. 16 </s> See also George v. O'Kelly, 448 F.2d 148, 150 (CA5 1971). And, as school desegregation litigation emerged in other [433 U.S. 267, 286] regions of the country, federal courts have likewise looked in part to remedial programs, when the record supported an order to that effect. See, e. g., Morgan v. Kerrigan, 401 F. Supp. 216, 235 (Mass. 1975), aff'd, 530 F.2d 401 (CA1), cert. denied sub nom. White v. Morgan, 426 U.S. 935 (1976); Hart v. Community School Board of Brooklyn, 383 F. Supp. 699, 757 (EDNY 1974), aff'd, 512 F.2d 37 (CA2 1975); cf. Booker v. Special School Dist. 1, Minneapolis, Minn., 351 F. Supp. 799 (Minn. 1972). 17 </s> Finally, in addition to other remedial programs, which could, if circumstances warranted, include programs to remedy deficiencies, particularly in reading and communications skills, federal courts have expressly ordered special in-service training for teachers, see, e. g., United States v. Missouri, 523 F.2d 885, 887 (CA8 1975); Smith v. St. Tammany Parish School Board, supra, at 110; Moore v. Tangipahoa Parish School Board, supra, at 253, and have altered or even suspended testing programs employed by school systems undergoing desegregation. See, e. g., Singleton v. Jackson Municipal Separate School Dist., 419 F.2d 1211, 1219 (CA5 1969), cert. denied, 396 U.S. 1032 (1970); Lemon v. Bossier Parish School Board, 444 F.2d 1400, 1401 (CA5 1971); Arvizu v. Waco Independent School Dist., 373 F. Supp. 1264 (WD Tex. 1973), rev'd in part on other issues, 495 F.2d 499 (CA5 1974). </s> Our reference to these cases is not to be taken as necessarily approving holdings not reviewed by this Court. However, they demonstrate that the District Court in the case now [433 U.S. 267, 287] before us did not break new ground in approving the School Board's proposed plan. Quite the contrary, acting on abundant evidence in this record, the District Court approved a remedial plan going beyond mere pupil assignments, as expressly approved by Swann and Montgomery County. In so doing, the District Court was adopting specific programs proposed by local school authorities, who must be presumed to be familiar with the problems and the needs of a system undergoing desegregation. 18 </s> We do not, of course, imply that the order here is a blueprint for other cases. That cannot be; in school desegregation cases, "[t]here is no universal answer to complex problems . . .; there is obviously no one plan that will do the job in every case." Green, 391 U.S., at 439 . On this record, however, we are bound to conclude that the decree before us was aptly tailored to remedy the consequences of the constitutional violation. Children who have been thus educationally and culturally set apart from the larger community will inevitably acquire habits of speech, conduct, and attitudes reflecting their cultural isolation. They are likely to acquire speech habits, for example, which vary from the environment in which they must ultimately function and compete, if they are to enter and be a part of that community. This is not peculiar to race; in this setting, it can affect any children who, as a group, are isolated by force of law from the mainstream. Cf. Lau v. Nichols, 414 U.S. 563 (1974). </s> Pupil assignment alone does not automatically remedy the impact of previous, unlawful educational isolation; the consequences linger and can be dealt with only by independent [433 U.S. 267, 288] measures. In short, speech habits acquired in a segregated system do not vanish simply by moving the child to a desegregated school. The root condition shown by this record must be treated directly by special training at the hands of teachers prepared for that task. This is what the District Judge in the case drew from the record before him as to the consequences of Detroit's de jure system, and we cannot conclude that the remedies decreed exceeded the scope of the violations found. </s> Nor do we find any other reason to believe that the broad and flexible equity powers of the court were abused in this case. The established role of local school authorities was maintained inviolate, and the remedy is indeed remedial. The order does not punish anyone, nor does it impair or jeopardize the educational system in Detroit. 19 The District Court, in short, was true to the principle laid down in Brown II: </s> "In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power." 349 U.S., at 300 (footnotes omitted). </s> III </s> Petitioners also contend that the District Court's order, even if otherwise proper, violates the Eleventh Amendment. In their view, the requirement that the state defendants pay one-half the additional costs attributable to the four educational [433 U.S. 267, 289] components is, "in practical effect, indistinguishable from an award of money damages against the state based upon the asserted prior misconduct of state officials." Brief for Petitioners 34. Arguing from this premise, petitioners conclude that the "award" in this case is barred under this Court's holding in Edelman v. Jordan, 415 U.S. 651 (1974). </s> Edelman involved a suit for money damages against the State, as well as for prospective injunctive relief. 20 The suit was brought by an individual who claimed that Illinois officials had improperly withheld disability benefit payments from him and from the members of his class. Applying traditional Eleventh Amendment principles, we held that the suit was barred to the extent the suit sought "the award of an accrued monetary liability . . ." which represented "retroactive payments." Id., at 663-664. (Emphasis supplied.) Conversely, the Court held that the suit was proper to the extent it sought "payment of state funds . . . as a necessary consequence of compliance in the future with a substantive federal-question determination . . . ." Id., at 668. (Emphasis supplied.) </s> The decree to share the future costs of educational components in this case fits squarely within the prospective-compliance exception reaffirmed by Edelman. That exception, which had its genesis in Ex parte Young, 209 U.S. 123 (1908), permits federal courts to enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury. 415 U.S., at 667 . The order challenged here does no more than that. The decree requires state officials, held responsible for unconstitutional conduct, in findings which are not challenged, to eliminate a de jure segregated school system. More precisely, the burden of state officials is that set forth [433 U.S. 267, 290] in Swann - to take the necessary steps "to eliminate from the public schools all vestiges of state-imposed segregation." 402 U.S., at 15 . The educational components, which the District Court ordered into effect prospectively, are plainly designed to wipe out continuing conditions of inequality produced by the inherently unequal dual school system long maintained by Detroit. 21 </s> These programs were not, and as a practical matter could not be, intended to wipe the slate clean by one bold stroke, as could a retroactive award of money in Edelman. 22 Rather, by the nature of the antecedent violation, which on this record caused significant deficiencies in communications skills - reading and speaking - the victims of Detroit's de jure segregated system will continue to experience the effects of segregation until such future time as the remedial programs can help dissipate the continuing effects of past misconduct. Reading and speech deficiencies cannot be eliminated by judicial fiat; they will require time, patience, and the skills of specially trained teachers. That the programs are also "compensatory" in nature does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system. We therefore hold that such prospective relief is not barred by the Eleventh Amendment. 23 </s> [433 U.S. 267, 291] </s> Finally, there is no merit to petitioners' claims that the relief ordered here violates the Tenth Amendment and general principles of federalism. The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Nor are principles of federalism abrogated by the decree. The District Court has neither attempted to restructure local governmental entities nor to mandate a particular method or structure of state or local financing. Cf. San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). The District Court has, rather, properly enforced the guarantees of the Fourteenth Amendment consistent with our prior holdings, and in a manner that does not jeopardize the integrity of the structure or functions of state and local government. </s> The judgment of the Court of Appeals is therefore </s> Affirmed. </s> Footnotes [Footnote 1 The violations of the Detroit Board of Education, which included the improper use of optional attendance zones, racially based transportation of schoolchildren, improper creation and alteration of attendance zones, grade structures, and feeder school patterns, are described in the District Court's initial "Ruling on Issue of Segregation." 338 F. Supp. 582, 587-588 (ED Mich. 1971). The District Court further found that "[t]he State and its agencies . . . have acted directly to control and maintain the pattern of segregation in the Detroit schools." Id., at 589. Indeed, when the Detroit School Board attempted to voluntarily [433 U.S. 267, 270] initiate an intradistrict remedy to ameliorate the effect of the past segregation practices, the Michigan Legislature enacted a law forbidding the carrying out of this remedy. Those conclusions as to liability were affirmed on appeal, 484 F.2d 215, 221-241 (CA6 1973), and were not challenged in this Court. 418 U.S. 717 (1974) (Milliken I). </s> [Footnote 2 Separate opinions were filed in Milliken I. MR. JUSTICE STEWART, concurring, stated that the metropolitan wide remedy contemplated by the District Court was "in error for the simple reason that the remedy . . . was not commensurate with the constitutional violation found." 418 U.S., at 754 . Dissenting opinions were filed by Mr. Justice Douglas, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL. The dissenting opinions took the position, in brief, that the remedy was appropriate, given the State's undisputed constitutional violations, the control of local education by state authorities, and the manageability of any necessary administrative modifications to effectuate a metropolitan wide remedy. </s> [Footnote 3 According to the then most recent statistical data, as of September 27, 1974, 257,396 students were enrolled in the Detroit public schools, a figure which reflected a decrease of 28,116 students in the system since the 1960-1961 school year. 402 F. Supp. 1096, 1106-1107 (1975). Of this total student population, 71.5% were Negro and 26.4% were white. The remaining 2.1% were composed of students of other ethnic groups. Id., at 1106. </s> [Footnote 4 Under respondent Bradley's proposed plan in the remand proceedings, 71,349 students would have required transportation; the Detroit Board's plan, however, provided for transportation of 51,000 students, 20,000 less than the Bradley plan. The Board's plan, which the District Court found infirm because of an impermissible use of "arbitrary" racial quotas, contemplated achieving a 40%-60% representation of Negro students in the identifiably white schools, while leaving untouched in terms of pupil reassignment schools in three of the Detroit system's eight regions. Those three regions, which were located in the central city, were overwhelmingly Negro in racial composition. </s> [Footnote 5 The fourth component, a remedial reading and communications skills program, was proposed later and was endorsed by the Bradley respondents in a critique of the Detroit Board's proposed plan. See n. 7, infra. The Board's plan also called for the following "educational components": school-community relations, parental involvement, student rights and responsibilities, accountability, curriculum design, bilingual education, multiethnic curriculum, and curricular activities. 402 F. Supp., at 1118. </s> [Footnote 6 In addition to the State Board of Education, the state defendants [433 U.S. 267, 273] include the Governor of Michigan, the Attorney General, the State Superintendent of Public Instruction, and the State Treasurer. </s> [Footnote 7 Two months later, the Bradley respondents also submitted a critique of the Board's plan; while criticizing the Board's proposed educational components on several grounds, respondents nonetheless suggested that a remedial reading program was particularly needed in a desegregation plan. See n. 5, supra. The Bradley respondents claimed more generally that the Board's plan failed to inform the court of the then-current extent of such programs or components in the school system and that the plan failed to assess "the relatedness of the particular component to desegregation." </s> [Footnote 8 The other state defendants likewise filed objections to the Detroit Board's plan on April 21, 1975. They contended, in brief, that the court's remedy was limited to pupil reassignment to achieve desegregation; hence, the proposed inclusion of educational components was, in their view, excessive. </s> [Footnote 9 For example, Dr. Charles P. Kearney, Associate Superintendent for Research and School Administration for the Michigan Department of Education, gave the following testimony: </s> "[T]he State Board and the Superintendent indicated that guidance [433 U.S. 267, 274] and counselling appeared to deserve special emphasis in a desegregation effort. </s> "We support the notion of a guidance and counselling effort. We think it certainly does have a relationship in the desegregation effort, we think it deserves special emphasis." 30 Record, Tr. 126, 129. </s> As to in-service training, Dr. Kearney testified that, in his opinion, such a program was required to implement effectively a desegregation plan in Detroit. Id., at 179, 187. Finally, even though the State's critique did not deem testing as deserving of "special emphasis" in the desegregation plan, Dr. Kearney stated as follows: </s> "Q: [D]o you see a direct relationship between testing and desegregation? </s> "A: If test results were inappropriately used, . . . I think it would have certainly a discriminatory affect [sic] and it would have a negative affect [sic], I'm sure on any kind of desegregation plan being implemented." Id., at 184. </s> [Footnote 10 The District Court did not approve of all aspects of the Detroit Board's plan. With respect to educational components, the court said: "The plan as submitted . . . does not distinguish between those components that are necessary to the successful implementation of a desegregation plan and those that are not." 402 F. Supp., at 1118. (Emphasis supplied.) </s> [Footnote 11 In contrast to their position before the District Court with respect to the four educational components at issue here, the state defendants, [433 U.S. 267, 277] through the State Board of Education, voluntarily entered into a stipulation with the Detroit Board on February 24, 1976, under which the State agreed to provide 50% of the construction costs of five vocational centers which the District Court ordered to be established. App. to Pet. for Cert. 139a-141a. </s> [Footnote 12 The Court of Appeals disapproved, however, of the District Court's failure to include three of Detroit's eight regions in the pupil assignment plan. See n. 4, supra. The Court of Appeals remanded the case to the District Court for further consideration of the three omitted regions, but declined to set forth guidelines, given the practicabilities of the situation, for the District Court's benefit. Further proceedings were deemed appropriate, however, particularly since the Bradley respondents had previously been granted leave to file a second amended complaint to allege interdistrict violations on the part of the state and local defendants. </s> [Footnote 13 In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), the Court affirmed an order of the District Court which included a requirement of in-service training programs. 318 F. Supp. 786, 803 (WDNC 1970). However, this Court's opinion did not treat the precise point. In Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189 (1973), the Court expressly avoided passing on the District Court's holding that called for, among other things, "compensatory education in an integrated environment." Id., at 214 n. 18. </s> [Footnote 14 Thus, the Court has consistently held that the Constitution is not violated by racial imbalance in the schools, without more. Pasadena Bd. of Education v. Spangler, 427 U.S. 424, 434 (1976); Milliken I, 418 U.S., at 763 (WHITE, J., dissenting); Swann, supra, at 26. An order contemplating the "`substantive constitutional right [to a] particular degree of racial balance or mixing'" is therefore infirm as a matter of law. Spangler, supra, at 434. </s> [Footnote 15 Since the ultimate objective of the remedy is to make whole the victims of unlawful conduct, federal courts are authorized to implement plans that promise "realistically to work now." Green v. County School Bd., 391 U.S. 430, 439 (1968). At the same time, the Court has carefully stated that, to ensure that federal-court decrees are characterized by the flexibility and sensitivity required of equitable decrees, consideration must be given to burdensome effects resulting from a decree that could "either risk the health of the children or significantly impinge on the educational process." Swann, supra, at 30-31. Our function, as stated by MR. JUSTICE WHITE, is "to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools." Milliken I, supra, at 764 (dissenting opinion). (Emphasis in original.) In a word, [433 U.S. 267, 281] "[t]here are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases." 418 U.S., at 763 . Cf. Austin Independent School Dist. v. United States, 429 U.S. 990, 991 (1976) (POWELL, J., concurring). </s> [Footnote 16 In denying the stay application, Mr. Justice Black was untroubled by the underlying order of the District Court: </s> "It would be very difficult for me to suspend the order of the District Court that, in my view, does no more than endeavor to realize the directive of the Fourteenth Amendment and the decisions of this Court that racial discrimination in the public schools must be eliminated root and branch." 404 U.S., at 1207 . </s> [Footnote 17 We do not, of course, pass upon the correctness of the particular holdings of cases we did not review. We simply note that these holdings support the broader proposition that, when the record warrants, remedial programs may, in the exercise of equitable discretion, be appropriate remedies to treat the condition that offends the Constitution. Of course, it must always be shown that the constitutional violation caused the condition for which remedial programs are mandated. </s> [Footnote 18 This Court has from the beginning looked to the District Courts in desegregation cases, familiar as they are with the local situations coming before them, to appraise the efforts of local school authorities to carry out their constitutionally required duties. "Because of their proximity to local conditions . . . the [federal district] courts which originally heard these cases can best perform this judicial appraisal." Brown II, 349 U.S., at 299 . </s> [Footnote 19 Indeed, the District Judge took great pains to devise a workable plan with a minimum of pupil transportation. For example, he sought carefully to eliminate burdensome transportation of Negro children to predominantly Negro schools and to prevent the disruption, by massive pupil reassignment, of racially mixed schools in stable neighborhoods which had successfully undergone residential and educational change. </s> [Footnote 20 Although the complaint in Edelman ostensibly sought only equitable relief, the plaintiff expressly requested "`a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all [disability] benefits wrongfully withheld.'" 415 U.S., at 656 . </s> [Footnote 21 Unlike the award in Edelman, the injunction entered here could not instantaneously restore the victims of unlawful conduct to their rightful condition. Thus, the injunction here looks to the future, not simply to presently compensating victims for conduct and consequences completed in the past. </s> [Footnote 22 In contrast to Edelman, there was no money award here in favor of respondent Bradley or any members of his class. This case simply does not involve individual citizens' conducting a raid on the state treasury for an accrued monetary liability. The order here is wholly prospective in the same manner that the decree mandates vocational schools and assignments, for example. </s> [Footnote 23 Because of our conclusion, we do not reach either of the two alternative arguments in support of the District Court's judgment, namely, [433 U.S. 267, 291] that the State of Michigan expressly waived its Eleventh Amendment immunity by virtue of Mich. Stat. Ann. 15.1023 (7) (1975), and that the Fourteenth Amendment, ex proprio vigore, works a pro tanto repeal of the Eleventh Amendment. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Neither question was addressed by the Court of Appeals, and we therefore do not pass on either issue. </s> MR. JUSTICE MARSHALL, concurring. </s> I wholeheartedly join THE CHIEF JUSTICE'S opinion for the Court. My Brother POWELL'S opinion prompts these additional comments. </s> What is, to me, most tragic about this case is that in all relevant respects it is in no way unique. That a northern school board has been found guilty of intentionally discriminatory acts is, unfortunately, not unusual. That the academic development of black children has been impaired by this wrongdoing is to be expected. And, therefore, that a program [433 U.S. 267, 292] of remediation is necessary to supplement the primary remedy of pupil reassignment is inevitable. </s> It is of course true, as MR. JUSTICE POWELL notes, that the Detroit School Board has belatedly recognized its responsibility for the injuries that Negroes have suffered, and has joined in the effort to remedy them. He may be right - although I hope not - that this makes the case "wholly different from any prior case," post, this page. But I think it worth noting that the legal issues would be no different if the Detroit School Board came to this Court on the other side. The question before us still would be the one posed by the State: Is the remedy tailored to fit the scope of the violation? And, as THE CHIEF JUSTICE convincingly demonstrates, that question would have to be answered in the affirmative in light of the findings of the District Court, supported by abundant evidence. Cf. Dayton Board of Education v. Brinkman, post, at 414. </s> MR. JUSTICE POWELL, concurring in the judgment. </s> The Court's opinion addresses this case as if it were conventional desegregation litigation. The wide-ranging opinion reiterates the familiar general principles drawn from the line of precedents commencing with Brown v. Board of Education, 347 U.S. 483 (1954), and including today's decision in Dayton Board of Education v. Brinkman, post, p. 406. One has to read the opinion closely to understand that the case, as it finally reaches us, is wholly different from any prior case. I write to emphasize its uniqueness, and the consequent limited precedential effect of much of the Court's opinion. </s> Normally, the plaintiffs in this type of litigation are students, parents, and supporting organizations that desire to desegregate a school system alleged to be the product, in whole or in part, of de jure segregative action by the public school authorities. The principal defendant is usually the [433 U.S. 267, 293] local board of education or school board. Occasionally the state board of education and state officials are joined as defendants. This protracted litigation commenced in 1970 in this conventional mold. In the intervening years, however, the posture of the litigation has changed so drastically as to leave it largely a friendly suit between the plaintiffs (respondents Bradley et al.) and the original principal defendant, the Detroit School Board. These parties, antagonistic for years, have now joined forces apparently for the purpose of extracting funds from the state treasury. As between the original principal parties - the plaintiffs and the Detroit School Board - no case or controversy remains on the issues now before us. The Board enthusiastically supports the entire desegregation decree even though the decree intrudes deeply on the Board's own decisionmaking powers. Indeed, the present School Board proposed most of the educational components included in the District Court's decree. The plaintiffs originally favored a desegregation plan that would have required more extensive transportation of pupils, and they did not initially propose or endorse the educational components. In this Court, however, the plaintiffs also support the decree of the District Court as affirmed by the Court of Appeals. 1 </s> Thus the only complaining party is the State of Michigan (acting through state officials) and its basic complaint concerns money, not desegregation. It has been ordered to pay about $5,800,000 to the Detroit School Board. This is one-half the estimated "excess cost" of 4 of the 11 educational components [433 U.S. 267, 294] included in the desegregation decree: remedial reading, in-service training of teachers, testing, and counseling. 2 The State, understandably anxious to preserve the state budget from federal-court control or interference, now contests the decree on two grounds. [433 U.S. 267, 295] </s> First, it is argued that the order to pay state funds violates the Eleventh Amendment and principles of federalism. Ordinarily a federal court's order that a State pay unappropriated funds to a locality would raise the gravest constitutional issues. See generally San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 40 -42 (1973); National League of Cities v. Usery, 426 U.S. 833 (1976). But here, in a finding no longer subject to review, the State has been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate. </s> The State's second argument is one that normally would be advanced vigorously by the school board. Relying on the established principle that the scope of the remedy in a desegregation case is determined and limited by the extent of the identified constitutional violations, Dayton Board of Education, post, at 419-420; Hills v. Gautreaux, 425 U.S. 284, 293 -294 (1976); Milliken v. Bradley, 418 U.S. 717, 744 (1974); Austin Independent School Dist. v. United States, 429 U.S. 990, 991 (1976) (POWELL, J., concurring), the State argues that the District Court erred in ordering the systemwide expansion of the four educational components mentioned above. It contends that there has been no finding of a constitutional violation with respect to the past operation of any of these programs, and it insists that without more specifically focused findings of this sort, the decree exceeded the court's powers. </s> This argument is by no means a frivolous one. But the context in which it is presented is so unusual that it would be appropriate to dismiss the writ as improvidently granted. The argument is advanced by the State and not by the party primarily concerned. The educational programs at issue are standard and widely approved in public education. The State Board normally would be enthusiastic over enhancement of these programs so long as the local school board could [433 U.S. 267, 296] fund them without requiring financial aid from the State. It is equally evident that the State probably would resist a federal-court order requiring it to pay unappropriated state funds to the local school board regardless of whether violations by the local board justified the remedy. The State's interest in protecting its own budget - limited by legislative appropriations - is a genuine one. But it is not an interest that is related, except fortuitously, to a claim that the desegregation remedy may have exceeded the extent of the violations. </s> The State's reliance on the remedy issue contains a further weakness, emphasizing the unusual character of this case. There is no indication that the State objected - certainly, it does not object here - to the inclusion in the District Court's decree of the seven other educational components. See n. 2, supra. Indeed, the State expressly agreed to one of the most expensive components, the establishment of vocational education centers, in a stipulation obligating it to share the cost of construction equally with the Detroit Board. See App. to Pet. for Cert. 139a-144a. Furthermore, the District Court's decree largely embodies the original recommendation of the Detroit Board. Since local school boards "have the primary responsibility for elucidating, assessing, and solving [the] problems" generated by "[f]ull implementation of . . . constitutional principles" in the local setting, Brown v. Board of Education, 349 U.S. 294, 299 (1955), the State's limited challenge here is particularly lacking in force. </s> Moreover, the District Court was faced with a school district in exceptional disarray. It found the structure of the Detroit school system "chaotic and incapable of effective administration." App. to Pet. for Cert. 124a. The "general superintendent has little direct authority." Ibid. Each of the eight regional boards may be preoccupied with "distribut[ing] local board patronage." Id., at 125a. The "local boards have diverted resources that would otherwise have been [433 U.S. 267, 297] available for educational purposes to build new offices and other facilities to house this administrative overload." Ibid. The District Court continued: </s> "In addition to the administrative chaos, we know of no other school system that is so enmeshed in politics. . . . </s> ". . . Rather than devoting themselves to the educational system and the desegregative process, board members are busily engaged in politics not only to assure their own re-election but also to defeat others with whom they disagree." Id., at 125a-126a (footnote omitted). </s> Referring again to the "political paralysis" and "inefficient bureaucracy" of the system, the court also noted - discouragingly - that the election then approaching "may well [result in] a board of education consisting of members possessing no experience in education." Id., at 126a. In this quite remarkable situation, it is perhaps not surprising that the District Court virtually assumed the role of school superintendent and school board. 3 </s> [433 U.S. 267, 298] </s> Given the foregoing unique circumstances, it seems to me that the proper disposition of this case is to dismiss the writ of certiorari as improvidently granted. But as the Court has chosen to decide the case here, I join in the judgment as a result less likely to prolong the disruption of education in Detroit than a reversal or remand. Despite wide-ranging dicta in the Court's opinion, the only issue decided is that the District Court's findings as to specific constitutional violations justified the four remedial educational components included in the desegregation decree. In my view, it is at least arguable that the findings in this respect were too generalized to meet the standards prescribed by this Court. See Dayton Board of Education, post, p. 406. But the majority views the record as justifying the conclusion that "the need for educational components flowed directly from constitutional violations by both state and local officials." Ante, at 282. 4 On that view of the record, our settled doctrine requiring that the remedy be carefully tailored to fit identified constitutional violations is reaffirmed by today's result. I therefore concur in the judgment. </s> [Footnote 1 Until the case reached this Court the plaintiffs apparently did not view the educational components as necessary or even important elements of a desegregation plan. These components were not included in plans submitted by the plaintiffs, and in briefs filed below there were indications that the plaintiffs viewed some - if not all - of these components as being "wholly unrelated to desegregation of students and faculty in schools." Brief for Plaintiffs-Appellants 5 n. 6 in the Court of Appeals, No. 75-2018 (filed Dec. 29, 1975). </s> [Footnote 2 In addition to these four components, there were some seven other educational directives that are not contested here. (The details are set forth in the opinions and decrees of August 15, 1975, November 4 and 20, 1975, and May 11, 1976, all of which are reproduced in full in the appendix to the petition for certiorari. The first two such opinions also have been published. 402 F. Supp. 1096; 411 F. Supp. 943.) Perhaps the most expansive component was the District Court's order that the city and state boards create five vocational centers "devoted to in-depth occupational preparation in the construction trades, transportation and health services." 402 F. Supp., at 1140. As noted in the text, infra, at 296, a compromise was reached as to these centers and the State entered into a stipulation obligating it to share the cost of providing them. See App. to Pet. for Cert. 139a-144a. The other educational components ordered by the District Court included: (i) "two new technical high schools in which business education will be the central part of the curriculum," App. 75a; (ii) a new curriculum for the vocational education courses in the Detroit schools, including the requirement that an additional "grade 13" be added to afford expanded educational opportunities, 402 F. Supp., at 1140; (iii) the inclusion of "multi-ethnic studies" in the curriculum, with a request for federal funds to support "in-service training for teachers involved in such programs," id., at 1144, App. to Pet. for Cert. 147a; (iv) a "Uniform Code of Conduct," which the Board was ordered to develop pursuant to guidelines established by the court, 402 F. Supp., at 1142, App. to Pet. for Cert. 148a; (v) a specific plan for "curricular activities" with other artistic and educational institutions in the area, to be developed by the Board and submitted for court approval, 402 F. Supp., at 1143; and (vi) a "community relations program" prescribed in remarkable detail by the court. Ibid., App. to Pet. for Cert. 131a-135a. </s> In most, if not all, instances the court ordered that each of these programs be "comprehensive," and that reports be made to the court. One may doubt whether there is any precedent for a federal court's exercising such extensive control over the purely educational responsibilities of a school board. </s> [Footnote 3 It merits emphasizing that the School Board invited this assumption of power. Indeed, the District Court had complimented the Board on its willingness to "implement any desegregation order the court may issue." 402 F. Supp., at 1125. But at one point there were serious second thoughts. In its brief in the Court of Appeals, the Board expressed grave concern as to what the District Court's assumption of the Board's powers could do to the school system financially: </s> "[O]n May 11, 1976 . . . the District Court ordered equalization of all school facilities and buildings preparatory to the 1976-77 school term; continuance of the comprehensive construction and renovation program; [and implementation of the educational components summarized in n. 2, supra]. . . . </s> "Even without actual dollar figures, the financial impact of these orders could easily destroy the educational program of the Detroit school system. The financing of these components by the Detroit school system would only mean a concomitant elimination of existing programs. </s> "It is virtually impossible for the Detroit Board of Education to re-order its priorities when it is already operating on a woefully inadequate budget that cannot provide a minimal quality educational program. Any attempt [433 U.S. 267, 298] to redistribute available resources will cause further deterioration in ongoing educational programs and will merely result in robbing Peter to pay Paul." Reprinted in the Appendix to the opinion of the Court of Appeals, 540 F.2d 229, 250-251 (CA6) (emphasis added). </s> To say the least, the financial impact of the court's decree was profoundly disturbing. But apparently the financially pressed Board was willing to surrender a substantial portion of its decisionmaking authority in return for the prospect of enhanced state funding. For by the time it made this statement to the Court of Appeals, the Board knew that the District Court had exercised its power to do what the state legislature had chosen not to do: appropriate funds from the state treasury for these particular programs of the Detroit schools. </s> [Footnote 4 The Court's opinion states, for example, that the District Court "expressly found that the two components of testing and counseling, as then administered in Detroit's schools, were infected with the discriminatory bias of a segregated school system." Ante, at 274-275. </s> [433 U.S. 267, 299]

United States Supreme Court DICKERSON v. NEW BANNER INSTITUTE, INC.(1983) No. 81-1180 Argued: November 29, 1982Decided: February 23, 1983 </s> Title IV of the Gun Control Act of 1968, 18 U.S.C. 922(g)(1) and (h)(1), makes it unlawful for any person "who has been convicted . . . of . . . a crime punishable by imprisonment for a term exceeding one year" to ship, transport, or receive any firearm or ammunition in interstate commerce. Title IV also makes it unlawful to engage in the business of importing, manufacturing, or dealing in firearms without a license from the Secretary of the Treasury. One ground for denial of a license is where the applicant is under the prohibitions imposed by 922(g)(1) and (h)(1), and if the applicant is a corporation, a license will be denied if a person with power to direct the management of the corporation is under such prohibitions. One Kennison, the chairman of the board and a shareholder of respondent corporation, after plea negotiations, pleaded guilty in an Iowa state court to the state crime of carrying a concealed handgun. This crime was punishable by a fine or imprisonment for not more than five years, or both. The state court, however, pursuant to an Iowa statute, "deferred" entry of a formal judgment and placed Kennison on probation. At the completion of his probation term he was discharged, also pursuant to a state statute, and his record with respect to the deferred judgment was expunged. Subsequently, respondent applied to the Treasury Department's Bureau of Alcohol, Tobacco and Firearms (Bureau) for licenses as a firearms and ammunition dealer and manufacturer, but did not disclose Kennison's plea of guilty to the Iowa concealed weapon charge. The licenses were issued but were later revoked when the Bureau learned of the Iowa charge. The District Court upheld the revocation, but the Court of Appeals reversed, holding that although Kennison had been "convicted" of an offense that triggered firearms disabilities, that fact could not serve as a predicate for a Gun Control Act violation or license revocation because the conviction had been expunged under the Iowa deferred judgment procedure. </s> Held: </s> The firearms disabilities imposed by 922(g)(1) and (h)(1) apply to Kennison and were not removed by the expunction of the record of his guilty plea to the concealed weapon charge. Pp. 110-122. [460 U.S. 103, 104] </s> (a) For purposes of the federal gun control laws, a plea of guilty to a disqualifying crime and its notation by a state court, followed by a sentence of probation, is equivalent to being "convicted" within the language of 922(g)(1) and (h)(1). Pp. 111-114. </s> (b) Iowa's expunction provisions, as carried out in Kennison's case prior to respondent's license applications, did not nullify his conviction for purposes of the federal statute. Expunction under state law does not alter the legality of the previous conviction, does not open the way to a license despite the conviction, and does not signify that the defendant was innocent of the crime to which he pleaded guilty. Expunction in Iowa means no more than that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law. Pp. 114-115. </s> (c) Provisions of the federal gun control laws other than the provisions in question, as well as related federal statutes, support the conclusion that Congress did not intend expunction of a state conviction automatically to remove the firearms disabilities imposed by 922(g)(1) and (h)(1). Pp. 115-118. </s> (d) There is nothing in the legislative history of Title IV or related federal statutes to suggest an opposite intent. Title IV's purpose to curb crime by keeping firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, would be frustrated by a ruling that gave effect to state expunctions. In the absence of a plain indication to the contrary, it is assumed that Congress did not intend to make the application of Title IV dependent on state law. Title IV is carefully constructed gun control legislation. Congress knew the significance and meaning of the language it employed. Pp. 118-121. </s> (e) A rule that would give effect to expunction under varying state statutes would seriously hamper effective enforcement of Title IV. Pp. 121-122. </s> 649 F.2d 216, reversed. </s> BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BRENNAN, STEVENS, and O'CONNOR, JJ., joined, post, p. 122. </s> Deputy Solicitor General Geller argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Samuel A. Alito, Jr., William Kanter, and Douglas Letter. [460 U.S. 103, 105] </s> Lewis C. Lanier argued the cause for respondent. With him on the brief was Jack R. McGuinn. * </s> [Footnote * David T. Hardy and Richard E. Gardiner filed a brief for the National Rifle Association of America as amicus curiae urging affirmance. </s> JUSTICE BLACKMUN delivered the opinion of the Court. </s> This case presents the issue whether firearms disabilities imposed by 18 U.S.C. 922(g) and (h) apply with respect to a person who pleads guilty to a state offense punishable by imprisonment for more than one year, when the record of the proceeding subsequently is expunged under state procedure following a successfully served term of probation. </s> I </s> Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 226, was amended by the Gun Control Act of 1968, 82 Stat. 1214, and now appears as 18 U.S.C. 921 et seq. (1976 ed. and Supp. V). Title IV makes it unlawful for any person "who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" 1 to ship, transport, or receive any firearm or ammunition in interstate commerce. 922(g) and (h). Title IV also makes it unlawful to engage in the business of importing, manufacturing, or dealing in firearms without a license from the Secretary of the Treasury. 922(a) and 923(a). One ground, specified by the statute, for denial of a license is the fact that the applicant is barred by 922(g) and (h) from transporting, shipping, or receiving firearms or ammunition. 923(d)(1)(B). The same statute provides that where the applicant is a corporation, partnership, or association, a license will be denied [460 U.S. 103, 106] if an individual possessing, directly or indirectly, the power to direct the management and policies of the entity is under the prohibitions imposed by 922(g) and (h). Title IV also makes it a crime to violate any of its provisions or to make a willful misrepresentation with respect to information required to be furnished. 924(a). </s> Although, as noted above, Title IV imposes disabilities upon any "person who has been convicted . . . of a crime punishable by imprisonment for a term exceeding one year," it does permit certain persons in that category to apply to the Secretary for relief from those disabilities. Under 925(c), the Secretary may grant relief "if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." When the Secretary grants relief, he must publish notice of his action promptly in the Federal Register, together with a statement of reasons. Ibid. </s> II </s> David F. Kennison, a resident of Columbia, S. C., is a director, chairman of the board, and a shareholder of respondent New Banner Institute, Inc., a corporation. In September 1974, when Kennison was in Iowa, he was arrested and charged with kidnapping his estranged wife. After plea negotiation, see Tr. of Oral Arg. 40-41, he pleaded guilty to the state crime of carrying a concealed handgun, and the kidnaping charge was dismissed. The concealed weapon offense, under then Iowa law, see Iowa Code 695.2 and .3 (1977), was punishable by a fine of not more than $1,000 or by imprisonment for not more than five years, or both. 2 In accord [460 U.S. 103, 107] with the provisions of Iowa Code 789A.1 (1977), then in effect, 3 the state court entered an order reciting that Kennison had "entered a plea of guilty to the charge of carrying a concealed weapon," that "the defendant has consented to a deferment of sentence in this matter," that "he has stable employment," and that there were "unusual circumstances" [460 U.S. 103, 108] in the case. The order then stated that the court "deferred" entry of a formal judgment and placed Kennison on probation. </s> Kennison returned to South Carolina where he completed his probation term. When that term expired in February 1976, he was discharged pursuant to Iowa Code 789A.6 (1977), then in effect, 4 and the Iowa court's record with reference to the deferred judgment was expunged. </s> In May 1976, respondent filed three applications with the Treasury Department's Bureau of Alcohol, Tobacco and Firearms (Bureau), for licenses as a dealer in firearms and ammunition, as a manufacturer of ammunition, and as a collector of curios and relics. On the application forms, respondent listed Kennison as a "responsible person," that is, an individual possessing direct or indirect power to control the management and policies of respondent. See 18 U.S.C. 923(d) (1)(B). In answering an inquiry on the forms as to whether such person had been convicted of a crime punishable by a prison term exceeding one year, respondent did not disclose the Iowa events or Kennison's plea of guilty in that State. The requested licenses were issued. </s> The Bureau, however, subsequently learned of the Iowa concealed weapon charge and the plea of guilty. In conformity with the provisions of 923(e) and (f)(1) and of 27 CFR [460 U.S. 103, 109] 178.75 (1982), it mailed respondent Notices of Contemplated Revocation of Licenses. After an informal hearing, the Bureau's Regional Regulatory Administrator issued the revocation notices. Respondent, pursuant to 923(f)(2), then requested and received a formal hearing before an Administrative Law Judge. At that hearing, the Bureau contended that respondent's licenses should be revoked because respondent had failed to reveal that Kennison had been convicted of a felony and also because respondent had not been entitled to the licenses in the first place. </s> The Administrative Law Judge recommended against revocation. App to Pet. for Cert. 41a. Although he concluded that Kennison's plea of guilty "represented a conviction . . . within the meaning of Section 922(g) and (h)," id., at 47a, he also concluded that respondent's statements in the applications did not justify revocation because its representatives had a good-faith belief that Kennison had not been convicted within the meaning of the federal statute. </s> On review, the Director of the Bureau, petitioner here, ruled that willful misrepresentation had not been shown; that Kennison, however, possessed the power to direct respondent's management and policies; that Kennison had been convicted in Iowa of an offense that brought him within the prohibitions of 922(g) and (h); and that the licenses should be revoked because respondent was ineligible for them under 923(d)(1)(B). App. to Pet. for Cert. 23a. The Director ordered the issuance of Final Notices of Revocation. Id., at 40a. </s> Respondent then filed a timely petition for review in the United States District Court for the District of South Carolina. See 923(f)(3). On cross-motions for summary judgment, the Director's motion was granted. On respondent's appeal, however, the United States Court of Appeals for the Fourth Circuit reversed. 649 F.2d 216 (1981). It concluded, id., at 219, that although Kennison indeed had been "convicted" of an offense that triggered firearms disabilities, [460 U.S. 103, 110] that fact could not serve as a predicate for a Gun Control Act violation or license revocation because the conviction had been expunged under the Iowa deferred judgment procedure. The court acknowledged, id., at 220, that other Courts of Appeals entertained contrary views. 5 Because of the importance of the issue and the obvious need for its resolution, we granted certiorari. 455 U.S. 1015 (1982). </s> III </s> This is not the first time the Court has examined firearms provisions of the Omnibus Crime Control and Safe Streets Act and of the Gun Control Act. See Lewis v. United States, 445 U.S. 55 (1980); Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423 U.S. 212 (1976); Huddleston v. United States, 415 U.S. 814 (1974); United States v. Bass, 404 U.S. 336 (1971). </s> Despite the fact that the slate on which we write is thus not a clean one, we state once again the obvious when we note that, in determining the scope of a statute, one is to look first at its language. Lewis v. United States, 445 U.S., at 60 ; United States v. Turkette, 452 U.S. 576, 580 (1981). If the language is unambiguous, ordinarily it is to be regarded as conclusive unless there is "`a clearly expressed legislative intent to the contrary.'" Ibid., quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). It would seem, therefore, from the clear words of the statute ("any person . . . who has been convicted"), that, for respondent to be deprived of its licenses, Kennison must have been "convicted" of the type of crime specified by the statute, and the Iowa deferred judgment procedure and "expunction" [460 U.S. 103, 111] must not have operated to nullify that conviction. If Kennison was not "convicted" in the first place, or if he was and that conviction somehow was rendered a nullity, respondent should not be ineligible for licenses on the grounds asserted by the Bureau. </s> A </s> We turn first to the issue of conviction. The salient fact is Kennison's plea of guilty to a state charge punishable by more than a year's imprisonment. The usual entry of a formal judgment upon a jury verdict or upon a court's specific finding of guilt after a bench trial is absent. Present, however, are (a) the charge of a crime of the disqualifying type, (b) the plea of guilty to that charge, and (c) the court's placing Kennison upon probation. </s> In Lewis v. United States, supra, we had under consideration 1202(a)(1) of Title VII of the 1968 Act, 18 U.S.C. App. 1202(a)(1), a gun control statute similar to and partially overlapping 922(g) and (h). The language of 1202 (a)(1) that is pertinent for present purposes is familiar, for it concerns any person who "has been convicted . . . of a felony." The Court there characterized the language of the statute as "sweeping." 445 U.S., at 60 . Despite the fact that Lewis' conviction was subject to collateral attack on constitutional grounds, the Court held that conviction to be disabling. What was important to the Court was the presence or fact of the conviction. In speaking of Title VII, we said: "No modifier is present, and nothing suggests any restriction on the scope of the term `convicted.'" Ibid. Still further: "`Nothing on the face of the statute suggests a congressional intent to limit its coverage . . . .'" Ibid., quoting United States v. Culbert, 435 U.S. 371, 373 (1978). And, finally: "Actually, . . . we detect little significant difference between Title IV and Title VII." 445 U.S., at 64 . </s> Whether one has been "convicted" within the language of the gun control statutes is necessarily, as the Court of Appeals in the present case correctly recognized, 649 F.2d, at [460 U.S. 103, 112] 219, a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State. United States v. Benson, 605 F.2d 1093, 1094 (CA9 1979). This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of "conviction." </s> In Lewis, the possible, and indeed probable, vulnerability of the predicate conviction to collateral attack on constitutional grounds did not affect the disqualification. This followed from the statute's plain language and from a legislative history that, as we have repeatedly observed, makes clear that "`Congress sought to rule broadly - to keep guns out of the hands of those who have demonstrated that "they may not be trusted to possess a firearm without becoming a threat to society."'" 445 U.S., at 63 , quoting Scarborough v. United States, 431 U.S., at 572 . Like considerations apply here with respect to whether Kennison was one who was "convicted" within the meaning of the federal statute. 6 He voluntarily, in negotiation, entered a plea of guilty to a disqualifying crime. In some circumstances, we have considered a guilty plea alone enough to constitute a "conviction": "A plea of guilty differs in purpose and effect from a mere [460 U.S. 103, 113] admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence." Kercheval v. United States, 274 U.S. 220, 223 (1927). Accord, Boykin v. Alabama, 395 U.S. 238, 242 (1969). 7 </s> Here, we do have more. The state judge who noted Kennison's plea placed him on probation. To be sure, there was no written adjudication of guilt and there was no formal pronouncement of a sentence of imprisonment for a specified term. But that was due to special provisions of Iowa statutory law and procedure. It was plainly irrelevant to Congress whether the individual in question actually receives a prison term; the statute imposes disabilities on one convicted of "a crime punishable by imprisonment for a term exceeding one year." 922(g) (emphasis supplied). It is also plain that one cannot be placed on probation if the court does not [460 U.S. 103, 114] deem him to be guilty of a crime 8 - in this case a crime that Congress considered demonstrative of unreliability with firearms. Thus, for purposes of the federal gun control laws, we equate a plea of guilty and its notation by the state court, followed by a sentence of probation, with being "convicted" within the language of 922(g) and (h). See United States v. Woods, 696 F.2d 566, 570 (CA8 1982) ("once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence, the defendant has been convicted within the intendment of Congress"). </s> B </s> That, however, is not an end to the matter. We still must determine whether Iowa's expunction provisions, as carried out in Kennison's case prior to respondent's license applications, nullified his conviction for purposes of the federal statute. 9 </s> We recognized in Lewis that a qualifying pardon, see 27 CFR 178.142 (1982), or a consent from the Secretary of the Treasury would operate to relieve the disability. 445 U.S., at 60 -61. 10 So far as the face of the statute is concerned, [460 U.S. 103, 115] however, expunction under state law does not alter the historical fact of the conviction, and does not open the way to a license despite the conviction, as does positive or "affirmative action," ibid., by way of the Secretary's consent on the conditions specified by 925(c). In Lewis, it is true, we recognized an obvious exception to the literal language of the statute for one whose predicate conviction had been vacated or reversed on direct appeal. 445 U.S., at 61 , n. 5; see Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev. 326, 334, n. 42 (1976). But, in contrast, expunction does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty. Expunction in Iowa means no more than that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law. Clearly, firearms disabilities may be attached constitutionally to an expunged conviction, see Lewis v. United States, 445 U.S., at 65 -68, and an exception for such a conviction, unlike one reversed or vacated due to trial error, is far from obvious. In Lewis we held that the exception for convictions reversed or vacated on direct appeal did not make ambiguous the statute's clear application to convictions arguably vulnerable to collateral attack. We perceive no more ambiguity in the statute here than we did in Lewis. </s> IV </s> Other provisions of the federal gun control laws and related federal statutes fortify our conclusion that expunction of a state conviction was not intended by Congress automatically to remove the federal firearms disability. </s> 1. Even conviction is not necessary for disqualification. The mere existence of an outstanding indictment is sufficient [460 U.S. 103, 116] under 922(g) and (h). Congress was reaching far and was doing so intentionally. </s> 2. Sections 922(g) and (h) impose the same disabilities upon a person who "is under indictment" for certain crimes, or who "is a fugitive from justice," or who "is" a drug addict or an unlawful user of certain drugs, or who "has been convicted in any court" of certain crimes, or who "has been adjudicated as a mental defective," or who "has been committed to a mental institution" (emphasis supplied). This use of the respective tenses is significant and demonstrates that Congress carefully distinguished between present status and a past event. We have noted this distinction in tenses in 922, and its significance, before: </s> "Congress knew the significance and meaning of the language it employed. It used the present perfect tense elsewhere in the same section . . ., in contrast to its use of the present tense (`who is') in 922(h)(1), (2), and (3). The statute's pattern is consistent and no unintended misuse of language or of tense is apparent." Barrett v. United States, 423 U.S., at 217 . </s> And in Scarborough v. United States, 431 U.S., at 570 , we observed: "It is obvious that the tenses used throughout Title IV were chosen with care." </s> 3. The imposition, by 922(g)(4) and (h)(4), of continuing disability on a person who "has been" adjudicated a mental defective or committed to a mental institution is particularly instructive. A person adjudicated as a mental defective may later be adjudged competent, and a person committed to a mental institution later may be deemed cured and released. Yet congress made no exception for subsequent curative events. The past adjudication or commitment disqualifies. Congress obviously felt that such a person, though unfortunate, was too much of a risk to be allowed firearms privileges. See United States v. Bass, 404 U.S., at 344 -345. In the face of this fact, we cannot believe that Congress intended [460 U.S. 103, 117] to have a person convicted of a firearms felony under state law become eligible for firearms automatically because of a state expunction for whatever reason. </s> 4. Section 925(c) empowers the Secretary to grant relief from these disabilities in certain cases. The Secretary may not grant such relief, however, to one convicted of a crime involving the use of a firearm or of a federal firearms offense, and may not grant relief in any event unless specific conditions are met to his satisfaction. Again, it is highly unlikely that Congress intended to permit its own circumscription of the ability of the Secretary to grant relief to be overcome by the vagaries of state law. That would be too easy a route to follow in order to circumvent the federal statute. See S. Rep. No. 666, 89th Cong., 1st Sess., 2 (1965). </s> 5. Provisions of Title VII, enacted simultaneously with Title IV, are helpful to our analysis. We have treated Titles VII and IV as in pari materia in construing statutory language identical to that at issue here. Lewis v. United States, 445 U.S., at 61 -62. Title 18 U.S.C. App. 1203(2) exempts from Title VII "any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm." Thus, in that statute, even a pardon is not sufficient to remove the firearms disabilities unless there is express authorization to have the firearm. It is inconceivable that Congress could have so provided and yet have intended, as the Court of Appeals concluded, 649 F.2d, at 220-221, to give a state expunction a contrary and unconditional effect. After all, expunction devices were not unknown or unusual when Title IV came into being in 1968. See Comment, Expungement in California: Legislative Neglect and Judicial Abuse of the Statutory Mitigation of Felony Convictions, 12 U. San Fran. L. Rev. 155, 161 (1977); 1909 Cal. Stats., ch. 232, 1. And the Federal [460 U.S. 103, 118] Youth Corrections Act, in which Congress itself provided for expunction in certain circumstances, see 18 U.S.C. 5021, was enacted as far back as 1950. See 64 Stat. 1089. </s> 6. Title 21 U.S.C. 844(b) is a federal expunction statute providing that a first offender found guilty of simple possession of a controlled substance may be placed on probation without entry of judgment, and that, upon successful completion of the probation, the court shall discharge the defendant and dismiss the proceeding against him. But Congress also specifically provided in 844(b)(1) that such discharge or dismissal "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime . . . or for any other purpose." This provision would be superfluous if Congress had believed that expunction automatically removes the disqualification. Congress obviously knew the plain meaning of the terms it employed in statutes of this kind, and when it wished to create an exception for an expunged conviction, it did so expressly. </s> V </s> "As in all cases of statutory construction, our task is to interpret the words of [the statute] in light of the purposes Congress sought to serve." Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608 (1979). In our previous cases we have recognized and given weight to the Act's broad prophylactic purpose: </s> "When Congress enacted [18 U.S.C. 921 et seq.] it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. . . . The principal purpose of federal gun control legislation, therefore, was to curb crime by keeping `firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.'" [460 U.S. 103, 119] Huddleston v. United States, 415 U.S., at 824 , quoting S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). </s> See also Barrett v. United States, 423 U.S., at 220 -221. </s> In order to accomplish this goal, Congress obviously determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them. Such persons are also barred from obtaining licenses to deal in firearms or ammunition. This latter provision is particularly important because Title IV and federal gun laws generally funnel access to firearms almost exclusively through dealers. See Huddleston v. United States, 415 U.S., at 825 . "The principal agent of federal enforcement is the dealer." Id., at 824. </s> Although we have searched diligently, we have found nothing in the legislative history of Title IV or related federal firearms statutes that suggests, even remotely, that a state expunction was intended automatically to remove the disabilities imposed by 922(g)(1) and (h)(1). See, e. g., S. Rep. No. 1501, 90th Cong., 2d Sess. (1968); S. Rep. No. 1097, 90th Cong., 2d Sess. (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess. (1968); H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. (1968); H. R. Rep. No. 488, 90th Cong., 1st Sess. (1967). This lack of evidence is significant for several reasons. First, the purpose of the statute would be frustrated by a ruling that gave effect to state expunctions; a state expunction typically does not focus upon the question with which Title IV is concerned, namely, whether the convicted person is fit to engage in the firearms business or to possess a firearm. Second, "`[i]n the absence of a plain indication to the contrary, . . . it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.'" NLRB v. Natural Gas Utility Dist., 402 U.S. 600, 603 (1971), quoting NLRB v. Randolph Electric Membership Corp., 343 F.2d 60, 62-63 (CA4 1965). This is because the application of federal legislation is nationwide and [460 U.S. 103, 120] at times the federal program would be impaired if state law were to control. Jerome v. United States, 318 U.S. 101, 104 (1943). The legislative history reveals that Congress believed a uniform national program was necessary to assist in curbing the illegal use of firearms. See S. Rep. No. 1097, 90th Cong., 2d Sess., 28, 76-77 (1968). Third, Title IV "is a carefully constructed package of gun control legislation. . . . `Congress knew the significance and meaning of the language it employed.'" Scarborough v. United States, 431 U.S., at 570 , quoting Barrett v. United States, 423 U.S., at 217 . And Congress carefully crafted a procedure for removing those disabilities in appropriate cases. 925(c). </s> Congress, of course, did use state convictions to trigger Title IV's disabilities in the first instance. This, however, was not because Congress wanted to tie those disabilities to the intricacies of state law, but because such convictions provide a convenient, although somewhat inexact, way of identifying "especially risky people." United States v. Bass, 404 U.S., at 345 . There is no inconsistency in the refusal of Congress to be bound by postconviction state actions, such as expunctions, that vary widely from State to State and that provide less than positive assurance that the person in question no longer poses an unacceptable risk of dangerousness. Any potential harshness of the federal rule is alleviated by the power given the Secretary to grant relief where relief is appropriate based on uniform federal standards. </s> The facts of the present case are illustrative. Because Kennison had "stable employment" at home in South Carolina and no previous conviction, he was placed on probation and allowed to go home. App. to Pet. for Cert. 45a-46a. Although he had no previous conviction, Kennison did have prior arrests for "assault and battery of a high and aggravated nature" and for "child abuse." Record, Govt. Exh. 13. According to him, his supervision during probation consisted of "occasionally report[ing] that [he] had not been arrested." App. to Brief in Opposition 157a. In short, the circumstances [460 U.S. 103, 121] surrounding the expunction of his conviction provide little, if any, assurance that Kennison is a person who can be trusted with a dangerous weapon. </s> VI </s> Finally, a rule that would give effect to expunctions under varying state statutes would seriously hamper effective enforcement of Title IV. Over half the States have enacted one or more statutes that may be classified as expunction provisions that attempt to conceal prior convictions or to remove some of their collateral or residual effects. These statutes differ, however, in almost every particular. Some are applicable only to young offenders, e. g., Mich. Comp. Laws 780.621 and .622 (1982). Some are available only to persons convicted of certain offenses, e. g., N. J. Stat. Ann. 2C:52-2(b) (West 1982); others, however, permit expunction of a conviction for any crime including murder, e. g., Mass. Gen. Laws Ann., ch. 276, 100A (West Supp. 1982-1983). Some are confined to first offenders, e. g., Okla. Stat., Tit. 22, 991c (Supp. 1982-1983). Some are discretionary, e. g., Minn. Stat. 638.02(2) (Supp. 1982), while others provide for automatic expunction under certain circumstances, e. g., Ariz. Rev. Stat. Ann. 13-912 (1978). The statutes vary in the language employed to describe what they do. Some speak of expunging the conviction, others of "sealing" the file or of causing the dismissal of the charge. The statutes also differ in their actual effect. Some are absolute; others are limited. Only a minority address questions such as whether the expunged conviction may be considered in sentencing for a subsequent offense or in setting bail on a later charge, or whether the expunged conviction may be used for impeachment purposes, or whether the convict may deny the fact of his conviction. Some statutes, too, clearly were not meant to prevent use of the conviction in a subsequent prosecution. See, e. g., Ariz. Rev. Stat. 13-907 (1978); United States v. Herrell, 588 F.2d 711 (CA9 [460 U.S. 103, 122] 1978), cert. denied, 440 U.S. 964 (1979). These and other differences provide nothing less than a national patchwork. </s> In this case, for example, although the Court of Appeals referred to Iowa's deferred judgment statute as "unconditional and absolute," 649 F.2d, at 221, it is obvious from the face of the statute that that description is not entirely accurate. At the time of expunction, a separate record is maintained, not destroyed, by the Supreme Court administrator. Iowa Code 907.4 (1981). See Tr. of Oral Arg. 44. In addition, all "criminal history data" may be released to "criminal justice agencies." Iowa Code 692.1(5) and 692.2 (1981). In short, the record of a conviction expunged under Iowa law is not expunged completely. </s> Under the decision below, perplexing problems would confront those required to enforce federal gun control laws as well as those bound by their provisions. Because, as we have noted, Title IV "is a carefully constructed package of gun control legislation," Scarborough v. United States, 431 U.S., at 570 , Congress, in framing it, took pains to avoid the very problems that the Court of Appeals' decision inevitably would create, such as individualized federal treatment of every expunction law. Congress used unambiguous language in attaching gun control disabilities to any person "who has been convicted" of a qualifying offense. We give full effect to that language. </s> The judgment of the Court of Appeals is reversed. </s> It is so ordered. </s> Footnotes [Footnote 1 The Act provides exemptions from its proscriptions for certain business and commercial crimes, such as antitrust violations, punishable by imprisonment for more than one year, and for nonfirearms and nonexplosives state offenses classified by the State as misdemeanors and punishable by imprisonment for two years or less. 18 U.S.C. 921(a)(20). These exemptions are of no relevance here. </s> [Footnote 2 The court, however, in its discretion, in the case of a first offense, could reduce that punishment. See Iowa Code 695.3 (1977). Sections 695.2 and .3 were repealed effective January 1, 1978, and are now replaced by Iowa Code 724.4 and 903.1 (1981). </s> [Footnote 3 Section 789A.1 then read in pertinent part: </s> "The trial court may, upon a plea of guilty, verdict of guilty, or a special verdict upon which a judgment of conviction may be rendered, exercise either of the options contained in subsections 1 and 2. However, this section shall not apply to the crimes of treason, murder, or violation of [other specified statutes]. </s> "1. With the consent of the defendant, the court may defer judgment and place the defendant on probation upon such terms and conditions as it may require. Upon fulfillment of the terms of probation the defendant shall be discharged without entry of judgment. Upon violation of the terms, the court may enter an adjudication of guilt and proceed as otherwise provided. </s> "However, this subsection shall not be available if any of the following is true: </s> "[Here are recited specific exceptions to the availability of the procedure outlined in subsection 1.] </s> "2. By record entry at time of or after sentencing, the court may suspend the sentence and place the defendant on probation upon such terms and conditions as it may require. </s> "Before exercising either of the options contained in subsections 1 and 2, the court shall first determine which of them will provide maximum opportunity for the rehabilitation of the defendant and protection of the community from further offenses by the defendant and others. In making this determination the court shall consider the age of the defendant, his prior record of convictions, if any, his employment circumstances, his family circumstances, the nature of the offense committed, whether a dangerous weapon or force was used in the commission of such offense, and such other factors as shall be appropriate. The court shall file a specific written statement of its reasons for and the facts supporting its decision to defer judgment or to suspend sentence and its decision on the length of probation." </s> Section 789A.1 was enacted by 1973 Iowa Acts, ch. 295, 1. It was repealed by 1976 Iowa Acts, ch. 1245, 526, effective January 1, 1978. The current replacement statutes are Iowa Code 907.3, .4, and .5 (1981). </s> [Footnote 4 Section 789A.6 then read in pertinent part: </s> "At any time that the court determines that the purposes of probation have been fulfilled, the court may order the discharge of any person from probation. . . . A person who has been discharged from probation shall no longer be held to answer for his offense. Upon discharge from probation, if judgment has been deferred under section 789A.1, the court's criminal record with reference to the deferred judgment shall be expunged. The record maintained by the supreme court administrator required by section 789A.1 shall not be expunged. . . ." </s> Section 789A.6 was also enacted in 1973 and was repealed, effective January 1, 1978, by the same Iowa statutes cited in the last paragraph of n. 3, supra. The current statute replacing 789A.6 is Iowa Code 907.9 (1981). </s> [Footnote 5 See United States v. Bergeman, 592 F.2d 533 (CA9 1979); United States v. Mostad, 485 F.2d 199 (CA8 1973), cert. denied, 415 U.S. 947 (1974); United States v. Lehmann, 613 F.2d 130 (CA5 1980). See also, e. g., United States v. Padia, 584 F.2d 85 (CA5 1978); United States v. Gray, 692 F.2d 352 (CA5 1982); United States v. Nord, 586 F.2d 1288 (CA8 1978); United States v. Kelly, 519 F.2d 794 (CA8), cert. denied, 423 U.S. 926 (1975). </s> [Footnote 6 To be sure, the terms "convicted" or "conviction" do not have the same meaning in every federal statute. In some statutes those terms specifically are made to apply to one whose guilty plea has been accepted whether or not a final judgment has been entered. See, e. g., 15 U.S.C. 80a-2(10) and 80b-2(6). In other federal statutes, however, the term "convicted" is clearly limited to persons against whom a formal judgment has been entered. See, e. g., 18 U.S.C. 4251(e) and 28 U.S.C. 2901(f). </s> The term "convicted" in 922(g) and (h) is not there defined, but we have no reason whatsoever to suppose that Congress meant that term to apply only to one against whom a formal judgment has been entered. Congress' intent in enacting 922(g) and (h) and 1202 was to keep firearms out of the hands of presumptively risky people. See United States v. Bass, 404 U.S. 336, 345 (1971). In this connection, it is significant that 922(g) and (h) apply not only to a person convicted of a disqualifying offense but also to one who is merely under indictment for such a crime. </s> [Footnote 7 As noted in n. 6, supra, the meaning of the terms "convicted" and "conviction" vary from statute to statute. In Lott v. United States, 367 U.S. 421 (1961), for example, the Court had under consideration Federal Rule of Criminal Procedure 34 and a plea of nolo contendere, rather than a plea of guilty. The question was whether the time within which certain motions could be made began to run at the time the nolo plea was entered or at the time judgment was pronounced and sentence imposed. The Court spoke of the possibility of the plea's being withdrawn before sentence was imposed and therefore said that "it is the judgment of the court - not the plea - that constitutes the `determination of guilt.'" Id., at 427. In construing Rule 34, of course, the Court had before it no evidence of a congressional intent to rule broadly to protect the public comparable to that animating Title IV. Moreover, in Lott the Court did not deal with the situation where probation is imposed on the basis of the plea. Under the Iowa expunction statute, one who has pleaded guilty is treated identically to one who has been found guilty by a jury. See n. 3, supra. There is no suggestion in the Iowa statutes, and respondent has not suggested, that once the plea was noted and probation imposed Kennison could withdraw his plea. Indeed, it was a negotiated plea accompanied by the dismissal of the kidnaping charge. </s> [Footnote 8 Counsel acknowledged that during the period of Kennison's probation, respondent was disqualified for a license. Tr. of Oral Arg. 36-37. </s> [Footnote 9 For purposes of Iowa's own gun control statute, Iowa Code 724.26 (1981), it might be argued that the conviction was nullified. See State v. Walton, 311 N. W. 2d 110, 112 (Iowa 1981). Nevertheless, the Supreme Court of Iowa has observed that the "word `conviction' is of equivocal meaning, and its use in a statute presents a question of legislative intent." State v. Hanna, 179 N. W. 2d 503, 507 (1970). Presumably, therefore, if the Supreme Court of Iowa were called upon to construe the term "convicted" in a statute like 922(g) and (h), that court would look to "legislative intent." </s> In any event, Iowa's law is not federal law, and it does not control our decision here. We therefore look to federal considerations in resolving the present case. </s> [Footnote 10 Title VII, which we construed in Lewis, explicitly provides that pardons granted by the President of the United States or a state governor, specifying that the recipient is authorized to receive, possess, or transport firearms, lift the disabilities imposed by that Title. 18 U.S.C. App. [460 U.S. 103, 115] 1203(2). Except 925(c), permitting the Secretary to remove the disabilities in specified circumstances, there is no comparable provision in Title IV. By regulation, the Secretary has given Presidential pardons, but not gubernatorial pardons, automatic enabling effect under Title IV. 27 CFR 178.142 (1982). </s> JUSTICE REHNQUIST, with whom JUSTICE BRENNAN, JUSTICE STEVENS, and JUSTICE O'CONNOR join, dissenting. </s> The Gun Control Act provides that any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" is ineligible for a federal license to ship, transport, or receive any firearm or ammunition in interstate commerce. 18 U.S.C. 922(g) and (h). Thus, as the Court points out, "[i]f Kennison was not [460 U.S. 103, 123] `convicted' in the first place . . . respondent should not be ineligible for licenses on the grounds asserted by the Bureau." Ante, at 111. Contrary to the conclusion reached by the Court, I do not believe that Kennison was "convicted." Accordingly, I dissent. </s> I agree with the Court that whether one has been convicted within the meaning of the Gun Control Act is a question of federal, rather than state, law. Ante, at 111-112. Congress did not, however, expressly define the term "conviction" in the Act. Where Congress has defined the term, the Court recognizes that it has given the term different meanings in different statutes. Ante, at 112, n. 6. In the Investment Company Act of 1940, Congress expressly provided that the term "convicted" includes "a verdict, judgment, or plea of guilty, or a finding of guilt on a plea of nolo contendere, if such verdict, judgment, plea, or finding has not been reversed, set aside, or withdrawn, whether or not sentence has been imposed." 15 U.S.C. 80a-2(a)(10). The same definition was used in the Investment Advisers Act of 1940. 15 U.S.C. 80b-2(a)(6). Congress used a more narrow definition in two sections of the Narcotic Addict Rehabilitation Act of 1966, providing that "`[c]onviction' and `convicted' mean the final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere, and do not include a final judgment which has been expunged by pardon, reversed, set aside, or otherwise rendered nugatory." 18 U.S.C. 4251(e); 28 U.S.C. 2901(f). Finally, in the Federal Youth Corrections Act, Congress has provided that the term "`conviction' means the judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere." 18 U.S.C. 5006(g). </s> Thus at the most, Congress has required the entry of a formal judgment as the signpost of a "conviction." At the least, Congress has required the acceptance of a plea. In this case, we have neither. The Court relies on Kercheval v. United States, 274 U.S. 220 (1927), and Boykin v. Alabama, [460 U.S. 103, 124] 395 U.S. 238 (1969), for the proposition that "[i]n some circumstances, we have considered a guilty plea alone enough to constitute a `conviction.'" Ante, at 112. The Court concludes that in this case "we . . . have more," because the state trial judge "noted" the plea and placed Kennison on probation. Ante, at 113. I cannot agree. </s> Even if Kercheval and Boykin would otherwise be relevant to our interpretation of the Gun Control Act, both cases spoke of an accepted guilty plea. Whatever a trial court does when it "notes" a plea, it is less, instead of more, than an acceptance of the plea which is preceded by an examination of the defendant to insure that the plea is voluntary. </s> Where the Iowa deferred judgment statute can be used, "[t]he trial court may, upon a plea of guilty [and] [w]ith the consent of the defendant . . . defer judgment and place the defendant on probation." Iowa Code 789A.1 (1977) (emphasis added) (current version at Iowa Code 907.3 (1981)). Congress has never before considered such circumstances sufficient for a finding of a "conviction"; there is nothing in the Gun Control Act to infer that Congress has adopted such a standard now. It is likely that at the most Congress intended that a "conviction" be represented by a formal entry of judgment, or at the least an acceptance of a guilty plea. But in either case, such criteria are absent where, following a guilty plea, the Iowa deferred judgment statute is invoked. * </s> [Footnote * The Court points out that respondent acknowledged in oral argument that during the period of Kennison's probation, respondent was disqualified for a license. Ante, at 114, n. 8. This disqualification, if it existed, however, would be based on the provision of the Gun Control Act applying to any person "who is under indictment," 18 U.S.C. 922(g) and (h), rather than on a "conviction." </s> [460 U.S. 103, 125]

United States Supreme Court INS v. MIRANDA(1982) No. 82-29 Argued: Decided: November 8, 1982 </s> While in the United States after the expiration of his temporary visitor's visa, respondent alien married a United States citizen. His wife filed a petition with the Immigration and Naturalization Service (INS), requesting that he be granted an immigrant visa as her spouse, and respondent simultaneously applied to the INS for adjustment of his status to that of a permanent resident alien. The wife's petition, if approved, would have satisfied 245(a) of the Immigration and Nationality Act of 1952, which conditions the granting of permanent resident status to an alien on the immediate availability of an immigrant visa. The INS did not act on either the wife's petition or respondent's application for 18 months, and when the marriage broke up the wife withdrew her petition. The INS then denied respondent's application because an immigrant visa was not immediately available to him. In subsequent administrative deportation proceedings, the INS rejected respondent's claims that his previous marriage was sufficient to support his application for permanent resident status, and that the INS was estopped from denying his application because of its "unreasonable delay." Respondent sought review of the administrative decision in the Court of Appeals, which ultimately reversed, holding that the INS's unexplained 18-month delay in processing respondent's application was "affirmative misconduct" that estopped the Government from denying the application. </s> Held: </s> Regardless of whether or not even "affirmative misconduct" will estop the Government from enforcing the immigration laws, the evidence here did not rise to that level. Respondent showed only that the Government failed to process his application promptly. Even if the INS arguably was negligent in not acting more expeditiously, neither such conduct nor the harm to respondent was sufficient to estop the Government. Cf. Montana v. Kennedy, 366 U.S. 308 ; INS v. Hibi, 414 U.S. 5 ; Schweiker v. Hansen, 450 U.S. 785 . </s> Certiorari granted; 673 F.2d 1105, reversed. </s> PER CURIAM. </s> Respondent Horacio Miranda, a citizen of the Philippines, entered the United States in 1971 on a temporary visitor's [459 U.S. 14, 15] visa. After his visa expired, he stayed in this country, eventually marrying Linda Milligan, a citizen of the United States, on May 26, 1976. Shortly thereafter, Milligan filed a visa petition with the Immigration and Naturalization Service (INS) on respondent's behalf. She requested that he be granted an immigrant visa as her spouse. 1 Respondent simultaneously filed an application requesting the INS to adjust his status to that of a permanent resident alien. Section 245(a) of the Immigration and Nationality Act of 1952 conditions the granting of permanent resident status to an alien on the immediate availability of an immigrant visa. 2 Milligan's petition, if approved, would have satisfied this condition. </s> The INS did not act on either Milligan's petition or respondent's application for 18 months. Following the breakup of her marriage with respondent, Milligan withdrew her petition in December 1977. At that point, the INS denied respondent's application for permanent residence because he had not shown that an immigrant visa was immediately available to him. The INS also issued an order to show cause why he should not be deported. </s> At a deportation hearing, respondent conceded his deportability but renewed his application for permanent resident status because of his marriage to Milligan. Although the marriage had ended, he claimed that a previous marriage was sufficient to support his application. The Immigration Judge rejected this claim, concluding that the immediate availability [459 U.S. 14, 16] of an immigrant visa was a necessary condition to respondent's application. Since Milligan had withdrawn her petition for an immigrant visa before the INS had acted on it, respondent was ineligible for permanent resident status. </s> Respondent appealed the decision to the Board of Immigration Appeals. For the first time, he raised the claim that the INS was estopped from denying his application because of its "unreasonable delay." He argued that the "failure to act was not only unreasonable, unfair and unjust but also an abuse of governmental process if the delay was deliberate." Record 44. The Board rejected respondent's claim. It found "no evidence of any `affirmative misconduct'" and no basis for an equitable estoppel. Id., at 4. </s> Respondent sought review of the Board's decision in the Court of Appeals for the Ninth Circuit. The Court of Appeals reversed, holding that "[t]he unexplained failure of the INS to act on the visa petition for an eighteen-month period prior to the petitioner's withdrawal . . . was affirmative misconduct by the INS." Miranda v. INS, 638 F.2d 83, 84 (1980). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in light of Schweiker v. Hansen, 450 U.S. 785 (1981). 454 U.S. 808 (1981). </s> On remand, the Court of Appeals adhered to its earlier decision. 673 F.2d 1105 (1982) (per curiam). It found Hansen inapplicable for three reasons. First, the Government's conduct in Hansen had not risen to the level of affirmative misconduct. In this case, however, affirmative misconduct was established by the INS's unexplained delay in processing respondent's application. Second, although the private party in Hansen subsequently had been able to correct the Government's error, the INS's error here inflicted irrevocable harm on respondent. Finally, unlike the private party in Hansen who sought to recover from the public treasury, respondent was seeking only to become a permanent resident - a result that would entail no burden on the public [459 U.S. 14, 17] fisc. The Court of Appeals determined that "the Supreme Court's conclusion that the government was not estopped in Hansen neither compels nor suggests the same conclusion here." 673 F.2d, at 1106. </s> In Hansen, we did not consider whether estoppel will lie against the Government when there is evidence of affirmative misconduct. We found that a Government official's misstatement to an applicant for federal insurance benefits, conceded to be less than affirmative misconduct, did not justify allowing the applicant to collect retroactive benefits from the public treasury. See 450 U.S., at 788 -789. Although Hansen involved estoppel in the context of a claim against the public treasury, we observed that "[i]n two cases involving denial of citizenship, the Court has declined to decide whether even `affirmative misconduct' would estop the Government from denying citizenship, for in neither case was `affirmative misconduct' involved." Id., at 788. </s> The Court of Appeals thus correctly considered whether, as an initial matter, there was a showing of affirmative misconduct. See INS v. Hibi, 414 U.S. 5, 8 -9 (1973) (per curiam); Montana v. Kennedy, 366 U.S. 308, 314 -315 (1961). Hibi and Montana indicate, however, that the Court of Appeals erred in determining that the evidence in this case established affirmative misconduct. In Montana, a Government official had incorrectly informed the petitioner's mother that she was unable to return to the United States because she was pregnant. The Court found that the official's misstatement "falls far short of misconduct such as might prevent the United States from relying on petitioner's foreign birth" as a basis for denying him citizenship. 366 U.S., at 314 -315. In Hibi, Congress had exempted aliens serving in the United States Armed Forces from certain requirements normally imposed on persons seeking naturalization. We found that neither the Government's failure to publicize fully the rights accorded by Congress nor its failure to make an [459 U.S. 14, 18] authorized naturalization representative available to aliens serving outside of the United States estopped the Government from rejecting respondent's untimely application for naturalization. See 414 U.S., at 8 -9. </s> Unlike Montana and Hibi, where the Government's error was clear, the evidence that the Government failed to fulfill its duty in this case is at best questionable. The only indication of negligence is the length of time that the INS took to process respondent's application. Although the time was indeed long, we cannot say in the absence of evidence to the contrary that the delay was unwarranted. 3 Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) (presumption of regularity supports official act of public officer); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14 -15 (1926) (same). Both the number of the applications received by the INS and the need to investigate their validity may make it difficult for the agency to process an application as promptly as may be desirable. 4 Even if the INS arguably was negligent in not acting more expeditiously, its conduct was not significantly different from that in Montana and Hibi. Nor is the harm to respondent different. Montana and Hibi make clear that neither the Government's conduct nor the harm to the respondent is sufficient to estop the Government from enforcing the conditions imposed by Congress for residency in this country. [459 U.S. 14, 19] </s> The final distinction drawn by the Court of Appeals between this case and Hansen is unpersuasive. It is true that Hansen relied on a line of cases involving claims against the public treasury. But there was no indication that the Government would be estopped in the absence of the potential burden on the fisc. An increasingly important interest, implicating matters of broad public concern, is involved in cases of this kind. Enforcing the immigration laws, and the conditions for residency in this country, is becoming more difficult. See n. 4, supra. Moreover, the INS is the agency primarily charged by Congress to implement the public policy underlying these laws. See, e. g., INS v. Jong Ha Wang, 450 U.S. 139, 144 -145 (1981) (per curiam); Hibi, supra, at 8. Appropriate deference must be accorded its decisions. </s> This case does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws. Proof only that the Government failed to process promptly an application falls far short of establishing such conduct. Accordingly, we grant the petition for certiorari and reverse the judgment of the Court of Appeals. </s> It is so ordered. </s> Footnotes [Footnote 1 Section 201(b) of the Immigration and Nationality Act of 1952 provides for the admission of immigrants who are immediate relatives of United States citizens. 66 Stat. 175, as amended, 8 U.S.C. 1151(b). </s> [Footnote 2 Section 245(a) provides that the status of an alien who was admitted into the United States "may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 66 Stat. 217, as amended, 8 U.S.C. 1255(a). </s> [Footnote 3 The INS has maintained consistently that the 18-month delay was reasonable because of the need to investigate the validity of respondent's marriage. Because the issue of estoppel was raised initially on appeal, the parties were unable to develop any factual record on the issue. </s> [Footnote 4 In 1976, the year in which Milligan filed her petition on behalf of respondent, some 206,319 immediate-relative petitions were filed. See INS Ann. Rep. 11 (1976). The Service has noted: "In dealing with these petitions, an inordinate amount of fraud, particularly in relation to claimed marriages, has been uncovered. . . . For a fee, partners are provided and marriages contracted to establish eligibility under the statutes for visa issuance benefits." Ibid. We cannot discount the need for careful investigation by the INS that these petitions demand. </s> JUSTICE MARSHALL, dissenting. </s> I dissent from the Court's summary reversal of the Court of Appeals. The Court concedes that the INS's 18-month delay in processing respondent's application "was indeed long," but concludes that it "cannot say in the absence of evidence to the contrary that the delay was unwarranted." Ante, at 18. The Court relies on a presumption of regularity which it says attends the official acts of public officers. Ibid. In view of the unusual delay in the processing of respondent's application, I do not agree that this case should be summarily disposed of on the basis of this convenient presumption. If the Court believes, as I do not, that this case raises an issue of sufficient importance to justify the exercise of our certiorari [459 U.S. 14, 20] jurisdiction, and if the Court also believes that oral argument should be dispensed with, I would at least notify the parties that the Court is considering a summary disposition, so that they may have an opportunity to submit briefs on the merits. </s> [459 U.S. 14, 21]

United States Supreme Court FIBREBOARD CORP. v. LABOR BOARD(1964) No. 14 Argued: October 19, 1964Decided: December 14, 1964 </s> Respondent union, the bargaining representative for a unit of petitioner's maintenance employees, gave timely notice of its desire to modify the existing collective bargaining agreement. Four days before the expiration of the contract, petitioner informed the union that it had determined that substantial savings could be effected by contracting out the maintenance work, and that since it had made a definite decision to do so, negotiation of a new agreement would be pointless. On the contract expiration date, the employment of employees represented by the union was terminated and an independent contractor was engaged to do the maintenance work. The union filed unfair labor practice charges against the employer, alleging violations of 8 (a) (1), 8 (a) (3) and 8 (a) (5) of the National Labor Relations Act. The National Labor Relations Board (NLRB) found that, while petitioner's motive was economic rather than antiunion, petitioner's failure to negotiate with the union concerning its decision to contract out the maintenance work violated 8 (a) (5) of the Act, which requires bargaining with respect to "wages, hours, and other terms and conditions of employment." The NLRB ordered reinstatement of the maintenance employees with back pay, and the Court of Appeals granted the NLRB's petition for enforcement. Held: </s> 1. The type of "contracting out" involved in this case - the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment - is a statutory subject of collective bargaining under 8 (d) of the Act. Pp. 209-215. </s> 2. The NLRB did not exceed its remedial powers in ordering petitioner to reinstate its maintenance employees with back pay and to bargain with the union. Pp. 215-217. </s> 116 U.S. App. D.C. 198, 322 F.2d 411, affirmed. [379 U.S. 203, 204] </s> Marion B. Plant argued the cause for petitioner. With him on the briefs was Gerard D. Reilly. </s> Solicitor General Cox argued the cause for respondent National Labor Relations Board. With him on the brief were Arnold Ordman, Dominick L. Manoli and Norton J. Come. </s> David E. Feller argued the cause for respondents United Steelworkers of America et al. With him on the brief were Elliot Bredhoff, Jerry D. Anker, Michael H. Gottesman and Jay Darwin. </s> Briefs of amici curiae, urging reversal, were filed by Eugene Adams Keeney and James W. Hunt for the Chamber of Commerce of the United States; Lambert H. Miller for the National Association of Manufacturers of the United States; and John B. Olverson for the Electronic Industries Association. </s> MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. </s> This case involves the obligation of an employer and the representative of his employees under 8 (a) (5), 8 (d) and 9 (a) of the National Labor Relations Act to "confer in good faith with respect to wages, hours, and other terms and conditions of employment." 1 The primary issue is whether the "contracting out" of work being [379 U.S. 203, 205] performed by employees in the bargaining unit is a statutory subject of collective bargaining under those sections. </s> Petitioner, Fibreboard Paper Products Corporation (the Company), has a manufacturing plant in Emeryville, California. Since 1937 the East Bay Union Machinists, Local 1304, United Steelworkers of America, AFL-CIO (the Union) has been the exclusive bargaining representative for a unit of the Company's maintenance employees. In September 1958, the Union and the Company entered the latest of a series of collective bargaining agreements which was to expire on July 31, 1959. The agreement provided for automatic renewal for another year unless one of the contracting parties gave 60 days' notice of a desire to modify or terminate the contract. On May 26, 1959, the Union gave timely notice of its desire to modify the contract and sought to arrange a bargaining session with Company representatives. On June 2, the Company acknowledged receipt of the Union's notice and stated: "We will contact you at a later date regarding a meeting for this purpose." As required by the contract, the Union sent a list of proposed modifications on June 15. Efforts by the Union to schedule a bargaining session met with no success until July 27, [379 U.S. 203, 206] four days before the expiration of the contract, when the Company notified the Union of its desire to meet. </s> The Company, concerned with the high cost of its maintenance operation, had undertaken a study of the possibility of effecting cost savings by engaging an independent contractor to do the maintenance work. At the July 27 meeting, the Company informed the Union that it had determined that substantial savings could be effected by contracting out the work upon expiration of its collective bargaining agreements with the various labor organizations representing its maintenance employees. The Company delivered to the Union representatives a letter which stated in pertinent part: </s> "For some time we have been seriously considering the question of letting out our Emeryville maintenance work to an independent contractor, and have now reached a definite decision to do so effective August 1, 1959. </s> "In these circumstances, we are sure you will realize that negotiation of a new contract would be pointless. However, if you have any questions, we will be glad to discuss them with you." </s> After some discussion of the Company's right to enter a contract with a third party to do the work then being performed by employees in the bargaining unit, the meeting concluded with the understanding that the parties would meet again on July 30. </s> By July 30, the Company had selected Fluor Maintenance, Inc., to do the maintenance work. Fluor had assured the Company that maintenance costs could be curtailed by reducing the work force, decreasing fringe benefits and overtime payments, and by preplanning and scheduling the services to be performed. The contract provided that Fluor would: </s> "furnish all labor, supervision and office help required for the performance of maintenance work . . . at [379 U.S. 203, 207] the Emeryville plant of Owner as Owner shall from time to time assign to Contractor during the period of this contract; and shall also furnish such tools, supplies and equipment in connection therewith as Owner shall order from Contractor, it being understood however that Owner shall ordinarily do its own purchasing of tools, supplies and equipment." </s> The contract further provided that the Company would pay Fluor the costs of the operation plus a fixed fee of $2,250 per month. </s> At the July 30 meeting, the Company's representative, in explaining the decision to contract out the maintenance work, remarked that during bargaining negotiations in previous years the Company had endeavored to point out through the use of charts and statistical information "just how expensive and costly our maintenance work was and how it was creating quite a terrific burden upon the Emeryville plant." He further stated that unions representing other Company employees "had joined hands with management in an effort to bring about an economical and efficient operation," but "we had not been able to attain that in our discussions with this particular Local." The Company also distributed a letter stating that "since we will have no employees in the bargaining unit covered by our present Agreement, negotiation of a new or renewed Agreement would appear to us to be pointless." On July 31, the employment of the maintenance employees represented by the Union was terminated and Fluor employees took over. That evening the Union established a picket line at the Company's plant. </s> The Union filed unfair labor practice charges against the Company, alleging violations of 8 (a) (1), 8 (a) (3) and 8 (a) (5). After hearings were held upon a complaint issued by the National Labor Relations Board's Regional Director, the Trial Examiner filed an Intermediate [379 U.S. 203, 208] Report recommending dismissal of the complaint. The Board accepted the recommendation and dismissed the complaint. 130 N. L. R. B. 1558. </s> Petitions for reconsideration, filed by the General Counsel and the Union, were granted. Upon reconsideration, the Board adhered to the Trial Examiner's finding that the Company's motive in contracting out its maintenance work was economic rather than antiunion but found nonetheless that the Company's "failure to negotiate with . . . [the Union] concerning its decision to subcontract its maintenance work constituted a violation of Section 8 (a) (5) of the Act." 2 This ruling was based upon the doctrine established in Town & Country Mfg. Co., 136 N. L. R. B. 1022, 1027, enforcement granted, 316 F.2d 846 (C. A. 5th Cir. 1963), that contracting out work, "albeit for economic reasons, is a matter within the statutory phrase `other terms and conditions of employment' and is a mandatory subject of collective bargaining within the meaning of Section 8 (a) (5) of the Act." </s> The Board ordered the Company to reinstitute the maintenance operation previously performed by the employees represented by the Union, to reinstate the employees to their former or substantially equivalent positions with back pay computed from the date of the Board's supplemental decision, and to fulfill its statutory obligation to bargain. </s> On appeal, the Court of Appeals for the District of Columbia Circuit granted the Board's petition for enforcement. 116 U.S. App. D.C. 198, 322 F.2d 411. Because of the importance of the issues and because of an alleged [379 U.S. 203, 209] conflict among the courts of appeals, 3 we granted certiorari limited to a consideration of the following questions: </s> "1. Was Petitioner required by the National Labor Relations Act to bargain with a union representing some of its employees about whether to let to an independent contractor for legitimate business reasons the performance of certain operations in which those employees had been engaged? </s> "3. Was the Board, in a case involving only a refusal to bargain, empowered to order the resumption of operations which had been discontinued for legitimate business reasons and reinstatement with back pay of the individuals formerly employed therein?" </s> We agree with the Court of Appeals that, on the facts of this case, the "contracting out" of the work previously performed by members of an existing bargaining unit is a subject about which the National Labor Relations Act requires employers and the representatives of their employees to bargain collectively. We also agree with the Court of Appeals that the Board did not exceed its remedial powers in directing the Company to resume its maintenance operations, reinstate the employees with back pay, and bargain with the Union. </s> I. </s> Section 8 (a) (5) of the National Labor Relations Act provides that it shall be an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." Collective bargaining is defined in 8 (d) as </s> "the performance of the mutual obligation of the employer and the representative of the employees [379 U.S. 203, 210] to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." </s> "Read together, these provisions establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to `wages, hours, and other terms and conditions of employment . . . .' The duty is limited to those subjects, and within that area neither party is legally obligated to yield. Labor Board v. American Ins. Co., 343 U.S. 395 . As to other matters, however, each party is free to bargain or not to bargain . . . ." Labor Board v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349 . Because of the limited grant of certiorari, we are concerned here only with whether the subject upon which the employer allegedly refused to bargain - contracting out of plant maintenance work previously performed by employees in the bargaining unit, which the employees were capable of continuing to perform - is covered by the phrase "terms and conditions of employment" within the meaning of 8 (d). </s> The subject matter of the present dispute is well within the literal meaning of the phrase "terms and conditions of employment." See Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U.S. 330 . A stipulation with respect to the contracting out of work performed by members of the bargaining unit might appropriately be called a "condition of employment." The words even more plainly cover termination of employment which, as the facts of this case indicate, necessarily results from the contracting out of work performed by members of the established bargaining unit. </s> The inclusion of "contracting out" within the statutory scope of collective bargaining also seems well designed to effectuate the purposes of the National Labor Relations [379 U.S. 203, 211] Act. One of the primary purposes of the Act is to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation. 4 The Act was framed with an awareness that refusals to confer and negotiate had been one of the most prolific causes of industrial strife. Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42 -43. To hold, as the Board has done, that contracting out is a mandatory subject of collective bargaining would promote the fundamental purpose of the Act by bringing a problem of vital concern to labor and management within the framework established by Congress as most conducive to industrial peace. </s> The conclusion that "contracting out" is a statutory subject of collective bargaining is further reinforced by industrial practices in this country. While not determinative, it is appropriate to look to industrial bargaining practices in appraising the propriety of including a particular subject within the scope of mandatory bargaining. 5 Labor Board v. American Nat. Ins. Co., 343 U.S. 395, 408 . Industrial experience is not only reflective of the interests of labor and management in the subject matter but is also indicative of the amenability of such subjects to the collective bargaining process. Experience illustrates that contracting out in one form or another has been brought, widely and successfully, within the collective bargaining framework. 6 Provisions relating to contracting out exist in numerous collective bargaining [379 U.S. 203, 212] agreements, 7 and "[c]ontracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators," United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 584 . </s> The situation here is not unlike that presented in Local 24, Teamsters Union v. Oliver, 358 U.S. 283 , where we held that conditions imposed upon contracting out work to prevent possible curtailment of jobs and the undermining of conditions of employment for members of the bargaining unit constituted a statutory subject of collective bargaining. The issue in that case was whether state antitrust laws could be applied to a provision of a collective bargaining agreement which fixed the minimum rental to be paid by the employer motor carrier who leased vehicles to be driven by their owners rather than the carrier's employees. We held that the agreement was upon a subject matter as to which federal law directed the parties to bargain and hence that state antitrust laws could not be applied to prevent the effectuation of the agreement. We pointed out that the agreement was a </s> "direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the collective bargaining contract. The inadequacy of a rental which means that the owner makes up his excess costs from his driver's wages not only clearly bears a close relation to labor's efforts to improve working conditions but is in fact of vital concern to the carrier's employed drivers; an inadequate rental might mean the progressive curtailment [379 U.S. 203, 213] of jobs through withdrawal of more and more carrier-owned vehicles from service." Id., at 294. </s> Thus, we concluded that such a matter is a subject of mandatory bargaining under 8 (d). Id., at 294-295. The only difference between that case and the one at hand is that the work of the employees in the bargaining unit was let out piecemeal in Oliver, whereas here the work of the entire unit has been contracted out. In reaching the conclusion that the subject matter in Oliver was a mandatory subject of collective bargaining, we cited with approval Timken Roller Bearing Co., 70 N. L. R. B. 500, 518, enforcement denied on other grounds, 161 F.2d 949 (C. A. 6th Cir. 1947), where the Board in a situation factually similar to the present case held that 8 (a) (5) and 9 (a) required the employer to bargain about contracting out work then being performed by members of the bargaining unit. </s> The facts of the present case illustrate the propriety of submitting the dispute to collective negotiation. The Company's decision to contract out the maintenance work did not alter the Company's basic operation. The maintenance work still had to be performed in the plant. No capital investment was contemplated; the Company merely replaced existing employees with those of an independent contractor to do the same work under similar conditions of employment. Therefore, to require the employer to bargain about the matter would not significantly abridge his freedom to manage the business. </s> The Company was concerned with the high cost of its maintenance operation. It was induced to contract out the work by assurances from independent contractors that economies could be derived by reducing the work force, decreasing fringe benefits, and eliminating overtime payments. These have long been regarded as matters [379 U.S. 203, 214] peculiarly suitable for resolution within the collective bargaining framework, and industrial experience demonstrates that collective negotiation has been highly successful in achieving peaceful accommodation of the conflicting interests. Yet, it is contended that when an employer can effect cost savings in these respects by contracting the work out, there is no need to attempt to achieve similar economies through negotiation with existing employees or to provide them with an opportunity to negotiate a mutually acceptable alternative. The short answer is that, although it is not possible to say whether a satisfactory solution could be reached, national labor policy is founded upon the congressional determination that the chances are good enough to warrant subjecting such issues to the process of collective negotiation. </s> The appropriateness of the collective bargaining process for resolving such issues was apparently recognized by the Company. In explaining its decision to contract out the maintenance work, the Company pointed out that in the same plant other unions "had joined hands with management in an effort to bring about an economical and efficient operation," but "we had not been able to attain that in our discussions with this particular Local." Accordingly, based on past bargaining experience with this union, the Company unilaterally contracted out the work. While "the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position," Labor Board v. American Nat. Ins. Co., 343 U.S. 395, 404 , it at least demands that the issue be submitted to the mediatory influence of collective negotiations. As the Court of Appeals pointed out, "[i]t is not necessary that it be likely or probable that the union will yield or supply a feasible solution but rather that the union be afforded an opportunity to meet management's legitimate complaints that its maintenance was unduly costly." [379 U.S. 203, 215] </s> We are thus not expanding the scope of mandatory bargaining to hold, as we do now, that the type of "contracting out" involved in this case - the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment - is a statutory subject of collective bargaining under 8 (d). Our decision need not and does not encompass other forms of "contracting out" or "subcontracting" which arise daily in our complex economy. 8 </s> II. </s> The only question remaining is whether, upon a finding that the Company had refused to bargain about a matter which is a statutory subject of collective bargaining, the Board was empowered to order the resumption of maintenance operations and reinstatement with back pay. We believe that it was so empowered. </s> Section 10 (c) provides that the Board, upon a finding that an unfair labor practice has been committed, </s> "shall issue . . . an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act . . . ." 9 </s> [379 U.S. 203, 216] </s> That section "charges the Board with the task of devising remedies to effectuate the policies of the Act." Labor Board v. Seven-Up Bottling Co., 344 U.S. 344, 346 . The Board's power is a broad discretionary one, subject to limited judicial review. Ibid. "[T]he relation of remedy to policy is peculiarly a matter for administrative competence . . . ." Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 194 . "In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience." Labor Board v. Seven-Up Bottling Co., 344 U.S. 344, 346 . The Board's order will not be disturbed "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Virginia Elec. & Power Co. v. Labor Board, 319 U.S. 533, 540 . Such a showing has not been made in this case. </s> There has been no showing that the Board's order restoring the status quo ante to insure meaningful bargaining is not well designed to promote the policies of the Act. Nor is there evidence which would justify disturbing the Board's conclusion that the order would not impose an undue or unfair burden on the Company. 10 </s> [379 U.S. 203, 217] </s> It is argued, nonetheless, that the award exceeds the Board's powers under 10 (c) in that it infringes the provision that "[n]o order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. . . ." The legislative history of that provision indicates that it was designed to preclude the Board from reinstating an individual who had been discharged because of misconduct. 11 There is no indication, however, that it was designed to curtail the Board's power in fashioning remedies when the loss of employment stems directly from an unfair labor practice as in the case at hand. </s> The judgment of the Court of Appeals is </s> Affirmed. </s> MR. JUSTICE GOLDBERG took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 The relevant provisions of the National Labor Relations Act, as amended, are: </s> "SEC. 8. (a) It shall be an unfair labor practice for an employer - </s> . . . . . </s> "(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a). . . . </s> . . . . . </s> "(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms [379 U.S. 203, 205] and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession . . . . </s> . . . . . </s> "SEC. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . . ." </s> [Footnote 2 The Board did not disturb its original holding that the Company had not violated 8 (a) (1) or 8 (a) (3), or its holding that the Company had satisfied its obligation to bargain about termination pay. </s> [Footnote 3 Labor Board v. Adams Dairy, Inc., 322 F.2d 553 (C. A. 8th Cir. 1963), post, p. 644. </s> [Footnote 4 See declaration of policy set forth in 1 and 101 of the Labor-Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. 141, 151 (1958 ed.). </s> [Footnote 5 See Cox and Dunlop, Regulation of Collective Bargaining by the National Labor Relations Board, 63 Harv. L. Rev. 389, 405-406 (1950). </s> [Footnote 6 See Lunden, Subcontracting Clauses in Major Contracts, Pts. 1, 2, 84 Monthly Lab. Rev. 579, 715 (1961). </s> [Footnote 7 A Department of Labor study analyzed 1,687 collective bargaining agreements, which applied to approximately 7,500,000 workers (about one-half of the estimated work force covered by collective bargaining agreements). Among the agreements studied, approximately one-fourth (378) contained some form of a limitation on subcontracting. Lunden, supra, at 581. </s> [Footnote 8 As the Solicitor General points out, the terms "contracting out" and "subcontracting" have no precise meaning. They are used to describe a variety of business arrangements altogether different from that involved in this case. For a discussion of the various types of "contracting out" or "subcontracting" arrangements, see Brief for Respondent, pp. 13-17; Brief for Electronic Industries Association as amicus curiae, pp. 5-10. </s> [Footnote 9 Section 10 (c) provides in pertinent part: "If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person [379 U.S. 203, 216] an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act . . . . No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. . . ." </s> [Footnote 10 The Board stated: "We do not believe that requirement [restoring the status quo ante] imposes an undue or unfair burden on Respondent. The record shows that the maintenance operation is still being performed in much the same manner as it was prior to the subcontracting arrangement. Respondent has a continuing need for the services of maintenance employees; and Respondent's subcontract is terminable at any time upon 60 days' notice." 138 N. L. R. B., at 555, n. 19. </s> [Footnote 11 The House Report states that the provision was "intended to put an end to the belief, now widely held and certainly justified by the Board's decisions, that engaging in union activities carries with it a license to loaf, wander about the plants, refuse to work, waste time, break rules, and engage in incivilities and other disorders and misconduct." H. R. Rep. No. 245, 80th Cong., 1st Sess., 42 (1947). The Conference Report notes that under 10 (c) "employees who are discharged or suspended for interfering with other employees at work, whether or not in order to transact union business, or for engaging in activities, whether or not union activities, contrary to shop rules, or for Communist activities, or for other cause [interfering with war production] . . . will not be entitled to reinstatement." H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 55 (1947). </s> MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE HARLAN join, concurring. </s> Viewed broadly, the question before us stirs large issues. The Court purports to limit its decision to "the [379 U.S. 203, 218] facts of this case." But the Court's opinion radiates implications of such disturbing breadth that I am persuaded to file this separate statement of my own views. </s> Section 8 (a) (5) of the National Labor Relations Act, as amended, makes it an unfair labor practice for an employer to "refuse to bargain collectively with the representatives of his employees." Collective bargaining is defined in 8 (d) as: </s> "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." </s> The question posed is whether the particular decision sought to be made unilaterally by the employer in this case is a subject of mandatory collective bargaining within the statutory phrase "terms and conditions of employment." That is all the Court decides. 1 The Court most assuredly does not decide that every managerial decision which necessarily terminates an individual's employment is subject to the duty to bargain. Nor does the Court decide that subcontracting decisions are as a general matter subject to that duty. The Court holds no more than that this employer's decision to subcontract this work, involving "the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment," is subject to the duty to bargain collectively. Within the narrow limitations implicit in the specific facts of this case, I agree with the Court's decision. </s> Fibreboard had performed its maintenance work at its Emeryville manufacturing plant through its own employees, [379 U.S. 203, 219] who were represented by a local of the United Steelworkers. Estimating that some $225,000 could be saved annually by dispensing with internal maintenance, the company contracted out this work, informing the union that there would be no point in negotiating a new contract since the employees in the bargaining unit had been replaced by employees of the independent contractor, Fluor. Maintenance work continued to be performed within the plant, with the work ultimately supervised by the company's officials and "functioning as an integral part" of the company. Fluor was paid the cost of operations plus $2,250 monthly. The savings in costs anticipated from the arrangement derived largely from the elimination of fringe benefits, adjustments in work scheduling, enforcement of stricter work quotas, and close supervision of the new personnel. Under the cost-plus arrangement, Fibreboard remained responsible for whatever maintenance costs were actually incurred. On these facts, I would agree that the employer had a duty to bargain collectively concerning the replacement of his internal maintenance staff by employees of the independent contractor. </s> The basic question is whether the employer failed to "confer in good faith with respect to . . . terms and conditions of employment" in unilaterally deciding to subcontract this work. This question goes to the scope of the employer's duty in the absence of a collective bargaining agreement. 2 It is true, as the Court's opinion [379 U.S. 203, 220] points out, that industrial experience may be useful in determining the proper scope of the duty to bargain. See Labor Board v. American Nat. Ins. Co., 343 U.S. 395, 408 . But data showing that many labor contracts refer to subcontracting or that subcontracting grievances are frequently referred to arbitrators under collective bargaining agreements, while not wholly irrelevant, do not have much real bearing, for such data may indicate no more than that the parties have often considered it mutually advantageous to bargain over these issues on a permissive basis. In any event, the ultimate question is the scope of the duty to bargain defined by the statutory language. </s> It is important to note that the words of the statute are words of limitation. The National Labor Relations Act does not say that the employer and employees are bound to confer upon any subject which interests either of them; the specification of wages, hours, and other terms and conditions of employment defines a limited category of issues subject to compulsory bargaining. The limiting purpose of the statute's language is made clear by the legislative history of the present Act. As originally passed, the Wagner Act contained no definition of the duty to bargain collectively. 3 In the 1947 revision of the Act, the House bill contained a detailed but limited list of subjects of the duty to bargain, excluding all others. 4 In conference the present language was substituted for the House's detailed specification. While the language thus incorporated in the 1947 legislation as [379 U.S. 203, 221] enacted is not so stringent as that contained in the House bill, it nonetheless adopts the same basic approach in seeking to define a limited class of bargainable issues. 5 </s> The phrase "conditions of employment" is no doubt susceptible of diverse interpretations. At the extreme, the phrase could be construed to apply to any subject which is insisted upon as a prerequisite for continued employment. Such an interpretation, which would in effect place the compulsion of the Board behind any and all bargaining demands, would be contrary to the intent of Congress, as reflected in this legislative history. Yet there are passages in the Court's opinion today which suggest just such an expansive interpretation, for the Court's opinion seems to imply that any issue which may reasonably divide an employer and his employees must be the subject of compulsory collective bargaining. 6 </s> Only a narrower concept of "conditions of employment" will serve the statutory purpose of delineating a limited category of issues which are subject to the duty to bargain collectively. Seeking to effect this purpose, at least seven circuits have interpreted the statutory language to exclude various kinds of management decisions from the [379 U.S. 203, 222] scope of the duty to bargain. 7 In common parlance, the conditions of a person's employment are most obviously the various physical dimensions of his working environment. What one's hours are to be, what amount of work is expected during those hours, what periods of relief are available, what safety practices are observed, would all seem conditions of one's employment. There are other less tangible but no less important characteristics of a person's employment which might also be deemed "conditions" - most prominently the characteristic involved in this case, the security of one's employment. On one view of the matter, it can be argued that the question whether there is to be a job is not a condition of employment; the question is not one of imposing conditions on employment, but the more fundamental question whether there is to be employment at all. However, it is clear that the Board and the courts have on numerous occasions recognized that union demands for provisions limiting an employer's power to discharge employees are mandatorily bargainable. Thus, freedom from discriminatory discharge, 8 seniority rights, 9 the imposition of a compulsory retirement age, 10 have been recognized as subjects upon which an employer must bargain, although all of these concern the very existence of the employment itself. [379 U.S. 203, 223] </s> While employment security has thus properly been recognized in various circumstances as a condition of employment, it surely does not follow that every decision which may affect job security is a subject of compulsory collective bargaining. Many decisions made by management affect the job security of employees. Decisions concerning the volume and kind of advertising expenditures, product design, the manner of financing, and sales, all may bear upon the security of the workers' jobs. Yet it is hardly conceivable that such decisions so involve "conditions of employment" that they must be negotiated with the employees' bargaining representative. </s> In many of these areas the impact of a particular management decision upon job security may be extremely indirect and uncertain, and this alone may be sufficient reason to conclude that such decisions are not "with respect to . . . conditions of employment." Yet there are other areas where decisions by management may quite clearly imperil job security, or indeed terminate employment entirely. An enterprise may decide to invest in labor-saving machinery. Another may resolve to liquidate its assets and go out of business. Nothing the Court holds today should be understood as imposing a duty to bargain collectively regarding such managerial decisions, which lie at the core of entrepreneurial control. Decisions concerning the commitment of investment capital and the basic scope of the enterprise are not in themselves primarily about conditions of employment, though the effect of the decision may be necessarily to terminate employment. If, as I think clear, the purpose of 8 (d) is to describe a limited area subject to the duty of collective bargaining, those management decisions which are fundamental to the basic direction of a corporate enterprise or which impinge only indirectly upon employment security should be excluded from that area. [379 U.S. 203, 224] </s> Applying these concepts to the case at hand, I do not believe that an employer's subcontracting practices are, as a general matter, in themselves conditions of employment. Upon any definition of the statutory terms short of the most expansive, such practices are not conditions - tangible or intangible - of any person's employment. 11 The question remains whether this particular kind of subcontracting decision comes within the employer's duty to bargain. On the facts of this case, I join the Court's judgment, because all that is involved is the substitution of one group of workers for another to perform the same task in the same plant under the ultimate control of the same employer. The question whether the employer may discharge one group of workers and substitute another for them is closely analogous to many other situations within the traditional framework of collective bargaining. Compulsory retirement, layoffs according to seniority, assignment of work among potentially eligible groups within the plant - all involve similar questions of discharge and work assignment, and all have been recognized as subjects of compulsory collective bargaining. 12 </s> Analytically, this case is not far from that which would be presented if the employer had merely discharged all its employees and replaced them with other workers willing to work on the same job in the same plant without the various fringe benefits so costly to the company. While such a situation might well be considered a 8 (a) (3) violation upon a finding that the employer discriminated against the discharged employees because of [379 U.S. 203, 225] their union affiliation, it would be equally possible to regard the employer's action as a unilateral act frustrating negotiation on the underlying questions of work scheduling and remuneration, and so an evasion of its duty to bargain on these questions, which are concededly subject to compulsory collective bargaining. 13 Similarly, had the employer in this case chosen to bargain with the union about the proposed subcontract, negotiations would have inevitably turned to the underlying questions of cost, which prompted the subcontracting. Insofar as the employer frustrated collective bargaining with respect to these concededly bargaining issues by its unilateral act of subcontracting this work, it can properly be found to have violated its statutory duty under 8 (a) (5). </s> This kind of subcontracting falls short of such larger entrepreneurial questions as what shall be produced, how capital shall be invested in fixed assets, or what the basic scope of the enterprise shall be. In my view, the Court's decision in this case has nothing to do with whether any aspects of those larger issues could under any circumstances be considered subjects of compulsory collective bargaining under the present law. </s> I am fully aware that in this era of automation and onrushing technological change, no problems in the domestic economy are of greater concern than those involving job security and employment stability. Because of the potentially cruel impact upon the lives and fortunes of the working men and women of the Nation, these problems have understandably engaged the solicitous attention of government, of responsible private business, and particularly of organized labor. It is possible that in meeting these problems Congress may eventually decide to give organized labor or government a far heavier hand [379 U.S. 203, 226] in controlling what until now have been considered the prerogatives of private business management. That path would mark a sharp departure from the traditional principles of a free enterprise economy. Whether we should follow it is, within constitutional limitations, for Congress to choose. But it is a path which Congress certainly did not choose when it enacted the Taft-Hartley Act. </s> [Footnote 1 Except for the quite separate remedy issue discussed in Part II of the Court's opinion. </s> [Footnote 2 There was a time when one might have taken the view that the National Labor Relations Act gave the Board and the courts no power to determine the subjects about which the parties must bargain - a view expressed by Senator Walsh when he said that public concern ends at the bargaining room door. 79 Cong. Rec. 7659 (1935). See Cox and Dunlop, Regulation of Collective Bargaining by the National Labor Relations Board, 63 Harv. L. Rev. 389. But too much law has been built upon a contrary assumption for this view any longer to prevail, and I question neither the power of the Court to decide this issue nor the propriety of its doing so. </s> [Footnote 3 However, it did recognize that the party designated by a majority of employees in a bargaining unit shall be their exclusive representative "for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment." 9 (a). </s> [Footnote 4 H. R. 3020, 80th Cong., 1st Sess., 2 (11) (B) (vi) (1947), in I Legislative History of the Labor Management Relations Act, 1947, at 166-167 (1948). (Hereinafter LMRA.) </s> [Footnote 5 The conference report accompanying the bill said that although this section "did not prescribe a purely objective test of what constituted collective bargaining, as did the House bill, [it] had to a very substantial extent the same effect . . . ." I LMRA 538. Though this statement refers to the entire section, it is clear from the context that the focus of attention was upon the procedures of collective bargaining rather than its scope. </s> [Footnote 6 The opinion of the Court seems to assume that the only alternative to compulsory collective bargaining is unremitting economic warfare. But to exclude subjects from the ambit of compulsory collective bargaining does not preclude the parties from seeking negotiations about them on a permissive basis. And there are limitations upon the use of economic force to compel concession upon subjects which are only permissively bargainable. Labor Board v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 . </s> [Footnote 7 Labor Board v. Adams Dairy, 322 F.2d 553 (C. A. 8th Cir. 1963); Labor Board v. New England Web, 309 F.2d 696 (C. A. 1st Cir. 1962); Labor Board v. Rapid Bindery, 293 F.2d 170 (C. A. 2d Cir. 1961); Jays Foods v. Labor Board, 292 F.2d 317 (C. A. 7th Cir. 1961); Labor Board v. Lassing, 284 F.2d 781 (C. A. 6th Cir. 1960); Mount Hope Finishing Co. v. Labor Board, 211 F.2d 365 (C. A. 4th Cir. 1954); Labor Board v. Houston Chronicle, 211 F.2d 848 (C. A. 5th Cir. 1954). </s> [Footnote 8 Labor Board v. Bachelder, 120 F.2d 574 (C. A. 7th Cir. 1941). See also National Licorice Co. v. Labor Board, 309 U.S. 350 . </s> [Footnote 9 Labor Board v. Westinghouse Air Brake Co., 120 F.2d 1004 (C. A. 3d Cir. 1941). </s> [Footnote 10 Inland Steel Co. v. Labor Board, 170 F.2d 247 (C. A. 7th Cir. 1948). </s> [Footnote 11 At least four circuits have held that subcontracting decisions are not subject to the duty to bargain. Labor Board v. Adams Dairy, 322 F.2d 553 (C. A. 8th Cir. 1963); Jays Foods v. Labor Board, 292 F.2d 317 (C. A. 7th Cir. 1961); Labor Board v. Lassing, 284 F.2d 781 (C. A. 6th Cir. 1960); Labor Board v. Houston Chronicle, 211 F.2d 848 (C. A. 5th Cir. 1954). </s> [Footnote 12 See notes 7, 8, and 9, supra. </s> [Footnote 13 Labor Board v. United States Air Conditioning Corp., 302 F.2d 280 (C. A. 1st Cir. 1962); Labor Board v. Tak Trak, Inc., 293 F.2d 270 (C. A. 9th Cir. 1961). Cf. Labor Board v. Katz, 369 U.S. 736 . </s> [379 U.S. 203, 227]

United States Supreme Court RUSSELL v. UNITED STATES(1962) No. 10 Argued: December 7, 1961Decided: May 21, 1962 </s> [Footnote * Together with No. 9, Shelton v. United States, argued December 6-7, 1961; No. 10, Whitman v. United States, argued December 7, 11, 1961; No. 11, Liveright v. United States, argued December 11, 1961; No. 12, Price v. United States, argued December 11, 1961; and No. 128, Gojack v. United States, argued December 11-12, 1961, also on certiorari to the same Court. </s> The petitioners in these six cases were convicted of violating 2 U.S.C. 192, which makes it a misdemeanor for any person summoned to testify before a committee of Congress to refuse to answer "any question pertinent to the question under inquiry." In each case the indictment returned by the grand jury stated that the questions to which answers were refused "were pertinent to the question then under inquiry" by the subcommittee; but it failed to identify the subject under subcommittee inquiry when the witness was interrogated. In each case a motion was filed to quash the indictment before trial for failure to state the subject under inquiry; but in each case the motion was denied and the issue thus raised was preserved and properly presented in this Court. Held: The grand jury indictment required by 2 U.S.C. 194 as a prerequisite to a prosecution for a violation of 192 must state the question which was under inquiry at the time of the defendant's alleged default or refusal to answer, as found by the grand jury; and the judgment affirming the conviction of each of the petitioners is reversed. Pp. 751-772. </s> (a) The Congress which originally enacted in 1857 the law which was a predecessor of 2 U.S.C. 192 was expressly aware that pertinency to the subject under inquiry was the basic preliminary question which the federal courts would have to decide in determining whether a violation of the statute had been alleged or proved. Pp. 756-758. [369 U.S. 749, 750] </s> (b) Many decisions of this Court arising under 2 U.S.C. 192 have recognized the crucial importance of determining the issue of pertinency; and the obvious first step in determining whether the questions asked were pertinent to the subject under inquiry is to ascertain what that subject was. Pp. 758-760. </s> (c) While convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused, the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules. Pp. 760-763. </s> (d) Omission from the indictments here involved of statements of the subject under inquiry deprived the defendants of one of the significant protections which the guaranty of a grand jury indictment was intended to confer - i. e., they failed adequately to apprise the defendants of what they must be prepared to meet. Pp. 763-768. </s> (e) These indictments were also insufficient to serve the corollary purpose of enabling the courts to decide whether the facts alleged were sufficient in law to support convictions. Pp. 768-769. </s> (f) The deficiencies in these indictments could not have been cured by bills of particulars, because under 2 U.S.C. 194 only a grand jury may determine whether a person should be held to answer in a criminal trial for refusing to give testimony pertinent to a question under congressional committee inquiry, and the grand jury itself must necessarily determine what the question under inquiry was. Pp. 769-771. </s> 108 U.S. App. D.C. 140, 280 F.2d 688; 108 U.S. App. D.C. 153, 280 F.2d 701; 108 U.S. App. D.C. 226, 281 F.2d 59; 108 U.S. App. D.C. 160, 280 F.2d 708; 108 U.S. App. D.C. 167, 280 F.2d 715; 108 U.S. App. D.C. 130, 280 F.2d 678, reversed. </s> Joseph A. Fanelli argued the cause for petitioner in No. 8. With him on the briefs was Benedict P. Cottone. </s> Joseph L. Rauh, Jr. argued the cause for petitioner in No. 9. With him on the briefs was John Silard. </s> Gerhard P. Van Arkel argued the cause for petitioner in No. 10. With him on the briefs was George Kaufman. [369 U.S. 749, 751] </s> Harry I. Rand argued the cause for petitioner in No. 11. With him on the briefs was Leonard B. Boudin. </s> Leonard B. Boudin argued the cause for petitioner in No. 12. With him on the briefs was Harry I. Rand. </s> Frank J. Donner argued the cause for petitioner in No. 128. With him on the brief was David Rein. </s> Kevin T. Maroney argued the causes for the United States in Nos. 8 and 128. With him on the briefs were Solicitor General Cox, Assistant Attorney General Yeagley, Bruce J. Terris and (in No. 128) Doris Spangenburg. </s> Bruce J. Terris argued the cause for the United States in No. 9. With him on the briefs were Solicitor General Cox, Assistant Attorney General Yeagley and Kevin T. Maroney. </s> J. William Doolittle argued the cause for the United States in Nos. 10, 11 and 12. On the briefs were Solicitor General Cox, Assistant Attorney General Yeagley, Bruce J. Terris, Kevin T. Maroney and Lee B. Anderson. </s> Nanette Dembitz filed a brief for New York Civil Liberties Union, as amicus curiae, urging reversal in No. 10. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> In these six cases we review judgments of the Court of Appeals for the District of Columbia, 1 which affirmed convictions obtained in the District Court under 2 U.S.C. 192. 2 </s> [369 U.S. 749, 752] Each of the petitioners was convicted for refusing to answer certain questions when summoned before a congressional subcommittee. 3 The cases were separately briefed and argued here, and many issues were presented. We decide each case upon a single ground common to all, and we therefore reach no other questions. </s> In each case the indictment returned by the grand jury failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated. The indictments were practically identical in this respect, stating only that the questions to which answers were refused "were pertinent to the question then under inquiry" by the subcommittee. 4 In each case a motion [369 U.S. 749, 753] was filed to quash the indictment before trial upon the ground that the indictment failed to state the subject under investigation at the time of the subcommittee's interrogation of the defendant. 5 In each case the motion was denied. In each case the issue thus raised was preserved on appeal, in the petition for writ of certiorari, and in brief and argument here. </s> Congress has expressly provided that no one can be prosecuted under 2 U.S.C. 192 except upon indictment by a grand jury. 6 This Court has never decided whether [369 U.S. 749, 754] the indictment must identify the subject which was under inquiry at the time of the defendant's alleged default or refusal to answer. 7 For the reasons that follow, we hold [369 U.S. 749, 755] that the indictment must contain such an averment, and we accordingly reverse the judgments before us. </s> In enacting the criminal statute under which these petitioners were convicted Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct. Watkins v. United States, 354 U.S. 178, 207 . The obvious consequence, as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases. Sinclair v. United States, 279 U.S. 263, 296 -297; Watkins v. United States, supra, at 208; Sacher v. United States, 356 U.S. 576, 577 ; Flaxer v. United States, 358 U.S. 147, 151 ; Deutch v. United States, 367 U.S. 456, 471 . </s> Recognizing this elementary concept, the Sinclair case established several propositions which provide a relevant starting point here. First, there can be criminality under the statute only if the question which the witness refused to answer pertained to a subject then under investigation by the congressional body which summoned him. "[A] witness rightfully may refuse to answer where . . . the questions asked are not pertinent to the matter under inquiry." Sinclair v. United States, supra, at 292. Secondly, because the defendant is presumed to be innocent, it is "incumbent upon the United States to plead and show that the question [he refused to answer] pertained to some matter under investigation." Id., at 296-297. Finally, Sinclair held that the question of [369 U.S. 749, 756] pertinency is one for determination by the court as a matter of law. Id., at 298. </s> In that case the Court had before it an indictment which set out in specific and lengthy detail the subject under investigation by the Senate Committee which had summoned Sinclair. The Court was thereby enabled to make an enlightened and precise determination that the question he had refused to answer was pertinent to that subject. Id., at 285-289, 296-298. </s> That the making of such a determination would be a vital function of the federal judiciary in a prosecution brought under 2 U.S.C. 192 was clearly foreseen by the Congress which originally enacted the law in 1857. 8 Congress not only provided that a person could be prosecuted only upon an indictment by a grand jury, but, as the record of the legislative debates shows, Congress was expressly aware that pertinency to the subject under inquiry was the basic preliminary question which the federal courts were going to have to decide in determining [369 U.S. 749, 757] whether a criminal offense had been alleged or proved. The principal spokesman for the bill, Senator Bayard, repeatedly made this very point: </s> "The bill provides for punishing a witness who shall refuse to answer any question `pertinent' to the matter of inquiry under consideration before the House or its committee. If he refuses to answer an irrelevant question, he is not subject to the penalties of the bill. The question must be pertinent to the subject-matter, and that will have to be decided by the courts of justice on the indictment. That power is not given to Congress; it is given appropriately to the judiciary." Cong. Globe, 34th Cong., 3d Sess. 439 (1857). </s> . . . . . </s> "This law does not propose to give to this miscellaneous political body the power of punishment; but one of its greatest recommendations is, that it transfers that power of punishment to a court of justice after judicial inquiry. All that is to be done in the case of a refusal to testify is to certify the fact to the district attorney, who is to lay it before the grand jury, and if the party is indicted he is bound to answer according to the terms of the law, as any other person would for an offense against the laws of the land. . . . I am aware that legislative bodies have transcended their powers - that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government; but if our institutions are to last, there can be no greater safeguard than will result from transferring that which now stands on an indefinite power (the punishment as well as the offense resting [369 U.S. 749, 758] in the breast of either House) from Congress to the courts of justice. When a case of this kind comes before a court, will not the first inquiry be, have Congress jurisdiction of the subject-matter? - has the House which undertakes to inquire, jurisdiction of the subject? If they have not, the whole proceedings are coram non judice and void, and the party cannot be held liable under indictment. The Court would quash the indictment if this fact appeared on its face; and if it appeared on the trial they would direct the jury to acquit." Cong. Globe, 34th Cong., 3d Sess. 440 (1857). </s> . . . . . </s> ". . . The law prescribes that, in case of such refusal, the House shall certify the fact to the district attorney, and he shall bring the matter before the grand jury. When that comes up by indictment before the court, must not the court decide whether the question put was pertinent to the inquiry? Of course they must; and they cannot hold the party guilty without doing it." Cong. Globe, 34th Cong., 3d Sess. 440 (1857). </s> These forecasts of the office which the federal courts would be called upon to perform under 2 U.S.C. 192 have been amply borne out by the cases which have arisen under the statute. The crucial importance of determining the issue of pertinency is reflected in many cases which have come here since Sinclair, supra. Watkins v. United States, 354 U.S. 178, 208 ; Sacher v. United States, 356 U.S. 576, 577 ; Barenblatt v. United States, 360 U.S. 109, 123 -125; Wilkinson v. United States, 365 U.S. 399, 407 -409, 413; Braden v. United States, 365 U.S. 431, 435 -436; Deutch v. United States, 367 U.S. 456, 467 -471. Our decisions have pointed out that the obvious first step in determining whether the questions asked were pertinent [369 U.S. 749, 759] to the subject under inquiry is to ascertain what that subject was. See, e. g., Deutch v. United States, supra, at 469. Identification of the subject under inquiry is also an essential preliminary to the determination of a host of other issues which typically arise in prosecutions under the statute. In Wilkinson v. United States, supra, for example, the Court pointed out that in order properly to consider any of the many issues there presented, "the starting point must be to determine the subject matter of the subcommittee's inquiry." 365 U.S., at 407 . </s> Where, as in the Sinclair case, the subject under inquiry has been identified in the indictment, this essential first step has presented no problem. Where, as in the more recent cases, the indictment has not identified the topic under inquiry, the Court has often found it difficult or impossible to ascertain what the subject was. The difficulty of such a determination in the absence of an allegation in the indictment is illustrated by Deutch v. United States, supra. In that case the members of this Court were in sharp disagreement as to what the subject under subcommittee inquiry had been. Moreover, all of us disagreed with the District Court's theory, and the Court of Appeals had not even ventured a view on the question. 367 U.S., at 467 . In Watkins v. United States, supra, the Court found it not merely difficult, but actually impossible, to determine what the topic under subcommittee inquiry had been at the time the petitioner had refused to answer the questions addressed to him. "Having exhausted the several possible indicia of the `question under inquiry,' we remain unenlightened as to the subject to which the questions asked petitioner were pertinent." 354 U.S., at 214 . 9 </s> [369 U.S. 749, 760] </s> To be sure, the fact that difficulties and doubts have beset the federal courts in trying to ascertain the subject under inquiry in cases arising under 2 U.S.C. 192 could hardly justify, in the abstract, a requirement that indictments under the statute contain averments which would simplify the courts' task. Difficult and doubtful questions are inherent in the judicial process, particularly under a system of criminal law which places heavy emphasis upon the protection of the rights and liberties of the individual. Courts sit to resolve just such questions, and rules of law are not to be made merely to suit judicial convenience. But a proliferation of doubtful issues which not only burden the judiciary, but, because of uncertainties inherent in their resolution, work a hardship upon both the prosecution and the defense in criminal cases, is hardly a desideratum. And the repeated appearance in prosecutions under a particular criminal statute of the same critical and difficult question, which could be obviated by a simple averment in the indictment, invites inquiry into the purposes and functions which a grand jury indictment is intended to serve. The cases we have discussed, therefore, furnish an appropriate background for the inquiry to which we now turn. </s> Any discussion of the purpose served by a grand jury indictment in the administration of federal criminal law must begin with the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . ." We need not pause [369 U.S. 749, 761] to consider whether an offense under 2 U.S.C. 192 is an "infamous crime," Duke v. United States, 301 U.S. 492 , since Congress has from the beginning explicitly conferred upon those prosecuted under the statute the protection which the Fifth Amendment confers, by providing that no one can be prosecuted for this offense except upon an indictment by a grand jury. This specific guaranty, as well as the Fifth Amendment's Due Process Clause, are, therefore, both brought to bear here. Of like relevance is the guaranty of the Sixth Amendment that "In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; . . ." </s> The constitutional provision that a trial may be held in a serious federal criminal case only if a grand jury has first intervened reflects centuries of antecedent development of common law, going back to the Assize of Clarendon in 1166. 10 "The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes." Costello v. United States, 350 U.S. 359, 362 . See McClintock, Indictment by a Grand Jury, 26 Minn. L. Rev. 153; Orfield, Criminal Procedure from Arrest to Appeal, 137-140, 144-146. </s> For many years the federal courts were guided in their judgments concerning the construction and sufficiency of grand jury indictments by the common law alone. Not until 1872 did Congress enact general legislation touching [369 U.S. 749, 762] upon the subject. In that year a statute was enacted which reflected the drift of the law away from the rules of technical and formalized pleading which had characterized an earlier era. The 1872 statute provided that "no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." 17 Stat. 198. This legislation has now been repealed, but its substance is preserved in the more generalized provision of Rule 52 (a) of the Federal Rules of Criminal Procedure, which states that "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." 11 </s> There was apparently no other legislation dealing with the subject of indictments generally until the promulgation of Rule 7 (c), Fed. Rules Crim. Proc., in 1946. The Rule provides: </s> "The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information [369 U.S. 749, 763] shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice." </s> As we have elsewhere noted, "This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. [Citing cases.] This has been a salutary development in the criminal law." Smith v. United States, 360 U.S. 1, 9 . "But," as the Smith opinion went on to point out, "the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules." Ibid. Resolution of the issue presented in the cases before us thus ultimately depends upon the nature of "the substantial safeguards" to a criminal defendant which an indictment is designed to provide. Stated concretely, does the omission from an indictment under 2 U.S.C. 192 of the subject under congressional committee inquiry amount to no more than a technical deficiency of no prejudice to the defendant? Or does such an omission deprive the defendant of one of the significant protections which the guaranty of a grand jury indictment was intended to confer? </s> In a number of cases the Court has emphasized two of the protections which an indictment is intended to guarantee, reflected by two of the criteria by which the sufficiency of an indictment is to be measured. These criteria are, first, whether the indictment "contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet,'" [369 U.S. 749, 764] and, secondly, "`in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290 ; Rosen v. United States, 161 U.S. 29, 34 ." Hagner v. United States, 285 U.S. 427, 431 . See Potter v. United States, 155 U.S. 438, 445 ; Bartell v. United States, 227 U.S. 427, 431 ; Berger v. United States, 295 U.S. 78, 82 ; United States v. Debrow, 346 U.S. 374, 377 -378. </s> Without doubt the second of these preliminary criteria was sufficiently met by the indictments in these cases. Since the indictments set out not only the times and places of the hearings at which the petitioners refused to testify, but also specified the precise questions which they then and there refused to answer, it can hardly be doubted that the petitioners would be fully protected from again being put in jeopardy for the same offense, particularly when it is remembered that they could rely upon other parts of the present record in the event that future proceedings should be taken against them. See McClintock, Indictment by a Grand Jury, 26 Minn. L. Rev. 153, 160; Bartell v. United States, 227 U.S. 427, 433 . The vice of these indictments, rather, is that they failed to satisfy the first essential criterion by which the sufficiency of an indictment is to be tested, i. e., that they failed to sufficiently apprise the defendant "of what he must be prepared to meet." </s> As has been pointed out, the very core of criminality under 2 U.S.C. 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute. [369 U.S. 749, 765] </s> "It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, `includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, - it must descend to particulars.'" United States v. Cruikshank, 92 U.S. 542, 558 . An indictment not framed to apprise the defendant "with reasonable certainty, of the nature of the accusation against him . . . is defective, although it may follow the language of the statute." United States v. Simmons, 96 U.S. 360, 362 . "In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; . . ." United States v. Carll, 105 U.S. 611, 612 . "Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." United States v. Hess, 124 U.S. 483, 487 . See also Pettibone v. United States, 148 U.S. 197, 202 -204; Blitz v. United States, 153 U.S. 308, 315 ; Keck v. United States, 172 U.S. 434, 437 ; Morissette v. United States, 342 U.S. 246, 270 , n. 30. Cf. United States v. Petrillo, 332 U.S. 1, 10 -11. 12 That these basic principles of fundamental [369 U.S. 749, 766] fairness retain their full vitality under modern concepts of pleading, and specifically under Rule 7 (c) of the Federal Rules of Criminal Procedure, is illustrated by many recent federal decisions. 13 </s> The vice which inheres in the failure of an indictment under 2 U.S.C. 192 to identify the subject under inquiry is thus the violation of the basic principle "that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, . . ." United States v. Simmons, supra, at 362. A cryptic form of indictment in cases of this kind requires the defendant to go to trial with the chief issue undefined. It enables his conviction to rest on one point and the affirmance of the conviction to rest on another. It gives the prosecution free hand on appeal to fill in the gaps of proof by surmise or conjecture. The Court has had occasion before now to condemn just such a practice in a quite different factual setting. Cole v. Arkansas, 333 U.S. 196, 201 -202. And the unfairness and uncertainty which have characteristically infected criminal proceedings under this statute which were based upon indictments which failed to specify the subject under inquiry are illustrated by the cases in this Court we have already discussed. The same uncertainty and unfairness are underscored by the records of the cases now before us. A single example will suffice to illustrate the point. </s> In No. 12, Price v. United States, the petitioner refused to answer a number of questions put to him by the Internal [369 U.S. 749, 767] Security Subcommittee of the Senate Judiciary Committee. At the beginning of the hearing in question, the Chairman and other subcommittee members made widely meandering statements purporting to identify the subject under inquiry. It was said that the hearings were "not . . . an attack upon the free press," that the investigation was of "such attempt as may be disclosed on the part of the Communist Party . . . to influence or to subvert the American press." It was also said that "We are simply investigating communism wherever we find it." In dealing with a witness who testified shortly before Price, counsel for the subcommittee emphatically denied that it was the subcommittee's purpose "to investigate Communist infiltration of the press and other forms of communication." But when Price was called to testify before the subcommittee no one offered even to attempt to inform him of what subject the subcommittee did have under inquiry. At the trial the Government took the position that the subject under inquiry had been Communist activities generally. The district judge before whom the case was tried found that "the questions put were pertinent to the matter under inquiry" without indicating what he thought the subject under inquiry was. The Court of Appeals, in affirming the conviction, likewise omitted to state what it thought the subject under inquiry had been. In this Court the Government contends that the subject under inquiry at the time the petitioner was called to testify was "Communist activity in news media." 14 </s> It is difficult to imagine a case in which an indictment's insufficiency resulted so clearly in the indictment's failure to fulfill its primary office - to inform the defendant of the nature of the accusation against him. Price refused to answer some questions of a Senate subcommittee. He [369 U.S. 749, 768] was not told at the time what subject the subcommittee was investigating. The prior record of the subcommittee hearings, with which Price may or may not have been familiar, gave a completely confused and inconsistent account of what, if anything, that subject was. Price was put to trial and convicted upon an indictment which did not even purport to inform him in any way of the identity of the topic under subcommittee inquiry. At every stage in the ensuing criminal proceeding Price was met with a different theory, or by no theory at all, as to what the topic had been. Far from informing Price of the nature of the accusation against him, the indictment instead left the prosecution free to roam at large - to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal. Yet Price could be guilty of no criminal offense unless the questions he refused to answer were in fact pertinent to a specific topic under subcommittee inquiry at the time he was interrogated. Sinclair v. United States, 279 U.S. 263 , at 292. </s> It has long been recognized that there is an important corollary purpose to be served by the requirement that an indictment set out "the specific offence, coming under the general description," with which the defendant is charged. This purpose, as defined in United States v. Cruikshank, 92 U.S. 542, 558 , is "to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had." 15 This criterion is of the greatest relevance [369 U.S. 749, 769] here, in the light of the difficulties and uncertainties with which the federal trial and reviewing courts have had to deal in cases arising under 2 U.S.C. 192, to which reference has already been made. See, e. g., Watkins v. United States, 354 U.S. 178 ; Deutch v. United States, 367 U.S. 456 . Viewed in this context, the rule is designed not alone for the protection of the defendant, but for the benefit of the prosecution as well, by making it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task. Cf. Watkins v. United States, supra. </s> It is argued that any deficiency in the indictments in these cases could have been cured by bills of particulars. 16 </s> [369 U.S. 749, 770] But it is a settled rule that a bill of particulars cannot save an invalid indictment. See United States v. Norris, 281 U.S. 619, 622 ; United States v. Lattimore, 215 F.2d 847; Babb v. United States, 218 F.2d 538; Steiner v. United States, 229 F.2d 745; United States v. Dierker, 164 F. Supp. 304; 4 Anderson, Wharton's Criminal Law and Procedure, 1870. When Congress provided that no one could be prosecuted under 2 U.S.C. 192 except upon an indictment, Congress made the basic decision that only a grand jury could determine whether a person should be held to answer in a criminal trial for refusing to give testimony pertinent to a question under congressional committee inquiry. A grand jury, in order to make that ultimate determination, must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. See Orfield, Criminal Procedure from Arrest to Appeal, 243. </s> This underlying principle is reflected by the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form. Ex parte Bain, 121 U.S. 1 ; United States v. Norris, 281 U.S. 619 ; Stirone v. United States, 361 U.S. 212 . "If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to [369 U.S. 749, 771] an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says `no person shall be held to answer,' may be frittered away until its value is almost destroyed. . . . Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists." Ex parte Bain, supra, at 10, 13. We reaffirmed this rule only recently, pointing out that "The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge." Stirone v. United States, supra, at 218. 17 </s> For these reasons we conclude that an indictment under 2 U.S.C. 192 must state the question under congressional committee inquiry as found by the grand jury. 18 </s> [369 U.S. 749, 772] Only then can the federal courts responsibly carry out the duty which Congress imposed upon them more than a century ago: </s> "The question must be pertinent to the subject-matter, and that will have to be decided by the courts of justice on the indictment." 19 </s> Reversed. </s> MR. JUSTICE FRANKFURTER took no part in the decision of these cases. </s> MR. JUSTICE BRENNAN took no part in the consideration or decision of No. 10. Whitman v. United States. </s> MR. JUSTICE WHITE took no part in the consideration or decision of these cases. </s> Footnotes [Footnote 1 108 U.S. App. D.C. 140, 280 F.2d 688; 108 U.S. App. D.C. 153, 280 F.2d 701; 108 U.S. App. D.C. 226, 281 F.2d 59; 108 U.S. App. D.C. 160, 280 F.2d 708; 108 U.S. App. D.C. 167, 280 F.2d 715; 108 U.S. App. D.C. 130, 280 F.2d 678. </s> [Footnote 2 "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." 2 U.S.C. 192. </s> [Footnote 3 No. 8 and No. 128 grew out of hearings before subcommittees of the House Committee on Un-American Activities. The other four cases grew out of hearings before the Internal Security Subcommittee of the Senate Judiciary Committee. </s> [Footnote 4 The indictment in No. 8 is typical: </s> "The Grand Jury charges: </s> "INTRODUCTION </s> "On November 17, 1954, in the District of Columbia, a subcommittee of the Committee on Un-American Activities of the House of Representatives was conducting hearings, pursuant to Public Law 601, Section 121, 79th Congress, 2d Session, (60 Stat. 828), and to H. Res. 5, 83d Congress. </s> "Defendant, Norton Anthony Russell, appeared as a witness before that subcommittee, at the place and on the date above stated, and [369 U.S. 749, 753] was asked questions which were pertinent to the question then under inquiry. Then and there the defendant unlawfully refused to answer those pertinent questions. The allegations of this introduction are adopted and incorporated into the counts of this indictment which follow, each of which counts will in addition merely describe the question which was asked of the defendant and which he refused to answer." </s> (The questions which Russell allegedly refused to answer were then quoted verbatim under separately numbered counts.) </s> [Footnote 5 The motion in No. 9 is typical: </s> "The defendant moves that the indictment be dismissed on the following grounds: </s> "1. The indictment fails to plead the following essential and material elements of the offense: </s> . . . . . </s> "c. the nature of the `question then under inquiry' to which the questions addressed to defendant are alleged to be relevant." </s> [Footnote 6 2 U.S.C. 194 provides: </s> "Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case [369 U.S. 749, 754] may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action." </s> [Footnote 7 The question was presented but not reached in Sacher v. United States, 356 U.S. 576 , where the conviction was reversed on other grounds. The question was also raised in the petition for certiorari in Braden v. United States, 365 U.S. 431 , but was abandoned when the case was briefed and argued on the merits. Although the question was decided by the lower court in Barenblatt v. United States, 100 U.S. App. D.C. 13, 240 F.2d 875, it was not raised in this Court, 360 U.S. 109 . </s> The Court of Appeals for the District of Columbia Circuit has passed on the question, holding that the indictment need not set forth the subject under committee inquiry. See Barenblatt v. United States, 100 U.S. App. D.C. 13, 240 F.2d 875; Sacher v. United States, 102 U.S. App. D.C. 264, 252 F.2d 828. Indictments returned in that circuit of course reflect this rule. See cases cited in MR. JUSTICE HARLAN'S dissenting opinion, post, p. 782, n. 2. The Court of Appeals for the Second Circuit sustained an indictment under 2 U.S.C. 192 which did not set forth the subject under inquiry in United States v. Josephson, 165 F.2d 82. However, Josephson appears to have been substantially limited by the same court in United States v. Lamont, 236 F.2d 312, and indictments under 2 U.S.C. 192 currently being returned in the Second Circuit do in fact set forth the subject under inquiry. See the unreported indictments in United States v. Yarus (D.C. S. D. N. Y.) No. C 152-239 (the opinion acquitting defendant Yarus is reported at 198 F. Supp. 425); United States v. Turoff (D.C. W. D. N. Y.) No. 7539-C (the opinion of the Court of Appeals reversing defendant Turoff's conviction is reported at 291 F.2d 864). </s> No other Court of Appeals has passed squarely on the point. In Braden v. United States, 272 F.2d 653, the Court of Appeals for the Fifth Circuit ruled that the indictment need not explain how and why the questions were pertinent to the subject under inquiry, but did not discuss whether the subject itself had to be specified. In a number of other recent cases arising under 2 U.S.C. 192 the indictments have stated the subject under inquiry. See, in addition [369 U.S. 749, 755] to the examples cited above, the indictment set forth in United States v. Yellin, 287 F.2d 292, 293, n. 2 (C. A. 7th Cir.); the indictment described in Davis v. United States, 269 F.2d 357, 359 (C. A. 6th Cir.); and the unreported indictment in United States v. Lorch (D.C. S. D. Ohio) Cr. No. 3185 (an indictment arising out of the same series of hearings in which Russell, the petitioner in No. 8, was initially summoned to testify). </s> [Footnote 8 11 Stat. 155-156. The statute, now 2 U.S.C. 192-194, was enacted to supplement the established contempt power of Congress itself. Jurney v. MacCracken, 294 U.S. 125, 151 . The specific background of the statute's adoption is sketched in Watkins v. United States, 354 U.S., at 207 , n. 45. See Cong. Globe, 34th Cong., 3d Sess. 405. See also id., at 403-413, 426-433, 434-445. Except for a basic change in the immunity provisions in 1862, 12 Stat. 333, the legislation has continued substantially unchanged to the present time, with only a slight modification in language in R. S. 102 and 104. The only other amendment in the substantive provisions was made in 1938, 52 Stat. 942, so as to make the statute applicable to joint committees. The provision requiring grand jury indictment has been amended twice since 1857. The original legislation provided for certification only to the United States Attorney for the District of Columbia. In 1936 an amendment was made to permit certification to any United States Attorney, 49 Stat. 2041. In 1938 the provision was amended to bring it into accord with the joint committee amendment of the substantive provisions of the law. </s> [Footnote 9 In the Watkins case the Court's primary concern was not whether pertinency had been proved at the criminal trial, but whether the petitioner had been apprised of the pertinency of the questions at the time he had been called upon to answer them. These two issues [369 U.S. 749, 760] are, of course, quite different. See Deutch v. United States, 367 U.S., at 467 -468. But identification of the subject under inquiry is essential to the determination of either issue. See Barenblatt v. United States, 360 U.S., at 123 -125. </s> [Footnote 10 See I Holdsworth, History of English Law (7th ed. 1956), 321-323; I Pollock and Maitland, History of English Law (2d ed. 1909), 137-155, and Vol. II, pp. 647-653. </s> [Footnote 11 The 1872 statute became Rev. Stat. 1025 and ultimately 18 U.S.C. (1940 ed.) 556. The statute was repealed in the 1948 legislative reorganization of Title 18, 62 Stat. 862, because its substance was contained in Fed. Rules Crim. Proc., 52 (a). </s> [Footnote 12 Rosen v. United States, 161 U.S. 29 , heavily relied upon in the dissenting opinion, is inapposite. In that case the Court held that an indictment charging the mailing of obscene material did not need to specify the particular portions of the publication which were allegedly obscene. As pointed out in Bartell v. United States, 227 U.S. 427, 431 , the rule established in Rosen was always regarded as a "well recognized exception" to usual indictment rules, applicable only to "the pleading of printed or written matter which is alleged to be [369 U.S. 749, 766] too obscene or indecent to be spread upon the records of the court." Under Roth v. United States, 354 U.S. 476, 488 -489, the issue dealt with in Rosen would presumably no longer arise. </s> [Footnote 13 United States v. Lamont, 236 F.2d 312; Meer v. United States, 235 F.2d 65; Babb v. United States, 218 F.2d 538; United States v. Simplot, 192 F. Supp. 734; United States v. Devine's Milk Laboratories, Inc., 179 F. Supp. 799; United States v. Apex Distributing Co., 148 F. Supp. 365. </s> [Footnote 14 Brief for the United States, p. 26. </s> [Footnote 15 This principle enunciated in Cruikshank retains undiminished vitality, as several recent cases attest. "Another reason [for the requirement that every ingredient of the offense charged must be clearly and accurately alleged in the indictment], and one sometimes overlooked, is to enable the court to decide whether the facts alleged are sufficient in law to withstand a motion to dismiss the indictment or to support a conviction in the event that one should be had." United States v. Lamont, 18 F. R. D. 27, 31. "In addition to informing the defendant, another purpose served by the indictment is to [369 U.S. 749, 769] inform the trial judge what the case involves, so that, as he presides and is called upon to make rulings of all sorts, he may be able to do so intelligently." Puttkammer, Administration of Criminal Law, 125-126. See Flying Eagle Publications, Inc., v. United States, 273 F.2d 799; United States v. Goldberg, 225 F.2d 180; United States v. Silverman, 129 F. Supp. 496; United States v. Richman, 190 F. Supp. 889; United States v. Callanan, 113 F. Supp. 766. See 4 Anderson, Wharton's Criminal Law and Procedure, 506; Orfield, Indictment and Information in Federal Criminal Procedure, 13 Syracuse L. Rev. 389, 392. See also Orfield, Criminal Procedure from Arrest to Appeal, 226-230. </s> [Footnote 16 In No. 128, Gojack v. United States, the petitioner filed a timely motion for a bill of particulars, requesting that he be informed of the question under subcommittee inquiry. The motion was denied. </s> In No. 9, Shelton v. United States, the petitioner filed a similar motion. The motion was granted, and the Government responded orally as follows: </s> "As to the second asking, the Government contends, and the indictment states, that the inquiry being conducted was pursuant to this resolution. We do not feel, and it is not the case, that there was any smaller, more limited inquiry being conducted. </s> "This committee was conducting the inquiry for the purposes contained in the resolution and no lesser purpose so that, in that sense, the asking No. 2 of counsel will be supplied by his reading the resolution." </s> In the four other cases no motions for bills of particulars were filed. </s> [Footnote 17 See also Smith v. United States, 360 U.S. 1, 13 (dissenting opinion); Comment, 35 Mich. L. Rev. 456. </s> [Footnote 18 The federal perjury statute, 18 U.S.C. 1621, makes it a crime for a person under oath willfully to state or subscribe to "any material matter which he does not believe to be true." The Government, pointing to the analogy between the perjury materiality requirement and the pertinency requirement in 2 U.S.C. 192 recognized in Sinclair v. United States, 279 U.S. 263, 298 , contends that the present cases are controlled by Markham v. United States, 160 U.S. 319 , where the Court sustained a perjury indictment. But Markham is inapposite. The analogy between the perjury statute and 2 U.S.C. 192, while persuasive for some purposes, is not persuasive here, for the determination of the subject under inquiry does not play the central [369 U.S. 749, 772] role in a perjury prosecution which it plays under 2 U.S.C. 192. But even were the analogy perfect Markham would still not control, for it holds only that a perjury indictment need not set forth how and why the statements were allegedly material. The Court carefully pointed out that the indictment did in fact reveal the subject under inquiry, stating that "as [the fourth count of indictment] charged that such statement was material to an inquiry pending before, and within the jurisdiction of, the Commissioner of Pensions; and as the fair import of that count was that the inquiry before the Commissioner had reference to a claim made by the accused under the pension laws, on account of personal injuries received while he was a soldier, and made it necessary to ascertain whether the accused had, since the war or after his discharge from the army, received an injury to the forefinger of his right hand, we think that the fourth count, although unskilfully drawn, sufficiently informed the accused of the matter for which he was indicted, and, therefore, met the requirement that it should set forth the substance of the charge against him." 160 U.S., at 325 -326. (Emphasis added.) This has been equally true of other perjury indictments sustained by the Court. See Hendricks v. United States, 223 U.S. 178 ; United States v. Debrow, 346 U.S. 374 (the indictment in Debrow is set forth in the opinion of the Court of Appeals, 203 F.2d 699, 702, n. 1). </s> [Footnote 19 See p. 757, supra. [369 U.S. 749, 773] </s> MR. JUSTICE DOUGLAS, concurring. </s> While I join the opinion of the Court, I think it is desirable to point out that in a majority of the six cases that we dispose of today no indictment, however drawn, could in my view be sustained under the requirements of the First Amendment. </s> The investigation was concededly an investigation of the press. This was clearly brought out by the record in Shelton, wherein the following colloquy was alleged to have taken place at the commencement of the Subcommittee hearings: </s> "Senator Hennings. On the same subject matter. I do believe it is very important at the outset for us to make it abundantly clear, if that is the purpose of counsel, and if it is the purpose of this committee, that this is not in any sense an attack upon the free press of the United States. </s> "The Chairman. Why, certainly, that is true. </s> "Senator Hennings. And I think, too, that it should be clear that the best evidence of any subversion or infiltration into any news-dispensing agency or opinion-forming journal is certainly the product itself. </s> "The Chairman. That is correct. </s> "Senator Hennings. Of course, the committee is interested in the extent and nature of so-called Communist infiltration, if such exists, into any news-dispensing agency. </s> "The Chairman. Correct. </s> "Senator Hennings. But I would like to have the position of the committee, if it be the position of the majority of this committee, since the committee has not met to determine whether one policy or another is to be pursued in the course of these hearings - that it be generally known and understood that this is not [369 U.S. 749, 774] an attack upon any one newspaper, upon any group of newspapers as such, but an effort on the part of this committee to show such participation and such attempt as may be disclosed on the part of the Communist Party in the United States or elsewhere, indeed, to influence or to subvert the American press. </s> "And I do think that at some later time, perhaps, it might be appropriate for executives of some of the newspapers under inquiry, whose employees are under inquiry, to be called and to testify and for them to show, if they can show, that the end product, the newspaper itself, has not been influenced by these efforts. </s> "The Chairman. The Chair thinks that is a very fine and very accurate statement, one with which the Chair certainly agrees, in its entirety. </s> "We are not singling out any newspaper and not investigating any newspaper or any group of newspapers. We are simply investigating communism wherever we find it, * and I think that when this series [369 U.S. 749, 775] of hearing is over that no one can say that any newspaper or any employees of any one newspaper has been singled out. </s> "Senator Hennings. Thank you, Mr. Chairman. </s> "Senator Watkins. I would like to say I agree with Senator Hennings' statement, Mr. Chairman." R. 72-73. </s> The New York Times was a prime target of the investigation, 30 of the 38 witnesses called at the 1955 executive session and 15 of the 18 called at the 1956 public hearings being present or past employees of that paper. </s> The power to investigate is limited to a valid legislative function. Inquiry is precluded where the matter investigated [369 U.S. 749, 776] is one on which "no valid legislation" can be enacted. Kilbourn v. Thompson, 103 U.S. 168, 195 . Since the First Amendment provides that "Congress shall make no law . . . abridging the freedom . . . of the press," this present investigation was plainly unconstitutional. As we said in Watkins v. United States, 354 U.S. 178, 197 : </s> "Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking." </s> Under our system of government, I do not see how it is possible for Congress to pass a law saying whom a newspaper or news agency or magazine shall or shall not employ. If this power exists, it can reach the rightist as well as the leftist press, as United States v. Rumely, 345 U.S. 41 , shows. Whether it is used against the one or the other will depend on the mood of the day. Whenever it is used to ferret out the ideology of those collecting news or writing articles or editorials for the press, it is used unconstitutionally. The theory of our Free Society is that government must be neutral when it comes to the press - whether it be rightist or leftist, orthodox or unorthodox. The theory is that in a community where men's minds are free, all shades of opinion must be immune from governmental inquiry lest we end with regimentation. Congress has no more authority in the field of the press than it does where the pulpit is involved. Since the editorials written and the news printed and the policies advocated by the press are none of the Government's [369 U.S. 749, 777] business, I see no justification for the Government investigating the capacities, leanings, ideology, qualifications, prejudices or politics of those who collect or write the news. It was conceded on oral argument that Congress would have no power to establish standards of fitness for those who work for the press. It was also conceded that Congress would have no power to prescribe loyalty tests for people who work for the press. Since this investigation can have no legislative basis as far as the press is concerned, what then is its constitutional foundation? </s> It is said that Congress has the power to determine the extent of Communist infiltration so that it can know how much tighter the "security" laws should be made. This proves too much. It would give Congress a roving power to inquire into fields in which it could not legislate. If Congress can investigate the press to find out if Communists have infiltrated it, it could also investigate the churches for the same reason. Are the pulpits being used to promote the Communist cause? Were any of the clergy ever members of the Communist Party? How about the governing board? How about those who assist the pastor and perhaps help prepare his sermons or do the research? Who comes to the confession and discloses that he or she once was a Communist? </s> There is a dictum in United States v. Rumely, 345 U.S. 41, 43 , that the reach of the investigative power of Congress is measured by the "informing function of Congress," a phrase taken from Woodrow Wilson's Congressional Government (1885), p. 303. But the quotation from Wilson was mutilated, because the sentences which followed his statement that "The informing function of Congress should be preferred even to its legislative function" were omitted from the Rumely opinion. Those omitted sentences make abundantly clear that Wilson was speaking, [369 U.S. 749, 778] not of a congressional inquiry roaming at large, but of one that inquired into and discussed the functions and operations of government. Wilson said: </s> "The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration. The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government. Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion." Id., at 303-304. </s> The power to inform is, in my view, no broader than the power to legislate. </s> Congress has no power to legislate either on "religion" or on the "press." If an editor or a minister violates the law, he can be prosecuted. But the investigative power, as I read our Constitution, is barred from certain areas by the First Amendment. If we took the step urged by the prosecution, we would allow Congress to enter the forbidden domain. </s> The strength of the "press" and the "church" is in their freedom. If they pervert or misuse their power, informed opinion will in time render the verdict against them. A paper or pulpit might conceivably become a mouthpiece for Communist ideology. That is typical of the risks a Free Society runs. The alternative is governmental oversight, governmental investigation, governmental questioning, governmental harassment, governmental exposure for [369 U.S. 749, 779] exposure's sake. Once we crossed that line, we would sacrifice the values of a Free Society for one that has a totalitarian cast. </s> Some think a certain leeway is necessary or desirable, leaving it to the judiciary to curb what judges may from time to time think are excessive practices. Thus, a judge with a professorial background may put the classroom in a preferred position. One with a background of a prosecutor dealing with "subversives" may be less tolerant. When a subjective standard is introduced, the line between constitutional and unconstitutional conduct becomes vague, uncertain, and unpredictable. The rationalization, of course, reduces itself ultimately to the idea that "the judges know best." My idea is and has been that those who put the words of the First Amendment in the form of a command knew best. That is the political theory of government we must sustain until a constitutional amendment is adopted that puts the Congress astride the "press." </s> [Footnote * The Subcommittee in its Report to the Senate Judiciary Committee, S. Rep. No. 131, 85th Cong., 1st Sess., p. 95, stated: </s> "The Communists in the United States have their own daily newspaper, the Daily Worker, and control various weekly and monthly periodicals, including Political Affairs and Masses and Mainstream. But those publications are so brazenly slanted that their propaganda value, except for certain elements of the foreign language press in this country, is sharply limited (pts. 28 and 29). </s> "In order to overcome this disadvantage, and for other reasons, Communists have made vigorous and sustained efforts to infiltrate the American press and radio and to entrench their members in all other forms of mass communications, where, by emphasis or omission of the written or spoken word, it may be turned to the advantage of the conspiracy." </s> The Report referred to the ruling of an arbiter in a case where a paper had discharged a "rewrite man" because he invoked the Fifth [369 U.S. 749, 775] Amendment. It said that the following quotations from his opinion were "of more than passing interest:" </s> "A metropolitan newspaper in America today is more than a mirror to the happenings of the day. It is a moulder of public opinion; capable of leading crusades; capable of introducing new ideas; capable of propagating truth or propaganda as it wills. By its very nature, whether it would abdicate or not, a newspaper maintains a position of leadership and responsibility in this cold war that is vital to our national security. Other industries (atomic energy, defense, et cetera) may be more vital but this fact does not impair the vital role of our press. </s> "Each worker performs his task in life with tools, and these tools run the gamut from an ax to a zither. The rewrite man has his tools, too. They are words. Words but express ideas and so it follows that the rewrite man works all day with ideas. This is a war of ideas. Can his position then be deemed nonsensitive? A rewrite man can select the facts he considers important as relayed to him by the reporter in the field. His is the choice of the topic sentence and the lead paragraph. His selection of words sets the tone of the article and influences, too, the choice of headline. The conclusion is irresistible that a rewrite man occupies a sensitive position on a newspaper." Id., at 97. </s> The Committee concluded, "Communists have infiltrated mass communications media in the United States, and efforts to increase such infiltration continue." Id., at 117. </s> MR. JUSTICE CLARK, dissenting. </s> Although I have joined Brother HARLAN in dissenting on the grounds ably expressed in his opinion, the Court today so abruptly breaks with the past that I must visually add my voice in protest. The statute under which these cases were prosecuted, 2 U.S.C. 192, was originally passed 105 years ago. Case after case has come here during that period. Still the Court is unable to point to one case - not one - in which there is the remotest suggestion that indictments thereunder must include any of the underlying facts necessary to evaluate the propriety of the unanswered questions. Following the universal art and practice, indictments under this statute have commonly phrased the element of pertinency in the statutory language, i. e., the unanswered question was "pertinent to the question under inquiry." This Court in Sacher v. [369 U.S. 749, 780] United States, 356 U.S. 576 (1958), had an opportunity to put a stop to this widespread practice but instead reversed on other, rather unsubstantial grounds without even acknowledging that numerous defendants were being denied "one of the significant protections which the guaranty of a grand jury indictment was intended to confer." In requiring these indictments to "identify the subject which was under inquiry at the time of the defendant's alleged default or refusal to answer," the Court has concocted a new and novel doctrine to upset congressional contempt convictions. A rule has been sown which, as pointed out by Brother HARLAN, has no seeds in general indictment law and which will reap no real benefits in congressional contempt cases. If knowing the subject matter under investigation is actually important to these recalcitrant witnesses, they can utilize the right recognized in Watkins v. United States, 354 U.S. 178 (1957), of demanding enlightenment from the questioning body or the time-honored practice of requesting a bill of particulars from the prosecutor. Let us hope that the reasoning of the Court today does not apply to indictments under other criminal statutes, for if it does an uncountable number of indictments will be invalidated. If, however, the rule is only cast at congressional contempt cases, it is manifestly unjust. </s> By fastening upon indictment forms under 192 its superficial luminosity requirement the Court creates additional hazards to the successful prosecution of congressional contempt cases, which impair the informing procedures of the Congress by encouraging contumacy before its committees. It was only five years ago in my dissenting opinion in Watkins that I indicated the rule in that case might "well lead to trial of all contempt cases before the bar . . ." of the House of Congress affected. Watkins v. United States, supra, at p. 225. In that short period the Court has now upset 10 convictions [369 U.S. 749, 781] under 192. This continued frustration of the Congress in the use of the judicial process to punish those who are contemptuous of its committees indicates to me that the time may have come for Congress to revert to "its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House [affected]." Id., at 206. Perhaps some simplified method may be found to handle such matters without consuming too much of the time of the full House involved. True, a recalcitrant witness would have to be released at the date of adjournment, but at least contumacious conduct would then receive some punishment. The dignity of the legislative process deserves at least that much sanction. </s> MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, dissenting. </s> The ground rules for testing the sufficiency of an indictment are twofold: (1) does the indictment adequately inform the defendant of the nature of the charge he will have to meet; (2) if the defendant is convicted, and later prosecuted again, will a court, under what has been charged, be able to determine the extent to which the defense of double jeopardy is available? United States v. Debrow, 346 U.S. 374 . </s> Rule 7 (c) of the Federal Rules of Criminal Procedure, effective in 1946, was of course not intended to abrogate or weaken either of these yardsticks. Its purpose simply was to do away with the subtleties and uncertainties that had characterized criminal pleading at common law. The rule provides in pertinent part: </s> "The indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. . . . It need not contain . . . any other matter not necessary to such statement." [369 U.S. 749, 782] </s> The rule was "designed to eliminate technicalities" and is "to be construed to secure simplicity in procedure." Debrow, at 376. </s> An essential element of the offense established by 2 U.S.C. 192 1 is that the questions which the defendant refused to answer were "pertinent to the question under inquiry" before the inquiring congressional committee. Each of the indictments in these cases charged this element of the offense in the language of the statute, following the practice consistently employed since 1950 in the District of Columbia, where most of the 192 cases have been brought. 2 The Court now holds, however, that [369 U.S. 749, 783] without a statement of the actual subject under inquiry, this allegation was inadequate to satisfy the "apprisal" requisite of a valid indictment. At the same time the allegation is found sufficient to satisfy the "jeopardy" requisite. </s> The Court's holding is contrary to the uniform course of decisions in the lower federal courts. The Court of Appeals for the District of Columbia Circuit, sitting first as a panel and later en banc, has upheld "pertinency" allegations which, like the present indictment, did not identify the particular subject being investigated. Barenblatt v. United States, 100 U.S. App. D.C. 13, 240 F.2d 875 (panel); Sacher v. United States, 102 U.S. App. D.C. 264, 252 F.2d 828 (en banc). 3 The Court of Appeals for the Second Circuit is of the same view. United States [369 U.S. 749, 784] v. Josephson, 165 F.2d 82; 4 United States v. Lamont, 236 F.2d 312. 5 And so, quite evidently, is the Court of Appeals for the Fifth Circuit. Braden v. United States, 272 F.2d 653. 6 No Court of Appeals has held otherwise. [369 U.S. 749, 785] And nothing in this Court's more recent cases could possibly be taken as foreshadowing the decision made today. 7 </s> The reasons given by the Court for its sudden holding, which unless confined to contempt of Congress cases bids fair to throw the federal courts back to an era of criminal pleading from which it was thought they had finally emerged, are novel and unconvincing. </s> I. </s> It is first argued that an allegation of "pertinency" in the statutory terms will not do, because that element is at "the very core of criminality" under 192. This is said to follow from what "our cases have uniformly held." Ante, p. 764. I do not so understand the cases on which the Court relies. It will suffice to examine the three cases from which quotations have been culled. Ante, pp. 765-766. </s> United States v. Cruikshank, 92 U.S. 542 , involved an indictment under the Enforcement Act of 1870 (16 Stat. 140) making it a felony to conspire to prevent any person from exercising and enjoying "any right or privilege granted or secured to him by the Constitution or laws of the United States." Most of the counts were dismissed on the ground that they stated no federal offense whatever. The remainder were held inadequate from the standpoint of "apprisal," in that they simply alleged a conspiracy to prevent certain citizens from enjoying rights "granted and secured to them by the constitution and laws of the United States," such rights not being otherwise described or identified. Small wonder that these opaque allegations drew from the Court the comment [369 U.S. 749, 786] that the indictment "`must descend to particulars.'" Id., at 558. Indeed, the Court observed: "According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all." Id., at 557. (Emphasis supplied.) </s> United States v. Simmons, 96 U.S. 360 , was concerned with an indictment involving illegal distilling. Revised Statutes 3266 made it an offense to distill spirits on premises where vinegar "is" manufactured. One count of the indictment charged the defendant with causing equipment on premises where vinegar "was" manufactured to be used for distilling. This count was dismissed for its failure (1) to identify the person who had so used the equipment or to allege that his identity was unknown to the grand jurors; and (2) to allege that the distilling and manufacture of vinegar were coincidental, as required by the statute. 8 What is more significant from the standpoint of the present cases is that in sustaining another count of the indictment charging the defendant with engaging in the business of distilling "with the intent to defraud the United States of the tax" on the spirits (R. S. 3281), the Court held that it was not necessary to allege "the particular means by which the United States was to be defrauded of the tax." Id., at 364. [369 U.S. 749, 787] </s> United States v. Carll, 105 U.S. 611 , held no more than that an indictment charging forgery was insufficient for failure to allege scienter, which, though not expressly required by the statute, the Court found to be a necessary element of the crime. Hence a charge in the statutory language would not suffice. Section 192 of course contains no such gap in its provisions. What the Court now requires of these indictments under 192 involves not the supplying of a missing element of the crime, but the addition of the particulars of an element already clearly alleged. </s> To me it seems quite clear that even under these cases, decided long before Rule 7 (c) came into being, the "pertinency" allegations of the present indictments would have been deemed sufficient. Other early cases indicate the same thing. See, e. g., United States v. Mills, 7 Pet. 138, 142; Evans v. United States, 153 U.S. 584, 587 ; 9 Markham v. United States, 160 U.S. 319, 325 ; 10 Bartell [369 U.S. 749, 788] v. United States, 227 U.S. 427, 433 -434. 11 I think there can be no doubt about the matter after Rule 7 (c). </s> In United States v. Debrow, supra, the Court in reversing the dismissal of perjury indictments which had gone on the ground that they had not alleged the name or authority of the persons administering the oath, said ( 346 U.S., at 376 -378): </s> "The Federal Rules of Criminal Procedure were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure. </s> . . . . . </s> "The charges of the indictments followed substantially the wording of the statute, which embodies all the elements of the crime, and such charges clearly informed the defendants of that with which they [369 U.S. 749, 789] were accused, so as to enable them to prepare their defense and to plead the judgment in bar of any further prosecutions for the same offense. It is inconceivable to us how the defendants could possibly be misled as to the offense with which they stood charged. The sufficiency of the indictment is not a question of whether it could have been more definite and certain. If the defendants wanted more definite information as to the name of the person who administered the oath to them, they could have obtained it by requesting a bill of particulars. Rule 7 (f), F. R. Crim. Proc." (Emphasis supplied.) </s> It is likewise "inconceivable" to me how the indictments in the present cases can be deemed insufficient to advise these petitioners of the nature of the charge they would have to meet. The indictments gave them the name of the committee before which they had appeared; the place and the dates of their appearances; the references to the enabling legislation under which the committee acted; and the questions which the petitioners refused to answer. The subject matter of the investigations had been stated to the petitioners at the time of their appearances before the committees. And the committee transcripts of the hearings were presumably in their possession and, if not, were of course available to them. </s> Granting all that the Court says about the crucial character of pertinency as an element of this offense, it is surely not more so than the element of premeditation in the crime of first degree murder. If from the standpoint of "apprisal" it is necessary to particularize "pertinency" in a 192 indictment, it should follow, a fortiori, that, contrary to what is prescribed in Forms 1 and 2 of the Federal Rules of Criminal Procedure, a first degree murder indictment should particularize "premeditation." [369 U.S. 749, 790] </s> II. </s> The Court says that its holding is needed to prevent the Government from switching on appeal, to the prejudice of the defendants, to a different theory of pertinency from that on which the conviction may have rested. Ante, pp. 766-768. There are several good answers to this. </s> To the extent that this fear relates to the subject under investigation, the Government cannot of course travel outside the confines of the trial record, of which the defendant has full knowledge. If what is meant is that the Government may not modify on appeal its "trial" view of the "connective reasoning" (supra, p. 784, note 6) relied on to establish the germaneness of the questions asked to the subject matter of the inquiry, surely it would be free to do so, this aspect of pertinency being simply a matter of law, Sinclair v. United States, 279 U.S. 263, 299 . Moreover the Court does not find these indictments deficient because they failed to allege the "connective reasoning." </s> Beyond these considerations, a defendant has ample means for protecting himself in this regard. By objecting at the committee hearing to the pertinency of any question asked him he may "freeze" this issue, since the Government's case on this score must then stand or fall on the pertinency explanation given by the committee in response to such an objection. Deutch v. United States, 367 U.S. 456, 472 -473 (dissenting opinion); cf. Watkins v. United States, supra, at 214-215; Barenblatt v. United States, 360 U.S. 109, 123 -125. If he has failed to make a pertinency objection at the committee hearing, thereby leaving the issue "at large" for the trial (Deutch, ibid.), he may still seek a particularization through a bill of particulars. Cf. United States v. Kamin, 136 F. Supp. 791, 795 n. 4. [369 U.S. 749, 791] </s> It should be noted that no pertinency objection was made by any of these petitioners at the committee hearings. Further, no motions for a bill of particulars were made in No. 12, Price, to which the Court especially addresses itself (ante, pp. 766-768), or in No. 8, Russell, No. 10, Whitman, and No. 11, Liveright. In No. 9, Shelton, and No. 128, Gojack, such motions were made. However, no appeal was taken from the denial of the motion in Gojack, and in Shelton the sufficiency of the particulars furnished by the Government was not questioned either by a motion for a further bill or on appeal. </s> III. </s> Referring to certain language in the Cruikshank case, supra, the Court suggests that the present holding is supported by a further "important corollary purpose" which an indictment is intended to serve: to make "it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task." Ante, pp. 768, 769. </s> But whether or not the Government has established its case on "pertinency" is something that must be determined on the record made at the trial, not upon the allegations of the indictment. There is no such thing as a motion for summary judgment in a criminal case. While appellate courts might be spared some of the tedium of going through these 192 records were the allegations of indictments to spell out the "pertinency" facts, the Court elsewhere in its opinion recognizes that the issue at hand can hardly be judged in terms of whether fuller indictments "would simplify the courts' task." Ante, p. 760. </s> The broad language in Cruikshank on which the Court relies cannot properly be taken as meaning more than that an indictment must set forth enough to enable a court to determine whether a criminal offense over which [369 U.S. 749, 792] the court has jurisdiction has been alleged. Cf. McClintock, Indictment by a Grand Jury, 26 Minn. L. Rev. 153, 159-160 (1942); Orfield, Criminal Procedure from Arrest to Appeal, 222-226, 227 n. 107. 12 Certainly the allegations of these indictments meet such requirements. </s> IV. </s> The final point made by the Court is perhaps the most novel of all. It is said that a statement of the subject under inquiry is necessary in the indictment in order to fend against the possibility that a defendant may be convicted on a theory of pertinency based upon a subject under investigation different from that which may have been found by the grand jury. An argument similar to this was rejected by this Court many years ago in Rosen v. United States, 161 U.S. 29, 34 , where an indictment charging the defendant with mailing obscene matter, only generally described, was upheld over strong dissent (id., at 45-51) asserting that the accused was entitled to know the particular parts of the material which the grand jury had deemed obscene. 13 </s> This proposition is also certainly unsound on principle. In the last analysis it would mean that a prosecutor could not safely introduce or advocate at a trial evidence or theories, however relevant to the crime charged in the indictment, which he had not presented to the grand jury. Such cases as Ex parte Bain, 121 U.S. 1 , United States v. [369 U.S. 749, 793] Norris, 281 U.S. 619 , and Stirone v. United States, 361 U.S. 212 , lend no support to the Court's thesis. They held only that, consistently with the Fifth Amendment, a trial judge could not amend the indictment itself, either by striking or adding material language, or, amounting to the latter, by permitting a conviction on evidence or theories not fairly embraced in the charges made in the indictment. To allow this would in effect permit a defendant to be put to trial upon an indictment found not by a grand jury but by a judge. 14 </s> If the Court's reasoning in this part of its opinion is sound, I can see no escape from the conclusion that a defendant convicted on a lesser included offense, not alleged by the grand jury in an indictment for the greater offense, would have a good plea in arrest of judgment. (Fed. Rules Crim. Proc., 34.) </s> In conclusion, I realize that one in dissent is sometimes prone to overdraw the impact of a decision with which he does not agree. Yet I am unable to rid myself of the view that the reversal of these convictions on such insubstantial grounds will serve to encourage recalcitrance to legitimate congressional inquiry, stemming from the belief that a refusal to answer may somehow be requited in this Court. And it is not apparent how the seeds which this decision plants in other fields of criminal pleading can well be prevented from sprouting. What is done today calls [369 U.S. 749, 794] to mind the trenchant observation made by Mr. Justice Holmes many years ago in Paraiso v. United States, 207 U.S. 368, 372 : </s> "The bill of rights for the Philippines giving the accused the right to demand the nature and cause of the accusation against him does not fasten forever upon those islands the inability of the seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert." </s> No more so does the Bill of Rights of the United States Constitution "fasten" on this country these primitive notions of the common law. </s> On the merits these convictions are of course squarely ruled against the petitioners by principles discussed in our recent decisions in the Barenblatt, Wilkinson, and Braden 15 cases, as was all but acknowledged at the bar. </s> I would affirm. </s> [Footnote 1 "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." (Emphasis added.) </s> [Footnote 2 [The following abbreviations have been used to indicate where the indictment may be found: TR, the transcript of the record in this Court; JA, the joint appendix in the Court of Appeals; Cr. No. ___, the docket number in the District Court.] See Grumman v. United States, 368 U.S. 925 (TR, p. 2); Silber v. United States, 368 U.S. 925 (TR, p. 2); Hutcheson v. United States, 369 U.S. 599 (TR, p. 4); Deutch v. United States, 367 U.S. 456 (TR, p. 7); Barenblatt v. United States, 360 U.S. 109 (TR, p. 1); Flaxer v. United States, 358 U.S. 147 (TR, p. 2); Sacher v. United States, 356 U.S. 576 (JA, p. 2); Watkins v. United States, 354 U.S. 178 (TR, p. 2); Bart v. United States, 349 U.S. 219 (TR, p. 108); Emspak v. United States, 349 U.S. 190 (TR, p. 4); Quinn v. United States, 349 U.S. 155 (TR, p. 3); United States v. Rumely, 345 U.S. 41 (TR, pp. 2-4); Knowles v. United States, 108 U.S. App. D.C. 148, 280 F.2d 696 (Cr. No. 1211-56); Watson v. United States, 108 U.S. App. D.C. 141, 280 F.2d 689 (Cr. No. 1151-54); Miller v. United [369 U.S. 749, 783] States, 104 U.S. App. D.C. 30, 259 F.2d 187 (Cr. No. 164-57); La Poma v. United States, 103 U.S. App. D.C. 151, 255 F.2d 903 (Cr. No. 290-57); Brewster v. United States, 103 U.S. App. D.C. 147, 255 F.2d 899 (Cr. No. 289-57); Singer v. United States, 100 U.S. App. D.C. 260, 244 F.2d 349 (Cr. No. 1150-54); O'Connor v. United States, 99 U.S. App. D.C. 373, 240 F.2d 404 (Cr. No. 1650-53); Keeney v. United States, 94 U.S. App. D.C. 366, 218 F.2d 843 (Cr. No. 870-52); Bowers v. United States, 92 U.S. App. D.C. 79, 202 F.2d 447 (Cr. No. 1252-51); Kamp v. United States, 84 U.S. App. D.C. 187, 176 F.2d 618 (Cr. No. 1788-50); United States v. Peck, 149 F. Supp. 238 (Cr. No. 1214-56); United States v. Hoag, 142 F. Supp. 667 (Cr. No. 574-55); United States v. Fischetti, 103 F. Supp. 796 (Cr. No. 1254-51); United States v. Nelson, 103 F. Supp. 215 (Cr. No. 1796-50); United States v. Jaffe, 98 F. Supp. 191 (Cr. No. 1786-50); United States v. Raley, 96 F. Supp. 495 (Cr. No. 1748-50); United States v. Fitzpatrick, 96 F. Supp. 491 (Cr. No. 1743-50). </s> For a short period after Rule 7 (c), Fed. Rules Crim. Proc., came into effect in 1946, vestiges of common-law pleading continued to be found in some, but not all, 192 indictments. Compare United States v. Fleischman, 339 U.S. 349 (TR, pp. 2-3), with United States v. Bryan, 339 U.S. 323 (TR, p. 2A). By 1950, however, all such indictments had come to be in statutory form. </s> [Footnote 3 Four judges dissented on other grounds. </s> [Footnote 4 The record on appeal shows that one of the grounds of attack was the indictment's failure to allege "the nature of any matter under inquiry before said Committee." Record on Appeal in the Court of Appeals for the Second Circuit, No. 91, Doc. 20790, p. 7. </s> [Footnote 5 This case evinces no purpose to depart from Josephson. The District Court, although dismissing the indictment on other grounds, quite evidently found the statutory "pertinency" allegation sufficient. 18 F. R. D., at 30, 37. And in affirming, the Court of Appeals, citing the Josephson case among others, stated that "the result might well be different" had the authority of the investigating committee appeared in the indictment. 236 F.2d, at 316 (note 6). (The committee in Lamont was a Subcommittee of the Senate Committee on Government Operations whose enabling legislation the court found did not authorize investigation of "subversive activities.") As regards the issue decided in the present cases, the following observations by Chief Judge Clark, who speaks with special authority in procedural matters, are significant (id., at 317): </s> "Pleading, either civil or criminal, should be a practical thing. Its purpose is to convey information succinctly and concisely. In older days the tendency was to defeat this purpose by overelaboration and formalism. Now we should avoid the opposite trend, but of like consequence, that of a formalism of generality. There seems to be some tendency to confuse general pleadings with entire absence of statement of claim or charge. [Footnote omitted.] But this is a mistake, for general pleadings, far from omitting a claim or charge, do convey information to the intelligent and sophisticated circle for which they are designed. Thus the charge that at a certain time and place `John Doe with premeditation shot and murdered John Roe,' F. R. Cr. P., Form 2, even though of comparatively few words, has made clear the offense it is bringing before the court. [Footnote omitted.] The present indictments, however, do not show the basis upon which eventual conviction can be had; rather, read in the light of the background of facts and Congressional action, they show that conviction cannot be had." (Emphasis supplied.) </s> [Footnote 6 That case was concerned with the "connective reasoning" aspect of "pertinency," Watkins v. United States, 354 U.S. 178, 214 -215, [369 U.S. 749, 785] rather than the "subject under inquiry" aspect; but it is not perceived how this can be thought to make a difference in principle. </s> [Footnote 7 This is not the first opportunity the Court has had to consider the matter. Ante, p. 754, note 7. </s> [Footnote 8 The Court stated (id., at 362): </s> "Where the offence is purely statutory . . . it is, `as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 1 Bishop, Crim. Proc., sect. 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him . . . . An indictment not so framed is defective, although it may follow the language of the statute." (Emphasis supplied.) </s> [Footnote 9 The Mills and Evans cases suggest that a more lenient rule of pleading applies in misdemeanor than in felony cases. Although that distinction seems to have disappeared in the later cases, it may be noted that 192 in terms makes this offense a misdemeanor. Note 1, supra. </s> [Footnote 10 In that case the Court spoke, doubtless by way of dictum, concerning the method of pleading "materiality" in a perjury indictment (an element akin to "pertinency" under 192, Sinclair v. United States, 279 U.S. 263, 298 ): </s> "It was not necessary that the indictment should set forth all the details or facts involved in the issue as to materiality of [the false] statement . . . . In 2 Chittey's Criminal Law, 307, the author says: `It is undoubtedly necessary that it should appear on the face of the indictment that the false allegations were material to the matter in issue. But it is not requisite to set forth all the circumstances which render them material; the simple averment that they were so, will suffice.' In King v. Dowlin . . . Lord Kenyon said that it had always been adjudged to be sufficient in an indictment for perjury, to allege generally that the particular question became a material question. . . ." 160 U.S., at 325 . </s> [Footnote 11 There, under an exception, prevailing in "obscenity" cases, to the then general rule that in "documentary" crimes the contents of the document must be set forth in the indictment, the Court in sustaining an indictment charging the unlawful mailing of an "indecent" letter, only generally described, said (id., at 433-434): </s> "The present indictment specifically charged that the accused had knowingly violated the laws of the United States by depositing on a day named, in the post-office specifically named, a letter of such indecent character as to render it unfit to be set forth in detail, enclosed in an envelope bearing a definite address. In the absence of a demand for a bill of particulars we think this description sufficiently advised the accused of the nature and cause of the accusation against him. This fact is made more evident when it is found that this record shows no surprise to the accused in the production of the letter at the trial . . . ." </s> The Court suggests that Bartell and Rosen v. United States (infra, p. 792) are inapposite because of the special rule of pleading applicable in "obscenity" cases. Ante, p. 765. However, considering that the "apprisal" requisite of an indictment arises from constitutional requirements, this factor far from lessening the weight of these two cases adds to their authority. </s> [Footnote 12 The other cases and commentaries referred to by the Court in Note 15, ante, pp. 768-769, indicate nothing different. </s> [Footnote 13 It seems clear that the Court proceeded on the premise that the "isolated excerpt" rule of Regina v. Hicklin, 1868. L. R. 3 Q. B. 360, recently rejected in Roth v. United States, 354 U.S. 476, 488 -489, in favor of the "whole book" rule, obtained, for the Court relied on United States v. Bennett, 24 Fed. Cas. 1093 (16 Blatchford 338), where the "excerpt" test was applied. </s> [Footnote 14 While the "connective reasoning" aspect of "pertinency" is again evidently not involved in the Court's reasoning, it is appropriate to note that it is scarcely realistic to consider that issue of law as one on which the grand jury has exercised an independent judgment in determining whether an indictment should be returned. For that body may be expected, quite naturally and properly, to follow the District Attorney's advice on this score, as with any other matter of law. That the legal premises on which the grand jury acted in this respect may turn out to have been wrong could hardly vitiate the indictment itself. </s> [Footnote 15 360 U.S. 109 ; 365 U.S. 399 ; 365 U.S. 431 . </s> [369 U.S. 749, 795]

United States Supreme Court DECK v. MISSOURI(2005) No. 04-5293 Argued: March 1, 2005Decided: May 23, 2005 </s> Petitioner Deck was convicted of capital murder and sentenced to death, but the Missouri Supreme Court set aside the sentence. At his new sentencing proceeding, he was shackled with leg irons, handcuffs, and a belly chain. The trial court overruled counsel's objections to the shackles, and Deck was again sentenced to death. Affirming, the State Supreme Court rejected Deck's claim that his shackling violated, inter alia, the Federal Constitution. Held:The Constitution forbids the use of visible shackles during a capital trial's penalty phase, as it does during the guilt phase, unless that use is "justified by an essential state interest"--such as courtroom security--specific to the defendant on trial. Holbrook v. Flynn, 475 U.S. 560, 568-569. Pp.3-10. (a)The law has long forbidden routine use of visible shackles during a capital trial's guilt phase, permitting shackling only in the presence of a special need. In light of Holbrook, Illinois v. Allen, 397 U.S. 337, early English cases, and lower court shackling doctrine dating back to the 19th century, it is now clear that this is a basic element of due process protected by the Federal Constitution. Thus, the Fifth and Fourteenth Amendments prohibit using physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that restraints are justified by a state interest specific to the particular defendant on trial. Pp.3-6. </s> (b)If the reasons motivating the guilt phase constitutional rule--the presumption of innocence, securing a meaningful defense, and maintaining dignified proceedings--apply with like force at the penalty phase, the same rule will apply there. The latter two considerations obviously apply. As for the first, while the defendant's conviction means that the presumption of innocence no longer applies, shackles at the penalty phase threaten related concerns. The jury, though no longer deciding between guilt and innocence, is deciding between life and death, which, given the sanction's severity and finality, is no less important, Monge v. California, 524 U.S. 721, 732. Nor is accuracy in making that decision any less critical. Yet, the offender's appearance in shackles almost inevitably implies to a jury that court authorities consider him a danger to the community (which is often a statutory aggravator and always a relevant factor); almost inevitably affects adversely the jury's perception of the defendant's character; and thereby inevitably undermines the jury's ability to weigh accurately all relevant considerations when determining whether the defendant deserves death. The constitutional rule that courts cannot routinely place defendants in shackles or other restraints visible to the jury during the penalty phase is not absolute. In the judge's discretion, account may be taken of special circumstances in the case at hand, including security concerns, that may call for shackling in order to accommodate the important need to protect the courtroom and its occupants. Pp. 6-10. </s> (c)Missouri's arguments that its high court's decision in this case meets the Constitution's requirements are unconvincing. The first--that that court properly concluded that there was no evidence that the jury saw the restraints--is inconsistent with the record, which shows that the jury was aware of them, and overstates what the court actually said, which was that trial counsel made no record of the extent of the jury's awareness of the shackles. The second--that the trial court acted within its discretion--founders on the record, which does not clearly indicate that the judge weighted the particular circumstances of the case. The judge did not refer to an escape risk or threat to courtroom security or explain why, if shackles were necessary, he did not provide nonvisible ones as was apparently done during the guilt phase of this case. The third--that Deck suffered no prejudice--fails to take account of Holbrook's statement that shackling is "inherently prejudicial," 504 U.S. 127, 137. Thus, where a court, without adequate justification, orders the defendant to wear shackles visible to the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove "beyond a reasonable doubt that the [shackling] did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24. Pp.10-12. 136 S.W. 3d 481, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, O'Connor, Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined. </s> CARMAN L. DECK, PETITIONER v. MISSOURI on writ of certiorari to the supreme court of missouri [May 23, 2005] </s> Justice Breyer delivered the opinion of the Court. </s> We here consider whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution. We hold that the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is "justified by an essential state interest"--such as the interest in courtroom security--specific to the defendant on trial. Holbrook v. Flynn, 475 U.S. 560, 568-569 (1986); see also Illinois v. Allen, 397 U.S. 337, 343-344 (1970). I </s> In July 1996, petitioner Carman Deck robbed, shot, and killed an elderly couple. In 1998, the State of Missouri tried Deck for the murders and the robbery. At trial, state authorities required Deck to wear leg braces that apparently were not visible to the jury. App. 5; Tr. of Oral Arg. 21, 25, 29. Deck was convicted and sentenced to death. The State Supreme Court upheld Deck's conviction but set aside the sentence. 68 S.W. 3d 418, 432 (2002). The State then held a new sentencing proceeding. From the first day of the new proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain. App. 58. Before the jury voir dire began, Deck's counsel objected to the shackles. The objection was overruled. Ibid.; see also id., at 41-55. During the voir dire, Deck's counsel renewed the objection. The objection was again overruled, the court stating that Deck "has been convicted and will remain in legirons and a belly chain." Id., at 58. After the voir dire, Deck's counsel once again objected, moving to strike the jury panel "because of the fact that Mr. Deck is shackled in front of the jury and makes them think that he is ... violent today." Id., at 58-59. The objection was again overruled, the court stating that his "being shackled takes any fear out of their minds." Id., at 59. The penalty phase then proceeded with Deck in shackles. Deck was again sentenced to death. 136 S.W. 3d 481, 485 (Mo. 2004) (en banc). </s> On appeal, Deck claimed that his shackling violated both Missouri law and the Federal Constitution. The Missouri Supreme Court rejected these claims, writing that there was "no record of the extent of the jury's awareness of the restraints"; there was no "claim that the restraints impeded" Deck "from participating in the proceedings"; and there was "evidence" of "a risk" that Deck "might flee in that he was a repeat offender" who may have "killed his two victims to avoid being returned to custody." Ibid. Thus, there was "sufficient evidence in the record to support the trial court's exercise of its discretion" to require shackles, and in any event Deck "has not demonstrated that the outcome of his trial was prejudiced.... Neither being viewed in shackles by the venire panel prior to trial, nor being viewed while restrained throughout the entire trial, alone, is proof of prejudice." Ibid. The court rejected Deck's other claims of error and affirmed the sentence. </s> We granted certiorari to review Deck's claim that his shackling violated the Federal Constitution. II </s> We first consider whether, as a general matter, the Constitution permits a State to use visible shackles routinely in the guilt phase of a criminal trial. The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need. This rule has deep roots in the common law. In the 18th century, Blackstone wrote that "it is laid down in our antient books, that, though under an indictment of the highest nature," a defendant "must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape." 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 ("If felons come in judgement to answer, ... they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will"). Blackstone and other English authorities recognized that the rule did not apply at "the time of arraignment," or like proceedings before the judge. Blackstone, supra, at 317; see also Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K.B. 1722). It was meant to protect defendants appearing at trial before a jury. See King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B. 1743) ("[B]eing put upon his trial, the Court immediately ordered [the defendant's] fetters to be knocked off"). </s> American courts have traditionally followed Blackstone's "ancient" English rule, while making clear that "in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles may be retained." 1 J. Bishop, New Criminal Procedure §955, p.573 (4th ed. 1895); see also id., at 572-573 ("[O]ne at the trial should have the unrestrained use of his reason, and all advantages, to clear his innocence.... Our American courts adhere pretty closely to this doctrine" (internal quotation marks omitted)); State v. Roberts, 86 N.J. Super. 159, 163-165, 206 A.2d 200, 203 (1965); French v. State, 377 P.2d 501, 502-504 (Okla. Crim. App. 1962); Eaddy v. People, 115 Colo. 488, 490, 174 P.2d 717, 718 (1946) (en banc); State v. McKay, 63 Nev. 118, 153-158, 165 P.2d 389, 405-406 (1946); Blaine v. United States, 136 F.2d 284, 285 (CADC 1943) (per curiam); Blair v. Commonwealth, 171 Ky. 319, 327-329, 188 S.W. 390, 393 (App. 1916); Hauser v. People, 210 Ill. 258, 264-267, 71 N.E. 416, 421 (1904); Parker v. Territory, 5 Ariz. 283, 287, 52 P. 361, 363 (1898); State v. Williams, 18 Wash. 47, 48-50, 50 P. 580, 581 (1897); Rainey v. State, 20 Tex. Ct. App. 455, 472-473 (1886) (opinion of White, P.J.); State v. Smith, 11 Ore. 205, 8 P.343, 343 (1883); Poe v. State, 78 Tenn. 673, 674-678 (1882); State v. Kring, 64 Mo. 591, 592 (1877); People v. Harrington, 42 Cal. 165, 167 (1871); see also F. Wharton, Criminal Pleading and Practice §540a, p.369 (8th ed. 1880); 12 Cyclopedia of Law and Procedure 529 (1904). While these earlier courts disagreed about the degree of discretion to be afforded trial judges, see post, at 9-14 (Thomas,J., dissenting), they settled virtually without exception on a basic rule embodying notions of fundamental fairness: trial courts may not shackle defendants routinely, but only if there is a particular reason to do so. </s> More recently, this Court has suggested that a version of this rule forms part of the Fifth and Fourteenth Amendments' due process guarantee. Thirty-five years ago, when considering the trial of an unusually obstreperous criminal defendant, the Court held that the Constitution sometimes permitted special measures, including physical restraints. Allen, 397 U.S., at 343-344. The Court wrote that "binding and gagging might possibly be the fairest and most reasonable way to handle" such a defendant. Id., at 344. But the Court immediately added that "even to contemplate such a technique ... arouses a feeling that no person should be tried while shackled and gagged except as a last resort." Ibid. </s> Sixteen years later, the Court considered a special courtroom security arrangement that involved having uniformed security personnel sit in the first row of the courtroom's spectator section. The Court held that the Constitution allowed the arrangement, stating that the deployment of security personnel during trial is not "the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial." Holbrook, 425 U.S. 501, 503, 505 (1976) (making a defendant appear in prison garb poses such a threat to the "fairness of the factfinding process" that it must be justified by an "essential state policy"). </s> Lower courts have treated these statements as setting forth a constitutional standard that embodies Blackstone's rule. Courts and commentators share close to a consensus that, during the guilt phase of a trial, a criminal defendant has a right to remain free of physical restraints that are visible to the jury; that the right has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum. See, e.g., Dyas v. Poole, 309 F.3d 586, 588-589 (CA9 2002) (per curiam); Harrell v. Israel, 672 F.2d 632, 635 (CA7 1982) (per curiam); State v. Herrick, 324 Mont. 76, 78-82, 101 P.3d 755, 757-759 (2004); Hill v. Commonwealth, 125 S.W. 3d 221, 233-234 (Ky. 2004); State v. Turner, 143 Wash. 2d 715, 723-727, 23 P.3d 499, 504-505 (2001) (en banc); Myers v. State, 2000 OK CR 25, ¶19, 17 P.3d 1021, 1033; State v. Shoen, 598 N.W. 2d 370, 374-377 (Minn. 1999); Lovell v. State, 347 Md. 623, 635-645, 702 A.2d 261, 268-272 (1997); People v. Jackson, 14 Cal. App. 4th 1818, 1822-1830, 18 Cal. Rptr. 2d 586, 588-594 (1993); Cooks v. State, 844 S.W. 2d 697, 722 (Tex. Crim. App. 1992); State v. Tweedy, 219 Conn. 489, 504-508, 594 A.2d 906, 914-915 (1991); State v. Crawford, 99 Idaho 87, 93-98, 577 P.2d 1135, 1141-1146 (1978); People v. Brown, 45 Ill. App. 3d 24, 26-28, 358 N.E. 2d 1362, 1363-1364 (1977); State v. Tolley, 290 N.C. 349, 362-371, 226 S.E. 2d 353, 365-369 (1976); see also 21A Am. Jur. 2d, Criminal Law §§1016, 1019 (1998); see generally J. Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U.L.J. 351 (1970-1971); ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-3.2, pp.188-191 (3d ed. 1996). </s> Lower courts have disagreed about the specific procedural steps a trial court must take prior to shackling, about the amount and type of evidence needed to justify restraints, and about what forms of prejudice might warrant a new trial, but they have not questioned the basic principle. They have emphasized the importance of preserving trial court discretion (reversing only in cases of clear abuse), but they have applied the limits on that discretion described in Holbrook, Allen, and the early English cases. In light of this precedent, and of a lower court consensus disapproving routine shackling dating back to the 19th century, it is clear that this Court's prior statements gave voice to a principle deeply embedded in the law. We now conclude that those statements identify a basic element of the "due process of law" protected by the Federal Constitution. Thus, the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial. III </s> We here consider shackling not during the guilt phase of an ordinary criminal trial, but during the punishment phase of a capital case. And we must decide whether that change of circumstance makes a constitutional difference. To do so, we examine the reasons that motivate the guilt-phase constitutional rule and determine whether they apply with similar force in this context. A </s> Judicial hostility to shackling may once primarily have reflected concern for the suffering--the "tortures" and "torments"--that "very painful" chains could cause. Krauskopf, supra, at 351, 353 (internal quotation marks omitted); see also Riggins v. Nevada, 504 U.S. 127, 154, n.4 (1992) (Thomas, J., dissenting) (citing English cases curbing the use of restraints). More recently, this Court's opinions have not stressed the need to prevent physical suffering (for not all modern physical restraints are painful). Instead they have emphasized the importance of giving effect to three fundamental legal principles. First, the criminal process presumes that the defendant is innocent until proved guilty. Coffin v. United States, 156 U.S. 432, 453 (1895) (presumption of innocence "lies at the foundation of the administration of our criminal law"). Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process. Cf. Estelle, supra, at 503. It suggests to the jury that the justice system itself sees a "need to separate a defendant from the community at large." Holbrook, supra, at 569; cf. State v. Roberts, 86 N.J. Super., at 162, 206 A.2d, at 202 ("[A] defendant 'ought not be brought to the Bar in a contumelious Manner; as with his Hands tied together, or any other Mark of Ignominy and Reproach ... unless there be some Danger of a Rescous [rescue] or Escape'" (quoting 2 W. Hawkins, Pleas of the Crown, ch. 28, §1, p.308 (1716-1721) (section on arraignments))). </s> Second, the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel. See, e.g., Amdt. 6; Gideon v. Wainwright, 372 U.S. 335, 340-341 (1963). The use of physical restraints diminishes that right. Shackles can interfere with the accused's "ability to communicate" with his lawyer. Allen, 397 U.S., at 344. Indeed, they can interfere with a defendant's ability to participate in his own defense, say by freely choosing whether to take the witness stand on his own behalf. Cf. Cranburne's Case, 13 How. St. Tr. 222 (K.B. 1696) ("Look you, keeper, you should take off the prisoners irons when they are at the bar, for they should stand at their ease when they are tried" (footnote omitted)); People v. Harrington, 42 Cal., at 168 (shackles "impos[e] physical burdens, pains, and restraints ..., ... ten[d] to confuse and embarrass" defendants' "mental faculties," and thereby tend "materially to abridge and prejudicially affect his constitutional rights"). </s> Third, judges must seek to maintain a judicial process that is a dignified process. The courtroom's formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual's liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system's power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve. The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives. As this Court has said, the use of shackles at trial "affront[s]" the "dignity and decorum of judicial proceedings that the judge is seeking to uphold." Allen, supra, at 344; see also Trial of Christopher Layer, 16 How. St. Tr., at 99 (statement of Mr. Hungerford) ("[T]o have a man plead for his life" in shackles before "a court of justice, the highest in the kingdom for criminal matters, where the king himself is supposed to be personally present" undermines the "dignity of the Court"). </s> There will be cases, of course, where these perils of shackling are unavoidable. See Allen, supra, at 344. We do not underestimate the need to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations. We are mindful of the tragedy that can result if judges are not able to protect themselves and their courtrooms. But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case. B </s> The considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases. This is obviously so in respect to the latter two considerations mentioned, securing a meaningful defense and maintaining dignified proceedings. It is less obviously so in respect to the first consideration mentioned, for the defendant's conviction means that the presumption of innocence no longer applies. Hence shackles do not undermine the jury's effort to apply that presumption. Nonetheless, shackles at the penalty phase threaten related concerns. Although the jury is no longer deciding between guilt and innocence, it is deciding between life and death. That decision, given the "'severity'" and "'finality'" of the sanction, is no less important than the decision about guilt. Monge v. California, 524 U.S. 721, 732 (1998) (quoting Gardner v. Florida, 430 U.S. 349, 357 (1977)). </s> Neither is accuracy in making that decision any less critical. The Court has stressed the "acute need" for reliable decisionmaking when the death penalty is at issue. Monge, supra, at 732 (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)). The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community--often a statutory aggravator and nearly always a relevant factor in jury decisionmaking, even where the State does not specifically argue the point. Cf. Brief for Respondent 25-27. It also almost inevitably affects adversely the jury's perception of the character of the defendant. See Zant v. Stephens, 462 U.S. 862, 900 (1983) (Rehnquist, J., concurring in judgment) (character and propensities of the defendant are part of a "unique, individualized judgment regarding the punishment that a particular person deserves"). And it thereby inevitably undermines the jury's ability to weigh accurately all relevant considerations--considerations that are often unquantifiable and elusive--when it determines whether a defendant deserves death. In these ways, the use of shackles can be a "thumb [on] death's side of the scale." Sochor v. Florida, 504 U.S. 527, 532 (1992) (internal quotation marks omitted); see also Riggins, 504 U.S., at 142 (Kennedy, J., concurring) (through control of a defendant's appearance, the State can exert a "powerful influence on the outcome of the trial"). </s> Given the presence of similarly weighty considerations, we must conclude that courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say special security needs or escape risks, related to the defendant on trial. IV </s> Missouri claims that the decision of its high court meets the Constitution's requirements in this case. It argues that the Missouri Supreme Court properly found: (1) that the record lacks evidence that the jury saw the restraints; (2) that the trial court acted within its discretion; and, in any event, (3) that the defendant suffered no prejudice. We find these arguments unconvincing. The first argument is inconsistent with the record in this case, which makes clear that the jury was aware of the shackles. See App. 58-59 (Deck's attorney stated on the record that "Mr. Deck [was] shackled in front of the jury") (emphasis added); id., at 59 (trial court responded that "him being shackled takes any fear out of their minds"). The argument also overstates the Missouri Supreme Court's holding. The court said, "[T]rial counsel made no record of the extent of the jury's awareness of the restraints throughout the penalty phase, and Appellant does not claim that the restraints impeded him from participating in the proceedings." 136 S.W. 3d, at 485 (emphasis added). This statement does not suggest that the jury was unaware of the restraints. Rather, it refers to the degree of the jury's awareness, and hence to the kinds of prejudice that might have occurred. </s> The second argument--that the trial court acted within its discretion--founders on the record's failure to indicate that the trial judge saw the matter as one calling for discretion. The record contains no formal or informal findings. Cf. supra, at 9 (requiring a case-by-case determination). The judge did not refer to a risk of escape--a risk the State has raised in this Court, see Tr. of Oral Arg. 36-37--or a threat to courtroom security. Rather, he gave as his reason for imposing the shackles the fact that Deck already "has been convicted." App. 58. While he also said that the shackles would "take any fear out of" the juror's "minds," he nowhere explained any special reason for fear. Id., at 59. Nor did he explain why, if shackles were necessary, he chose not to provide for shackles that the jury could not see--apparently the arrangement used at trial. If there is an exceptional case where the record itself makes clear that there are indisputably good reasons for shackling, it is not this one. </s> The third argument fails to take account of this Court's statement in Holbrook that shackling is "inherently prejudicial." 386 U.S. 18, 24 (1967). V </s> For these reasons, the judgment of the Missouri Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. </s> CARMAN L. DECK, PETITIONER v. MISSOURI on writ of certiorari to the supreme court of missouri [May 23, 2005] </s> Justice Thomas, with whom Justice Scalia joins, dissenting. </s> Carman Deck was convicted of murdering and robbing an elderly couple. He stood before the sentencing jury not as an innocent man, but as a convicted double murderer and robber. Today this Court holds that Deck's due process rights were violated when he appeared at sentencing in leg irons, handcuffs, and a belly chain. The Court holds that such restraints may only be used where the use is "'justified by an essential state interest'" that is "specific to the defendant on trial," ante, at 1, and that is supported by specific findings by the trial court. Tradition--either at English common law or among the States--does not support this conclusion. To reach its result, the Court resurrects an old rule the basis for which no longer exists. It then needlessly extends the rule from trials to sentencing. In doing so, the Court pays only superficial heed to the practice of States and gives conclusive force to errant dicta sprinkled in a trio of this Court's cases. The Court's holding defies common sense and all but ignores the serious security issues facing our courts. I therefore respectfully dissent. I </s> Carman Deck and his sister went to the home of Zelma and James Long on a summer evening in 1996. After waiting for nightfall, Deck and his sister knocked on the door of the Longs' home, and when Mrs. Long answered, they asked for directions. Mrs. Long invited them in, and she and Mr. Long assisted them with directions. When Deck moved toward the door to leave, he drew a pistol, pointed it at the Longs, and ordered them to lie face down on their bed. The Longs did so, offering up money and valuables throughout the house and all the while begging that he not harm them. After Deck finished robbing their house, he stood at the edge of their bed, deliberating for 10 minutes over whether to spare them. He ignored their pleas and shot them each twice in the head. Deck later told police that he shot the Longs because he thought that they would be able to recognize him. </s> Deck was convicted of the murders and robbery of the Longs and sentenced to death. The death sentence was overturned on appeal. Deck then had another sentencing hearing, at which he appeared in leg irons, a belly chain, and handcuffs. At the hearing, the jury heard evidence of Deck's numerous burglary and theft convictions and his assistance in a jailbreak by two prisoners. </s> On resentencing, the jury unanimously found six aggravating factors: Deck committed the murders while engaged in the commission of another unlawful homicide; Deck murdered each victim for the purpose of pecuniary gain; each murder involved depravity of mind; each murder was committed for the purpose of avoiding a lawful arrest; each murder was committed while Deck was engaged in a burglary; and each murder was committed while Deck was engaged in a robbery. The jury recommended, and the trial court imposed, two death sentences. </s> Deck sought postconviction relief from his sentence, asserting among other things, that his due process and equal protection rights were violated by the trial court's requirement that he appear in shackles. The Missouri Supreme Court rejected that claim. 136 S.W. 3d 481 (2004) (en banc). The court reasoned that "there was a risk that [Deck] might flee in that he was a repeat offender and evidence from the guilt phase of his trial indicated that he killed his two victims to avoid being returned to custody," and thus it could not conclude that the trial court had abused its discretion. Id., at 485. II </s> My legal obligation is not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question: Does the Due Process Clause of the Fourteenth Amendment preclude the visible shackling of a defendant. Therefore, I examine whether there is a deeply rooted legal principle that bars that practice. Medina v. California, 505 U.S. 437, 446 (1992); Apprendi v. New Jersey, 530 U.S. 466, 500 (2000) (Thomas, J., concurring); see also Chicago v. Morales, 527 U.S. 41, 102-106 (1999) (Thomas, J., dissenting). As I explain below, although the English common law had a rule against trying a defendant in irons, the basis for the rule makes clear that it should not be extended by rote to modern restraints, which are dissimilar in certain essential respects to the irons that gave rise to the rule. Despite the existence of a rule at common law, state courts did not even begin to address the use of physical restraints until the 1870's, and the vast majority of state courts would not take up this issue until the 20th century, well after the ratification of the Fourteenth Amendment. Neither the earliest case nor the more modern cases reflect a consensus that would inform our understanding of the requirements of due process. I therefore find this evidence inconclusive. A </s> English common law in the 17th and 18th centuries recognized a rule against bringing the defendant in irons to the bar for trial. See, e.g., 4 W. Blackstone, Commentaries on the Laws of England 317 (1769); 3 Coke, Institutes of the Laws of England *34 (1797) (hereinafter Coke). This rule stemmed from none of the concerns to which the Court points, ante, at 7-9--the presumption of innocence, the right to counsel, concerns about decorum, or accuracy in decisionmaking. Instead, the rule ensured that a defendant was not so distracted by physical pain during his trial that he could not defend himself. As one source states, the rule prevented prisoners from "any Torture while they ma[de] their defence, be their Crime never so great." J. Kelyng, A Report of Divers Cases in Pleas of the Crown 10 (1708).1 This concern was understandable, for the irons of that period were heavy and painful. In fact, leather strips often lined the irons to prevent them from rubbing away a defendant's skin. T. Gross, Manacles of the World: A Collector's Guide to International Handcuffs, Leg Irons and other Miscellaneous Shackles and Restraints 25 (1997). Despite Coke's admonition that "[i]t [was] an abuse that prisoners be chained with irons, or put to any pain before they be attained," Coke *34, suspected criminals often wore irons during pretrial confinement. J. Langbein, The Origins of Adversary Criminal Trial 50, and n. 197 (2003) (hereinafter Langbein). For example, prior to his trial in 1722 for treason, Christopher Layer spent his confinement in irons. Layer's counsel urged that his irons be struck off, for they allowed him to "sleep but in one posture." Trial of Christopher Layer, 16 How. St. Tr. 94, 98 (K.B. 1722). The concern that felony defendants not be in severe pain at trial was acute because, before the 1730's, defendants were not permitted to have the assistance of counsel at trial, with an early exception made for those charged with treason. Langbein 170-172. Instead, the trial was an "'accused speaks'" trial, at which the accused defended himself. The accused was compelled to respond to the witnesses, making him the primary source of information at trial. Id., at 48; see also Faretta v. California, 422 U.S. 806, 823-824 (1975). As the Court acknowledges, ante, at 3, the rule against shackling did not extend to arraignment.2 A defendant remained in irons at arraignment because "he [was] only called upon to plead by advice of his counsel;" he was not on trial, where he would play the main role in defending himself. Trial of Christopher Layer, supra, at 100 (emphasis added). </s> A modern-day defendant does not spend his pretrial confinement wearing restraints. The belly chain and handcuffs are of modest, if not insignificant, weight. Neither they nor the leg irons cause pain or suffering, let alone pain or suffering that would interfere with a defendant's ability to assist in his defense at trial. And they need not interfere with a defendant's ability to assist his counsel--a defendant remains free to talk with counsel during trial, and restraints can be employed so as to ensure that a defendant can write to his counsel during the trial. Restraints can also easily be removed when a defendant testifies, so that any concerns about testifying can be ameliorated. Modern restraints are therefore unlike those that gave rise to the traditional rule. </s> The Court concedes that modern restraints are nothing like the restraints of long ago, ante, at 7, and even that the rule at common law did not rest on any of the "three fundamental legal principles" the Court posits to support its new rule, ibid. Yet the Court treats old and modern restraints as similar for constitutional purposes merely because they are both types of physical restraints. This logical leap ignores that modern restraints do not violate the principle animating the common-law rule. In making this leap, the Court's strays from the appropriate legal inquiry of examining common-law traditions to inform our understanding of the Due Process Clause. B </s> In the absence of a common-law rule that applies to modern-day restraints, state practice is also relevant to determining whether a deeply rooted tradition supports the conclusion that the Fourteenth Amendment's Due Process Clause limits shackling. See Morales, 397 U.S. 337 (1970), Estelle v. Williams, 425 U.S. 501 (1976), and Holbrook v. Flynn, 475 U.S. 560 (1986), are not evidence of a current consensus about the use of physical restraints. Such cases are but a reflection of the dicta contained in Allen, Estelle, and Holbrook. 1 </s> State practice against shackling defendants was established in the 20th century. In 35 States, no recorded state-court decision on the issue appears until the 20th century.3 Of those 35 States, 21 States have no recorded decision on the question until the 1950's or later.4 The 14 state (including then-territorial) courts that addressed the matter before the 20th century only began to do so in the 1870's.5 The California Supreme Court's decision in People v. Harrington, 42 Cal. 165 (1871), "seems to have been the first case in this country where this ancient rule of the common law was considered and enforced." State v. Smith, 11 Ore. 205, 208, 8 P. 343 (1883). The practice in the United States is thus of contemporary vintage. State practice that was only nascent in the late 19th century is not evidence of a consistent unbroken tradition dating to the common law, as the Court suggests. Ante, at 3-4. The Court does not even attempt to account for the century of virtual silence between the practice established at English common law and the emergence of the rule in the United States. Moreover, the belated and varied state practice is insufficient to warrant the conclusion that shackling of a defendant violates his due process rights. See Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 159 (2000) (where no history of a right to appeal much before the 20th century, no historical support for a right to self-representation on appeal). 2 </s> The earliest state cases reveal courts' divergent views of visible shackling, undermining the notion that due process cabins shackling to cases in which "particular concerns ... related to the defendant on trial" are supported by findings on the record. Ante, at 11. The Supreme Court of the New Mexico Territory held that great deference was to be accorded the trial court's decision to put the defendant in shackles, permitting a reviewing court to presume that there had been a basis for doing so if the record lay silent. Territory of New Mexico v. Kelly, 2 N.M. 292, 304-306 (1882). Only if the record "affirmatively" showed "no reason whatever" for shackling was the decision to shackle a defendant erroneous. Ibid.; see State v. Allen, 45 W.Va. 65, ___, 30 S.E. 209, 211 (1898) (following Kelly), overruled in relevant part, State v. Brewster, 164 W.Va. 173, 182, 261 S.E. 2d 77, 82 (1979). The Alabama Supreme Court also left the issue to the trial court's discretion and went so far as to bar any appeal from the trial court's decision to restrain the defendant. Faire v. State, 58 Ala. 74, 80-81 (1877); see Poe v. State, 78 Tenn. 673, 677 (1882) (decision to manacle a defendant during trial "left to the sound discretion of the trial court" and subject to abuse-of-discretion standard of review). Mississippi concluded that the decision to shackle a defendant "may be safely committed to courts and sheriffs, whose acts are alike open to review in the courts and at the ballot box."6 Lee v. State, 51 Miss. 566, ___ (1875), overruled on other grounds Wingo v. State, 62 Miss. 311 (1884). </s> By contrast, California, Missouri, Washington, and Oregon adopted more restrictive approaches. In People v. Harrington, supra, the California Supreme Court held that shackling a defendant "without evident necessity" of any kind violated the common-law rule as well as state law and was prejudicial to the defendant. Id., at 168-169. A few years later, the Missouri courts took an even more restrictive view, concluding that the use of shackles or other such restraints was permitted only if warranted by the defendant's conduct "at the time of trial." State v. Kring, 64 Mo. 591, 593 (1877); see State v. Smith, supra, at 207-208, 8 P., at 343 (following Kring and Harrington without discussion); State v. Williams, 18 Wash. 47, 50-51, 50 P. 580, 581-582 (1897) (adopting Kring's test). </s> Texas took an intermediate position. The Texas Court of Appeals relied on Kring, and at the same time deferred to the decision made by the sheriff to bring the defendant into the courtroom in shackles. See Rainey v. State, 20 Tex. Ct. App. 455, 472 (1886); see also Parker v. Territory, 5 Ariz. 283, 287-288, 52 P. 361, 363 (1898) (following Harrington but permitting the shackling of a defendant at arraignment based on the crime for which he had been arrested as well as the reward that had been offered for his recapture). </s> Thus, in the late 19th century States agreed that generally defendants ought to come to trial unfettered, but they disagreed over the breadth of discretion to be afforded trial courts. A bare majority of States required that trial courts and even jailers be given great leeway in determining when a defendant should be restrained; a minority of States severely constrained such discretion, in some instances by limiting the information that could be considered; and an even smaller set of States took an intermediate position. While the most restrictive view adopted by States is perhaps consistent with the rule Deck seeks, the majority view is flatly inconsistent with requiring a State to show and for a trial court to set forth findings of an "'essential state interest'" "specific to the defendant on trial" before shackling a defendant. Ante, at 1. In short, there was no consensus that supports elevating the rule against shackling to a federal constitutional command. 3 </s> The modern cases provide no more warrant for the Court's approach than do the earliest cases. The practice in the 20th century did not resolve the divisions among States that emerged in the 19th century. As more States addressed the issue, they continued to express a general preference that defendants be brought to trial without shackles. They continued, however, to disagree about the latitude to be given trial courts. Many deferred to the judgment of the trial court,7 and some to the views of those responsible for guarding the defendant.8 States also continued to disagree over whether the use of shackles was inherently prejudicial.9 Moreover, States differed over the information that could be considered in deciding to shackle the defendant and the certainty of the risk that had to be established, with a small minority limiting the use of shackles to instances arising from conduct specific to the particular trial or otherwise requiring an imminent threat.10 The remaining States permitted courts to consider a range of information outside the trial, including past escape,11 prior convictions,12 the nature of the crime for which the defendant was on trial,13 conduct prior to trial while in prison,14 any prior disposition toward violence,15 and physical attributes of the defendant, such as his size, physical strength, and age.16 The majority permits courts to continue to rely on these factors, which are undeniably probative of the need for shackling, as a basis for shackling a defendant both at trial and at sentencing. Ante, at 6-7. In accepting these traditional factors, the Court rejects what has been adopted by few States--that courts may consider only a defendant's conduct at the trial itself or other information demonstrating that it is a relative certainty that the defendant will engage in disruptive or threatening conduct at his trial. See State v. Coursolle, 255 Minn. 384, 389, 97 N.W. 2d 472, 477 (1959) (defining "immediate necessity" to be demonstrated only by the defendant's conduct "at the time of the trial"); State v. Finch, 137 Wash. 2d 792, 850, 975 P.2d 967, 1001 (1999) (en banc); Blair v. Commonwealth, 171 Ky. 319, 327-328, 188 S.W. 390, 393 (1916); State v. Temple, 194 Mo. 237, ___, 92 S.W. 869, 872 (1906); but see 136 S.W. 3d, at 485 (case below) (appearing to have abandoned this test). </s> A number of those traditional factors were present in this case. Here, Deck killed two people to avoid arrest, a fact to which he had confessed. Evidence was presented that Deck had aided prisoners in an escape attempt. Moreover, a jury had found Deck guilty of two murders, the facts of which not only make this crime heinous but also demonstrate a propensity for violence. On this record, and with facts found by a jury, the Court says that it needs more. Since the Court embraces reliance on the traditional factors supporting the use of visible restraints, its only basis for reversing is the requirement of specific on-the-record findings by the trial judge. This requirement is, however, inconsistent with the traditional discretion afforded to trial courts and is unsupported by state practice. This additional requirement of on-the-record findings about that which is obvious from the record makes little sense to me. 4 </s> In recent years, more of a consensus regarding the use of shackling has developed, with many courts concluding that shackling is inherently prejudicial. But rather than being firmly grounded in deeply rooted principles, that consensus stems from a series of ill-considered dicta in Illinois v. Allen, 397 U.S. 337 (1970), Estelle v. Williams, 425 U.S. 501 (1976), and Holbrook v. Flynn, 475 U.S. 560 (1986). In Allen, the trial court had removed the defendant from the courtroom until the court felt he could conform his conduct to basic standards befitting a court proceeding. 397 U.S., at 340-341. This Court held that removing the defendant did not violate his due process right to be present for his trial. In dicta, the Court suggested alternatives to removal, such as citing the defendant for contempt or binding and gagging him. Id., at 344. The Court, however, did express some revulsion at the notion of binding and gagging a defendant. Ibid. Estelle and Holbrook, repeated Allen's dicta. Estelle, supra, at 505; Holbrook, supra, at 568. The Court in Holbrook went one step further than it had in Allen, describing shackling as well as binding and gagging in dicta as "inherently prejudicial." 475 U.S., at 568. </s> The current consensus that the Court describes is one of its own making. Ante, at 5. It depends almost exclusively on the dicta in this Court's opinions in Holbrook, Estelle, and Allen. Every lower court opinion the Court cites as evidence of this consensus traces its reasoning back to one or more of these decisions.17 These lower courts were interpreting this Court's dicta, not reaching their own independent consensus about the content of the Due Process Clause. More important, these decisions represent recent practice, which does not determine whether the Fourteenth Amendment, as properly and traditionally interpreted, i.e., as a statement of law, not policy preferences, embodies a right to be free from visible, painless physical restraints at trial. III </s> Wholly apart from the propriety of shackling a defendant at trial, due process does not require that a defendant remain free from visible restraints at the penalty phase of a capital trial. Such a requirement has no basis in tradition or even modern state practice. Treating shackling at sentencing as inherently prejudicial ignores the commonsense distinction between a defendant who stands accused and a defendant who stands convicted. A </s> There is no tradition barring the use of shackles or other restraints at sentencing. Even many modern courts have concluded that the rule against visible shackling does not apply to sentencing. See, e.g., State v. Young, 853 P.2d 327, 350 (Utah 1993); Duckett v. State, 104 Nev. 6, 11, 752 P.2d 752, 755 (1988) (per curiam); State v. Franklin, 97 Ohio St. 3d 1, 18-19, 776 N.E. 2d 26, 46-47 (2002); but see Bello v. State, 547 So.2d 914, 918 (Fla. 1989) (applying rule against shackling at sentencing, but suggesting that "lesser showing of necessity" may be appropriate). These courts have rejected the suggestion that due process imposes such limits because they have understood the difference between a man accused and a man convicted. See, e.g., Young, supra, at 350; Duckett, supra, at 11, 752 P.2d, at 755. This same understanding is reflected even in the guilt-innocence phase. In instances in which the jury knows that the defendant is an inmate, though not yet convicted of the crime for which he is on trial, courts have frequently held that the defendant's status as inmate ameliorates any prejudice that might have flowed from the jury seeing him in handcuffs.18 The Court's decision shuns such common sense. B </s> In the absence of a consensus with regard to the use of visible physical restraints even in modern practice, we should not forsake common sense in determining what due process requires. Capital sentencing jurors know that the defendant has been convicted of a dangerous crime. It strains credulity to think that they are surprised at the sight of restraints. Here, the jury had already concluded that there was a need to separate Deck from the community at large by convicting him of double murder and robbery. Deck's jury was surely aware that Deck was jailed; jurors know that convicted capital murderers are not left to roam the streets. It blinks reality to think that seeing a convicted capital murderer in shackles in the courtroom could import any prejudice beyond that inevitable knowledge. Jurors no doubt also understand that it makes sense for a capital defendant to be restrained at sentencing. By sentencing, a defendant's situation is at its most dire. He no longer may prove himself innocent, and he faces either life without liberty or death. Confronted with this reality, a defendant no longer has much to lose--should he attempt escape and fail, it is still lengthy imprisonment or death that awaits him. For any person in these circumstances, the reasons to attempt escape are at their apex. A defendant's best opportunity to do so is in the courtroom, for he is otherwise in jail or restraints. See Westman, Handling the Problem Criminal Defendant in the Courtroom: The Use of Physical Restraints and Expulsion in the Modern Era, 2 San Diego Justice J. 507, 526-527 (1994) (hereinafter Westman). </s> In addition, having been convicted, a defendant may be angry. He could turn that ire on his own counsel, who has failed in defending his innocence. See, e.g., State v. Forrest, 609 S.E. 2d 241, 248-249 (N.C. App. 2005) (defendant brutally attacked his counsel at sentencing). Or, for that matter, he could turn on a witness testifying at his hearing or the court reporter. See, e.g., People v. Byrnes, 33 N.Y. 2d 343, 350, 308 N.E. 2d 435, 438 (1974) (defendant lunged at witness during trial); State v. Harkness, 252 Kan. 510, 516, 847 P.2d 1191, 1197 (1993) (defendant attacked court reporter at arraignment). Such thoughts could well enter the mind of any defendant in these circumstances, from the most dangerous to the most docile. That a defendant now convicted of his crimes appears before the jury in shackles thus would be unremarkable to the jury. To presume that such a defendant suffers prejudice by appearing in handcuffs at sentencing does not comport with reality. IV </s> The modern rationales proffered by the Court for its newly minted rule likewise fail to warrant the conclusion that due process precludes shackling at sentencing. Moreover, though the Court purports to be mindful of the tragedy that can take place in a courtroom, the stringent rule it adopts leaves no real room for ensuring the safety of the courtroom. A </s> Although the Court offers the presumption of innocence as a rationale for the modern rule against shackling at trial, it concedes the presumption has no application at sentencing. Ante, at 9. The Court is forced to turn to the far more amorphous need for "accuracy" in sentencing. Ibid. It is true that this Court's cases demand reliability in the factfinding that precedes the imposition of a sentence of death. Monge v. California, 524 U.S. 721, 732 (1998). But shackles may undermine the factfinding process only if seeing a convicted murderer in them is prejudicial. As I have explained, this farfetched conjecture defies the reality of sentencing. The Court baldly asserts that visible physical restraints could interfere with a defendant's ability to participate in his defense. Ante, at 7-8. I certainly agree that shackles would be impermissible if they were to seriously impair a defendant's ability to assist in his defense, Riggins v. Nevada, 504 U.S. 127, 154, n.4 (1992) (Thomas, J., dissenting), but there is no evidence that shackles do so. Deck does not argue that the shackles caused him pain or impaired his mental faculties. Nor does he argue that the shackles prevented him from communicating with his counsel during trial. Counsel sat next to him; he remained fully capable of speaking with counsel. Likewise, Deck does not claim that he was unable to write down any information he wished to convey to counsel during the course of the trial. Had the shackles impaired him in that way, Deck could have sought to have at least one of his hands free to make it easier for him to write. Courts have permitted such arrangements. See, e.g., People v. Alvarez, 14 Cal. 4th 155, 191, 926 P.2d 365, 386 (1996); State v. Jimerson, 820 S.W. 2d 500, 502 (Mo. App. 1991). </s> The Court further expresses concern that physical restraints might keep a defendant from taking the stand on his own behalf in seeking the jury's mercy. Ante, at 7-8. But this concern is, again, entirely hypothetical. Deck makes no claim that, but for the physical restraints, he would have taken the witness stand to plead for his life. And under the rule the Court adopts, Deck and others like him need make no such assertion, for prejudice is presumed absent a showing by the government to the contrary. Even assuming this concern is real rather than imagined, it could be ameliorated by removing the restraints if the defendant wishes to take the stand. See, e.g., De Wolf v. State, 96 Okla. Cr. 382, 383, 256 P.2d 191, 193 (1953) (leg irons removed from defendant in capital case when he took the witness stand). Instead, the Court says, the concern requires a categorical rule that the use of visible physical restraints violates the Due Process Clause absent a demanding showing. The Court's solution is overinclusive. </s> The Court also asserts the rule it adopts is necessary to protect courtroom decorum, which the use of shackles would offend. Ante, at 8. This courtroom decorum rationale misunderstands this Court's precedent. No decision of this Court has ever intimated, let alone held, that the protection of the "courtroom's formal dignity," ibid., is an individual right enforceable by criminal defendants. Certainly, courts have always had the inherent power to ensure that both those who appear before them and those who observe their proceedings conduct themselves appropriately. See, e.g., Estes v. Texas, 381 U.S. 532, 540-541 (1965). </s> The power of the courts to maintain order, however, is not a right personal to the defendant, much less one of constitutional proportions. Far from viewing the need for decorum as a right the defendant can invoke, this Court has relied on it to limit the conduct of defendants, even when their constitutional rights are implicated. This is why a defendant who proves himself incapable of abiding by the most basic rules of the court is not entitled to defend himself, Faretta v. California, 422 U.S., at 834-835, n. 46, or to remain in the courtroom, see Allen, 397 U.S., at 343. The concern for courtroom decorum is not a concern about defendants, let alone their right to due process. It is a concern about society's need for courts to operate effectively. </s> Wholly apart from the unwarranted status the Court accords "courtroom decorum," the Court fails to explain the affront to the dignity of the courts that the sight of physical restraints poses. I cannot understand the indignity in having a convicted double murderer and robber appear before the court in visible physical restraints. Our Nation's judges and juries are exposed to accounts of heinous acts daily, like the brutal murders Deck committed in this case. Even outside the courtroom, prisoners walk through courthouse halls wearing visible restraints. Courthouses are thus places in which members of the judiciary and the public come into frequent contact with defendants in restraints. Yet, the Court says, the appearance of a convicted criminal in a belly chain and handcuffs at a sentencing hearing offends the sensibilities of our courts. The courts of this Nation do not have such delicate constitutions. </s> Finally, the Court claims that "[t]he appearance of the offender during the penalty phase in shackles ... almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community--often a statutory aggravator and nearly always a relevant factor in jury decisionmaking." Ante, at 10. This argument is flawed. It ignores the fact that only relatively recently have the penalty and guilt phases been conducted separately. That the historical evidence reveals no consensus prohibiting visible modern-day shackles during capital trials suggests that there is similarly no consensus prohibiting shackling during capital sentencing. Moreover, concerns about a defendant's dangerousness exist at the guilt phase just as they exist at the penalty phase--jurors will surely be more likely to convict a seemingly violent defendant of murder than a seemingly placid one. If neither common law nor modern state cases support the Court's position with respect to the guilt phase, I see no reason why the fact that a defendant may be perceived as a future danger would support the Court's position with respect to the penalty phase. B </s> The Court expresses concern for courtroom security, but its concern rings hollow in light of the rule it adopts. The need for security is real. Judges face the possibility that a defendant or his confederates might smuggle a weapon into court and harm those present, or attack with his bare hands. For example, in 1999, in Berks County, Pennsylvania, a "defendant forced his way to the bench and beat the judge unconscious." Calhoun, Violence Toward Judicial Officials, 576 Annals of the American Academy of Political and Social Science 54, 61 (2001). One study of Pennsylvania judges projected that over a 20-year career, district justices had a 31 percent probability of being physically assaulted one or more times. See Harris, Kirschner, Rozek, & Weiner, Violence in the Judicial Workplace: One State's Experience, 576 Annals of the American Academy of Political and Social Science 38, 42 (2001). Judges are not the only ones who face the risk of violence. Sheriffs and courtroom bailiffs face the second highest rate of homicide in the workplace, a rate which is 15 times higher than the national average. Faust & Raffo, Local Trial Court Response to Courthouse Safety, 576 Annals of the American Academy of Political and Social Science 91, 93-94 (2001); Weiner etal., Safe and Secure: Protecting Judicial Officials, 36 Court Review 26, 27 (Winter 2000). The problem of security may only be worsening. According to the General Accounting Office (GAO), the nature of the prisoners in the federal system has changed: "[T]here are more 'hard-core tough guys' and more multiple-defendant cases," making the work of the federal marshals increasingly difficult. GAO, Federal Judiciary Security: Comprehensive Risk-Based Program Should Be Fully Implemented 21 (July 1994). Security issues are particularly acute in state systems, in which limited manpower and resources often leave judges to act as their own security. See Harris, supra, at 46. Those resources further vary between rural and urban areas, with many rural areas able to supply only minimal security. Security may even be at its weakest in the courtroom itself, for there the defendant is the least restrained. Westman 526. </s> In the face of this real danger to courtroom officials and bystanders, the Court limits the use of visible physical restraints to circumstances "specific to a particular trial," ante, at 6, i.e., "particular concerns ... related to the defendant on trial," ante, at 11. Confining the analysis to trial-specific circumstances precludes consideration of limits on the security resources of courts. Under that test, the particulars of a given courthouse (being nonspecific to any particular defendant) are irrelevant, even if the judge himself is the only security, or if a courthouse has few on-duty officers standing guard at any given time, or multiple exits. Forbidding courts from considering such circumstances fails to accommodate the unfortunately dire security situation faced by this Nation's courts. *** The Court's decision risks the lives of courtroom personnel, with little corresponding benefit to defendants. This is a risk that due process does not require. I respectfully dissent. </s> FOOTNOTESFootnote 1See Coke *34 ("If felons come in judgement to answer, ... they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will"); Cranburne's Case, 13 How. St. Tr. 222 (K.B. 1696) (prisoners "should stand at their ease when they are tried"); The Conductor Generalis 403 (J. Parker ed. 1801) (reciting same); cf. ibid. ("[t]hat where the law requires that a prisoner should be kept in salva & arcta custodia, yet that must be without pain or torment to the prisoner"). Footnote 2When arraignment and trial occurred on separate occasions, the defendant could be brought to his arraignment in irons. Trial of Christopher Layer, 16 How. St. Tr. 94, 97 (K.B. 1722) (defendant arraigned in irons); King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B. 1743) (fetters could not be removed until the defendant had pleaded); but cf. R. Burns, Abridgment, or the American Justice 37 (1792) ("The prisoner on his arraignment ... must be brought to the bar without irons and all manner of shackles or bonds, unless there be a danger of escape, and then he may be brought with irons"). Footnote 3State v. Mitchell, 824 P.2d 469, 473-474 (Utah App. 1991); Smith v. State, 773 P.2d 139, 140-141 (Wyo. 1989); Frye v. Commonwealth, 231 Va. 370, 381-382, 345 S.E. 2d 267, 276 (1986); State v. White, 456 A.2d 13, 15 (Me. 1983); State v. Baugh, 174 Mont. 456, 462-463, 571 P.2d 779, 782-783 (1977); Brookins v. State, 354 A.2d 422, 425 (Del. 1976); State v. Phifer, 290 N.C. 203, 219, 225 S.E. 2d 786, 797 (1976); State v. Lemire, 115 N.H. 526, 531, 345 A.2d 906, 910 (1975); Anthony v. State, 521 P.2d 486, 496 (Alaska 1974); State v. Palmigiano, 112 R.I. 348, 357-358, 309 A.2d 855, 861 (1973); Jones v. State, 11 Md. App. 686, 693-694, 276 A.2d 666, 670 (1971); State v. Polidor, 130 Vt. 34, 39, 285 A.2d 770, 773 (1971); State v. Moen, 94 Idaho 477, 479-480, 491 P.2d 858, 860-861 (1971); State v. Yurk, 203 Kan. 629, 631, 456 P.2d 11, 13-14 (1969); People v. Thomas, 1 Mich. App. 118, 126, 134 N.W. 2d 352, 357 (1965); State v. Nutley, 24 Wis. 2d 527, 564-565, 129 N.W. 2d 155, 171 (1964), overruled on other grounds by State v. Stevens, 26 Wis. 2d 451, 463, 132 N.W. 2d 502, 508 (1965); State v. Brooks, 44 Haw. 82, 84-86, 352 P.2d 611, 613-614 (1960); State v. Coursolle, 255 Minn. 384, 389, 97 N.W. 2d 472, 476-477 (1959) (handcuffing of witnesses); Allbright v. State, 92 Ga. App. 251, 252-253, 88 S.E. 2d 468, 469-470 (1955); State v. Roscus, 16 N.J. 415, 428, 109 A.2d 1, 8 (1954); People v. Snyder, 305 N.Y. 790, 791, 113 N.E. 2d 302 (Ct. App. 1953); Eaddy v. People, 115 Colo. 488, 491, 174 P.2d 717, 718 (1946) (en banc); State v. McKay, 63 Nev. 118, 161-163, 165 P.2d 389, 408-409 (1946) (also discussing a 1929 Nevada statute that limited the use of restraints prior to conviction); Rayburn v. State, 200 Ark. 914, 920-922, 141 S.W. 2d 532, 535-536 (1940); Schultz v. State, 131 Fla. 757, 758, 179 So. 764, 765 (1938); Commonwealth v. Millen, 289 Mass. 441, 477-478, 194 N.E. 463, 480 (1935); Pierpont v. State, 49 Ohio App. 77, 83-84, 195 N.E. 264, 266-267 (1934); Corey v. State, 126 Conn. 41, 42-43, 9 A.2d 283, 283-284 (1939); Bradbury v. State, 51 Okla. Cr. 56, 59-61, 299 P. 510, 512 (App. 1931); State v. Hanrahan, 49 S.D. 434, 435-437, 207 N.W. 224, 225 (1926); South v. State, 111 Neb. 383, 384-386, 196 N.W. 684, 685-686 (1923); Blair v. Commonwealth, 171 Ky. 319, 327, 188 S.W. 390, 393 (1916); McPherson v. State, 178 Ind. 583, 584-585, 99 N.E. 984, 985 (1912); State v. Kenny, 77 S.C. 236, 240-241, 57 S.E. 859, 861 (1907); State v. Bone, 114 Iowa 537, 541-543, 87 N.W. 507, 509 (1901). The North Dakota courts have yet to pass upon the question in any reported decision. Footnote 4 </s> See n.3, supra. It bears noting, however, that in 1817 Georgia enacted a statute limiting the use of physical restraints on defendants at trial, long before any decision was reported in the Georgia courts. Prince's Digest of the Laws of the State of Georgia §21, p. 372 (1822). Its courts did not address shackling until 1955. Allbright v. State, supra, at 252-253, 88 S.E. 2d, at 469-470. Footnote 5Parker v. Territory, 5 Ariz. 283, 287-288, 52 P. 361, 363 (1898); State v. Allen, 45 W.Va. 65, ___, 30 S.E. 209, 211 (1898), overruled in relevant part, State v. Brewster, 164 W.Va. 173, 182, 261 S.E. 2d 77, 82 (1979) (relying on Illinois v. Allen, 397 U.S. 337 (1970), and Estelle v. Williams, 425 U.S. 501 (1976)); State v. Williams, 18 Wash. 47, 50-51, 50 P. 580, 581-582 (1897); Commonwealth v. Weber, 167 Pa. 153, 165-166, 31 A. 481, 484 (1895); Rainey v. State, 20 Tex. Ct. App. 455, 472 (1886); Upstone v. People, 109 Ill. 169, ___ (1883); State v. Thomas, 35 La. Ann. 24, ___ (1883); State v. Smith, 11 Ore. 205, 208, 8 P. 343 (1883); Territory of New Mexico v. Kelly, 2 N.M. 292, 304-306 (1882); Poe v. State, 78 Tenn. 673, 677-678 (1882); Faire v. State, 58 Ala. 74, 80-81 (1877); State v. Kring, 1 Mo. App. 438, 441-442 (1876); Lee v. State, 51 Miss. 566, ___ (1875), overruled on other grounds, Wingo v. State, 62 Miss. 311, ___ (1884); People v. Harrington, 42 Cal. 165, 168-169 (1871). Footnote 6Pennsylvania first addressed the question of the shackling of a defendant in the context of a grand jury proceeding. It too concluded that deference was required, finding that the appropriate security for the defendant's transport was best left to the officers guarding him. Commonwealth v. Weber, supra, at 65, 31 A., at 484. Footnote 7See, e.g., State v. Franklin, 97 Ohio St. 3d 1, 18-19, 776 N.E. 2d 26, 46 (2002) (decision to shackle a defendant is left to the sound discretion of a trial court); Commonwealth v. Agiasottelis, 336 Mass. 12, 16, 142 N.E. 2d 386, 389 (1957) ("[A] judge properly should be reluctant to interfere with reasonable precautions which a sheriff deems necessary to keep secure prisoners for whose custody he is responsible and, if a judge fails to require removal of shackles, his exercise of a sound discretion will be sustained"); Rayburn v. State, 200 Ark., at 920-921, 141 S.W. 2d, at 536 ("Trial Courts must be allowed a discretion as to the precautions which they will permit officers ... to take to prevent the prisoner's escape, or to prevent him from harming any person connected with the trial, or from being harmed"); State v. Hanrahan, 49 S.D., at 436, 207 N.W., at 225 ("It is the universal rule that while no unreasonable restraint may be exercised over the defendant during his trial, yet it is within the discretion of the trial court to determine what is and what is not reasonable restraint"); McPherson v. State, 178 Ind., at 585, 99 N.E., at 985 ("[W]hether it is necessary for a prisoner to be restrained by shackles or manacles during the trial must be left to the sound discretion of the trial judge"). Footnote 8See, e.g., Commonwealth v. Millen, 289 Mass., at 477-478, 194 N.E., at 477-478. Footnote 9See, e.g., Smith v. State, 773 P.2d, at 141 ("The general law applicable in situations where jurors see a handcuffed defendant is that, absent a showing of prejudice, their observations do not constitute grounds for a mistrial"); People v. Martin, 670 P.2d 22, 25 (Colo. App. 1983) (shackling is not inherently prejudical) State v. Gilbert, 121 N.H. 305, 310, 429 A.2d 323, 327 (1981) (shackling is not inherently prejudicial); State v. Moore, 45 Ore. App. 837, 840, 609 P.2d 866, 867 (1980) ("[A]bsent a strongly persuasive showing of prejudice to the defendant and that the court abused its discretion, we will not second guess [the trial court's] assessment of its security needs"); State v. Palmigiano, 112 R.I., at 358, 309 A.2d, at 861; State v. Polidor, 130 Vt., at 39, 285 A.2d, at 773; State v. Norman, 8 N.C. App. 239, 242, 174 S.E. 2d 41, 44 (1970); State v. Brooks, 44 Haw., at 84-86, 352 P.2d, at 613-614; State v. Brewer, 218 Iowa 1287, ___, 254 N.W. 834, 840 (1934) ("[T]his court cannot presume that the defendant was prejudiced because he was handcuffed"), overruled by State v. Wilson, 406 N.W. 2d 442, 449, and n.1 (Iowa 1987); but see State v. Coursolle, 255 Minn., at 389, 97 N.W. 2d, at 476-477 (shackling is inherently prejudicial). Footnote 10See, e.g., ibid. (defining "immediate necessity" as "some reason based on the conduct of the prisoner at the time of trial"); Blair v. Commonwealth, 171 Ky., at 327-328, 188 S.W., at 393; State v. Temple, 194 Mo. 237, ___, 92 S.W. 869, 872 (1906) (citing State v. Kring, 64 Mo. 591, 592-593 (1877)). Footnote 11See, e.g., Commonwealth v. Chase, 350 Mass. 738, 740, 217 N.E. 2d 195, 197 (1966) (attempted escape on two prior occasions, plus the serious nature of the offense for which defendant was being tried supported use of restraints); People v. Thomas, 1 Mich. App., at 126, 134 N.W. 2d, at 357 (prison escape for which defendant was on trial sufficed to permit use of shackles); People v. Bryant, 5 Misc. 2d 446, 448, 166 N.Y.S. 2d 59, 61 (1957) (attempts to escape "on prior occasions while in custody," among other things, supported the use of restraints). Footnote 12See, e.g., State v. Roberts, 86 N.J. Super. 159, 165, 206 A.2d 200, 204 (App. Div. 1965) ("In addition to a defendant's conduct at the time of trial, ... defendant's reputation, his known criminal record, his character, and the nature of the case all must be weighed" in deciding whether to shackle a defendant (second emphasis added)); State v. Moen, 94 Idaho, at 480-481, 491 P.2d, at 861-862 (that three defendants were on trial for escape, had been convicted of burglary two days before their trial for escape, and were being tried together was sufficed to uphold trial court's shackling him); State v. McKay, 63 Nev., at 164, 165 P.2d, at 409 (prior conviction for burglary and conviction by army court-martial for desertion, among other things, taken into account); People v. Deveny, 112 Cal.App.2d 767, 770, 247 P.2d 128, 130 (1952) (defendant previously convicted of escape from prison); State v. Franklin, supra, at 19, 776 N.E. 2d, at 46-47 (defendant just convicted of three brutal murders). Footnote 13See, e.g., State v. Roberts, supra, at 165-167, 206 A.2d, at 204. Footnote 14See, e.g., State v. Franklin, supra, at 18-20, 776 N.E. 2d, at 46-47 (defendant "had stabbed a fellow inmate with a pen six times in a dispute over turning out a light"). Footnote 15See, e.g., Frye v. Commonwealth, 231 Va., at 381, 345 S.E. 2d, at 276 (permitting consideration of a "defendant's temperament"); De Wolf v. State, 95 Okla. Cr. 287, 293-294, 245 P.2d 107, 114-115 (1952) (permitting consideration of both the defendant's "character" and "disposition toward being a violent and dangerous person, both to the court, the public and to the defendant himself"). Footnote 16See, e.g., Frye v. Commonwealth, supra, at 381-382, 345 S.E. 2d, at 276 ("A trial court may consider various factors in determining whether a defendant should be restrained" including his "physical attributes"); State v. Dennis, 250 La. 125, 137-138, 194 So.2d 720, 724 (1967) (no prejudice from "defendant's appearance in prisoner garb, handcuffs, and leg-irons before the jury venire" where it was a "'prison inmate case'" and "defendant was a vigorous man of twenty-eight or twenty-nine years of age, about six feet tall, and weighing approximately two hundred and twenty to two hundred and twenty-five pounds"). Footnote 17Dyas v. Poole, 309 F.3d 586, 588-589 (CA9 2002) (per curiam) (relying on Holbrook) amended and superseded by 317 F.3d 934 (2003) (per curiam); Harrell v. Israel, 672 F.2d 632, 635 (CA7 1982) (per curiam) (relying on Allen and Estelle); State v. Herrick, 324 Mont. 76, 80-81, 101 P.3d 755, 758-759 (2004) (relying on Allen and Holbrook); Hill v. Commonwealth, 125 S.W. 3d 221, 233 (Ky. 2004) (relying on Holbrook); State v. Turner, 143 Wash. 2d 715, 724-727, 23 P.3d 499, 504-505 (2001) (en banc) (relying on State v. Finch, 137 Wash. 2d 792, 842, 975 P.2d 967, 997-999 (1999) (en banc), which relies on Allen, Estelle, and Holbrook); Myers v. State, 2000 OK CR 25, ¶¶46-47, 17 P.3d 1021, 1033 (relying on Owens v. State, 1982 OK CR 1, 187, ¶¶4-6, 654 P.2d 657, 658-659, which relies on Estelle); State v. Shoen, 598 N.W. 2d 370, 375-376 (Minn. 1999) (relying on Allen, Estelle, and Holbrook); Lovell v. State, 347 Md. 623, 638-639, 702 A.2d 261, 268-269 (1997) (same); People v. Jackson, 14 Cal. App. 4th 1818, 1829-1830, 18 Cal. Rptr. 2d 586, 593-594 (1993) (relying on People v. Duran, 16 Cal. 3d 282, 290-291, 545 P.2d 1322, 1327 (1976), which relies on Allen); Cooks v. State, 844 S.W. 2d 697, 722 (Tex. Crim. App. 1992) (relying on Marquez v. State, 725 S.W. 2d 217, 230 (Tex. Crim. App. 1987) (en banc), overruled on other grounds, Moody v. State, 827 S.W. 2d 875, 892 (Tex. Crim. App. 1992), which relies on Holbrook); State v. Tweedy, 219 Conn. 489, 505, 508, 594 A.2d 906, 914, 916 (1991) (relying on Estelle and Holbrook); State v. Crawford, 99 Idaho 87, 95-96, 577 P.2d 1135, 1143-1144 (1978) (relying on Allen and Estelle); People v. Brown, 45 Ill. App. 3d 24, 26, 358 N.E. 2d 1362, 1363 (1977) (same); State v. Tolley, 290 N.C. 349, 367, 226 S.E. 2d 353, 367 (1976) (same). See also, e.g., Anthony v. State, 521 P.2d, at 496, and n. 33 (relying on Allen for the proposition that manacles, shackles, and other physical restraints must be avoided unless necessary to protect some manifest necessity); State v. Brewster, 164 W.Va., at 180-181, 261 S.E. 2d, at 81-82 (relying on Allen and Estelle to overrule prior decision permitting reviewing court to presume that the trial court reasonably exercised its discretion even where the trial court had not made findings supporting the use of restraints); Asch v. State, 62 P.3d 945, 963-964 (Wyo. 2003) (relying on Holbrook and Estelle to conclude that shackling is inherently prejudicial, and on Allen to conclude that shackling offends the dignity and decorum of judicial proceedings); State v. Wilson, 406 N.W. 2d, at 449, n.1 (relying in part on Holbrook to hold that visible shackling is inherently prejudicial, overruling prior decision that refused to presume prejudice); State v. Madsen, 57 P.3d 1134, 1136 (Utah App. 2002) (relying on Holbrook for the proposition that shackling is inherently prejudicial). Footnote 18See, e.g., Harlow v. State, 105 P.3d 1049, 1060 (Wyo. 2005) (where jury knew that the prisoner and two witnesses were all inmates, no prejudice from seeing them in shackles); Hill v. Commonwealth, 125 S.W. 3d, at 236 ("The trial court's admonition and the fact that the jury already knew Appellant was a convicted criminal and a prisoner in a penitentiary mitigated the prejudice naturally attendant to such restraint"); State v. Woodward, 121 N.H. 970, 974, 437 A.2d 273, 275 (1981) (where jury already aware that the defendant was confined, any prejudice was diminished); see also Payne v. Commonwealth, 233 Va. 460, 466, 357 S.E. 2d 500, 504 (1987) (no error for inmate-witnesses to be handcuffed where jurors were aware that they "were ... convicted felons and that the crime took place inside a penal institution"); State v. Moss, 192 Neb. 405, 407, 222 N.W. 2d 111, 113 (1974) (where defendant was an inmate, his appearance at arraignment in leg irons did not prejudice him); Jessup v. State, 256 Ind. 409, 413, 269 N.E. 2d 374, 376 (1971) ("It would be unrealistic indeed ... to hold that it was reversible error for jurors to observe the transportation of an inmate of a penal institution through a public hall in a shackled condition"); People v. Chacon, 69 Cal. 2d 765, 778, 447 P.2d 106, 115 (1968) (where defendant was charged with attacking another inmate, "the use of handcuffs was not unreasonable"); State v. Dennis, 250 La., at 138, 194 So.2d, at 724 (no prejudice where defendant of considerable size appeared in prisoner garb, leg irons, and handcuffs before the jury where it was a "'prison inmate case'").

United States Supreme Court UNITED STATES v. LOUISIANA(1969) No. 5639 Argued: Decided: March 3, 1969 </s> In United States v. Louisiana, 363 U.S. 1 , the Court held that by the Submerged Lands Act of 1953 the United States had quit-claimed to Louisiana lands underlying the Gulf of Mexico within three geographical miles of the coastline, the United States being declared entitled to the lands further seaward. The decree and the Act defined "coast line" as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." The United States and Louisiana filed cross-motions for a supplemental decree designating the boundary of the lands under the Gulf owned by Louisiana, the parties differing primarily with respect to that part of the coastline consisting of "the line marking the seaward limit of inland waters." The United States contends that the definitions of "inland waters" contained in the international Convention on the Territorial Sea and the Contiguous Zone (hereafter Convention) should determine the location of that line, while Louisiana urges that the governing boundary is a line it calls the "Inland Water Line" which was fixed by the Commandant of the Coast Guard pursuant to an 1895 federal statute which directed the drawing of "lines dividing the high seas from rivers, harbors, and inland waters." Louisiana urges, alternatively, that the decree proposed by the United States reflects an overly strict construction of the Convention's provisions. Held: </s> 1. That part of Louisiana's coastline which, under the Submerged Lands Act, consists of "the line marking the seaward limit of inland waters," is to be drawn in accordance with the Convention's definitions. Pp. 17-35. </s> (a) Congress deliberately "chose to leave the definition of inland waters . . . in the Court's hands" (United States v. California, 381 U.S. 139, 157 ), and did not intend to tie the meaning of "inland waters" to the 1895 Act, which was enacted to separate the areas in which shipping must follow inland navigation rules from those in which it must follow international rules. Pp. 19-21. [394 U.S. 11, 12] </s> (b) In United States v. California the Court held that the Convention's definitions were "the best and most workable . . . available," and adopted them for the purposes of the Submerged Lands Act. P. 21. </s> (c) Nothing in either the enactment of the 1895 Act or in its administration indicates that the United States has treated the "Inland Water Line" as a territorial boundary. The reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters; and in any event no such claim can be made in the face of long-standing disclaimers of historic title and the absence of any treatment of the "Inland Water Line" by the United States as delimiting an area within which it can exercise jurisdiction over anything but navigation. Pp. 21-32. </s> (d) The Court's adoption in United States v. California of the Convention definitions was "for the purposes of the Submerged Lands Act" and not simply for the purpose of delineating a particular State's coastline. If the inconvenience of an ambulatory coastline proves substantial, the problems may be resolved through legislation or agreement between the parties. Pp. 32-35. </s> 2. Though the Court is able, on the basis of the materials now before it, to decide many issues involving application of the Convention to the Louisiana coast, the Court has decided to refer to a Special Master several particularized disputes over the precise boundary between submerged Gulf lands belonging to the United States and those belonging to Louisiana, since resolution of several of such disputes cannot be made without evidentiary hearings and resolution of others in this technical and unfamiliar area would benefit from the preliminary judgment of a detached referee. Pp. 35-78. </s> (a) Dredged channels in the Gulf leading to inland harbors, not being raised structures, do not come within the category of "permanent harbour works" forming "an integral part of the harbour system," which are to be considered part of the "coast" under Article 8 of the Convention and therefore that provision does not establish such channels as inland waters. 36-40. </s> (b) By application of Article 11 to the Louisiana coast the low-tide elevations situated in the territorial sea (here the three-mile grant to Louisiana under the Submerged Lands Act) as measured from bay-closing lines are part of the coastline from which the Act's three-mile grant extends. Pp. 40-47. [394 U.S. 11, 13] </s> (c) Article 7 of the Convention permits (in paragraph 4) a 24-mile maximum closing line for bays and (in paragraph 2) a "semicircle test" for determining the sufficiency of the water area enclosed (which requires that a bay must embrace at least as much water area within its closing line as would be contained in a semicircle with a diameter equal to the length of the closing line). "Outer Vermilion Bay," an area within a closing line from Tigre Point to Shell Keys, does not qualify as a bay under the semicircle test because it would be part of a larger indentation whose closing line far exceeds the 24-mile limit. Pp. 48-52. </s> (d) "Ascension Bay," whose headlands are jetties at Belle Pass on the west and Southwest Pass on the east, includes the inner bays of the Barataria Bay-Caminada Bay complex which are separated from the outer indentation only by a string of islands across the bays' entrances. Ascension Bay meets the semi-circle test when the islands are treated (as provided by Article 7 (3)) "as if they were part of the water area." Pp. 52-53. </s> (e) Though East Bay does not meet the semicircle test on a closing line between its seawardmost headlands, Louisiana contends that a part of that indentation qualifies as a bay simply because a line can be drawn within it which would satisfy the semicircle test; however, no such area can qualify as a bay unless its own features, not those of the larger indentation, meet the requirements specified in Article 7 (2), as well as the semicircle test therein. Pp. 53-54. </s> (f) Where islands intersected by a direct closing line between the mainland headlands create multiple mouths to a bay (the situation with respect to the Lake Pelto-Terrebonne Bay-Timbalier Bay complex), the bay should be closed by lines between the natural entrance points on the islands, even if those points are landward of the direct line between the mainland entrance points. Pp. 54-60. </s> (g) The Convention does not prohibit the drawing of bay-closing lines to islands where (as is true of much of the Louisiana coast) insular configurations really are "part of the mainland"; and it is left to the Special Master initially to determine whether islands which Louisiana has designated as headlands of bays are so integrally related to the mainland as realistically to be parts of the "coast" within the meaning of the Convention. Pp. 60-66. </s> (h) Fringes or chains of islands are treated the same as other islands and are not taken into account as enclosing inland waters [394 U.S. 11, 14] unless under Article 4 the coastal nation decides in the conduct of its international affairs to draw straight baselines joining appropriate points. The United States within its discretion has decided not to draw straight baselines along the Louisiana coast, and this exercise of discretion is not appropriately subject to review by the Court. Pp. 66-73. </s> (i) The Court leaves to the Special Master the task of determining whether any of the Louisiana coastal waters are "historic bays" within the meaning of Article 7 (6), and the Special Master should consider state exercises of dominion as relevant to the existence of historic title. Pp. 74-78. </s> Victor A. Sachse and J. B. Miller, Special Assistant Attorneys General of Louisiana, argued the State of Louisiana's motion for entry of supplemental decree. With them on the briefs were Jack P. F. Gremillion, Attorney General, Paul M. Hebert, Thomas W. Leigh, Robert F. Kennon, W. Scott Wilkinson, J. J. Davidson, Oliver P. Stockwell, Frederick W. Ellis, and Anthony J. Correro III, Special Assistant Attorneys General, and John L. Madden, Assistant Attorney General. </s> Archibald Cox argued for the United States on cross-motion for supplemental decree as to the State of Louisiana. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Martz, Louis F. Claiborne, Roger P. Marquis, and George S. Swarth. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> In United States v. Louisiana, 363 U.S. 1 , the Court held that by the Submerged Lands Act of 1953 1 the United States had quitclaimed to Louisiana the lands underlying the Gulf of Mexico within three geographical miles of the coastline. 2 The United States was declared [394 U.S. 11, 15] entitled to the lands further seaward. In the decree, as in the Submerged Lands Act, "coast line" was defined as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." 3 We reserved jurisdiction "to entertain such further proceedings, enter such orders and issue such writs as may . . . be deemed necessary or advisable to give proper force and effect to this decree." 4 Before the Court now are cross-motions by the United States and Louisiana 5 for a supplemental decree designating the boundary of the lands under the Gulf owned by Louisiana. 6 The segments of that boundary line that [394 U.S. 11, 16] lie three miles outward from "that portion of the coast which is in direct contact with the open sea" are for the most part easily determinable. The controversy here is primarily over the location of that part of the coastline that consists of "the line marking the seaward limit of inland waters." </s> More than three years ago, in United States v. California, 381 U.S. 139 , we held that Congress had left to the Court the task of defining "inland waters," and we adopted for purposes of the Submerged Lands Act the definitions contained in the international Convention on the Territorial Sea and the Contiguous Zone, ratified by the United States in 1961. 7 The United States asserts that the same definitions should determine the location of the "line marking the seaward limit of inland waters" of Louisiana. Louisiana, on the other hand, contends that this line has already been determined pursuant to an 1895 Act of Congress which directed the drawing of "lines dividing the high seas from rivers, harbors and [394 U.S. 11, 17] inland waters," and has proposed a decree based upon this contention. Alternatively, Louisiana argues that, even assuming the applicability of the definitions contained in the Convention on the Territorial Sea and the Contiguous Zone, the decree proposed by the United States reflects too restrictive a construction of the Convention's provisions in derogation of relevant principles of international law. </s> I. </s> THE "INLAND WATER LINE." </s> Comprehensive congressional regulation of maritime navigation began with the Act of April 29, 1864, 8 which promulgated rules applicable to all vessels of domestic registry on any waters. These rules were patterned on emerging international standards, and when most other maritime nations subsequently changed their rules, the United States Congress in 1885 enacted conforming "Revised International Rules and Regulations" to govern American ships "upon the high seas and in all coast waters of the United States, except such as are otherwise provided for." 9 The 1864 Act was therefore repealed except as to navigation "within the harbors, lakes, and inland waters of the United States." 10 In 1889 the International Maritime Conference drafted new International Rules, which were promptly adopted by Congress. 11 Article 30 of those rules provided that "[n]othing in these rules shall interfere with the operation of a special rule, duly made by local authority, relative to the navigation of any harbor, river, or inland waters." 12 </s> [394 U.S. 11, 18] </s> The United States already had in the 1864 Act such special inland rules for ships of American registry. In order to clarify the areas and ships to which the International and Inland Rules would respectively apply, 13 Congress in 1895 provided that the rules of the 1864 Act were to govern the navigation of all vessels "on the harbors, rivers and inland waters of the United States." 14 The 1895 Act went on to provide: </s> "The Secretary of the Treasury is hereby authorized, empowered and directed from time to time to designate and define by suitable bearings or ranges with light houses, light vessels, buoys or coast objects, the lines dividing the high seas from rivers, harbors and inland waters." </s> The authority thus vested in the Secretary of the Treasury has since been transferred several times to various federal officials and now resides with the Commandant of the Coast Guard; 15 and from time to time the lines authorized by the 1895 Act have been designated along portions of the United States coast. When the Submerged Lands Act was passed in 1953, such lines had been drawn in the Gulf only along some segments of the [394 U.S. 11, 19] Louisiana shore, 16 but in that year the Commandant of the Coast Guard drew new lines applicable to all the waters off the Louisiana coast. 17 In 1954 the Louisiana Legislature declared that it "accepted and approved" this demarcation, which it now calls the "Inland Water Line," as its boundary. 18 Louisiana now argues that this line encloses inland waters and is therefore "the line marking the seaward limit of inland waters," and thus its "coastline" within the meaning of the Submerged Lands Act. 19 </s> Louisiana argues initially that the 1895 Act is in pari materia with the Submerged Lands Act. Congress, it is said, must have contemplated that a technical term such as "inland waters" should have the same meaning in different statutes. The phrase appears, however, in quite different contexts in the two pieces of legislation. While the Submerged Lands Act established boundaries between the lands of the States and the Nation, Congress' only concern in the 1895 Act was with the problem of navigation in waters close to this Nation's shores. There is no evidence in the legislative history that it was the purpose of Congress in 1953 to tie the meaning of the phrase "inland waters" to the 1895 statute. For [394 U.S. 11, 20] instance, during the Senate Committee hearings on the Submerged Lands Act, the following exchange took place between Senator Anderson and the Assistant Attorney General of Louisiana: </s> "Senator ANDERSON. Was there not a so-called Government line drawn along the coast of Louisiana? </s> "Mr. MADDEN. Only a partial line, Senator. I remember the old statute that authorized, I believe it was first the Secretary of Commerce, or the Treasury, to fix a line to show the demarcation between inland waters and the high seas. I think the Coast Guard has attempted to draw a partial line over on the east side of Louisiana. </s> "Senator ANDERSON. We went through all that in the hearing a couple of years ago, and found that was of no value to us whatsoever." 20 </s> Louisiana's position that the Submerged Lands Act must necessarily be read as referring to the 1895 Act is thus not tenable. 21 After a lengthy review of the legislative [394 U.S. 11, 21] history of the Submerged Lands Act in United States v. California, we reached the conclusion that Congress deliberately "chose to leave the definition of inland waters where it found it - in the Court's hands." 381 U.S., at 157 . We adhere to that view, and turn to Louisiana's other arguments in support of the "Inland Water Line." </s> We further decided in United States v. California that the provisions of the Convention on the Territorial Sea and the Contiguous Zone were "the best and most workable definitions available," 381 U.S., at 165 , and we adopted them for purposes of the Submerged Lands Act. Yet Louisiana asserts that the Court is not precluded by the California decision from adopting the "Inland Water Line" in this case. Essentially the argument is that the Convention was not intended either to be the exclusive determinant of inland or territorial waters or to divest a nation of waters which it had long considered subject to its sole jurisdiction. By the long-standing, continuous, and unopposed exercise of jurisdiction to regulate navigation on waters within the "Inland Water Line," the United States is said to have established them as its inland waters under traditional principles of international law. Alternatively, Louisiana suggests that, even assuming the exclusivity of the Convention on the Territorial Sea and the Contiguous Zone, the "Inland Water Line," by virtue of this assertion of sovereignty, has created "historic bays" within the exception of [394 U.S. 11, 22] Article 7 of the Convention. 22 We have concluded, however, that nothing in either the enactment of the 1895 Act or its administration indicates that the United States has ever treated that line as a territorial boundary. </s> Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. 23 Nearest to the nation's shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. 24 Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations. 25 </s> [394 U.S. 11, 23] Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation. 26 </s> Whether particular waters are inland has depended on historical as well as geographical factors. Certain shoreline configurations have been deemed to confine bodies of water, such as bays, which are necessarily inland. But it has also been recognized that other areas of water closely connected to the shore, although they do not meet any precise geographical test, may have achieved the status of inland waters by the manner in which they have been treated by the coastal nation. As we said in United States v. California, it is generally agreed that historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations." 381 U.S., at 172 . 27 </s> [394 U.S. 11, 24] </s> While there is not complete accord on the definition of historic inland waters, 28 it is universally agreed that the reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters. On the contrary, control of navigation has long been recognized as an incident of the coastal nation's jurisdiction over the territorial sea. Article 17 of the Convention on the Territorial Sea and the Contiguous Zone embodies this principle in its declaration that "[f]oreign ships exercising the right of innocent passage [in the territorial sea] shall comply with the laws and regulations enacted by the coastal State . . . and, in particular, with such laws and regulations relating to transport and navigation." 29 </s> [394 U.S. 11, 25] Because it is an accepted regulation of the territorial sea itself, enforcement of navigation rules by the coastal nation could not constitute a claim to inland waters [394 U.S. 11, 26] from whose seaward border the territorial sea is measured. 30 </s> But even if a nation could base a claim to historic inland waters on its continuous regulation of navigation, 31 </s> [394 U.S. 11, 27] it is clear that no historic title can accrue when the coastal nation disclaims any territorial reach by such an exercise of jurisdiction. For at least the last 25 years, during which time Congress has twice re-enacted both the International and Inland Rules, 32 the responsible officials have consistently disclaimed any but navigational significance to the "Inland Water Line." When the line was for the first time completed off the entire Louisiana shore, the Commandant of the Coast Guard declared: </s> "The establishment of descriptive lines of demarcation is solely for purposes connected with navigation and shipping. . . . These lines are not for the purpose of defining Federal or State boundaries, nor do they define or describe Federal or State jurisdiction over navigable waters." 33 </s> As early as 1943 the Coast Guard had differentiated the "Inland Water Line" from other boundaries with territorial significance. Its manual on Admiralty Law Enforcement, published that year, discussed the principles of international law relating to the definitions and jurisdictional attributes of inland waters, the territorial sea, and the high seas. The manual then contrasted the line drawn under the 1895 Act. </s> "NAVIGATION RULE: Now let us consider another line of demarcation. As shown in Chapter V, there are different rules for navigation on the `inland waters' and the `high seas': the Inland Rules and the International Rules. But here we [394 U.S. 11, 28] do not apply the previous definition, but adopt a new one for convenience. The Secretary of Commerce has fixed a series of lines along our coast, lines not following the natural curvature of our shores, and not following any three-mile natural perimeter, and the Inland Rules apply inside this line, while the International Rules apply outside the line. . . . </s> "Quite obviously, this artificial line does not truly separate the high seas from the inland waters of the United States. It simply marks the area within which the Inland Rules apply, and outside of which the International Rules control." 34 </s> In United States v. California we held that the United States' disclaimer to the Court of any historic title was decisive in the light of the "questionable evidence of continuous [394 U.S. 11, 29] and exclusive assertions of dominion over the disputed waters." 381 U.S., at 175 . In this case, not only are there long-standing, extrajudicial disclaimers of historic title, but also the United States has never treated the "Inland Water Line" as delimiting an area within which it can exercise jurisdiction over anything but navigation. 35 </s> [394 U.S. 11, 30] </s> There is no indication that in enacting the navigation rules and authorizing the designation of an "Inland Water Line" Congress believed it was also determining the Nation's territorial boundaries. 36 Indeed, it seems unlikely that Congress, if it had intended that result, would have delegated such authority to the Secretary of the Treasury, to be exercised in his discretion "from time to time" and by reference to navigational aids rather than in accordance with prevailing principles of international law. Consistently with their limited statutory purpose, the lines have always been drawn, and [394 U.S. 11, 31] frequently altered, solely with regard to contemporary navigational needs. 37 And in the only instance called to our attention in which the "Inland Water Line" was [394 U.S. 11, 32] mentioned by the United States in its international relations, the State Department in 1929 cautioned that the "lines do not represent territorial boundaries, but are for navigational purposes." 38 We must therefore reject Louisiana's contention that the United States has historically treated the "Inland Water Line" as the territorial boundary of its inland waters. 39 </s> Finally, Louisiana argues that only adoption of the current "Inland Water Line" will fulfill the "requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States." United States v. California, 381 U.S. 139, 167 . Any line drawn by application of the rules of the Convention on the Territorial Sea and the Contiguous Zone would be ambulatory and would vary with the frequent changes in the shoreline. This will lead, it is said, to continuing uncertainty and endless litigation concerning the location of the Louisiana coastline [394 U.S. 11, 33] under the Submerged Lands Act, because the shore-line is constantly shifting as the Mississippi River and violent Gulf storms remold the soft, silt-like delta soil. This problem was not encountered on the rock-hard, comparatively straight California coast, and Louisiana contends that there is nothing in the Submerged Lands Act which requires that inland waters be given the same definition for every part of the United States coast. 40 Just as the Court was free in United States v. California to adopt the definition which best solved the problems of that case, the argument concludes, we are free in this case to adopt a different definition more suited to the peculiarities of the highly unstable Louisiana shore. </s> We do not, however, so broadly construe our function under the Submerged Lands Act. Our adoption in [394 U.S. 11, 34] United States v. California of the definitions contained in the Convention on the Territorial Sea and the Contiguous Zone was "for purposes of the Submerged Lands Act," and not simply for the purpose of delineating the California coastline. Congress left to this Court the task of defining a term used in the Act, not of drawing state boundaries by whatever method might seem appropriate in a particular case. It would be an extraordinary principle of construction that would authorize or permit a court to give the same statute wholly different meanings in different cases, and it would require a stronger showing of congressional intent than has been made in this case to justify the assumption of such unconfined power. Finally, we note that if the inconvenience of an ambulatory coastline proves to be substantial, there is nothing in this decision which would obstruct resolution of the problems through appropriate legislation or agreement between the parties. Such legislation or agreement might, for example, freeze the coastline as of an agreed-upon date. </s> Even if we were free to adopt varying definitions of inland waters for different portions of the United States coast, we are not convinced that the policy in favor of a certain and stable coastline, strong as it is, would necessarily outweigh countervailing policy considerations under the Submerged Lands Act. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations." 381 U.S., at 165 . The adoption of the "Inland Water Line" for Louisiana would be completely at odds with this desideratum. Moreover, adoption of a new definition of inland waters in this case would create uncertainty and encourage controversy over the coastlines of other States, unsure as to which, if either, of the two definitions [394 U.S. 11, 35] would be applied to them. This uncertainty might be compounded by the absence of any "Inland Water Line" around much of the United States. And we cannot assume that, in enacting the Submerged Lands Act, Congress envisioned that the ownership of potentially vast resources might thereafter be determined "from time to time" by the Coast Guard, acting solely in the interest of navigational convenience. </s> For these reasons, we conclude that that part of Louisiana's coastline which, under the Submerged Lands Act, consists of "the line marking the seaward limit of inland waters," is to be drawn in accordance with the definitions of the Convention on the Territorial Sea and the Contiguous Zone. </s> II. </s> APPLICATION OF THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE. </s> Many issues divide the parties concerning the application of the provisions of the Convention on the Territorial Sea and the Contiguous Zone to the Louisiana coast. Some of these issues, which involve simply interpretation of the Convention, we have been able to decide on the basis of the materials now before us. Others, however, are primarily factual questions involving the construction and application of the Convention's provisions with respect to particularized geographical configurations. Several of these factual disputes cannot be properly resolved without evidentiary hearings, and as to others we think it would be wise at all events in this technical and unfamiliar area to have the benefit, preliminarily, of the judgment of a detached referee. Accordingly, we have decided to refer to a Special Master the task of resolving in the first instance several of the particularized disputes over the precise [394 U.S. 11, 36] boundary between the submerged Gulf lands belonging to the United States and those belonging to Louisiana. </s> 1. Dredged channels. A recurring question in the application of the Convention to the Louisiana coast is whether dredged channels in the Gulf leading to inland harbors comprise inland waters. 41 In support of its contention that dredged channels, as such, are inland waters, Louisiana relies principally on Article 8 of the Convention: </s> "For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast." </s> Incontestably, Louisiana argues, the channels "form an integral part of the harbour system"; that they are "harbour works" as well should also be obvious in light of the enormous cost and effort which the United States has expended in dredging and maintaining them. </s> The United States argues more convincingly, however, that Article 8 applies only to raised structures. The discussions of the Article by the 1958 Geneva Conference and the International Law Commission reveal that the term "harbour works" connoted "structures" and "installations" which were "part of the land" and which in [394 U.S. 11, 37] some sense enclosed and sheltered the waters within. 42 It is not enough that the dredged channels may be an "integral part of the harbour system"; even raised structures which fit that description, such as lighthouses, are not considered "harbour works" unless they are "connected with the coast." 43 Thus, Article 8 provides that [394 U.S. 11, 38] "harbour works . . . shall be regarded as forming part of the coast" (emphasis supplied), a description which hardly fits underwater channels. As part of the "coast," the breadth of the territorial sea is measured from the harbor works' low-water lines, attributes not possessed by dredged channels. 44 We must therefore conclude that Article 8 does not establish dredged channels as inland waters. </s> Louisiana also contends that the legislative history of the Submerged Lands Act reveals a clear congressional purpose to include such channels as inland waters. Early versions of the bill contained a definition of the term "inland waters" for the purposes of the Act, and that [394 U.S. 11, 39] definition included "channels." 45 The definition was later deleted, but Louisiana contends that the sole purpose of the deletion was to avoid a construction of the definition which would exclude other areas from inland waters. 46 In United States v. California, 381 U.S. 139, 150 -160, we reviewed at length the pertinent legislative history and concluded that the only sure inference which could be drawn from the deletion of the definition was that Congress thought the highly technical question should be left to the courts. We remain [394 U.S. 11, 40] of that view. Moreover, it is far from clear that the word "channels" in the deleted definition encompassed dredged channels in the open sea. From the context in which the word appears, it is far more likely that the definition referred only to bodies of water bordered by land. 47 </s> 2. The territorial sea of low-tide elevations. Article 11 of the Convention on the Territorial Sea and the Contiguous Zone deals with the subject of low-tide elevations: </s> "1. A low-tide elevation is a naturally-formed area of land which is surrounded by and above water at low-tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. </s> "2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own." </s> The question presented by the application of this provision to the Louisiana coast is whether the territorial sea - or, for purposes of this case, the three-mile grant to Louisiana under the Submerged Lands Act - is to be measured from low-tide elevations which lie within three miles of the baseline across the mouth of a bay but more than three miles from any point on the mainland or an island. 48 </s> [394 U.S. 11, 41] </s> The United States argues that the phrase "at a distance not exceeding the breadth of the territorial sea from the mainland" does not refer to the territorial sea as a situs. Rather it uses the width of the territorial sea only as a measurement of distance - a circumlocution made necessary by the failure of the 1958 Geneva Conference [394 U.S. 11, 42] to agree upon a uniform width. 49 And that distance - three miles in this case - is to be measured from the "mainland," a term which does not comprise baselines across bodies of water but is limited to the low-water mark on dry land. Louisiana, on the other hand, interprets the Article as covering all low-tide elevations situated anywhere within the territorial sea. And the drawing of baselines across the mouths of bays is an integral step in the determination of the area of the territorial sea. Moreover, Louisiana argues, the term "mainland" does include inland waters. The theory of the Convention, it is argued, reflects a long-standing principle of international law - that bays and other inland waters are practically assimilated to the dry land and treated for all legal purposes as if they were a part of it. 50 </s> The parties agree that Article 11 on its face is not wholly dispositive of the issue, and that the language does not preclude either construction. 51 Each party, therefore, relies on the origins of the Article and the statements of its drafters. When the provision was first proposed to the International Law Commission in 1952, it read as follows: </s> "Elevations of the sea bed situated within the territorial sea, though only above water at low tide, [394 U.S. 11, 43] are taken into consideration for the determination of the base line of the territorial sea." 52 (Emphasis supplied.) </s> After several amendments to the rapporteur's draft, 53 the Commission in 1954 adopted a version with substantially the same meaning: </s> "Drying rocks and shoals which are wholly or partly within the territorial sea may be taken as points of departure for delimiting the territorial sea." 54 (Emphasis supplied.) </s> As the discussion made clear, both drafts of the Article covered all low-tide elevations within the territorial sea, however measured. Moreover, the provision was thought to embody long-standing principles of international law. 55 </s> [394 U.S. 11, 44] </s> The draft encountered a serious objection, however, which led to its further amendment by the International Law Commission. If every low-tide elevation "within [394 U.S. 11, 45] the territorial sea" was to have a territorial sea of its own, then </s> "a country like Holland might extend its territorial sea very considerably by advancing from one shoal to another, claiming that a shoal situated within the territorial sea of another shoal had itself a territorial sea." 56 </s> To avoid this undue extension of the territorial sea, the final draft of the Commission was revised to read as follows: </s> "Drying rock and drying shoals which are wholly or partly within the territorial sea, as measured from the mainland or an island, may be taken as points of departure for measuring the extension of the territorial sea." 57 (Emphasis supplied.) </s> It is clear that under the International Law Commission version of Article 11, the "territorial sea, as measured from the mainland" included those portions which extended from baselines enclosing bays. 58 The sole purpose [394 U.S. 11, 46] of the amendment to the initial proposals was to indicate that "drying rocks and drying shoals could only be used once as points of departure for extending the territorial sea and that the process could not be repeated by leapfrogging, as it were, from one rock or shoal to another." 59 </s> The United States contends that by changing the language of the International Law Commission draft to its present form in the Convention, the Geneva Conference intended also to change its meaning. Precisely the opposite conclusion, however, flows from an inspection of the history of the Convention. The amendment was advanced by the United States; yet its explanation for the proposal contained not the slightest indication that any change in the basic meaning of the Article was intended. 60 Surely there would have been some discussion of the reference to the territorial sea as a measure of distance rather than as a situs had it been the purpose of the United States or the Conference to alter so significantly the meaning of prior drafts and the existing international consensus. 61 Instead, the expert to the [394 U.S. 11, 47] Secretariat of the Conference explained "that all the proposals on article 11 corresponded entirely to the intentions of the International Law Commission." 62 We therefore conclude that low-tide elevations situated in the territorial sea as measured from bay-closing lines are part of the coastline from which the three-mile grant of the Submerged Lands Act extends. 63 </s> [394 U.S. 11, 48] </s> 3. The semicircle test. Article 7 (2) defines a bay as follows: </s> "For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation." </s> (a) In several areas along the Louisiana coast the parties raise the problem of whether and to what extent indentations within or tributary to another indentation can be included in the area of the latter for purposes of the semicircle test. Louisiana argues that a closing line should be drawn across what it calls "Outer Vermilion Bay" from Tigre Point to Shell Keys. That body of water does not meet the semicircle test unless the area of Vermilion Bay, joined to "Outer Vermilion Bay" only by a channel between the mainland and Marsh Island, is included. Similarly, Louisiana contends that "Ascension Bay," whose headlands are said to be the jetties at Belle Pass on the west and Southwest Pass on the east, is a bay under Article 7 (2). 64 Again, however, [394 U.S. 11, 49] its area will satisfy the semicircle test only if deemed to include the waters of the Barataria Bay-Caminada [394 U.S. 11, 50] Bay complex, which are separated from the outer indentation by a string of islands. 65 </s> Louisiana argues that the area of tributary bays or other indentations must be included within that of the primary indentation. Article 7 (3) provides that "[f]or the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points." (Emphasis supplied.) The italicized phrase, it is said, constitutes a direction to follow the low-water line wherever it goes, including into other indentations, in drawing the perimeter of the primary bay. The general rule is well recognized, Louisiana argues, by the United States [394 U.S. 11, 51] Department of State among others, that the area of bays within bays is included in calculating the semicircle test. 66 </s> The United States does not reject the notion that some indentations which would qualify independently as bays may nonetheless be considered as part of larger indentations for purposes of the semicircle test; but it denies the existence of any rule that all tributary waters are so includible. Article 7 (2), it emphasizes, refers to "that indentation." The inner bays can be included, therefore, only if they can reasonably be considered part of the single, outer indentation. And that cannot be said of inland waters which, like Vermilion Bay and Barataria Bay-Caminada Bay, are wholly separated from the outer body of water and linked only by narrow passages or channels. 67 </s> [394 U.S. 11, 52] </s> For purposes of this lawsuit, we find it unnecessary to provide a complete answer to the questions posed by the parties. "Outer Vermilion Bay," if it is to qualify under the semicircle test, must include the waters of Vermilion Bay. Yet Vermilion Bay is itself a part of the much larger indentation which includes West and East Cote Blanche Bays and Atchafalaya Bay, and which opens to the sea between Marsh Island and Point au Fer. Recognition of the unitary nature of this larger indentation follows from Louisiana's insistence that the low-water mark must be followed around the entire indentation. If, as Louisiana posits, the western headland of the indentation is at Tigre Point, then a closing line across its mouth to Point au Fer far exceeds the 24-mile limit imposed by Article 7 (4). 68 It follows that "Outer Vermilion Bay" is neither itself a bay nor part of a larger bay under the Convention on the Territorial Sea and the Contiguous Zone. </s> We have concluded, on the other hand, that the area of "Ascension Bay" does include the Barataria Bay-Caminada Bay complex and therefore meets the semicircle test. Those inner bays are separated from the larger "Ascension Bay" only by the string of islands across their entrances. 69 If those islands are ignored, the entrance to Barataria and Caminada Bays is sufficiently [394 U.S. 11, 53] wide that those bays and "Ascension Bay" can reasonably be deemed a single large indentation even under the United States' approach. 70 Article 7 (3) provides that for the purposes of calculating the semicircle test, "[i]slands within an indentation shall be included as if they were part of the water areas of the indentation." The clear purpose of the Convention is not to permit islands to defeat the semicircle test by consuming areas of the indentation. We think it consistent with that purpose that islands should not be permitted to defeat the semicircle test by sealing off one part of the indentation from the rest. Treating the string of islands "as if they were part of the water areas" of the single large indentation within which they lie, "Ascension Bay" does meet the semicircle test. 71 </s> (b) Another issue involving the semicircle test arises in East Bay in the Mississippi River Delta. 72 Since East Bay does not meet the semicircle test on a closing line between its seawardmost headlands - the tip of the jetty at Southwest Pass and the southern end of South Pass - it does not qualify as a bay under Article 7 of the Convention on the Territorial Sea and the Contiguous Zone. There is a line which can be drawn within East [394 U.S. 11, 54] Bay, however, so as to satisfy the semicircle test. Louisiana argues that, just as under Article 7 (5) a 24-mile line can be drawn within a bay whose mouth is more than 24 miles wide, 73 so also can a line which satisfies the semicircle test be drawn within a bay whose mouth is too wide to meet that test. </s> The analogy is unsound. A bay whose mouth is wider than 24 miles is nevertheless a bay. But an indentation that does not meet the semicircle test is not a bay but open sea. If an indentation which satisfies the semicircle test is a true bay, therefore, it cannot be on the theory that the closing line carves out a portion of a larger bay. The enclosed indentation must by its own features qualify as a bay. </s> The United States argues that the area within East Bay enclosed by Louisiana's proposed line does not constitute a bay because there is no "well-marked indentation" with identifiable headlands which encloses "land-locked" waters. Indeed, it is said, there is not the slightest curvature of the coast at either asserted entrance point. We do not now decide whether the designated portion of East Bay meets these criteria, but hold only that they must be met. We cannot accept Louisiana's argument that an indentation which satisfies the semicircle test ipso facto qualifies as a bay under the Convention. Such a construction would fly in the face of Article 7 (2), which plainly treats the semicircle test as a minimum requirement. And we have found nothing in the history of the Convention which would support so awkward a construction. </s> 4. Islands at the mouth of a bay. Article 7 (3) of the Convention on the Territorial Sea and the Contiguous Zone provides: </s> "For the purpose of measurement, the area of an indentation is that lying between the low-water [394 U.S. 11, 55] mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semicircle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation." </s> While the only stated relevance of such islands is to the semicircle test, it is clear that the lines across the various mouths are to be the baselines for all purposes. 74 The application of this provision to the string of islands across the openings to the Lake Pelto-Terrebonne Bay-Timbalier Bay complex has raised the following questions: (a) between what points on the islands are the closing lines to be drawn, and (b) should the lines be drawn landward of a direct line between the entrance points on the mainland? </s> (a) It is Louisiana's primary contention that when islands appear in the mouth of a bay, the lines closing the bay and separating inland from territorial waters should be drawn between the mainland headlands and the seawardmost points on the islands. This position, however, is refuted by the language of Article 7 (3), which provides for the drawing of baselines "across the different mouths" (emphasis supplied), not across the [394 U.S. 11, 56] most seaward tips of the islands. There is no suggestion in the Convention that a mouth caused by islands is to be located in a manner any different from a mouth between points on the mainland - that is, by "a line joining the low-water marks of [the bay's] natural entrance points." The "natural entrance points" may, and in some instances in the Lake Pelto-Terrebonne Bay-Timbalier Bay complex do, coincide with the outermost edges of the islands. But there is no automatic correlation, and the headlands must be selected according to the same principles that govern the location of entrance points on the mainland. </s> (b) Louisiana argues in the alternative that even if the closing lines should not necessarily connect the most seaward points on the islands, in no event should they be drawn landward of a direct line between the entrance points on the mainland. 75 The purpose of Article 7 (3) is expressed in the following passage from the Commentary of the International Law Commission: </s> "Here, the Commission's intention was to indicate that the presence of islands at the mouth of an indentation tends to link it more closely to the mainland, and this consideration may justify some alteration in the ratio between the width and the penetration of the indentation." 76 </s> [394 U.S. 11, 57] </s> It is evident, Louisiana argues, that Article 7 (3) was designed to enlarge rather than contract the area of inland waters; and that this policy would not be served by permitting islands intersected by a direct closing line between the mainland headlands to pull that line inward, particularly when the indentation would qualify as a bay even in the absence of the islands. 77 Rather, the line should be selected which will enclose the maximum area of inland waters. 78 </s> Louisiana's argument is undermined, however, by the natural effect of islands at the mouth of an indentation described in the International Law Commission Commentary. [394 U.S. 11, 58] Just as the "presence of islands at the mouth of an indentation tends to link it more closely to the mainland," so also do the islands tend to separate the waters within from those without the entrances to the bay. Even waters which would be considered within the bay and therefore "landlocked" in the absence of the islands are physically excluded from the indentation if they lie seaward of the mouths between the islands. It would be anomalous indeed to say that waters are part of a bay even though they lie outside its natural entrance points. No doubt there could be islands which would not, whether because of their size, shape, or relationship to the mainland, be said to create more than one mouth to the bay. But where, as in the Lake Pelto-Terrebonne Bay-Timbalier Bay complex, a string of islands covers a large percentage of the distance between the mainland entrance points, the openings between the islands are distinct mouths outside of which the waters cannot sensibly be called "inland." </s> Louisiana purports to find support for its position in the provision of Article 7 (3) that "[i]slands within an indentation shall be included as if they were part of the water areas of the indentation." This provision would preclude drawing lines to an island wholly within the indentation, 79 Louisiana argues, and it should therefore [394 U.S. 11, 59] also preclude drawing closing lines to any part of an island landward of a straight line between the mainland headlands. We cannot, however, accept this construction of the Convention. An island which is intersected by a direct mainland-to-mainland closing line is not "within [the] indentation." Nor can an island which forms the mouth of an indentation be "within" it. [394 U.S. 11, 60] Article 7 (3) clearly distinguishes between islands which, by creating multiple mouths, form a part of the perimeter of the bay, and those which, by their presence wholly "within" the bay, are treated as part of its water areas. </s> In sum, we hold that where islands intersected by a direct closing line between the mainland headlands create multiple mouths to a bay, the bay should be closed by lines between the natural entrance points on the islands, even if those points are landward of the direct line between the mainland entrance points. </s> 5. Islands as headlands of bays. With respect to many of the bays on the Louisiana coast the question is presented whether a headland of an indentation can be located on an island. 80 The United States argues [394 U.S. 11, 61] that the Convention on the Territorial Sea and the Contiguous Zone flatly prohibits the drawing of bay-closing lines to islands. A true bay, it is said, is an "indentation" within the mainland, and it cannot be created by the "projection" of an island or islands from the coast. Moreover, the rule of Article 7 (3) that the area of an indentation lies between the closing line and "the low-water mark around the shore of the indentation" contemplates a perimeter of dry land unbroken by any opening other than the bay's entrance. Finally, the United States argues, such an opening between the island and the mainland would deprive the enclosed waters of the "landlocked" quality required in a true bay. </s> We do not agree that the face of the Convention clearly concludes the question. No language in Article 7 or elsewhere positively excludes all islands from the meaning of the "natural entrance points" to a bay. Waters within an indentation which are "landlocked" despite the bay's wide entrance surely would not lose that characteristic on account of an additional narrow opening to the sea. That the area of a bay is delimited by the "low-water mark around the shore" does not necessarily mean that the low-water mark must be continuous. 81 </s> Moreover, there is nothing in the history of the Convention or of the international law of bays which establishes [394 U.S. 11, 62] that a piece of land which is technically an island can never be the headland of a bay. Of course, the general understanding has been - and under the Convention certainly remains - that bays are indentations in the mainland, 82 and that islands off the shore are not headlands but at the most create multiple mouths to the bay. 83 In most instances and on most coasts it is no doubt true that islands would play only that restricted [394 U.S. 11, 63] role in the delimitation of bays. But much of the Louisiana coast does not fit the usual mold. It is marshy, insubstantial, riddled with canals and other waterways, and in places consists of numerous small clumps of land which are entirely surrounded by water and therefore technically islands. With respect to some spots along the Louisiana coast even the United States has receded from its rigid position and recognized that these insular configurations are really "part of the mainland." The western shore of the Lake Pelto-Terrebonne Bay-Timbalier Bay indentation is such a formation, and is treated by the United States as part of the coast. </s> This Court too has in the past adopted this realistic approach to similar land formations. In Louisiana v. Mississippi, 202 U.S. 1, 45 -46, we wrote: </s> "Mississippi denies that the peninsula of St. Bernard and the Louisiana Marshes constitute a peninsula in the true sense of the word, but insists that they constitute an archipelago of islands. Certainly there are in the body of the Louisiana Marshes or St. Bernard peninsula portions of sea marsh which might technically be called islands, because they are land entirely surrounded by water, but they are not true islands. They are rather, as the Commissioner of the General Land Office wrote the Mississippi land commissioner in 1904, `in fact, hummocks of land surrounded by the marsh and swamp in said townships. . . .' </s> "And when the Louisiana act used the words: `thence bounded by the said Gulf to the place of beginning, including all islands within three leagues of the coast,' the coast referred to is the whole coast of the State, and the peninsula of St. Bernard formed an integral part of it." [394 U.S. 11, 64] </s> Naturally this common-sense approach extends to coastal formations where there are only a few islands, or even a single island, as well as to those where there are many. Such has been the view of other courts 84 </s> [394 U.S. 11, 65] and of textwriters. 85 Much of the Louisiana coast on or near the Mississippi River Delta is of the same general consistency as the western shore of the Lake Pelto-Terrebonne [394 U.S. 11, 66] Bay-Timbalier Bay complex, and some of the islands may be so closely linked to the mainland as realistically to be assimilated to it. While there is little objective guidance on this question to be found in international law, the question whether a particular island is to be treated as part of the mainland would depend on such factors as its size, its distance from the mainland, the depth and utility of the intervening waters, the shape of the island, and its relationship to the configuration or curvature of the coast. 86 We leave to the Special Master the task of determining in the first instance - in the light of these and any other relevant criteria and any evidence he finds it helpful to consider - whether the islands which Louisiana has designated as headlands of bays are so integrally related to the mainland that they are realistically parts of the "coast" within the meaning of the Convention on the Territorial Sea and the Contiguous Zone. </s> 6. Fringes of islands. At several places 87 the question is raised whether areas between the mainland and fringes [394 U.S. 11, 67] or chains of islands along the coast are inland waters. The parties agree that no article of the Convention specifically provides that such areas are inland waters. Louisiana argues that they are inland waters, under any one of several theories: that such island fringes form the perimeter of bays under Article 7, that straight baselines must be drawn along the islands under Article 4, or that the waters should be deemed "inland" under general principles of international law which antedate and supplement the Convention on the Territorial Sea and the Contiguous Zone. The position of the United States is that such island chains can be taken into account as enclosing inland waters only by drawing straight baselines; yet the decision whether to draw such baselines is within the sole discretion of the Federal Government, and the United States has not chosen to do so. </s> We have concluded that Article 7 does not encompass bays formed in part by islands which cannot realistically be considered part of the mainland. 88 Article 7 defines bays as indentations in the "coast," a term which is used in contrast with "islands" throughout the Convention. Moreover, it is apparent from the face and the history of the Convention that such insular formations were intended to be governed solely by the provision in [394 U.S. 11, 68] Article 4 for straight baselines. 89 The language of Article 4 itself is the clearest indication of that intent: </s> "1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured." (Emphasis supplied.) </s> The drafters of the Convention and their predecessors were aware that international law permitted such island fringes in some circumstances to enclose inland waters. 90 </s> [394 U.S. 11, 69] The principle was recognized and applied by the International Court of Justice in the Fisheries Case (United Kingdom v. Norway), 1951. I. C. J. 116, in which Norway was held legitimately to have drawn straight baselines along the "skjaergaard," literally a "rock rampart" composed of hundreds of thousands of insular formations which ringed the mainland. Thereafter, with the Fisheries Case as the model, attempts were made to draft concrete rules for the uniform treatment of such island fringes, and both the International Law Commission and the 1958 Geneva Conference discussed the problem at length. 91 There was, however, too little technical information or consensus among nations on that and related subjects to allow the formulation of uniform rules. 92 It was agreed, therefore, that the problem should be handled as it had been by the International [394 U.S. 11, 70] Court of Justice in the Fisheries Case: each nation was left free to draw straight baselines along suitable insular configurations if it so desired. 93 In the light of this resolution [394 U.S. 11, 71] of the problem, it is clear that the drafters did not intend to leave island fringes beyond the scope of the Convention altogether. The deliberate decision was that such island formations are not to be treated differently from any other islands 94 unless the coastal nation decides to draw straight baselines. 95 </s> [394 U.S. 11, 72] </s> In United States v. California, 381 U.S. 139, 168 , we held that "the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States." 96 Since the United States asserts that it has not drawn and does not want to draw straight baselines along the Louisiana coast, that disclaimer would, under the California decision, be conclusive of the matter. Louisiana argues, however, that because the Louisiana coast is so perfectly suited to the straight baseline method, and because it is clear that the United States would employ it in the conduct of its international affairs were it not for this lawsuit, the Court should reconsider its holding in California and itself draw appropriate baselines. While we agree that the straight baseline method was designed for precisely such coasts as the Mississippi River Delta area, we adhere to the position that the selection of this optional method of establishing boundaries [394 U.S. 11, 73] should be left to the branches of Government responsible for the formulation and implementation of foreign policy. It would be inappropriate for this Court to review or overturn the considered decision of the United States, albeit partially motivated by a domestic concern, not to extend its borders to the furthest extent consonant with international law. 97 </s> [394 U.S. 11, 74] </s> 7. Historic inland waters. Louisiana argues that all the waters of the Mississippi River Delta, and East Bay in particular, are "so-called `historic' bays" within the meaning of Article 7 (6), 98 and that they are therefore inland waters notwithstanding their failure to meet the geographical requirements of Article 7 and the United States' refusal to draw straight baselines. 99 Historic [394 U.S. 11, 75] bays are not defined in the Convention, and the term therefore derives its content from general principles of international law. 100 As the absence of a definition indicates, there is no universal accord on the exact meaning of historic waters. 101 There is substantial agreement, however, on the outlines of the doctrine and on the type of showing which a coastal nation must make in order to establish a claim to historic inland waters. 102 But because the concept of historic waters is still relatively imprecise and its application to particular areas raises primarily factual questions, we leave to the Special Master - as we did in United States v. California - the task of determining in the first instance whether any of the waters off the Louisiana coast are historic bays. We do not think the ultimate resolution of this litigation would be hastened by any further discussion of the subject at this time, beyond the remarks below. </s> In its effort to establish that the waters of the Delta have been subjected to the continuous authority of the coastal nation, Louisiana has relied heavily on its own activities as well as on those of the Federal Government. The United States contends that those state activities cannot in this lawsuit support the position that the Delta waters are historic bays. The argument is not [394 U.S. 11, 76] that such exercises of authority by Louisiana would not be relevant to a claim of historic title vis-a-vis another nation. On the contrary, the United States has "[n]o doubt [that] the national government may, if it chooses, rely on State action to support its own historic claim as against other nations." 103 But, the United States asserts, "a State cannot oblige it to do so or to accept State action as binding in a domestic case such as the present one." In brief, then, the United States' position is that it can prevent judicial recognition of a ripened claim to historic title merely by lodging a disclaimer with the court. </s> In United States v. California we noted, but found it unnecessary to pass on, the United States' contention that historic title cannot be founded upon exercises of state authority because a claim to historic inland waters can be maintained only if endorsed by the United States. We there sustained the Master's determination that, even assuming the relevance of California's assertions of sovereignty over the coastal waters, they did not establish historic title. The United States' disclaimer was credited only because the case presented such "questionable evidence of continuous and exclusive assertions of [394 U.S. 11, 77] dominion." 381 U.S., at 175 . And we noted that we were "reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt." Ibid. Thus, the Court indicated its unwillingness to give the United States the same complete discretion to block a claim of historic inland waters as it possesses to decline to draw straight baselines. </s> While we do not now decide that Louisiana's evidence of historic waters is "clear beyond doubt," neither are we in a position to say that it is so "questionable" that the United States' disclaimer is conclusive. We do decide, however, that the Special Master should consider state exercises of dominion as relevant to the existence of historic title. The Convention was, of course, designed with an eye to affairs between nations rather than domestic disputes. But, as we suggested in United States v. California, it would be inequitable in adapting the principles of international law to the resolution of a domestic controversy, to permit the National Government to distort those principles, in the name of its power over foreign relations and external affairs, by denying any effect to past events. 104 The only fair way to apply the Convention's recognition of historic bays to this case, then, is to treat the claim of historic waters as if it were being made by the national sovereign and opposed by another nation. To the extent the United [394 U.S. 11, 78] States could rely on state activities in advancing such a claim, they are relevant to the determination of the issue in this case. </s> III. </s> In due course a Special Master will be appointed by the Court to make a preliminary determination, consistent with this opinion, of the precise boundaries of the submerged lands owned by Louisiana in the Gulf of Mexico. </s> It is so ordered. </s> THE CHIEF JUSTICE and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. </s> Footnotes [Footnote 1 67 Stat. 29, 43 U.S.C. 1301-1315. </s> [Footnote 2 The Submerged Lands Act was enacted in response to the Court's decisions in United States v. California, 332 U.S. 19 , [394 U.S. 11, 15] United States v. Texas, 339 U.S. 707 , and United States v. Louisiana, 339 U.S. 699 , that the States did not own the submerged lands off their coasts and that the United States had paramount rights in such lands. After enactment of the Submerged Lands Act, the United States commenced this action against Louisiana, invoking our original jurisdiction under Art. III, 2, of the Constitution, and seeking a declaration that it was entitled to exclusive possession of and power over the lands underlying the Gulf of Mexico more than three geographical miles from the coast. </s> [Footnote 3 364 U.S. 502, 503 ; 43 U.S.C. 1301 (c). </s> [Footnote 4 364 U.S., at 504 . </s> [Footnote 5 By order of the Court, the United States' original suit against Louisiana was broadened to include the other Gulf States as defendants. 354 U.S. 515 . In connection with the supplemental decrees now proposed by the United States and Louisiana, Texas and Mississippi have filed motions seeking an order eliminating from consideration any issue with respect to the lateral boundaries between Louisiana and those States. While we have found it unnecessary to enter any such formal order, it is evident that the decree which will be entered at this stage of the case will decide only the rights of Louisiana and the United States and will not affect any lateral boundaries between the States. </s> [Footnote 6 A supplemental decree was entered in 1965 with the consent of the parties removing several large areas from dispute. The decree also directed an accounting and distribution of funds collected from [394 U.S. 11, 16] those areas under the 1956 Interim Agreement between the parties governing the administration of disputed areas. 382 U.S. 288 . </s> [Footnote 7 1964. 15 U.S. T. (pt. 2) 1607, T. I. A. S. No. 5639. The Convention was the culmination of long years of work by the International Law Commission. Established by the United Nations General Assembly in 1947 to codify international law, the Commission began deliberations on the regime of the territorial sea in 1952 on the basis of a report submitted by the special rapporteur. At its eighth session in 1956 the Commission adopted a final report, which contained a proposed international convention and recommended the convocation of an international conference to examine further the law of the sea. The General Assembly adopted that recommendation and in 1958 convened the First U. N. Conference on the Law of the Sea in Geneva. With the International Law Commission report as its model, the Conference promulgated the Convention on the Territorial Sea and the Contiguous Zone and three other conventions dealing with other problems of international maritime law. See 1 A. Shalowitz, Shore and Sea Boundaries 203-211 (1962). </s> [Footnote 8 13 Stat. 58, codified as R. S. 4233. </s> [Footnote 9 Act of March 3, 1885, 23 Stat. 438. </s> [Footnote 10 23 Stat. 442. </s> [Footnote 11 Act of August 19, 1890, 26 Stat. 320. </s> [Footnote 12 26 Stat. 328. </s> [Footnote 13 The Inland Rules are now codified at 33 U.S.C. 152-232 and the International Rules at 33 U.S.C. 1051-1094. </s> [Footnote 14 Act of February 19, 1895, 28 Stat. 672. </s> [Footnote 15 The authority given to the Secretary of the Treasury in the 1895 Act was successively transferred: (1) to the Secretary of Commerce and Labor (Act of February 14, 1903, 32 Stat. 829), later redesignated "Secretary of Commerce" (Act of March 4, 1913, 37 Stat. 736); (2) to the Commandant of the Coast Guard (Reorganization Plan No. 3 of 1946, 60 Stat. 1097); (3) to the Secretary of the Treasury (or to the Secretary of the Navy when the Coast Guard is operating in that department (Reorganization Plan No. 26 of 1950, 64 Stat. 1280)), and delegated by the Secretary of the Treasury to the Commandant of the Coast Guard (Treasury Department Order of July 31, 1950, 15 Fed. Reg. 6521). Section 6 (b) (1) of the [394 U.S. 11, 19] Department of Transportation Act, 80 Stat. 938, transferred this authority to the Secretary of Transportation, effective April 1, 1967 (Exec. Order No. 11340, March 30, 1967, 32 Fed. Reg. 5453); it was again delegated to the Commandant of the Coast Guard, effective April 1, 1967 (49 CFR 1.4 (a) (2), 32 Fed. Reg. 5606). </s> [Footnote 16 12 Fed. Reg. 8458, 8460 (1947). </s> [Footnote 17 18 Fed. Reg. 7893 (1953). </s> [Footnote 18 Louisiana Act No. 33 of 1954. The "Inland Water Line" is delineated on the map of the Louisiana coast appended to this opinion, following p. 78. </s> [Footnote 19 In United States v. California, 381 U.S. 139 , neither party suggested to the Court that the "Inland Water Line" had any relevance to the Submerged Lands Act. Indeed, both specifically disclaimed any reliance on it. </s> [Footnote 20 Hearings on S. J. Res. No. 13 and other bills before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 276 (1953). In hearings on proposed submerged lands legislation in earlier Congresses, representatives of Louisiana had argued to Congress that the Administration bills were "in error" because they overlooked the fact that, by the "Inland Water Line," "the inland waters of coastal States have already been defined and divided." Hearings on S. 155 and other bills before the Senate Committee on Interior and Insular Affairs, 81st Cong., 1st Sess., 194 (1949). See also id., at 179-180; Hearings on H. R. 5991 and H. R. 5992 before Subcommittee No. 1 of the House Committee on the Judiciary, 81st Cong., 1st Sess., 74-75 (1949). </s> [Footnote 21 Also without substance is Louisiana's claim that the United States cannot alter the boundary adopted by Louisiana in 1954. The question before us is the location of the boundary of land quit-claimed to Louisiana by the United States in 1953, and that question is of course not affected by any subsequent action of the Louisiana [394 U.S. 11, 21] Legislature. As we stated in an earlier dispute between these parties, "[w]e intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis a vis persons other than the United States or those acting on behalf of or pursuant to its authority. The matter of state boundaries has no bearing on the present problem." United States v. Louisiana, 339 U.S. 699, 705 . </s> [Footnote 22 Article 7 sets forth precise mathematical requirements which bays must satisfy to qualify as inland waters from whose seaward edge the territorial sea extends. See infra, at 48; n. 64, at 49; 52, n. 68; 54-55. Paragraph 6 of the Article provides, however, that "[t]he foregoing provisions shall not apply to so-called `historic' bays . . . ." </s> [Footnote 23 On the threefold division of the sea, see generally L. Bouchez, The Regime of Bays In International Law 4-5 (1964); 1 Shalowitz, supra, n. 7, at 22-24; M. Strohl, The International Law of Bays 3-4 (1963). </s> [Footnote 24 The breadth of the territorial sea varies from country to country, depending on the claims of the coastal state. These claims have long been so diverse that the Geneva Conference was unable to agree upon a uniform distance for purposes of the Convention on the Territorial Sea and the Contiguous Zone. A table illustrating the various territorial sea claims of most nations appears at 1 Shalowitz, supra, n. 7, at 389 (App. J.). </s> [Footnote 25 Article 14 of the Convention on the Territorial Sea and the Contiguous Zone provides that "ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea." </s> [Footnote 26 Article 2 of the Convention on the High Seas provides: "The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty." 1962. 13 U.S. T. (pt. 2) 2313, T. I. A. S. No. 5200. It has, however, generally been thought that the coastal nation can exercise some limited jurisdiction over ships beyond its territorial waters. See, e. g., M. McDougal & W. Burke, The Public Order of the Oceans, c. 6 (1962); P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 75-112 (1927); 1 Shalowitz, supra, n. 7, at 27. The Convention on the Territorial Sea and the Contiguous Zone has recognized that such extensions of jurisdiction are sometimes imperative and has provided that in a contiguous zone not to exceed 12 miles from the coast, the littoral nation "may exercise the control necessary to: (a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b) Punish infringement of the above regulations committed within its territory or territorial sea." Article 24. </s> [Footnote 27 A recent United Nations study recommended by the International Law Commission reached the following conclusions: </s> "There seems to be fairly general agreement that at least three factors have to be taken into consideration in determining whether a State has acquired a historic title to a maritime area. These factors are: (1) the exercise of authority over the area by the [394 U.S. 11, 24] State claiming the historic right; (2) the continuity of this exercise of authority; (3) the attitude of foreign States. First, the State must exercise authority over the area in question in order to acquire a historic title to it. Secondly, such exercise of authority must have continued for a considerable time; indeed it must have developed into a usage. More controversial is the third factor, the position which the foreign States may have taken towards this exercise of authority. Some writers assert that the acquiescence of other States is required for the emergence of an historic title; others think that absence of opposition by these States is sufficient." Juridical Regime of Historic Waters, Including Historic Bays, 1962. 2 Y. B. Int'l L. Comm'n 1, 13, U. N. Doc. A/CN.4/143 (1962). </s> See also Bouchez, supra, n. 23, at 203, 281. </s> [Footnote 28 Historic title can be obtained over territorial as well as inland waters, depending on the kind of jurisdiction exercised over the area. "If the claimant State exercised sovereignty as over internal waters, the area claimed would be internal waters, and if the sovereignty exercised was sovereignty as over the territorial sea, the area would be territorial sea." Juridical Regime of Historic Waters, Including Historic Bays, supra, n. 27, at 23. </s> [Footnote 29 Modern authorities are unanimous on this principle. Thus, Jessup states that "[i]t seems clear that even transient vessels must obey reasonable rules and regulations laid down by the littoral state in the interests of safety of navigation and maritime police." And [394 U.S. 11, 25] he cites the United States Inland Rules as an example of such regulation of the territorial sea. Jessup, supra, n. 26, at 121, 122, n. 37. Shalowitz also concludes that the right of innocent passage through the territorial sea "may be conditioned upon the observance of special regulations laid down by the coastal nation for the protection of navigation . . . and other local interests." 1 Shalowitz, supra, n. 7, at 23. See also Boggs, Delimitation of the Territorial Sea, 24 Am. J. Int'l L. 541, 542 (1930); 3 G. Gidel, Le Droit International Public de la Mer 633 (1934); Strohl, supra, n. 23, at 273, 275. </s> J. Griffin, The American Law of Collision (1949) is said by Louisiana to be to the contrary. Referring to the "Inland Water Line," the author states that "[t]he Inland Rules apply to vessels of any nationality, since the United States has full jurisdiction over the waters in question." Id., at 11-12. It is clear, however, that the jurisdiction to which the author refers is not the total sovereignty of a coastal nation over its inland waters, but rather the control of the territorial sea. Thus, he notes earlier that the Inland Rules govern "cases arising on coastal and inland waters of the United States which are subject to admiralty jurisdiction." Id., at 8. (Emphasis supplied.) </s> This international understanding is not a recent development. At the time Congress enacted the Inland and International Rules, there was also no dispute about a coastal nation's power to regulate navigation in its territorial sea. At the 1895 meeting of the International Law Association, Rules Relating to the Territorial Sea were adopted. A six-mile territorial sea was agreed upon, in which all nations would have the right of innocent passage. Article 7 then provided: </s> "Ships which pass through territorial waters shall conform to the special regulations decreed by the littoral State in the interest and for the security of navigation or as matter of maritime police." </s> Report of the Seventeenth Conference of the International Law Association held in Brussels, October 1895 (1896), excerpted in H. Crocker, Extent of the Marginal Sea 178 (1919). An identical article had been approved in 1894 by the Institute of International Law at Paris. Id., at 149. And individual authors of the day often [394 U.S. 11, 26] expressed this principle. See the following works excerpted in Crocker: Bluntschli, Le Droit International Codifie (5th ed. 1895), in Crocker, at 10; Calvo, Le Droit International Theorique et Pratique (5th ed. 1896), in Crocker, at 33; Fiore, International Law Codified and Its Legal Sanction, or The Legal Organization of the Society of States (1918), in Crocker, at 58; Latour, La Mer Territoriale au Point de Vue Theorique et Pratique (1889), in Crocker, at 237-238; Von Liszt, Das Volkerrecht (5th ed. 1907), in Crocker, at 293; Nuger, Des Droits de l'Etat sur la Mer Territoriale (1887), in Crocker, at 304; Perels, Manuel de Droit Maritime International (1884), in Crocker, at 352-353; Schucking, Das Kustenmeer im Internationalen Rechte (1897), in Crocker, at 436-437. </s> The 1930 Conference at The Hague also had no doubt of the power of the coastal nation to regulate navigation in the territorial sea. Article 6 of its proposed codification stated: </s> "Foreign vessels exercising the right of passage shall comply with the laws and regulations enacted in conformity with international usage by the coastal State, and, in particular, as regards: </s> "(a) The safety of traffic and the protection of channels and buoys . . . ." </s> And the commentary to this Article stated that "[i]nternational law has long recognised the right of the coastal State to enact, in the general interest of navigation, special regulations applicable to vessels exercising the right of passage through the territorial sea." 3 Acts of the Conference for the Codification of International Law, Territorial Waters 214 (1930). </s> [Footnote 30 The recent United Nations study of the concept of historic waters concluded that "if the claimant State allowed the innocent passage of foreign ships through the waters claimed, it could not acquire an historic title to these waters as internal waters, only as territorial sea." Juridical Regime of Historic Waters, Including Historic Bays, supra, n. 27, at 23. Under that test, since the United States has not claimed the right to exclude foreign vessels from within the "Inland Water Line," that line could at most enclose historic territorial waters. </s> [Footnote 31 Cf. Bouchez, supra, n. 23, at 227, 249; Strohl, supra, n. 23, at 293. </s> [Footnote 32 Inland Rules: Act of May 21, 1948, 62 Stat. 249; Act of August 8, 1953, 67 Stat. 497. International Rules: Act of October 11, 1951, 65 Stat. 406; Act of September 24, 1963, 77 Stat. 194. </s> [Footnote 33 18 Fed. Reg. 7893 (1953). </s> [Footnote 34 Admiralty Law Enforcement 25-26 (1943). See also the Coast Guard Law Enforcement Manual 3-7 (1954): </s> "The dividing line between inland and international waters as established by the Commandant, found in 33 CFR 82, is used only for the purpose of the Rules of the Road, and the enforcement of the inland rules of the road. It has no connection with territorial waters, or high seas, or other terms denoting general jurisdiction." </s> The manual Selected Materials on Coast Guard Law Enforcement 4-5 (1964) is to the same effect: </s> "The line established by the Commandant of the Coast Guard has no significance with respect to or dependence on the line establishing the limit of the territorial waters of the United States. In some places, the line is inshore of the territorial waters of the United States while in others, the line extends well outside the territorial limits of the United States. The sole purpose of the line is to establish a division line between the application of the Inland Rules and the International Rules of the Road." </s> And in the Commandant's most recent proposal to change the line for the Gulf of Mexico, he observed that "[t]he existing Gulf demarcation line extends about 20 miles out into international waters, as recognized by the State Department." He noted that the proposed "relocation of the line well within territorial waters removes any question of International Law." 32 Fed. Reg. 8763 (1967). </s> [Footnote 35 Judicial and lay opinion have agreed on the limited significance of the "Inland Water Line." In discussing the line in United States v. Newark Meadows Imp. Co., 173 F. 426, 428, Judge Hough, of the Circuit Court for the Southern District of New York, said in 1909: </s> "This legislation [the 1895 Act], however, was for the purpose of delimiting the inland waters of the United States, in order to inform navigators where the inland rules of navigation, as distinguished from the international rules, become applicable. It does not purport to change the boundaries of any federal district, nor enlarge the jurisdiction of any particular federal court . . . ." </s> Louisiana relies on the decision of this Court in The Delaware, 161 U.S. 459 , where it was held that the Inland Rules should govern a collision in the Gedney Channel off New York Harbor. Referring to the "Inland Water Line," the Court stated that the enclosed waters were "as much a part of the inland waters of the United States within the meaning of this act as the harbor within the entrance." 161 U.S., at 463 . (Emphasis supplied.) The italicized qualification indicates the Court's understanding of the limited import of the "Inland Water Line." </s> Writers who have considered the question are unanimous that the "Inland Water Line" serves only the purpose for which it was authorized. Thus, 1 Shalowitz, supra, n. 7, at 23, cautions that the "physiographic concept of the limits of inland waters should not be confused with the lines established by the United States Coast Guard to separate the areas where the Inland Rules of the Road apply from those to which the International Rules apply. These lines are established for administrative purposes and have been held to have no application other than the specific purpose of determining what rules of navigation are to be followed." </s> Similarly, Strohl, supra, n. 23, at 4, n. 5, warns that </s> "[c]are should be exercised not to confuse the term `internal waters' in the context of [international territorial law] with the term `inland [394 U.S. 11, 30] waters' as used by mariners entering United States coastal waters, where in certain localities they are required to operate under what are called Inland Rules of the Road. . . . The boundary lines for `Inland Waters' within the meaning of United States Inland Rules of the Road do not necessarily coincide with the base lines delimiting the regime of internal waters as understood in general international law." </s> [Footnote 36 On the contrary, the titles of the Acts and statements in the legislative history illustrate that Congress' only concern was with the regulation of navigation. E. g., S. Ex. Doc. No. 35, 53d Cong., 3d Sess., 2 (1895). The provision for the delineation of an "Inland Water Line" was an afterthought, added "at the request of the maritime interests of New York and Philadelphia." 27 Cong. Rec. 2059 (1895). </s> Louisiana argues that since Article 30 of the 1889 International Marine Conference excepted from the International Rules only special rules for "inland waters," the Conference and Congress must have believed that the power of the coastal nation extended only to those excepted areas. It is clear, however, that both the Conference and Congress recognized the already prevailing principle of international law (see supra, n. 29) that the coastal nation had the power to regulate navigation in the territorial sea. But they decided that it would be preferable to have standard international rules, insofar as practicable, on all navigable waters, since there were rarely well-marked lines dividing national waters from the high seas. See Protocols of Proceedings of the International Marine Conference in Washington, D.C., in 1889, S. Ex. Doc. No. 53, 51st Cong., 1st Sess., 21-22, 25, 65-66, 127-128, 579, 730 (1890); H. R. Rep. No. 731, 48th Cong., 1st Sess., 2 (1884). </s> [Footnote 37 There have been, for example, several recent changes in the lines. See, e. g., 31 Fed. Reg. 4401, 10322 (1966); 32 Fed. Reg. 7127 (1967); 33 Fed. Reg. 8273 (1968). The stated purpose of one of the 1966 changes was "to bring the regulations up to date with identification of aids to navigation." 31 Fed. Reg. 4401. When the Commandant of the Coast Guard proposed the 1953 changes in the "Inland Water Line" across the Gulf coast, he noted that "[t]hese lines are based on the needs of safety in navigation." 18 Fed. Reg. 2556 (1953). And when the 1953 line was finally adopted, he stated: </s> "The comments, data, and views submitted which were based on reasons not directly connected with promoting safe navigation were rejected. </s> "The establishment of descriptive lines of demarcation is solely for purposes connected with navigation and shipping." 18 Fed. Reg. 7893 (1953). </s> Similarly, when the Commandant proposed changes in the line in 1967, his reason was that "[t]he present demarcation line is not easily located and therefore is not serving its purpose of informing mariners about the rules of the road applicable to their present positions." 32 Fed. Reg. 8763 (1967). The proposed modifications were withdrawn after extended hearings. The notice of withdrawal contained the following comment on some of the evidence adduced at those hearings: </s> "A number of comments and views submitted did not address themselves to the purpose for which the line of demarcation is authorized under 33 U.S. Code 151, but to other subjects, including State boundaries, State rights, fishing rights, etc. These comments and views were not considered as germane to the proposals under consideration and no action is taken with respect thereto." 32 Fed. Reg. 14775 (1967). </s> The only alleged departure from this construction of the "Inland Water Line" is one in a set of Coast Guard orders of May 20, 1925 (i. e., during the Prohibition Era), purporting to authorize law enforcement in the "territorial waters" of the United States. "Territorial waters" were defined as comprising </s> "all waters within a radius of three nautical miles from the `coast' of the United States . . . and all waters inshore of the lines designated [394 U.S. 11, 32] and defined by the Secretary of Commerce . . . as limiting the `inland waters' of the United States." </s> This definition is found in a Coast Guard manual for official use only entitled Law Enforcement at Sea relative to Smuggling 2 (1932). While the orders do attach to the "Inland Water Line" a jurisdictional significance beyond the regulation of navigation, they do not support Louisiana's position. The orders clearly equated "inland waters" to the territorial sea. </s> [Footnote 38 Letter from W. R. Castle, Jr., to Charge Lundh, July 13, 1929, in 1 G. Hackworth, Digest of International Law 645 (1940). </s> [Footnote 39 Louisiana argues that the jurisdictional significance of the "Inland Water Line" is evidenced by its adoption by Congress in several other Acts. Officers Competency Certificates Act, 53 Stat. 1049, 46 U.S.C. 224a (12) (a); Coastwise Load Line Act, 49 Stat. 888, 46 U.S.C. 88; Act for inspection of seagoing vessels, 49 Stat. 1544, 46 U.S.C. 367. In all of these statutes, however, the "Inland Water Line" is adopted as the line seaward of which the provisions are to apply. Consequently they do not represent an exercise of jurisdiction over inland waters. </s> [Footnote 40 One congressional committee report in 1953 concluded that perhaps the definition of inland waters could not be uniform, particularly as to Louisiana: </s> "The hearings in Louisiana were particularly revealing in regard to the weight which should be given to geographical factors. The trip our subcommittee took by air over the shore and coastal area of Louisiana was highly informative on this score. There is a startling difference between the shore and coast line of Louisiana and Florida on the one hand and that of Texas and California, on the other hand. To say that these contrasting coastal areas should be treated exactly alike with reference to the definition of inland waters would ignore geographical factors that are wholly different." </s> Report of the House Committee on Interior and Insular Affairs, pursuant to H. R. Res. No. 676 authorizing an Investigation and Study of the Seaward Boundaries of the United States, H. R. Rep. No. 2515, 82d Cong., 2d Sess., 19 (1953). The recommendation of that study, however, was that Congress should adopt general guidelines for the definition of inland waters and then delegate the task of drawing exact boundaries to a special commission, an approach which Congress rejected in the Submerged Lands Act. The Attorney General also urged Congress to draw "[a]n actual line on a map" in defining state boundaries to avoid uncertainty and expensive litigation. Hearings on S. J. Res. No. 13, supra, n. 20, at 926 (1953). This approach was also rejected in the statute as enacted. </s> [Footnote 41 Eleven such dredged channels have been brought to our attention. Moving from east to west, they appear at (1) the Mississippi River-Gulf Outlet through Breton and Chandeleur Sounds, (2) and (3) South and Southwest Passes of the Mississippi River, (4) the Empire Canal, opening into "Ascension Bay" (see infra, at 48), just east of Bastian Bay, (5) the Barataria Bay Waterway through Barataria Bay and into "Ascension Bay," (6) Belle Pass, the arm of Bayou Lafourche just west of Bay Marchand, (7) the Houma Navigation Canal through Terrebonne Bay, (8) the Atchafalaya River Channel through Atchafalaya Bay, (9) the Freshwater Bayou Canal, (10) Calcasieu Pass, and (11) Sabine Pass. </s> [Footnote 42 A member of the International Law Commission gave the following explanation: </s> "The Commission's rule that jetties and piers be treated as part of the coastline [was] based on the assumption that those installations would be of such a type as to constitute a physical part of such coastline; it would indeed have been inconvenient to treat that kind of installation otherwise than in the manner advocated by the Commission." 1955. 1 Y. B. Int'l L. Comm'n 74. </s> See also 1956. 1 Y. B. Int'l L. Comm'n 193; 1954. 1 Y. B. Int'l L. Comm'n 88-89. </s> The same understanding is reflected in the discussions at the 1958 Geneva Conference: </s> "4. Mr. CARMONA (Venezuela) stressed that the International Law Commission had approved the text of article 8 only after the most exhaustive study. The construction of harbour works being of vital importance not only to the coastal State but also to the ships of all nations, no doubt should be allowed to subsist regarding the status of such works. Governments which had made heavy economic sacrifices to secure their port facilities against the elements had always acted on the assumption that the legal position was precisely as stated in the Commission's text. In those circumstances, any interference with that text might have very serious consequences." United Nations Conference on the Law of the Sea, Official Records, Vol. III: First Committee (Territorial Sea and Contiguous Zone), Summary Records of Meetings and Annexes, U. N. Doc. A/CONF. 13/39, p. 142. </s> And this view comports with generally accepted definitions of the terms "harbour" and "harbour works." See, e. g., 1 Shalowitz, supra, n. 7, at 292: </s> "Harborworks. - Structures erected along the seacoast at inlets or rivers for protective purposes, or for enclosing sea areas adjacent to the coast to provide anchorage and shelter." </s> See also id., at 60, n. 65; Strohl, supra, n. 23, at 71-72. </s> [Footnote 43 1954. 1 Y. B. Int'l L. Comm'n 88. </s> [Footnote 44 Article 3 provides as follows: </s> "Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State." </s> Louisiana argues that, in view of the proviso "[e]xcept where otherwise provided in these articles," the United States cannot maintain that a dredged channel is not a baseline just because it has no low-water line. Article 8, it is said, is one of the provisions covered by the exception in Article 3. This argument, however, founders on the language of Articles 3 and 8. The exception in Article 3 refers to methods of determining the baseline other than by the low-water mark along the coast. Article 8 does not provide such an alternative method, but merely identifies certain structures which are to be considered part of the coast. </s> In this regard, the United States points out that if dredged channels were really "part of the coast" within Article 8, their seawardmost extensions could also serve as headlands from which lines closing indentations could be drawn. As the International Law Commission Commentary explained, "[t]he waters of a port up to a line drawn between the outermost installations form part of the internal waters of the coastal State." 1956. 2 Y. B. Int'l L. Comm'n 270. Yet even Louisiana has recognized the inappropriateness of using the ends of such channels as headlands of bays. </s> [Footnote 45 The definition was explained as follows in H. R. Rep. No. 215, 83d Cong., 1st Sess., 4 (1953): </s> "Section 2 (b) defines `coastline' which is the baseline from which the State boundaries are projected seaward. It means not only the line of ordinary low water along the coast which directly contacts the open sea but it also means the line marking the seaward limit of inland waters. </s> "Inland waters include all ports, estuaries, harbors, bays, channels, straits, historic bays, sounds, and also all other bodies of water which join the open sea." </s> [Footnote 46 In opposing the definition, Senator Cordon stated: </s> "I would like to see general language used for general purposes, realizing always the hazards of including a few specific references and thereby excluding others, even when we seek to indicate that there are others." Hearings on S. J. Res. No. 13, supra, n. 20, at 1380. </s> And the report of the Senate Committee on Interior and Insular Affairs on the Submerged Lands Act gave this explanation for its deletion: </s> "The words `which include all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea' have been deleted from the reported bill because of the committee's belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it." S. Rep. No. 133, 83d Cong., 1st Sess., 18 (1953). </s> [Footnote 47 The bill, H. R. 4198, defined inland waters as including "all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea." (Emphasis supplied.) The last phrase hardly describes a deepening of water already in the open sea. </s> [Footnote 48 The low-tide elevations in question are situated near the mouth of Atchafalaya Bay. Louisiana also argues that the United States [394 U.S. 11, 41] has overlooked some islands within the Bay, and that low-tide elevations within three miles of those islands should be included under Article 11. The United States disputes the existence of the islands or their characterization as such. The question, being one of fact which cannot be resolved on this record, should be decided, if necessary, by the Special Master. </s> Another factual question which we leave to the Special Master concerns the existence of an artificially created spoil bank at Pass Tante Phine, just to the north of West Bay. Louisiana contends that it is above water at low tide, whereas the United States argues that while it used to be so exposed, it is no longer. If the United States is correct in this assertion, of course the spoil bank forms no part of the coast. The same would be true if the bank were surrounded by water at low tide, for Article 11 of the Convention provides for measuring the territorial sea only from those low-tide elevations which are "naturally-formed area[s]." However, to the extent that the spoil bank is an extension of the mainland and is uncovered at low tide, it must be taken into account in drawing the baseline under Article 3. </s> The United States contends that the spoil bank should be ignored because its construction was unauthorized; it was created by the Gulf Refining Co. under a 1956 permit which, it is said, authorized the dredging of a channel but not the creation of a spoil bank. Even assuming that the creation of the bank was not authorized (a question on which we express no opinion whatever), it would not follow that it does not constitute part of the coast. If the United States is concerned about such extensions of the shore, it has the means to prevent or remove them. See United States v. California, 381 U.S. 139, 177 . Nor can we accept the United States' argument that a "mere spoil bank" should not be deemed part of the coast because it is not "purposeful or useful" and is likely to be "short-lived." It suffices to say that the Convention contains no such criteria. </s> [Footnote 49 See n. 24, supra. </s> [Footnote 50 See supra, at 22. </s> [Footnote 51 The United States suggests that the issue was decided in United States v. California, for the decree in that case contained this definition of "coast line": </s> "(a) The line of mean lower low water on the mainland, on islands, and on low-tide elevations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island . . . ." 382 U.S. 448, 449 . </s> As the United States concedes, however, the issue now before us was not presented by the California case; hence, nothing in that decision controls its resolution. </s> [Footnote 52 Report on the Regime of the Territorial Sea 22, 1952. 2 Y. B. Int'l L. Comm'n 33, U. N. Doc. A/CN.4/53 (1952). </s> [Footnote 53 Second Report on the Regime of the Territorial Sea 30, 1953. 2 Y. B. Int'l L. Comm'n 57, U. N. Doc. A/CN.4/61 (1953); Addendum to the Second Report on the Regime of the Territorial Sea 5-6, 1953. 2 Y. B. Int'l L. Comm'n 75, U. N. Doc. A/CN.4/61/Add. 1 (1953); Third Report on the Regime of the Territorial Sea 13, 1954. 2 Y. B. Int'l L. Comm'n 5, U. N. Doc. A/CN.4/77 (1954). </s> [Footnote 54 Report of the International Law Commission Covering the Work of its Sixth Session, 1954. 2 Y. B. Int'l L. Comm'n 156, U. N. Doc. A/CN.4/88 (1954). </s> [Footnote 55 The Commentary to the 1954 Commission draft stated: </s> "Drying rocks and shoals situated wholly or partly in the territorial sea are treated in the same way as islands. The limit of the territorial sea will accordingly make allowances for the presence of such drying rocks and will jut out to sea off the coast. Drying rocks and shoals, however, which are situated outside the territorial sea have no territorial sea of their own. </s> "The Commission considers that the above article expresses the international law in force." Ibid. </s> The meaning of the initial 1952 proposal to the Commission </s> "was that, even if an elevation of the sea bed was only uncovered at low tide, provided it was situated within the territorial sea, the [394 U.S. 11, 44] limits of the territorial sea would thereby be extended further out into the high seas. That point of view corresponded with the observation by the Preparatory Committee of The Hague Conference . . . ." 1952. 1 Y. B. Int'l L. Comm'n 175. </s> The 1930 Conference at The Hague had adopted a similar article: </s> "Elevations of the sea-bed situated within the territorial sea, though only above water at low tide, are taken into consideration for the determination of the base-line of the territorial sea." (Emphasis supplied.) Acts of the Conference for the Codification of International Law, supra, n. 29, at 217 (1930). </s> The observations of the subcommittee reporting to The Hague Conference further reveal the long-standing acceptance of this concept: </s> "If an elevation of the sea-bed which is only uncovered at low tide is situated within the territorial sea off the mainland, or off an island, it is to be taken into consideration on the analogy of the North Sea Fisheries Convention of 1882 in determining the baseline of the territorial sea." Ibid. </s> The United States argues that the discussion of this issue in connection with the Fisheries Case (United Kingdom v. Norway), 1951. I. C. J. 116, indicates an understanding that a low-tide elevation must be within a certain distance from land in order to have a territorial sea of its own. The opinion of the International Court of Justice discussed the contentions of the parties but found it unnecessary to decide the question because "in fact none of the drying rocks used by [Norway] as base points is more than 4 miles from permanently dry land." Id., at 128. The United States relies on the following statement by the United Kingdom of its position: </s> "A bank or rock exposed only at low tide (low-tide elevation) is significant in regard to territorial waters only if it lies within a belt of territorial sea measured from the low-water mark of land permanently exposed . . . ." 1 Fisheries Case, I. C. J. Pleadings 75 (1951). </s> This statement, however, does not exclude low-tide elevations which fall within the territorial sea by virtue of closing lines across bays; and other United Kingdom submissions to the International Court of Justice more accurately reveal its position on this question: </s> "[W]here there is a low-tide elevation situated within 4 sea miles of permanently dry land, or of the proper closing line of Norwegian [394 U.S. 11, 45] internal waters, the outer limit of territorial waters may be 4 sea miles from the outer edge (at low tide) of this low-tide elevation." 1951. I. C. J., at 120. (Emphasis supplied.) </s> And see the position of the United Kingdom before the International Law Commission, n. 58, infra. </s> [Footnote 56 1954. 1 Y. B. Int'l L. Comm'n 95. </s> [Footnote 57 Report of the International Law Commission Covering the Work of its Eighth Session, 1956. 2 Y. B. Int'l L. Comm'n 270, U. N. Doc. A/CN.4/104 (1956). </s> [Footnote 58 The United States argues that its construction of Article 11 is supported by the failure of the International Law Commission to adopt a proposal of the United Kingdom to insert after the words "territorial sea" the phrase "as measured from the low-water mark or from a baseline." Report of the International Law Commission Covering the Work of its Seventh Session, 1955. 2 Y. B. Int'l L. Comm'n 58, U. N. Doc. A/CN.4/94 (1955). The preference of the Commission for the phrase "as measured from the mainland" to the British terminology, however, is consistent with the view that the phrases were thought to have the same meaning. </s> [Footnote 59 1956. 1 Y. B. Int'l L. Comm'n 283. </s> [Footnote 60 See United Nations Conference on the Law of the Sea, supra, n. 42, at 187, 243. </s> [Footnote 61 The United States argues that the meaning of its proposal must have been clear to all, since only three days earlier it had submitted a proposed amendment to another article, introducing the word "mainland" for the express purpose of excluding water crossings from its scope. See id., at 236. But at the time of the United States proposal the word "mainland" already appeared in the Conference draft of Article 11 in a context which made clear that measurement of the territorial sea from bay-closing lines was not excluded. Moreover, if the United States had in fact intended its amendment to Article 11 to exclude water crossings, it seems likely that the United States would have spelled out that intention as it had done with respect to the proposal to amend the other article three days before. </s> [Footnote 62 United Nations Conference on the Law of the Sea, supra, n. 42, at 186-187. The expert was Mr. Francois, who had been the Special Rapporteur of the International Law Commission for the drafting of the Convention. </s> [Footnote 63 This conclusion coincides with the views of authorities who have dealt with the subject. Thus, Sir Gerald Fitzmaurice, who was a member of the International Law Commission and the deputy-leader of the United Kingdom's delegation to the 1958 Geneva Conference, gives this explanation of Article 11: </s> "The Convention (Article 11, paragraph 1) permits one exception which has come to be recognised as reasonable, namely, that where a low-tide elevation is situated within what is already territorial sea (off a mainland coast, or off the coast of an island permanently above sea level), it can then generate some (as it were) extraterritorial sea. In such a case, the low-tide elevation theoretically has its own territorial sea; but, as the elevation is within what is already the territorial sea of the mainland, or of an island, the practical effect is simply to cause a bulge in the seaward direction of that territorial sea. On the other hand, if there is a further drying rock, situated - not within the original or basic territorial sea of the mainland or island - but within the extension of such territorial sea (bulge) caused by the presence of the `inner' drying rock, then this `outer' drying rock will not lead to any further extensions of the territorial sea; nor does an `outer' drying rock, so situated, generate any territorial sea of its own. This rule is intended to prevent the practice known as `leap-frogging,' which, by making use of a series of drying rocks, banks, etc., extending seawards, might result in artificial or unjustified extensions of natural territorial waters." Fitzmaurice, Some Results of the Geneva Conference on the Law of the Sea, 8 Int'l & Comp. L. Q. 73, 86-87 (1959). </s> And see McDougal & Burke, supra, n. 26, at 396; 1 Shalowitz, supra, n. 7, at 228. </s> [Footnote 64 The United States argues - in addition to its contention that it does not meet the semicircle test - that "Ascension Bay" is not a true bay because it is a "mere curvature of the coast" rather than a "well-marked indentation" containing "landlocked waters." If this contention is accepted, then it is of course irrelevant that "Ascension Bay" meets the semicircle test. See infra, at 54. Whether an indentation qualifies as a bay under the criteria of Article 7 other than the semicircle test is a factual question which should be submitted to the Special Master in the first instance. </s> If "Ascension Bay" does qualify under Article 7, on the other hand, it is an oversize bay, for the closing line across its mouth [394 U.S. 11, 49] exceeds 24 miles. See n. 68, infra. The procedure to be followed in such event is spelled out in Article 7 (5): </s> "Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length." </s> The straight 24-mile line selected by Louisiana runs from Caminada Pass to Empire Canal, just east of Bastian Bay, and we can see no valid objection to that line. The United States argues that Article 7 (5) permits the drawing inside an oversize bay of only one 24-mile closing line (or perhaps several lines totaling 24 miles). Yet Louisiana has, in addition to drawing the 24-mile line from Caminada Pass to Empire Canal, also drawn closing lines across other indentations within "Ascension Bay," such as West Bay, which qualify independently as inland waters. The United States' position is that the tributary bays cannot be taken into account in computing the area of the larger indentation for purposes of the semicircle test but then disregarded in measuring the parts of the bay to be enclosed by the 24-mile line. We find nothing in the Convention or its history to support this contention. Article 7 (5) mandates that a straight 24-mile baseline shall be drawn within an oversize bay so as to include the greatest area of water. It does not follow from the fact that this additional method of delimiting inland waters in an oversize bay is available, that smaller bays within the oversize bay but outside the straight 24-mile baseline lose their status as inland waters. </s> If it is determined that "Ascension Bay" does not qualify as a "well-marked indentation" containing "landlocked waters," and that a straight baseline therefore cannot be drawn within it from Caminada Pass to Empire Canal, the question will be presented whether the beach erosion jetties on Grande Isle are part of the coast within Article 8 of the Convention. See supra, at 36. We hold that they are. The United States argues that Article 8 is limited to structures which are "integral parts of the harbor system" and that there is no harbor between Grande Isle and the jetties. While some early discussion of the subject by the International Law Commission tends to support the United States' position that [394 U.S. 11, 50] these jetties are not encompassed by Article 8, see 1954. 1 Y. B. Int'l L. Comm'n 88, the Commentary to the final International Law Commission draft of Article 8 (which was identical to its present form) expressly covers artificial structures which are not closely linked to ports: </s> "(2) Permanent structures erected on the coast and jutting out to sea (such as jetties and coast protective works) are assimilated to harbour works." 1956. 2 Y. B. Int'l L. Comm'n 270. (Emphasis supplied.) </s> Moreover, it should be noted that the beach erosion jetties are in a real sense "harbour works," for they were designed to protect Grande Isle, which in turn shelters the harbor waters of Caminada Bay and Bay des Ilettes. </s> [Footnote 65 The problem may also arise in West Bay, where the parties disagree as to the proper closing line. In particular, the United States objects to Louisiana's choice of the tip of the jetty at Southwest Pass as the southern headland. If that point is selected, the United States argues, the bay cannot satisfy the semicircle test unless areas such as Bob Taylor's Pond, Zinzin Bay, or Riverside Bay are included in its area; and those areas are "too definitely separated from West Bay to be considered a part of it." The proper location of headlands is, of course, another factual determination which we leave to the initial scrutiny of the Master. </s> [Footnote 66 "[T]he water of bays within bays may be included as water surface of the outer bay in determining the dimensions of any coastal indentation." Sovereignty of the Sea, United States State Department Geographic Bulletin No. 3, p. 11 (1965). See also 1 Shalowitz, supra, n. 7, at 219: "In the application of the semicircular rule to an indentation containing pockets, coves, or tributary waterways, the area of the whole indentation (including pockets, coves, etc.) is compared with the area of a semicircle." </s> [Footnote 67 1 Shalowitz, supra, n. 7, at 220, n. 28, contains the following suggestions: </s> "One difficulty that arises in including tributary waterways as part of the area of the indentation whose status is to be determined, is that the status may depend upon how far up the tributary one goes in computing the area. This may require the adoption of an additional rule limiting the width of such waterways to a fixed amount beyond which it would not be considered a part of the primary waterway. An alternative solution would be to first apply the semicircle test to the tributary waterways: if they become inland waters a closing line is drawn across them and the primary waterway is then subjected to the test; if they do not become inland waters they would then be included as part of the area of the main [394 U.S. 11, 52] indentation for the purpose of determining its status by the semi-circular rule." </s> See also Shalowitz, Boundary Problems Raised by the Submerged Lands Act, 54 Col. L. Rev. 1021, 1033, n. 33 (1954). And see Bouchez, supra, n. 23, at 21, emphasizing the need to distinguish between bays and inland seas. </s> [Footnote 68 Article 7 (4) reads as follows: </s> "If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters." </s> [Footnote 69 See n. 79, infra. </s> [Footnote 70 The United States does not agree with Shalowitz' alternative suggestion that in determining the area of a large indentation, the areas of all qualifying bays within it should be excluded. See supra, at 51 and n. 67. </s> [Footnote 71 We think the same result follows in West Bay, where the areas which the United States seeks to exclude from the bay are set off only by strings of islands. See n. 65, supra. Accordingly, should the closing line urged by Louisiana be accepted, it will not be defeated by the semicircle test. </s> [Footnote 72 Louisiana contends that the entire area of East Bay is a historic bay. See infra, at 74. If that position is accepted, of course, none of the geographic tests of Article 7 will be applicable, for Article 7 provides that "[t]he foregoing provisions shall not apply to so-called `historic' bays . . . ." </s> [Footnote 73 See n. 64, supra. </s> [Footnote 74 The 24-mile limitation, for instance, is applied to the aggregate lengths of the closing lines. See 1 Shalowitz, supra, n. 7, at 221. See also the following Commentary of the International Law Commission: </s> "If, as a result of the presence of islands, an indentation whose features as a `bay' have to be established has more than one mouth, the total length of the lines drawn across all the different mouths will be regarded as the width of the bay." 1956. 2 Y. B. Int'l L. Comm'n 269. </s> [Footnote 75 The extent to which this problem is presented by this case depends upon the exact location of the line between the entrance points on the mainland. The United States and Louisiana disagree as to the location of the headlands on the mainland, the United States having selected points considerably inland of those chosen by Louisiana. Since even the straight line between the mainland headlands urged by the United States is not entirely landward of what it considers the mouths between the islands, we do not postpone consideration of Louisiana's contention to a determination of the natural entrance points on the mainland. </s> [Footnote 76 1956. 2 Y. B. Int'l L. Comm'n 269. </s> [Footnote 77 The direct, mainland-to-mainland line proposed by Louisiana across the Lake Pelto-Terrebonne Bay-Timbalier Bay indentation would meet the 24-mile test, but it appears that the line drawn by the United States would not. The exact length of the United States line need not be determined, however, because we hold that, for the purpose of the question at issue, there is no distinction between indentations which would qualify as bays without the presence of islands and those which would not. See next paragraph. Nothing in the language or the history of Article 7 (3) limits its application to those indentations which would not be bays except for the presence of islands. If the islands intersected by a direct line between the mainland headlands actually create multiple mouths, the selection of closing lines across those mouths is not optional. </s> [Footnote 78 Shalowitz agrees that the purpose of Article 7 (3) supports a policy in favor of enclosing the maximum area of inland water. See 1 Shalowitz, supra, n. 7, at 225, n. 38. However, the context of his remarks is quite different from the present one. He there suggests that a policy in favor of enclosing the greatest area would support drawing lines out to islands wholly seaward of a direct line between the entrance points on the mainland, but not drawing lines inward to islands wholly within such a direct closing line. Elsewhere Shalowitz appears to agree that if lines are drawn to and between the islands, they should be across the natural entrance points, even if those natural entrance points are landward of a straight mainland-to-mainland line. See id., at 221, fig. 40. See also Pearcy, Measurement of the U.S. Territorial Sea, 40 Dept. State Bull. 963, 966, fig. 4 (1959). </s> [Footnote 79 Since this issue is not presented by the insular configurations at the Lake Pelto-Terrebonne Bay-Timbalier Bay complex, we express no opinion on it. However, we note that the issue may arise in relation to the Caminada Bay-Barataria Bay indentation. Despite our holding that "Ascension Bay," of which Caminada and Barataria Bays are a part, does satisfy the semicircle test, supra, at 52-53, it will be open to the United States to argue before the Master that "Ascension Bay" does not otherwise qualify as a bay under Article 7 (2) of the Convention on the Territorial Sea and the Contiguous Zone. A holding that "Ascension Bay" is not a true bay would preclude the drawing of a straight 24-mile baseline from [394 U.S. 11, 59] Caminada Pass to Empire Canal, see n. 64, supra, and would call into question the proper closing lines across the Caminada Bay-Barataria Bay indentation. In its reply brief, Louisiana for the first time contested the United States' proposal to draw baselines along the low-water marks on the fringe of islands across that indentation. Louisiana asserts that a straight closing line can be drawn between the appropriate entrances on the mainland which is entirely seaward of all the islands on which the United States has drawn baselines. </s> Although the question whether lines should be drawn inward to islands which are not intersected by a direct mainland-to-mainland closing line is one of construction of the Convention rather than of fact, for several reasons we have decided to leave its resolution to the Special Master in the first instance. The issue may not arise at all, if it is determined either that "Ascension Bay" is a true bay or that a direct line between the proper mainland headlands does intersect the islands. Moreover, the issue is a close one, yet one on which we have not had the benefit of concerted advocacy on both sides. On the one hand, the considerations which led us to reject Louisiana's contention with respect to islands intersected by a straight mainland-to-mainland closing line appear to militate in favor of drawing lines inward to islands which seemingly create distinct mouths to the indentation. This view is supported by the fact that Article 7 (3) contains no requirement that the islands be intersected by a mainland-to-mainland closing line; rather it speaks only of multiple mouths "because of the presence of islands." On the other hand, Article 7 (3) does provide that islands wholly "within" the indentation shall be treated as part of the water areas. Because the issue is a difficult one of first impression and few illuminating materials have been brought to our attention, we feel that our resolution of the question, if necessary, would be greatly aided by its prior submission to a neutral referee. </s> [Footnote 80 The question arises with respect to low-tide elevations as well as islands. We think that in this context there can be no distinction between them. Article 7 (4) provides that the bay-closing line shall be drawn "between the low-water marks of the natural entrance points." (Emphasis supplied.) The line is to be drawn at low-tide, and, therefore, if a natural entrance point can be on an area of land surrounded by water, it can be on a low-tide elevation as well as an island. </s> The United States observes that under Article 4, see n. 89, infra, straight baselines "shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them." A fortiori, the United States argues, bay-closing lines cannot be drawn to such low-tide elevations. The argument overlooks the different policy considerations underlying Articles 4 and 7. Straight baselines can be drawn to islands under Article 4 only if they enclose areas "sufficiently closely linked to the land domain to be subject to the regime of internal waters." Low-tide elevations obviously do not so closely tie the enclosed waters to the land; and if they could be used for straight baselines, "the distance between the baselines and the coast might be extended more than is required to fulfil the purpose for which the straight baseline method is applied." International Law [394 U.S. 11, 61] Commission Commentary on its final draft, 1956. 2 Y. B. Int'l L. Comm'n 268. A further reason given by the International Law Commission for the prohibition against drawing straight baselines to low-tide elevations is that "it would not be possible at high tide to sight the points of departure of the baselines." Ibid. The need to identify headlands on the coast at high tide is not so great as it is in respect of basepoints in the sea, and for that reason the Convention measures bay-closing lines from the low-water mark. </s> [Footnote 81 Compare the position of the United States that the low-water perimeter of indentations should be broken by water-crossing lines closing off distinct smaller indentations within the larger bay, supra, at 51. </s> [Footnote 82 Most of the references by 19th and early 20th century authorities to the connection between islands and bays foreshadowed the modern concept - embodied in Article 7 (3) of the Convention - of islands creating multiple mouths to bays and tying the waters of the indentation more closely to the mainland. See, e. g., Calvo, excerpted in Crocker, supra, n. 29, at 29; Piedelievre, Precis de Droit International Public ou Droit des Gens (1894), in Crocker, at 389; Testa, Le Droit Public International Maritime (1886), in Crocker, at 448. Some authors, relying principally on an 1839 Franco-English convention regulating fisheries in the English Channel, stated that bay-closing lines should be drawn between the "extreme points of the mainland and sand banks." Latour, excerpted in Crocker, supra, n. 29, at 257. See also Perels, id., at 357-358. In view of the contrast drawn between "mainland" and "sand banks," it may be that this formulation contemplated the drawing of closing lines to pieces of land closely related to the mainland but entirely surrounded by water, as sand banks often are. </s> [Footnote 83 The United States argues that since the Convention in Article 7 (3) specifically recognizes that islands may create multiple mouths to bays, it cannot be construed to permit islands to create the bays themselves. Alternatively, the Government argues that if a closing line can be drawn from one side of a bay to an island as the headland on the other side, then it must be continued from the island to the nearest point on the mainland; and the distance to the mainland must be added to that across the bay in determining whether the 24-mile test is satisfied. These arguments, however, misconstrue the theory by which the headland is permitted to be located on the island - that the island is so closely aligned with the mainland as realistically to be considered an integral part of it. Thus viewed, there is no "mouth" between the island and the mainland. </s> [Footnote 84 In the case of The "Anna," 165 Eng. Rep. 809 (1805), the British High Court of Admiralty was called upon to determine a claim that an American ship seized by a privateer off the Mississippi River Delta had been wrongfully taken in American territorial waters. In holding for the claimant, the court wrote: </s> "The capture was made, it seems, at the mouth of the River Mississippi, and, as it is contended in the claim, within the boundaries of the United States. We all know that the rule of law on this subject is `terrae dominium finitur, ubi finitur armorum vis,' and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from the shore. But it so happens in this case, that a question arises as to what is to be deemed the shore, since there are a number of little mud islands composed of earth and trees drifted down by the river, which form a kind of portico to the mainland. It is contended that these are not to be considered as any part of the territory of America, that they are a sort of `no man's land,' not of consistency enough to support the purposes of life, uninhabited, and resorted to, only, for shooting and taking birds' nests. It is argued that the line of territory is to be taken only from the Balise, which is a fort raised on made land by the former Spanish possessors. I am of a different opinion; I think that the protection of territory is to be reckoned from these islands; and that they are the natural appendages of the coast on which they border, and from which indeed they are formed. Their elements are derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in the books of law. . . ." Id., at 814-815. </s> The United States argues that the decision is not in point because it had nothing to do with the delimitation of bays and merely held, as Article 10 of the Convention now provides, see n. 94, infra, that the three-mile belt is to be measured from islands in the same way as from the mainland. But if the court had been of the view that the three-mile belt extended from islands as well as the mainland, it would not have had to decide that the mud islands were "deemed the shore." And the opinion in The "Anna" gave rise to several categorical statements by 19th century authorities that "[t]he term `coasts' includes the natural appendages of the territory which rise [394 U.S. 11, 65] out of the water, although these islands are not of sufficient firmness to be inhabited or fortified . . . ." H. Wheaton, Elements of International Law 256 (8th ed. 1866). See also Halleck, International Law (4th ed. 1908), in Crocker, supra, n. 29, at 88-90. And it is ancient lore that islands created by sedimentation at river entrances are peculiarly integrated with the mainland itself: </s> "The islands situated at the mouth of a river are embraced as part of the territory, even when they are not occupied. They are considered as forming the beginning of the government of the country, because the elements of which they are composed have become detached from the soil itself. It is from their coast that the littoral sea commences." Nys, Le Droit International (1904), in Crocker, at 321. </s> Our discussion of these authorities should not be taken as suggesting that, under the now controlling Convention on the Territorial Sea and the Contiguous Zone, every Mississippi River Delta mudlump or other insular formation is a part of the coast. We do believe, however, that the origin of the islands and their resultant connection with the shore is one consideration relevant to the determination of whether they are so closely tied to the mainland as realistically to be considered a part of it. </s> [Footnote 85 "Obviously, some islands must be treated as if they were part of the mainland. The size of the island, however, cannot in itself serve as a criterion, as it must be considered in relationship to its shape, orientation and distance from the mainland." Boggs, Delimitation of Seaward Areas under National Jurisdiction, 45 Am. J. Int'l L. 240, 258 (1951). </s> "Islands close to the shore may create some unique problems. They may be near, separated from the mainland by so little water that for all practical purposes the coast of the island is identified as that of the mainland." Pearcy, Geographical Aspects of the Law of the Sea, 49 Annals of Assn. of American Geographers No. 1, p. 1, at 9 (1959). </s> The Director of the Coast and Geodetic Survey, Department of Commerce, has stated the following rule for the assimilation of islands to the mainland: </s> "The coast line should not depart from the mainland to embrace offshore islands, except where such islands either form a portico [394 U.S. 11, 66] to the mainland and are so situated that the waters between them and the mainland are sufficiently enclosed to constitute inland waters, or they form an integral part of a land form." Memorandum of April 18, 1961, excerpted in 1 Shalowitz, supra, n. 7, at 161, n. 125. (Emphasis supplied.) </s> Shalowitz has recognized that "[w]ith regard to determining which islands are part of a land form and which are not, no precise standard is possible. Each case must be individually considered within the framework of the principal rule." Id., at 162. And see Strohl, supra, n. 23, at 76, fig. 18. </s> [Footnote 86 This enumeration is intended to be illustrative rather than exhaustive. </s> [Footnote 87 One such place is Caillou Bay, the body of water between the mainland and the westernmost of the string of islands known as the Isles Dernieres. Another is the large area consisting of Chandeleur Sound and Breton Sound between the northeastern shores of the Mississippi River Delta and the Chandeleur Islands chain. This latter area is not in dispute, for the United States, while asserting that the sounds are not necessarily inland waters under the [394 U.S. 11, 67] Convention, has conceded that they belong to Louisiana. That concession was made at an early stage of this litigation, see n. 97, infra, and the United States has decided not to withdraw it despite the subsequent ratification of the Convention. Louisiana further contends that some of the Chandeleur Islands form part of the perimeter of a bay - which it calls "Isle au Breton Bay" - enclosing inland waters between their southern edges and the North and Main Passes of the Mississippi River Delta. The United States objects to this use of the island fringe. </s> [Footnote 88 Louisiana does not contend that any of the islands in question is so closely aligned with the mainland as to be deemed a part of it, and we agree that none of the islands would fit that description. </s> [Footnote 89 "1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. </s> "2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. </s> "3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them. </s> "4. Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage. </s> "5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State. </s> "6. The coastal State must clearly indicate straight baselines on charts, to which due publicity must be given." </s> [Footnote 90 Although international accord on the concept of straight baselines along island chains is a fairly recent development, there are some earlier statements of the principle. See, e. g., Raestad, La Mer [394 U.S. 11, 69] Territoriale (1913), excerpted in Crocker, supra, n. 29, at 407. See generally McDougal & Burke, supra, n. 26, at 314-316. </s> [Footnote 91 See the discussion of the International Law Commission at 1954. 1 Y. B. Int'l L. Comm'n 66; 1955. 1 Y. B. Int'l L. Comm'n 197, 218, 252; 1955. 2 Y. B. Int'l L. Comm'n 37; 1956. 1 Y. B. Int'l L. Comm'n 185, 194-195; and of the 1958 Geneva Conference in United Nations Conference on the Law of the Sea, supra, n. 42, at 43-44, 60, 141, 156, 162-163. A thorough review of the practice of nations and international studies of the problem is found at 4 M. Whiteman, Digest of International Law 274-303. </s> [Footnote 92 The 1930 Hague Convention, for example, was unable to recommend a specific provision: </s> "With regard to a group of islands (archipelago) and islands situated along the coast, the majority of the Sub-Committee was of opinion that a distance of ten miles should be adopted as a basis for measuring the territorial sea outward in the direction of the high sea. Owing to the lack of technical details, however, the idea of drafting a definite text on this subject had to be abandoned." Acts of the Conference for the Codification of International Law, supra, n. 29, at 219. </s> See also Fitzmaurice, supra, n. 63, at 88-90; McDougal & Burke, supra, n. 26, at 377-386. </s> [Footnote 93 The history of the subject is summarized in the Reference Guide to the Articles Concerning the Law of the Sea Adopted by the International Law Commission at its Eighth Session, U. N. Doc. A/C.6/L.378, p. 45, n. 1 (1956), as follows: </s> "In his first report . . . the special rapporteur proposed an article entitled `Groups of Islands.' This was article 10, which read as follows: </s> "`With regard to a group of islands (archipelago) and islands situated along the coast, the ten-mile line shall be adopted as the base line for measuring the territorial sea in the direction of the high sea. The waters included within the group shall constitute inland waters.' </s> "He explained, however, that he had inserted this text `not as expressing the law at present in force, but as a basis of discussion should the Commission wish to study a text envisaging the progressive development of international law on this subject.' He referred to a passage in the Judgment of the International Court of Justice in the Fisheries case where the Court had said . . .: </s> "`In this connection, the practice of States does not justify the formulation of any general rule of law. The attempts that have been made to subject groups of islands or coastal archipelagoes to conditions analogous to the limitations concerning bays (distance between the islands not exceeding twice the breadth of the territorial waters, or ten or twelve sea miles), have not got beyond the stage of proposals.' </s> "In his second report . . . the special rapporteur suggested as article 10 an abbreviated version of his earlier proposal, which now simply read as follows: </s> "`With regard to a group of islands (archipelago) and islands situated along the coast, the ten mile line shall be adopted as the base line.' </s> "After consulting the Committee of Experts the special rapporteur put forward a more elaborate proposal . . . and yet a further proposal in his third report . . . . </s> "The latter proposal read as follows: </s> "`1. The term "group of islands," in the juridical sense, shall be deemed to mean three or more islands enclosing a portion of the [394 U.S. 11, 71] sea when joined by straight lines not exceeding five miles in length, except that one such line may extend to a maximum of ten miles. </s> "`2. The straight lines specified in the preceding paragraph shall be the base lines for measuring the territorial sea; waters lying within the area bounded by such base lines and the islands themselves shall be considered as inland waters. </s> "`3. A group of islands may likewise be formed by a string of islands taken together with a portion of the mainland coastline. The rules set forth in paragraphs 1 and 2 of this article shall apply pari passu.' </s> "The Commission, however, after postponing the question in 1954, decided in 1955 that article 5, which dealt with `Straight baselines,' might be applicable to groups of islands situated off the coasts, while the general rules would normally apply to other islands forming a group. This position was confirmed in 1956, the Commission adding that it was prevented from stating an opinion on this subject not only by disagreement on the breadth of the territorial sea but also by lack of technical information. The Commission hoped, however, that if an international conference were subsequently to study the proposed rules, it would give attention to this problem which the Commission recognized to be an important one." (Emphasis supplied.) </s> While the 1958 Geneva Conference gave the problem its attention, it was prevented by the same reasons from formulating an article dealing with groups and fringes of islands other than Article 4. </s> [Footnote 94 Islands are normally covered by Article 10: </s> "1. An island is a naturally-formed area of land, surrounded by water, which is above water at high-tide. </s> "2. The territorial sea of an island is measured in accordance with the provisions of these articles." </s> [Footnote 95 This conclusion is shared by Shalowitz. See 1 Shalowitz, supra, n. 7, at 227 and n. 44. Strohl posits that "a fringe of islands can make up one side of a bay," Strohl, supra, n. 23, at 72, but recognizes that the only provision of the Convention which would [394 U.S. 11, 72] authorize such a baseline is Article 4. Id., at 60. This conclusion is not undermined by occasional references to an insular formation as creating a "bay." See, e. g., 1955. 1 Y. B. Int'l L. Comm'n 211, Bouchez, supra, n. 23, at 233 (both referring to Long Island Sound); Manchester v. Massachusetts, 139 U.S. 240 (referring to Buzzard's Bay). Only one authority appears to assume, without discussion, that a bay formed by islands would be governed by the provisions of Article 7. Pearcy, supra, n. 78, at 965. (The area in question was that between the coast of Florida and the chain of Keys curving to the south and east. The United States points out that they are linked by a permanent highway and therefore may be considered as part of the mainland.) </s> [Footnote 96 In the same vein, we held that the choice whether to employ the concept of a "fictitious bay" was that of the Federal Government alone. 381 U.S., at 172 . That holding was, of course, consistent with the conclusion that the drawing of straight baselines is left to the Federal Government, for a "fictitious bay" is merely the configuration which results from drawing straight baselines from the mainland to a string of islands along the coast. See 381 U.S., at 170 , n. 38. </s> [Footnote 97 Louisiana further contends that the United States is estopped from denying the "inland water" status of such areas by its concession in earlier stages of this litigation that the areas between the mainland and all the offshore islands were inland waters. We took note of this concession in United States v. Louisiana, 363 U.S. 1, 67 , n. 108: </s> "The Government concedes that all the islands which are within three leagues of Louisiana's shore and therefore belong to it under the terms of its Act of Admission, happen to be so situated that the waters between them and the mainland are sufficiently enclosed to constitute inland waters. Thus, Louisiana is entitled to the lands beneath those waters quite apart from the affirmative grant of the Submerged Lands Act, under the rule of Pollard's Lessee v. Hagan, 3 How. 212. Furthermore, since the islands enclose inland waters, a line drawn around those islands and the intervening waters would constitute the `coast' of Louisiana within the definition of the Submerged Lands Act. Since that Act confirms to all States rights in submerged lands three miles from their coasts, the Government concedes that Louisiana would be entitled not only to the inland waters enclosed by the islands, but to an additional three miles beyond those islands as well. We do not intend, however, in passing on these motions, to settle the location of the coastline of Louisiana or that of any other State." (Emphasis supplied.) </s> As we stressed in that case, this Court has placed no imprimatur on that position. Nor do we think the United States is bound by it. Louisiana has not relied to its detriment on the concession, which appears to have been made primarily for purposes of reaching agreement on the leasing of the submerged lands pending a final ruling on their ownership. The Interim Agreement of 1956 specifically recognized that neither party would be bound by its positions: </s> "The submerged lands in the Gulf of Mexico are divided for the purposes hereof into four zones as shown on the plat annexed hereto as Exhibit `A,' which reflects as a base line the so-called `Chapman-Line.' No inference or conclusion of fact or law from [394 U.S. 11, 74] the said use of the so-called `Chapman-Line' or any other boundary of said zones is to be drawn to the benefit or prejudice of any party hereto . . . ." </s> Moreover, we note that the concession did not include as inland waters the area Louisiana designates as "Isle au Breton Bay." See n. 87, supra. </s> It might be argued that the United States' concession reflected its firm and continuing international policy to enclose inland waters within island fringes. It is not contended at this time, however, that the United States has taken that posture in its international relations to such an extent that it could be said to have, in effect, utilized the straight baseline approach sanctioned by Article 4 of the Convention. If that had been the consistent official international stance of the Government, it arguably could not abandon that stance solely to gain advantage in a lawsuit to the detriment of Louisiana. Cf. United States v. California, 381 U.S. 139, 168 : "[A] contraction of a State's recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable." We do not intend to preclude Louisiana from arguing before the Special Master that, until this stage of the lawsuit, the United States had actually drawn its international boundaries in accordance with the principles and methods embodied in Article 4 of the Convention on the Territorial Sea and the Contiguous Zone. </s> [Footnote 98 See n. 72, supra. </s> [Footnote 99 Louisiana also suggests that the indentations between the passes of the Mississippi River Delta are part of the river mouth and therefore inland waters under Article 13 of the Convention: </s> "If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-tide line of its banks." </s> The Article obviously does not encompass indentations between arms of land formed by the river but not containing it. </s> [Footnote 100 The United States argues that the Convention recognizes only historic bays and not other kinds of inland water bodies. We do not pass on this contention except to note that, by the terms of the Convention, historic bays need not conform to the normal geographic tests and therefore need not be true bays. How unlike a true bay a body of water can be and still qualify as a historic bay we need not decide, for all of the areas of the Mississippi River Delta which Louisiana claims to be historic inland waters are indentations sufficiently resembling bays that they would clearly qualify under Article 7 (6) if historic title can be proved. </s> [Footnote 101 See supra, at 24. </s> [Footnote 102 See n. 27, supra. </s> [Footnote 103 In this the United States appears to be correct. While the unauthorized activities of private citizens could generally not support a claim of historic title, see Juridical Regime of Historic Waters, Including Historic Bays, supra, n. 27, at 14-15; Bouchez, supra, n. 23, at 238; Strohl, supra, n. 23, at 303-304, the actions of local governments, if not repudiated by or inimical to the interests of the national sovereign, are assertions of dominion as against other nations. And claims to historic title have been based in part on such actions. See the opinion of the Court of Commissioners of Alabama Claims in Stetson v. The United States, quoted in 4 J. Moore, International Arbitrations 4332, 4339 (1898); Opinion of Attorney General Randolph on the seizure of the ship "Grange" in Delaware Bay, 1 Op. Atty. Gen. 32 (1793). See generally McDougal & Burke, supra, n. 26, at 360-361. </s> [Footnote 104 It is one thing to say that the United States should not be required to take the novel, affirmative step of adding to its territory by drawing straight baselines. It would be quite another to allow the United States to prevent recognition of a historic title which may already have ripened because of past events but which is called into question for the first time in a domestic lawsuit. The latter, we believe, would approach an impermissible contraction of territory against which we cautioned in United States v. California. See n. 97, supra. </s> MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting. </s> We must decide in this case the meaning of the term "inland waters," as used in the Submerged Lands Act of 1953. 1 Although the value of all the submerged lands probably could be stated only in astronomical figures, this dispute is a minor one involving only a comparatively small segment of land adjacent to Louisiana. 2 The Court chooses as the proper meaning the complex [394 U.S. 11, 79] series of definitions incorporated in the Convention on the Territorial Sea and the Contiguous Zone, an international treaty approved by the President and ratified by the Senate. 3 In making this choice, the Court relies on the recent decision by a divided Court that this standard should be used in determining the boundaries of California's "inland waters" along the California coast. United States v. California, 381 U.S. 139 (1965) (generally referred to as the second California case). I cannot agree to application of the same standard to Louisiana, where coastal conditions are wholly different 4 and where the Convention standard, which the Court thought would provide some certainty and stability for California, can only cause chaos and confusion. Nor can I find any justification for applying the Convention standard applied in the second California case to Louisiana, a State that was not a party to the West Coast litigation but urges us to adopt a different standard, one especially convenient for application to Louisiana's own unusual coast, and one never even considered in the West Coast litigation. 5 Under these circumstances I must dissent. [394 U.S. 11, 80] I would hold that "inland waters" should be measured in Louisiana, and in any other State with similar coastal characteristics, by the standard urged by Louisiana - the Coast Guard line established years ago, under the authority of an 1895 Act of Congress, to mark off the boundaries of the States' "inland waters." Such a holding would put an end to a useless, unnecessary litigation, over an issue that can well be characterized as de minimis so far as the practical effect to the United States is concerned. </s> I. </s> In 1947 this Court decided that no one of the States bordering on the Atlantic or Pacific Ocean or on the Gulf of Mexico owned any part of the land submerged under the waters lying adjacent to its shores. 6 In 1953 Congress, in the Submerged Lands Act, "restored" to the States what it thought our holding had wrongfully taken away from them. What the Act did was in effect to quitclaim to each coastal State submerged land extending three geographic miles seaward from the State's coastline, except that under certain circumstances States bordering on the Gulf of Mexico were entitled to a maximum of not more than three leagues (roughly nine geographic miles) from the coastline. Under the Act submerged land of the Continental Shelf more than three miles or three leagues beyond the coastline is property of the United States. The Act defined "coast line" in 2 (c) as "the line of ordinary low water along that portion of the coast which is in direct contact with the [394 U.S. 11, 81] open sea and the line marking the seaward limit of inland waters." This definition of "coast line" is, of course, not clear enough in itself for one to go out and look around the waters and fix the boundary line between submerged lands belonging to the Federal Government and those belonging to the States, particularly since the crucial term "inland waters" is not defined in the Act at all. There appears to be one thing certain about the problem, however, and that is that the dispute between Louisiana and the United States is no part of international affairs subject to international law, but is exclusively a domestic controversy between the State and Nation. The United States, nevertheless, contends that in determining this purely domestic dispute, the Act's words must be given their content in international law and the controlling principles must be found in the international Convention. The United States places its chief reliance for this contention on the second California case. In that case some questions arose about whether certain segments of the California coastline, particularly with reference to bays, inlets, sounds, indentations, and islands, were within California's inland waters. There the Court did not pass on the applicability of the 1895 Act of Congress, 7 and seeking a satisfactory way to [394 U.S. 11, 82] determine some of the perplexing problems about treatment of bays, etc., as inland waters, a divided Court concluded to resort to the treaty mentioned. The majority believed reliance on the treaty was dictated by the need [394 U.S. 11, 83] to adopt "the best and most workable definitions available," 381 U.S., at 165 , thus, as it was believed, adding stability to the operation of the Act and carrying out a purpose of the Act's proponents to give security of title to the State and its oil lessees. </s> But if that turns out to be the result of using the treaty definitions in the second California case, it will certainly not be the result here, for there are crucial differences between the two coasts. California waters are in the main deep and often are navigable very close to shore. There are few indentations along that State's coast, and most of these are smooth or relatively regular in shape. The shoreline is, of course, subject to changes by natural forces, but the land along the shore is for the most part hard and rocky, and therefore such changes in the shoreline have been extremely gradual. The Louisiana coast is entirely different in many ways. The waters off the shore are shallow and often not readily navigable. The shoreline is marked by numerous complex indentations, and indeed the United States, in a brief filed earlier in this litigation, itself recognized that "[t]he Louisiana coast line is an extraordinarily complicated one." 8 (Emphasis added.) Even more important than this complexity of the present coastline is its highly volatile nature. The mighty Mississippi brings sediment and mud which may build up little islands and mud elevations one day and destroy them the next. Parts of the Mississippi Delta are receding at a rapid rate, while in other parts deposits are rapidly being built up. Recent projects along the Atchafalaya River may cause that river to begin building another massive delta that could grow seaward at a rate of almost one mile per year. Because the coast is composed [394 U.S. 11, 84] of soft, silt-like material, because the water is for the most part relatively shallow, and because the elevation of the land along the shore is extraordinarily low, the shoreline often changes drastically merely as a result of temporary variations in winds and waves. Offshore islands sometimes appear or disappear spontaneously as a result of the same forces, and of course major hurricanes to which Louisiana - unlike California - is occasionally exposed, cause even more substantial changes. </s> In Louisiana, consequently, the Court cannot correctly say about its holding what it said with some plausibility in the second California case: </s> "Before today's decision no one could say with assurance where lay the line of inland waters as contemplated by the Act; hence there could have been no tenable reliance on any particular line. After today that situation will have changed. Expectations will be established and reliance placed on the line we define. . . . `Freezing' the meaning of `inland waters' in terms of the Convention . . . serves to fulfill the requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States." 381 U.S., at 166 -167. </s> Today's holding does not grant Louisiana the "definiteness and stability" promised to California. A company having an oil lease now under ocean waters of Louisiana gets no more than an ambulatory title: here today and gone tomorrow. And with its title, I suppose, will go all of its expensive investment in developing the lease. Stable business cannot be fostered that way. The ambulatory title, which the Court finds in the Submerged Lands Act, I think frustrates the just expectations Congress desired that oil companies have in the stability of their leases for exploitation of oil under the sea. [394 U.S. 11, 85] </s> Nothing was said in the second California opinion indicating that the treaty provisions the Court borrowed in that case were to be mechanically used to fit every land dispute. The treaty was chosen there because the Court thought it provided the "best and most workable definitions available" in the dispute between California and the United States; the doctrine cannot fit all cases. If it worked for stability in California, it has a directly opposite effect in Louisiana. Moreover, the doctrine is tending to bring about interminable litigation. Passed 15 years ago, the Act has generated litigation that is not yet abating; we have another dispute similar to this one before us now, and neither the United States nor the State indicates that there is not far more time-consuming litigation still to come. In fact, discussion of this case by the Court requires 63 pages in what appears to me to be as succinct and clear an opinion as could have been written. And even yet the end of the dispute has not arrived. How many years the Master who must now be appointed will have to work, how many persons must be hired to help him, no one can predict. Settling and identifying boundaries on land is a surveyor's job; he must go to the land with his instruments and mark it off. Identifying an ocean boundary, we are told by the briefs and arguments of both parties here, is a much more complex job; it takes much time by surveyors, cartographers, photographers, and oceanographers, a knowledge of angles, tides, rolling waters, higher mathematics, etc. 9 Shorelines are constantly changing, and thus under the Court's formula even this painstaking work cannot provide a means of marking the boundary for all time. I cannot accept the argument that Congress ever intended to impose on this Court such an unjudicial job. I turn therefore to Louisiana's [394 U.S. 11, 86] contentions that Congress long ago adopted a plan and selected a government agency to determine where the inland water line is, that this agency has considered and determined that line, marking it as required by law, and that this line, which is not movable but fixed, provides the stability and certainty necessary to make the purchase and exploitation of oil leases on submerged lands a commercial success. To the extent that my analysis is inconsistent with other possible interpretations of the second California case, it must be recognized that the usual reasons for strong deference to prior precedent are almost wholly absent here. Stare decisis is a valuable principle because by making the governing legal rules predictable, it enables private parties to determine their rights without litigation and enables lower courts to dispose of the great bulk of disputes that do result in litigation. In the present unique situation, however, only a small handful of parties is affected by the governing legal rule; settlement entirely out of court is highly unlikely under the Court's Convention rule; and in practice though not of necessity, cf. 28 U.S.C. 1251 (b) (2), all these disputes are being brought within the original jurisdiction of this Court. Under these circumstances this Court should certainly not adhere blindly to its previous holdings, particularly where, as here, the State involved was not a party to the prior litigation and the claim raised here by Louisiana under the 1895 Act was never considered in the prior litigation. </s> II. </s> In 1895 Congress passed this law: </s> "The Secretary of the Treasury is hereby authorized, empowered and directed from time to time to designate and define by suitable bearings or ranges with light houses, light vessels, buoys or coast objects, [394 U.S. 11, 87] the lines dividing the high seas from rivers, harbors and inland waters." 10 </s> This 1895 law was the successor of other laws showing congressional interest in marking the boundaries between inland and outer-sea waters. 11 Such marks are necessary in order for ships to know when they must obey local signals in the inland waters of a State, as distinguished from their duty to observe international rules and warnings. Title 33 of the U.S. Code contains our inland water rules, for infraction of which courts can inflict penalties consisting of fines and sometimes ship seizures. The Government argues that it is not the purpose of this statute to give the Secretary power to mark this boundary except to control navigation. To buttress this contention, reference is made to a few sporadic statements by Secretaries who had occasion to mark boundaries and by some legislators who helped pass the statute. But surely the Government is not contending that Congress in solemnly considering over a period of years and then passing this law was doing so as a kind of joke. International and local rules of navigation are serious business and the warnings put out under order of Congress to inform ships where inland waters begin must be acted on and obeyed. Here not only has the line delineating Louisiana's waters been marked but also the State passed Act 33 of 1954 accepting these governmental markings as showing positively and certainly just where its inland water line is located. And there is no danger that this line will be ambulatory since the line is now marked, and will not move as shore conditions [394 U.S. 11, 88] change. Nor will future modifications in the line by the Coast Guard disrupt title to these inland waters or to the land and oil beneath them since this Court has repeated several times that a State's territory cannot be taken away from it by Congress without its consent. 12 Such was the understanding of Senator Cordon, floor manager for the Submerged Lands Act, who said: </s> "The boundaries of the States cannot be changed by Congress without the consent of the States. We cannot do anything legislatively in that field, and we have not sought to do so in this measure." 13 </s> Acceptance of the Coast Guard's inland water mark for Louisiana fits precisely within the reasons given for utilizing the international Convention in the second California case. It will put a stop to eternal litigation and help relieve this Court of the heavy burden repeatedly brought upon us to make decisions none of us have the time or competence to make. It will release the time of the Court to do other and more important things. It will help to end further delay in our giving effect to the desire of Congress to grant the States full ownership and control over submerged lands three miles or three leagues from their coastlines. And it will provide the certainty and stability which are absolutely essential for useful development of our off-shore oil resources. </s> I dissent from the Court's holding. </s> [Footnote 1 67 Stat. 29, 43 U.S.C. 1301-1315. </s> [Footnote 2 For this reason it is difficult to understand why the Federal Government is subjecting the State of Louisiana and this Court to a long series of technical and wasteful lawsuits. When all of them are over the United States will have little more undersea land than it already had. The only practical difference that I can see at the moment if the Federal Government wins is that it, instead of the State, will have power to lease the land to some oil company. On the other hand should Louisiana win, it can lease the land perhaps at a bigger price and then, as I pointed out in a prior separate opinion, United States v. Louisiana, 363 U.S. 1, 85 , 98-100, devote its oil income to public education. </s> [Footnote 3 44 Dept. State Bull. 609; 1964. 15 U.S. T. (pt. 2) 1607, T. I. A. S. No. 5639. </s> [Footnote 4 "History is subject to geology. Every day the sea encroaches somewhere upon the land, or the land upon the sea; cities disappear under the water, and sunken cathedrals ring their melancholy bells. Mountains rise and fall in the rhythm of emergence and erosion; rivers swell and flood, or dry up, or change their course; valleys become deserts, and isthmuses become straits. To the geologic eye all the surface of the earth is a fluid form, and man moves upon it as insecurely as Peter walking on the waves to Christ." </s> W. & A. Durant, The Lessons of History 14-15 (1968). </s> [Footnote 5 The propriety of using the Coast Guard line as the seaward line of inland waters was not litigated in the second California case. The issue was not raised by the pleadings; nor was it argued. The point was raised once on oral argument when MR. JUSTICE BRENNAN asked if the United States relied on the Coast Guard line. Mr. Cox, [394 U.S. 11, 80] the Solicitor General, replied that the United States placed no reliance on it, the purpose of that line being "to indicate where the inland rules applicable to vessels control and where the international ocean rules control." He added that Louisiana will contend, when her case reaches here, that the Coast Guard line does control but that it was not involved in the California segment of the litigation. </s> [Footnote 6 United States v. California, 332 U.S. 19 (1947). </s> [Footnote 7 This is vividly demonstrated by the colloquy between MR. JUSTICE BRENNAN and Solicitor General Cox, referred to in n. 5 above: </s> "JUSTICE BRENNAN: Now, I have forgotten - maybe the briefs cover this provision of Title 33 under which the Commandant of the Coast Guard is required to fix the lines dividing the high seas from inland waters. </s> "Do you rely on that at all? </s> "MR. COX: Oh, no. And neither does California. </s> "JUSTICE BRENNAN: Well, would you tell me why part (a) (2) of that title dealing with this very section, for example, there is a provision that `The outer limits of inland waters in Santa Barbara Harbor shall be,' and then there is a description, a line drawn from Santa Barbara, the light-blue one, past the Santa [394 U.S. 11, 82] Barbara Harbor breakwater which, if I locate it on this map, is some little segment away in the upper corner, beneath the word `Santa Barbara' on your map. But you don't rely at all on the definition of inland waters on Congressional definition in another statute. </s> "MR. COX: No. No. We think that those statutes relate simply to - had one purpose and only one purpose, and that is to indicate where the inland rules applicable to vessels control and where the international ocean rules control. </s> "JUSTICE BRENNAN: Just traffic rules of the road. </s> "MR. COX: They are just traffic rules of the road, we would say. </s> "Now, in the Louisiana case, if and when it ever gets here, Louisiana will contend it relies on that because in that instance it happens that the Coast Guard line is placed way out in the Gulf, but here it is apparently placed way in. </s> "JUSTICE BRENNAN: As I get it, it is only a tiny bit of a corner up there at that point. </s> "MR. COX: That is right. And, of course, this is terribly deep water and ocean-going vessels use it. </s> "Now, I should say that there are some small points in these bays that we would agree were harbors. For example, we would agree that up - if you can remember Monterey Bay - that is not on this map - it sort of hooks around, comes around in like this (demonstrating), and the shore comes out this way. We would agree that these little points up here are harbors. If you have been to Monterey, we would agree that the area in which you see fishing vessels anchored, up there at the dock, that is a harbor. That has not been argued about here. We concede. And there may be a few little points up next to Santa Barbara that come the same way as harbors. </s> "JUSTICE BRENNAN: Well, I notice that the Commandant has defined inland waters from Monterey Harbor, San Luis Obispo, San Pedro, Santa Barbara, Crescent City, Isthmus Cove at Santa Catalina and Avalon Bay, but you don't rely on any of these. </s> "MR. COX: No. We don't rely on any of them. </s> "JUSTICE BRENNAN: You don't rely on that. </s> "MR. COX: We don't rely on it, no." (Emphasis added.) </s> [Footnote 8 Memorandum for the United States in Reply to Louisiana's Brief in Opposition to Motion for Leave to File Complaint, March 7, 1956, pp. 9-10. </s> [Footnote 9 See my dissent filed today in the Texas Boundary Case. Ante, at 8, n. 2. </s> [Footnote 10 28 Stat. 672. This Act has been changed by substituting for the Secretary of the Treasury the Secretary of Commerce, and later by placing the responsibility with the Commandant of the Coast Guard. Now 33 U.S.C. 151. </s> [Footnote 11 E. g., 23 Stat. 438 (1885); 26 Stat. 320 (1890). </s> [Footnote 12 See, e. g., Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 541 (1885); Geofroy v. Riggs, 133 U.S. 258, 267 (1890). </s> [Footnote 13 99 Cong. Rec. 2634. </s> [394 U.S. 11, 89]

United States Supreme Court COUNTY OF RIVERSIDE v. McLAUGHLIN(1991) No. 89-1817 Argued: January 7, 1991Decided: May 13, 1991 </s> Respondent McLaughlin brought a class action seeking injunctive and declaratory relief under 42 U.S.C. 1983, alleging that petitioner County of Riverside (County) violated the holding of Gerstein v. Pugh, 420 U.S. 103 , by failing to provide "prompt" judicial determinations of probable cause to persons who, like himself, were arrested without a warrant. The County combines such determinations with arraignment procedures which, under County policy, must be conducted within two days of arrest, excluding weekends and holidays. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because the time for providing him a "prompt" probable cause determination had already passed and he had failed to show, as required by Los Angeles v. Lyons, 461 U.S. 95 , that he would again be subject to the allegedly unconstitutional conduct. The District Court never explicitly ruled on the motion to dismiss, but accepted for filing a second amended complaint - the operative pleading here - which named respondents James, Simon, and Hyde as additional individual plaintiffs and class representatives, and alleged that each of them had been arrested without a warrant, had not received a prompt probable cause hearing, and was still in custody. The court granted class certification and subsequently issued a preliminary injunction requiring that all persons arrested by the County without a warrant be provided probable cause determinations within 36 hours of arrest, except in exigent circumstances. The Court of Appeals affirmed, rejecting the County's Lyons-based standing argument and ruling on the merits that the County's practice was not in accord with Gerstein's promptness requirement because no more than 36 hours were needed to complete the administrative steps incident to arrest. </s> Held: </s> 1. Plaintiffs have Article III standing. At the time the second amended complaint was filed, James, Simon, and Hyde satisfied the standing doctrine's core requirement that they allege personal injury fairly traceable to the County's allegedly unlawful conduct and likely to be redressed by the requested injunction. See, e.g., Allen v. Wright, 468 U.S. 737, 751 . Lyons, supra, distinguished. Although the named [500 U.S. 44, 45] plaintiffs' claims were subsequently rendered moot by their receipt of probable cause hearings or their release from custody, they preserved the merits of the controversy for this Court's review by obtaining class certification. See, e.g., Gerstein, 420 U.S. at 110-111, n. 11. This Court is not deprived of jurisdiction by the fact that the class was not certified until after the named plaintiffs' claims became moot. Such claims are so inherently transitory, see, e.g., id. at 110, n. 11, that the "relation back" doctrine is properly invoked to preserve the case's merits for judicial resolution, see, e.g., Swisher v. Brady, 438 U.S. 204, 213 -214, n. 11. Pp. 50-52. </s> 2. The County's current policy and practice do not comport fully with Gerstein's requirement of a "prompt" probable cause determination. Pp. 52-59. </s> (a) Contrary to the Court of Appeals' construction, Gerstein implicitly recognized that the Fourth Amendment does not compel an immediate determination of probable cause upon completion of the administrative steps incident to arrest. In requiring that persons arrested without a warrant "promptly" be brought before a neutral magistrate for such a determination, 420 U.S., at 114 , 125, Gerstein struck a balance between the rights of individuals and the realities of law enforcement. Id., at 113. Gerstein makes clear that the Constitution does not impose on individual jurisdictions a rigid procedural framework for making the required determination, but allows them to choose to comply in different ways. Id., at 123. In contrast, the Court of Appeals' approach permits no flexibility, and is in error. Pp. 52-55. </s> (b) In order to satisfy Gerstein's promptness requirement, a jurisdiction that chooses to combine probable cause determinations with other pretrial proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Providing a probable cause determination within that time frame will, as a general matter, immunize such a jurisdiction from systemic challenges. Although a hearing within 48 hours may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably, courts evaluating the reasonableness of a delay must allow a substantial degree of flexibility, taking into account the practical realities of pretrial procedures. Where an arrested individual does not receive a probable cause determination within 48 hours, the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, which cannot include intervening weekends or the fact that, in a particular case, it may take longer to consolidate pretrial proceedings. Pp. 55-58. </s> (c) Although the County is entitled to combine probable cause determinations with arraignments, it is not immune from systemic challenges [500 U.S. 44, 46] such as this class action. Its regular practice exceeds the constitutionally permissible 48-hour period because persons arrested on Thursdays may have to wait until the following Monday before receiving a probable cause determination, and the delay is even longer if there is an intervening holiday. Moreover, the lower courts, on remand, must determine whether the County's practice as to arrests that occur early in the week - whereby arraignments usually take place on the last day possible - is supported by legitimate reasons or constitutes delay for delay's sake. Pp. 58-59. </s> 888 F.2d 1276, vacated and remanded. </s> O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 59. SCALIA, J., filed a dissenting opinion, post, p. 59 </s> Timothy T. Coates argued the cause for petitioners. With him on the briefs were Peter J. Ferguson, Michael A. Bell, and Martin Stein. </s> Dan Stormer argued the cause for respondents. With him on the brief were Richard P. Herman, Ben Margolis, and Elizabeth Spector. * </s> [Footnote * Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, and Robert M. Foster and Frederick R. Millar, Jr., Supervising Deputy Attorneys General; and for the District Attorney, County of Riverside, California, by Grover C. Trask II, pro se. </s> Robert M. Rotstein, John A. Powell, Paul L. Hoffman, and Judith Resnik filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance. </s> Briefs of amici curiae were filed for the State of Hawaii et al. by Warren Price III, Attorney General of Hawaii, and Steven S. Michaels, Deputy Attorney General, Don Siegelman, Attorney General of Alabama, Ron Fields, Attorney General of Arkansas, John J. Kelly, Chief State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, James T. Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, James E. Tierney, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Mike Moore, Attorney General of Mississippi, Marc Racicot, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Robert J. Del Tufo, Attorney General of New Jersey, John [500 U.S. 44, 47] P. Arnold, Attorney General of New Hampshire, Hal Stratton, Attorney General of New Mexico, Brian McKay, Attorney General of Nevada, Lacy H. Thornburg, Attorney General of North Carolina, Robert H. Henry, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, Jeffrey L. Amestoy, Attorney General of Vermont, and Joseph P. Meyer, Attorney General of Wyoming; for the County of Los Angeles et al. by De Witt W. Clinton and Dixon M. Holston; for the California District Attorneys Association by Michael R. Capizzi; and for the Youth Law Center by Mark I. Soler and Loren M. Warboys. [500 U.S. 44, 47] </s> JUSTICE O'CONNOR delivered the opinion of the Court. </s> In Gerstein v. Pugh, 420 U.S. 103 (1975), this Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. This case requires us to define what is "prompt" under Gerstein. </s> I </s> This is a class action brought under 42 U.S.C. 1983 challenging the manner in which the County of Riverside, California (County), provides probable cause determinations to persons arrested without a warrant. At issue is the County's policy of combining probable cause determinations with its arraignment procedures. Under County policy, which tracks closely the provisions of Cal. Penal Code Ann. 825 (West 1985), arraignments must be conducted without unnecessary delay and, in any event, within two days of arrest. This two-day requirement excludes from computation weekends and holidays. Thus, an individual arrested without a warrant late in the week may, in some cases, be held for as long as five days before receiving a probable cause determination. Over the Thanksgiving holiday, a 7-day delay is possible. </s> The parties dispute whether the combined probable cause/arraignment procedure is available to all warrantless arrestees. Testimony by Riverside County District Attorney Grover Trask suggests that individuals arrested without [500 U.S. 44, 48] warrants for felonies do not receive a probable cause determination until the preliminary hearing, which may not occur until 10 days after arraignment. 2 App. 298-299. Before this Court, however, the County represents that its policy is to provide probable cause determinations at arraignment for all persons arrested without a warrant, regardless of the nature of the charges against them. Ibid. See also Tr. of Oral Arg. 13. We need not resolve the factual inconsistency here. For present purposes, we accept the County's representation. </s> In August, 1987, Donald Lee McLaughlin filed a complaint in the United States District Court for the Central District of California, seeking injunctive and declaratory relief on behalf of himself and "`all others similarly situated.'" The complaint alleged that McLaughlin was then currently incarcerated in the Riverside County Jail, and had not received a probable cause determination. He requested "an order and judgment requiring that the defendants and the County of Riverside provide in-custody arrestees, arrested without warrants, prompt probable cause, bail and arraignment hearings." Pet. for Cert. 6. Shortly thereafter, McLaughlin moved for class certification. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because he had failed to show, as required by Los Angeles v. Lyons, 461 U.S. 95 (1983), that he would again be subject to the allegedly unconstitutional conduct - i.e., a warrantless detention without a probable cause determination. </s> In light of the pending motion to dismiss, the District Court continued the hearing on the motion to certify the class. Various papers were submitted; then, in July, 1988, the District Court accepted for filing a second amended complaint, which is the operative pleading here. From the record it appears that the District Court never explicitly ruled on defendants' motion to dismiss, but rather took it off the court's calendar in August, 1988. [500 U.S. 44, 49] </s> The second amended complaint named three additional plaintiffs - Johnny E. James, Diana Ray Simon, and Michael Scott Hyde - individually and as class representatives. The amended complaint alleged that each of the named plaintiffs had been arrested without a warrant, had received neither prompt probable cause nor bail hearings, and was still in custody. 1 App. 3. In November, 1988, the District Court certified a class comprising "all present and future prisoners in the Riverside County Jail, including those pretrial detainees arrested without warrants and held in the Riverside County Jail from August 1, 1987 to the present, and all such future detainees who have been or may be denied prompt probable cause, bail or arraignment hearings." 1 App. 7. </s> In March, 1989, plaintiffs asked the District Court to issue a preliminary injunction requiring the County to provide all persons arrested without a warrant a judicial determination of probable cause within 36 hours of arrest. 1 App. 21. The District Court issued the injunction, holding that the County's existing practice violated this Court's decision in Gerstein. Without discussion, the District Court adopted a rule that the County provide probable cause determinations within 36 hours of arrest, except in exigent circumstances. The court "retained jurisdiction indefinitely" to ensure that the County established new procedures that complied with the injunction. 2 App. 333-334. </s> The United States Court of Appeals for the Ninth Circuit consolidated this case with another challenging an identical preliminary injunction issued against the County of San Bernardino. See McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (1989). </s> On November 8, 1989, the Court of Appeals affirmed the order granting the preliminary injunction against Riverside County. One aspect of the injunction against San Bernardino County was reversed by the Court of Appeals; that determination is not before us. [500 U.S. 44, 50] </s> The Court of Appeals rejected Riverside County's Lyons-based standing argument, holding that the named plaintiffs had Article III standing to bring the class action for injunctive relief. 888 F.2d at 1277. It reasoned that, at the time plaintiffs filed their complaint, they were in custody and suffering injury as a result of the defendants' allegedly unconstitutional action. The court then proceeded to the merits and determined that the County's policy of providing probable cause determinations at arraignment within 48 hours was "not in accord with Gerstein's requirement of a determination `promptly after arrest,'" because no more than 36 hours were needed "to complete the administrative steps incident to arrest." Id., at 1278. </s> The Ninth Circuit thus joined the Fourth and Seventh Circuits in interpreting Gerstein as requiring a probable cause determination immediately following completion of the administrative procedures incident to arrest. Llaguno v. Mingey, 763 F.2d 1560, 1567-1568 (CA7 1985) (en banc); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1139-1141 (CA4 1982). By contrast, the Second Circuit understands Gerstein to "stres[s] the need for flexibility" and to permit States to combine probable cause determinations with other pretrial proceedings. Williams v. Ward, 845 F.2d 374, 386 (1988), cert. denied, 488 U.S. 1020 (1989). We granted certiorari to resolve this conflict among the Circuits as to what constitutes a "prompt" probable cause determination under Gerstein. </s> II </s> As an initial matter, the County renews its claim that plaintiffs lack standing. It explains that the main thrust of plaintiffs' suit is that they are entitled to "prompt" probable cause determinations, and insists that this is, by definition, a time-limited violation. Once sufficient time has passed, the County argues, the constitutional violation is complete, because a probable cause determination made after that point [500 U.S. 44, 51] would no longer be "prompt." Thus, at least as to the named plaintiffs, there is no standing, because it is too late for them to receive a prompt hearing and, under Lyons, they cannot show that they are likely to be subjected again to the unconstitutional conduct. </s> We reject the County's argument. At the core of the standing doctrine is the requirement that a plaintiff "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984), citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). The County does not dispute that, at the time the second amended complaint was filed, plaintiffs James, Simon, and Hyde had been arrested without warrants and were being held in custody without having received a probable cause determination, prompt or otherwise. Plaintiffs alleged in their complaint that they were suffering a direct and current injury as a result of this detention, and would continue to suffer that injury until they received the probable cause determination to which they were entitled. Plainly, plaintiffs' injury was at that moment capable of being redressed through injunctive relief. The County's argument that the constitutional violation had already been "completed" relies on a crabbed reading of the complaint. This case is easily distinguished from Lyons, in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint. </s> It is true, of course, that the claims of the named plaintiffs have since been rendered moot; eventually, they either received probable cause determinations or were released. Our cases leave no doubt, however, that, by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. In factually similar cases, we have held that "the termination of a class representative's claim does not moot the claims of the unnamed members of the class." See, e.g., [500 U.S. 44, 52] Gerstein, 420 U.S., at 110 -111, n. 11, citing Sosna v. Iowa, 419 U.S. 393 (1975); Schall v. Martin, 467 U.S. 253, 256 , n. 3 (1984). That the class was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that "[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 399 (1980), citing Gerstein, supra, at 110, n. 11. In such cases, the "relation back" doctrine is properly invoked to preserve the merits of the case for judicial resolution. See Swisher v. Brady, 438 U.S. 204, 213 -214, n. 11 (1978); Sosna, supra, at 402, n. 11. Accordingly, we proceed to the merits. </s> III </s> A </s> In Gerstein, this Court held unconstitutional Florida procedures under which persons arrested without a warrant could remain in police custody for 30 days or more without a judicial determination of probable cause. In reaching this conclusion, we attempted to reconcile important competing interests. On the one hand, States have a strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity, even where there has been no opportunity for a prior judicial determination of probable cause. 420 U.S., at 112 . On the other hand, prolonged detention based on incorrect or unfounded suspicion may unjustly "imperil [a] suspect's job, interrupt his source of income, and impair his family relationships." Id., at 114. We sought to balance these competing concerns by holding that States "must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest." Id., at 125 (emphasis added). [500 U.S. 44, 53] </s> The Court thus established a "practical compromise" between the rights of individuals and the realities of law enforcement. Id., at 113. Under Gerstein, warrantless arrests are permitted, but persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause. Id., at 114. Significantly, the Court stopped short of holding that jurisdictions were constitutionally compelled to provide a probable cause hearing immediately upon taking a suspect into custody and completing booking procedures. We acknowledged the burden that proliferation of pretrial proceedings places on the criminal justice system, and recognized that the interests of everyone involved, including those persons who are arrested, might be disserved by introducing further procedural complexity into an already intricate system. Id., at 119-123. Accordingly, we left it to the individual States to integrate prompt probable cause determinations into their differing systems of pretrial procedures. Id., at 123-124. </s> In so doing, we gave proper deference to the demands of federalism. We recognized that "state systems of criminal procedure vary widely" in the nature and number of pretrial procedures they provide, and we noted that there is no single "preferred" approach. Id., at 123. We explained further that "flexibility and experimentation by the States" with respect to integrating probable cause determinations was desirable, and that each State should settle upon an approach "to accord with [the] State's pretrial procedure viewed as a whole." Ibid. Our purpose in Gerstein was to make clear that the Fourth Amendment requires every State to provide prompt determinations of probable cause, but that the Constitution does not impose on the States a rigid procedural framework. Rather, individual States may choose to comply in different ways. </s> Inherent in Gerstein's invitation to the States to experiment and adapt was the recognition that the Fourth Amendment does not compel an immediate determination of probable [500 U.S. 44, 54] cause upon completing the administrative steps incident to arrest. Plainly, if a probable cause hearing is constitutionally compelled the moment a suspect is finished being "booked," there is no room whatsoever for "flexibility and experimentation by the States." Ibid. Incorporating probable cause determinations "into the procedure for setting bail or fixing other conditions of pretrial release" - which Gerstein explicitly contemplated, id. at 124 - would be impossible. Waiting even a few hours so that a bail hearing or arraignment could take place at the same time as the probable cause determination would amount to a constitutional violation. Clearly, Gerstein is not that inflexible. </s> Notwithstanding Gerstein's discussion of flexibility, the Ninth Circuit Court of Appeals held that no flexibility was permitted. It construed Gerstein as "requir[ing] a probable cause determination to be made as soon as the administrative steps incident to arrest were completed, and that such steps should require only a brief period." 888 F.2d at 1278 (emphasis added) (internal quotation marks omitted). This same reading is advanced by the dissent. See post at 59 (opinion of MARSHALL, J.); post at 61-63, 65 (opinion of SCALIA, J.). The foregoing discussion readily demonstrates the error of this approach. Gerstein held that probable cause determinations must be prompt - not immediate. The Court explained that "flexibility and experimentation" were "desirab[le]"; that "[t]here is no single preferred pretrial procedure"; and that "the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole." 420 U.S., at 123 . The Court of Appeals and the JUSTICE SCALIA disregard these statements, relying instead on selective quotations from the Court's opinion. As we have explained, Gerstein struck a balance between competing interests; a proper understanding of the decision is possible only if one takes into account both sides of the equation. </s> JUSTICE SCALIA claims to find support for its approach in the common law. It points to several statements from the [500 U.S. 44, 55] early 1800's to the effect that an arresting officer must bring a person arrested without a warrant before a judicial officer "`as soon as he reasonably can.'" Post at 61 (emphasis in original). This vague admonition offers no more support for the dissent's inflexible standard than does Gerstein's statement that a hearing follow "promptly after arrest." 420 U.S., at 125 . As mentioned at the outset, the question before us today is what is "prompt" under Gerstein. We answer that question by recognizing that Gerstein struck a balance between competing interests. </s> B </s> Given that Gerstein permits jurisdictions to incorporate probable cause determinations into other pretrial procedures, some delays are inevitable. For example, where, as in Riverside County, the probable cause determination is combined with arraignment, there will be delays caused by paperwork and logistical problems. Records will have to be reviewed, charging documents drafted, appearance of counsel arranged, and appropriate bail determined. On weekends, when the number of arrests is often higher and available resources tend to be limited, arraignments may get pushed back even further. In our view, the Fourth Amendment permits a reasonable postponement of a probable cause determination while the police cope with the everyday problems of processing suspects through an overly burdened criminal justice system. </s> But flexibility has its limits; Gerstein is not a blank check. A State has no legitimate interest in detaining for extended periods individuals who have been arrested without probable cause. The Court recognized in Gerstein that a person arrested without a warrant is entitled to a fair and reliable determination of probable cause, and that this determination must be made promptly. </s> Unfortunately, as lower court decisions applying Gerstein have demonstrated, it is not enough to say that probable [500 U.S. 44, 56] cause determinations must be "prompt." This vague standard simply has not provided sufficient guidance. Instead, it has led to a flurry of systemic challenges to city and county practices, putting federal judges in the role of making legislative judgments and overseeing local jailhouse operations. See, e.g., McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (CA9 1989); Scott v. Gates, Civ. No. 84-8647 (CD Cal., Oct. 3, 1988); see also Bernard v. Palo Alto, 699 F.2d 1023 (CA9 1983); Sanders v. Houston, 543 F.Supp. 694 (SD Tex. 1982), aff'd, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F.Supp. 1000 (DC 1978). </s> Our task in this case is to articulate more clearly the boundaries of what is permissible under the Fourth Amendment. Although we hesitate to announce that the Constitution compels a specific time limit, it is important to provide some degree of certainty so that States and counties may establish procedures with confidence that they fall within constitutional bounds. Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges. </s> This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay's sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the [500 U.S. 44, 57] often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities. </s> Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that, in a particular case, it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. </s> JUSTICE SCALIA urges that 24 hours is a more appropriate outer boundary for providing probable cause determinations. See post at 68. In arguing that any delay in probable cause hearings beyond completing the administrative steps incident to arrest and arranging for a magistrate is unconstitutional, JUSTICE SCALIA, in effect, adopts the view of the Court of Appeals. Yet the dissent ignores entirely the Court of Appeals' determination of the time required to complete those procedures. That court, better situated than this one, concluded that it takes 36 hours to process arrested persons in Riverside County. 888 F.2d at 1278. In advocating a 24-hour rule, JUSTICE SCALIA would compel Riverside County - and countless others across the Nation - to speed up its criminal justice mechanisms substantially, presumably by allotting local tax dollars to hire additional police officers and magistrates. There may be times when the Constitution compels such direct interference with local control, but this is not one. As we have explained, Gerstein clearly contemplated a reasonable [500 U.S. 44, 58] accommodation between legitimate competing concerns. We do no more than recognize that such accommodation can take place without running afoul of the Fourth Amendment. </s> Everyone agrees that the police should make every attempt to minimize the time a presumptively innocent individual spends in jail. One way to do so is to provide a judicial determination of probable cause immediately upon completing the administrative steps incident to arrest - i.e., as soon as the suspect has been booked, photographed, and fingerprinted. As JUSTICE SCALIA explains, several States, laudably, have adopted this approach. The Constitution does not compel so rigid a schedule, however. Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. This necessarily means that only certain proceedings are candidates for combination. Only those proceedings that arise very early in the pretrial process - such as bail hearings and arraignments - may be chosen. Even then, every effort must be made to expedite the combined proceedings. See 420 U.S. at 124. </s> IV </s> For the reasons we have articulated, we conclude that Riverside County is entitled to combine probable cause determinations with arraignments. The record indicates, however, that the County's current policy and practice do not comport fully with the principles we have outlined. The County's current policy is to offer combined proceedings within two days, exclusive of Saturdays, Sundays, or holidays. As a result, persons arrested on Thursdays may have to wait until the following Monday before they receive a probable cause determination. The delay is even longer if there is an intervening holiday. Thus, the County's regular practice exceeds the 48-hour period we deem constitutionally [500 U.S. 44, 59] permissible, meaning that the County is not immune from systemic challenges, such as this class action. </s> As to arrests that occur early in the week, the County's practice is that "arraignment[s] usually tak[e] place on the last day" possible. 1 App. 82. There may well be legitimate reasons for this practice; alternatively, this may constitute delay for delay's sake. We leave it to the Court of Appeals and the District Court, on remand, to make this determination. </s> The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting. </s> In Gerstein v. Pugh, 420 U.S. 103 (1975), this Court held that an individual detained following a warrantless arrest is entitled to a "prompt" judicial determination of probable cause as a prerequisite to any further restraint on his liberty. See id. at 114-116, 125. I agree with JUSTICE SCALIA that a probable-cause hearing is sufficiently "prompt" under Gerstein only when provided immediately upon completion of the "administrative steps incident to arrest," id. at 114. See post at 62-63. Because the Court of Appeals correctly held that the County of Riverside must provide probable cause hearings as soon as it completes the administrative steps incident to arrest, see 888 F.2d 1276, 1278 (CA9 1989), I would affirm the judgment of the Court of Appeals. Accordingly, I dissent. </s> JUSTICE SCALIA, dissenting. </s> The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was [500 U.S. 44, 60] done. "I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not). Thinking that neither the one course nor the other is correct, nor the two combined, I dissent from today's decision, which eliminates a very old right indeed. </s> I </s> The Court views the task before it as one of "balanc[ing] [the] competing concerns" of "protecting public safety," on the one hand, and avoiding "prolonged detention based on incorrect or unfounded suspicion," on the other hand, ante at 52. It purports to reaffirm the "practical compromise" between these concerns struck in Gerstein v. Pugh, 420 U.S. 103 (1975), ante at 53. There is assuredly room for such an approach in resolving novel questions of search and seizure under the "reasonableness" standard that the Fourth Amendment sets forth. But not, I think, in resolving those questions on which a clear answer already existed in 1791, and has been generally adhered to by the traditions of our society ever since. As to those matters, the "balance" has already been struck, the "practical compromise" reached - and it is the function of the Bill of Rights to preserve that judgment, not only against the changing views of Presidents and Members of Congress, but also against the changing views of Justices whom Presidents appoint and Members of Congress confirm to this Court. </s> The issue before us today is of precisely that sort. As we have recently had occasion to explain, the Fourth Amendment's prohibition of "unreasonable seizures," insofar as it applies to seizure of the person, preserves for our citizens the traditional protections against unlawful arrest afforded by the common law. See California v. Hodari D., 499 U.S. [500 U.S. 44, 61] 621 (1991). One of those - one of the most important of those - was that a person arresting a suspect without a warrant must deliver the arrestee to a magistrate "as soon as he reasonably can." 2 M. Hale, Pleas of the Crown 95, n. 13 (1st Am. ed. 1847). See also 4 W. Blackstone, Commentaries *289, *293; Wright v. Court, 107 Eng. Rep. 1182 (K.B. 1825) ("[I]t is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon as he reasonably can"); 1 R. Burn, Justice of the Peace 276-277 (1837) ("When a constable arrests a party for treason or felony, he must take him before a magistrate to be examined as soon as he reasonably can") (emphasis omitted). The practice in the United States was the same. See e.g., 5 Am.Jur.2d 76, 77 (1962); Venable v. Huddy, 77 N.J.L. 351, 72 A. 10, 11 (1909); Atchison, T. & S.F.R. Co. v. Hinsdell, 76 Kan. 74, 76, 90 P. 800, 801 (1907); Ocean S.S. Co. v. Williams, 69 Ga. 251, 262 (1883); Johnson v. Mayor and City Council of Americus, 46 Ga. 80, 86-87 (1872); Low v. Evans, 16 Ind. 486, 489 (1861); Tubbs v. Tukey, 57 Mass. 438, 440 (1849) (warrant); Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 254 (1940). Cf. Pepper v. Mayes, 81 Ky. 673 (1884). It was clear, moreover, that the only element bearing upon the reasonableness of delay was not such circumstances as the pressing need to conduct further investigation, but the arresting officer's ability, once the prisoner had been secured, to reach a magistrate who could issue the needed warrant for further detention. 5 Am.Jur.2d 76, 77 (1962); 1 Restatement of Torts 134 Comment b (1934); Keefe v. Hart, 213 Mass. 476, 482, 100 N.E. 558, 559 (1913); Leger v. Warren, 57 N.E. 506, 508 (Ohio 1900); Burk v. Howley, 179 Pa. 539, 551, 36 A. 327, 329 (1897); Kirk & Son v. Garrett, 84 Md. 383, 405, 35 A. 1089, 1091 (1896); Simmons v. Vandyke, 138 Ind. 380, 384, 37 N.E. 973, 974 (1894) (dictum); Ocean S.S. Co. v. Williams, supra, at 263; Hayes v. Mitchell, 69 Ala. 452, 455 (1881); Kenerson v. Bacon, 41 Vt. 573, 577 (1869); Green v. Kennedy, 48 N.Y. [500 U.S. 44, 62] 653, 654 (1871); Schneider v. McLane, 3 Keyes 568 (NY App. 1867); Annot., 51 L.R.A. 216 (1901). Cf. Wheeler v. Nesbitt, 24 How. 544, 552 (1860). Any detention beyond the period within which a warrant could have been obtained rendered the officer liable for false imprisonment. See, e.g., Twilley v. Perkins, 77 Md. 252, 265, 26 A. 286, 289 (1893); Wiggins v. Norton, 83 Ga. 148, 152, 9 S.E. 607, 608-609 (1889); Brock v. Stimson, 108 Mass. 520 (1871); Annot., 98 A.L.R.2d 966 (1964). 1 </s> We discussed and relied upon this common law understanding in Gerstein, see 420 U.S., at 114 -116, holding that the period of warrantless detention must be limited to the time necessary to complete the arrest and obtain the magistrate's review. </s> "[A] policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, . . . the reasons that justify dispensing [500 U.S. 44, 63] with the magistrate's neutral judgment evaporate." Id., at 113-114 (emphasis added). </s> We said that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty," id. at 114, "either before or promptly after arrest," id. at 125. Though how "promptly" we did not say, it was plain enough that the requirement left no room for intentional delay unrelated to the completion of "the administrative steps incident to arrest." Plain enough, at least, that all but one federal court considering the question understood Gerstein that way. See, e.g., Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (CA7 1986), cert. denied, 481 U.S. 1028 (1987); Bernard v. Palo Alto, 699 F.2d 1023, 1025 (CA9 1983) (per curiam); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1140 (CA4 1982); Mabry v. County of Kalamazoo, 626 F.Supp. 912, 914 (WD Mich. 1986); Sanders v. Houston, 543 F.Supp. 694, 699-701 (SD Tex. 1982), aff'd, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F.Supp. 1000, 1004 (DC 1978). See also People ex rel. Maxian v. Brown, 164 App. Div.2d 56, 62-64, 561 N.Y.S.2d 418, 421-422 (1990), aff'd, 77 N.Y.2d 422, (1991); Note, Williams v. Ward: Compromising the Constitutional Right to Prompt Determination of Probable Cause Upon Arrest, 74 Minn. L. Rev. 196, 204 (1989). But see Williams v. Ward, 845 F.2d 374 (CA2 1988), cert. denied, 488 U.S. 1020 (1989). </s> Today, however, the Court discerns something quite different in Gerstein. It finds that the plain statements set forth above (not to mention the common law tradition of liberty upon which they were based) were trumped by the implication of a later dictum in the case which, according to the Court, manifest a "recognition that the Fourth Amendment does not compel an immediate determination of probable cause upon completing the administrative steps incident to arrest." Ante at 53-54 (emphasis added). Of course Gerstein did not say, nor do I contend, that an "immediate" determination [500 U.S. 44, 64] is required. But what the Court today means by "not immediate" is that the delay can be attributable to something other than completing the administrative steps incident to arrest and arranging for the magistrate - namely, to the administrative convenience of combining the probable cause determination with other state proceedings. The result, we learn later in the opinion, is that what Gerstein meant by "a brief period of detention to take the administrative steps incident to arrest" is two full days. I think it is clear that the case neither said nor meant any such thing. </s> Since the Court's opinion hangs so much upon Gerstein, it is worth quoting the allegedly relevant passage in its entirety. </s> "Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect's first appearance before a judicial officer, . . . or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some States, existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment, such as acceleration of existing preliminary hearings. Current proposals for criminal procedure reform suggest other ways of testing probable cause for detention. Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this [500 U.S. 44, 65] determination must be made by a judicial officer either before or promptly after arrest." 420 U.S., at 123 -125 (footnotes omitted; emphasis added). </s> The Court's holding today rests upon the statement that "we recognize the desirability of flexibility and experimentation." But, in its context, that statement plainly refers to the nature of the hearing and not to its timing. That the timing is a given and a constant is plain from the italicized phrases, especially that which concludes the relevant passage. The timing is specifically addressed in the previously quoted passage of the opinion, which makes clear that "promptly after arrest" means upon completion of the "administrative steps incident to arrest." It is not apparent to me, as it is to the Court, that, on these terms, "[i]ncorporating probable cause determinations into the "procedure for setting bail or fixing other conditions of pretrial release" . . . would be impossible," ante at 54; but it is clear that, if and when it is impossible, Gerstein envisioned that the procedural "experimentation," rather than the Fourth Amendment's requirement of prompt presentation to a magistrate, would have to yield. </s> Of course, even if the implication of the dictum in Gerstein were what the Court says, that would be poor reason for keeping a wrongfully arrested citizen in jail contrary to the clear dictates of the Fourth Amendment. What is most revealing of the frailty of today's opinion is that it relies upon nothing but that implication from a dictum, plus its own (quite irrefutable because entirely value-laden) "balancing" of the competing demands of the individual and the State. With respect to the point at issue here, different times and different places - even highly liberal times and places - have struck that balance in different ways. Some Western democracies currently permit the Executive a period of detention without impartially adjudicated cause. In England, for example, the Prevention of Terrorism Act 1989, 14(4), 5, permits suspects to be held without presentation and without charge for seven days. 12 Halsbury's Stat. 1294 (4th [500 U.S. 44, 66] ed. 1989). It was the purpose of the Fourth Amendment to put this matter beyond time, place and judicial predilection, incorporating the traditional common law guarantees against unlawful arrest. The Court says not a word about these guarantees, and they are determinative. Gerstein's approval of a "brief period" of delay to accomplish "administrative steps incident to an arrest" is already a questionable extension of the traditional formulation, though it probably has little practical effect, and can perhaps be justified on de minimis grounds. 2 To expand Gerstein, however, into an authorization for 48-hour detention related neither to the obtaining of a magistrate nor the administrative "completion" of the arrest seems to me utterly unjustified. Mr. McLaughlin was entitled to have a prompt impartial determination that there was reason to deprive him of his liberty - not according to a schedule that suits the State's convenience in piggybacking various proceedings, but as soon as his arrest was completed and the magistrate could be procured. </s> II </s> I have finished discussing what I consider the principal question in this case, which is what factors determine whether the postarrest determination of probable cause has been (as the Fourth Amendment requires) "reasonably prompt." The Court and I both accept two of those factors, completion of the administrative steps incident to arrest and arranging for a magistrate's probable cause determination. Since we disagree, however, upon a third factor - the Court [500 U.S. 44, 67] believing, as I do not, that "combining" the determination with other proceedings justifies a delay - we necessarily disagree as well on the subsequent question, which can be described as the question of the absolute time limit. Any determinant of "reasonable promptness" that is within the control of the State (as the availability of the magistrate, the personnel and facilities for completing administrative procedures incident to arrest, and the timing of "combined procedures" all are) must be restricted by some outer time limit, or else the promptness guarantee would be worthless. If, for example, it took a full year to obtain a probable cause determination in California because only a single magistrate had been authorized to perform that function throughout the State, the hearing would assuredly not qualify as "reasonably prompt." At some point, legitimate reasons for delay become illegitimate. </s> I do not know how the Court calculated its outer limit of 48 hours. I must confess, however, that I do not know how I would do so either, if I thought that one justification for delay could be the State's "desire to combine." There are no standards for "combination," and as we acknowledged in Gerstein the various procedures that might be combined "vary widely" from State to State. 420 U.S., at 123 . So as far as I can discern (though I cannot pretend to be able to do better), the Court simply decided that, given the administrative convenience of "combining," it is not so bad for an utterly innocent person to wait 48 hours in jail before being released. </s> If one eliminates (as one should) that novel justification for delay, determining the outer boundary of reasonableness is a more objective and more manageable task. We were asked to undertake it in Gerstein, but declined - wisely, I think, since we had before us little data to support any figure we might choose. As the Court notes, however, Gerstein has engendered a number of cases addressing not only the scope of the procedures "incident to arrest," but also their duration. [500 U.S. 44, 68] The conclusions reached by the judges in those cases, and by others who have addressed the question, are surprisingly similar. I frankly would prefer even more information, and, for that purpose, would have supported reargument on the single question of an outer time limit. The data available are enough to convince me, however, that certainly no more than 24 hours is needed. 3 </s> With one exception, no federal court considering the question has regarded 24 hours as an inadequate amount of time to complete arrest procedures, and, with the same exception, every court actually setting a limit for probable cause determination based on those procedures has selected 24 [500 U.S. 44, 69] hours. (The exception would not count Sunday within the 24-hour limit.) See Bernard v. Palo Alto, 699 F.2d at 1025; McGill v. Parsons, 532 F.2d 484, 485 (CA5 1976); Sanders v. Houston, 543 F.Supp. at 701-703; Lively v. Cullinane, 451 F.Supp. at 1003-1004. Cf. Dommer v. Hatcher, 427 F.Supp. 1040, 1046 (ND Ind. 1975) (24-hour maximum; 48 if Sunday included), rev'd in part, 653 F.2d 289 (CA7 1981). See also Gramenos v. Jewel Companies, Inc., 797 F.2d at 437 (four hours "requires explanation"); Brandes, Post-Arrest Detention and the Fourth Amendment: Refining the Standard of Gerstein v. Pugh, 22 Colum.J.L. & Soc. Prob. 445, 474-475 (1989). Federal courts have reached a similar conclusion in applying Federal Rule of Criminal Procedure 5(a), which requires presentment before a federal magistrate "without unnecessary delay." See, e.g., Thomas, The Poisoned Fruit of Pretrial Detention, 61 N.Y.U.L.Rev. 413, 450, n. 238 (1986) (citing cases). And state courts have similarly applied a 24-hour limit under state statutes requiring presentment without "unreasonable delay." New York, for example, has concluded that no more than 24 hours is necessary from arrest to arraignment, People ex rel. Maxian v. Brown, 164 App. Div.2d at 62-64, 561 N.Y.S.2d at 421-422. Twenty-nine States have statutes similar to New York's, which require either presentment or arraignment "without unnecessary delay" or "forthwith"; eight States explicitly require presentment or arraignment within 24 hours; and only seven States have statutes explicitly permitting a period longer than 24 hours. Brandes, supra, at 478, n. 230. Since the States requiring a probable cause hearing within 24 hours include both New York and Alaska, it is unlikely that circumstances of population or geography demand a longer period. Twenty-four hours is consistent with the American Law Institute's Model Code. ALI, Model Code of Pre-Arraignment Procedure 310.1 (1975). And while the American Bar Association, in its proposed rules of criminal procedure, initially required that presentment simply be [500 U.S. 44, 70] made "without unnecessary delay," it has recently concluded that no more than six hours should be required, except at night. Uniform Rules of Criminal Procedure, 10 U.L.A. App. Criminal Justice Standard 10-4.1 (Spec. Pamph. 1987). Finally, the conclusions of these commissions and judges, both state and federal, are supported by commentators who have examined the question. See, e.g., Brandes, supra, at 478-485 (discussing national 24-hour rule); Note, 74 Minn. L. Rev., at 207-209. </s> In my view, absent extraordinary circumstances, it is an "unreasonable seizure" within the meaning of the Fourth Amendment for the police, having arrested a suspect without a warrant, to delay a determination of probable cause for the arrest either (1) for reasons unrelated to arrangement of the probable cause determination or completion of the steps incident to arrest, or (2) beyond 24 hours after the arrest. Like the Court, I would treat the time limit as a presumption; when the 24 hours are exceeded, the burden shifts to the police to adduce unforeseeable circumstances justifying the additional delay. </s> * * * </s> A few weeks before issuance of today's opinion, there appeared in the Washington Post the story of protracted litigation arising from the arrest of a student who entered a restaurant in Charlottesville, Virginia, one evening, to look for some friends. Failing to find them, he tried to leave - but refused to pay a $5 fee (required by the restaurant's posted rules) for failing to return a red tab he had been issued to keep track of his orders. According to the story, he "was taken by police to the Charlottesville jail" at the restaurant's request. "There, a magistrate refused to issue an arrest warrant," and he was released. Washington Post, Apr. 29, 1991, p. 1. That is how it used to be; but not, according to today's decision, how it must be in the future. If the Fourth Amendment meant then what the Court says it does now, the student could lawfully have been held for as long as it would [500 U.S. 44, 71] have taken to arrange for his arraignment, up to a maximum of 48 hours. </s> Justice Story wrote that the Fourth Amendment "is little more than the affirmance of a great constitutional doctrine of the common law." 3 J. Story, Commentaries on the Constitution 748 (1833). It should not become less than that. One hears the complaint, nowadays, that the Fourth Amendment has become constitutional law for the guilty; that it benefits the career criminal (through the exclusionary rule) often and directly, but the ordinary citizen remotely if at all. By failing to protect the innocent arrestee, today's opinion reinforces that view. The common law rule of prompt hearing had as its primary beneficiaries the innocent - not those whose fully justified convictions must be overturned to scold the police; nor those who avoid conviction because the evidence, while convincing, does not establish guilt beyond a reasonable doubt; but those so blameless that there was not even good reason to arrest them. While in recent years we have invented novel applications of the Fourth Amendment to release the unquestionably guilty, we today repudiate one of its core applications so that the presumptively innocent may be left in jail. Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days - never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as our own. </s> I respectfully dissent. </s> Footnotes [Footnote 1 The Court dismisses reliance upon the common law on the ground that its "vague admonition" to the effect that "an arresting officer must bring a person arrested without a warrant before a judicial officer `as soon as he reasonably can'" provides no more support than does Gerstein v. Pugh's, 420 U.S. 103 (1975), "promptly after arrest" language for the "inflexible standard" that I propose. Ante at 55. This response totally confuses the present portion of my opinion, which addresses the constitutionally permissible reasons for delay, with Part II below, which addresses (no more inflexibly, I may say, than the Court's 48-hour rule) the question of an outer time limit. The latter - how much time, given the functions the officer is permitted to complete beforehand, constitutes "as soon as he reasonably can" or "promptly after arrest" - is obviously a function not of the common law, but of helicopters and telephones. But what those delay-legitimating functions are - whether, for example, they include further investigation of the alleged crime or (as the Court says) "mixing" the probable cause hearing with other proceedings - is assuredly governed by the common law, whose admonition on the point is not at all "vague": only the function of arranging for the magistrate qualifies. The Court really has no response to this. It simply rescinds the common-law guarantee. </s> [Footnote 2 Ordinarily, I think, there would be plenty of time for "administrative steps" while the arrangements for a hearing are being made. But if, for example, a magistrate is present in the precinct and entertaining probable cause hearings at the very moment a wrongfully arrested person is brought in, I see no basis for intentionally delaying the hearing in order to subject the person to a cataloging of his personal effects, fingerprinting, photographing, etc. He ought not be exposed to those indignities if there is no proper basis for constraining his freedom of movement, and if that can immediately be determined. </s> [Footnote 3 The Court claims that the Court of Appeals "concluded that it takes 36 hours to process arrested persons in Riverside County." Ante at 57. The court concluded no such thing. It concluded that 36 hours (the time limit imposed by the District Court) was "ample" time to complete the arrest, 888 F.2d 1276, 1278 (CA9 1989), and that the county had provided no evidence to demonstrate the contrary. The District Court, in turn, had not made any evidentiary finding to the effect that 36 hours was necessary, but, for unexplained reasons, said that it "declines to adopt the 24-hour standard [generally applied by other courts], but adopts a 36-hour limit, except in exigent circumstances." McLaughlin v. County of Riverside, No. CV87-5597 RG (CD Cal., Apr. 19, 1989). 2 App. 332. Before this Court, moreover, the county has acknowledged that "nearly 90 percent of all cases . . . can be completed in 24 hours or less," Brief for District Attorney, County of Riverside, as Amicus Curiae 16, and the examples given to explain the other 10 percent are entirely unpersuasive (heavy traffic on the southern California freeways, the need to wait for arrestees who are properly detainable because they are visibly under the influence of drugs to come out of that influence before they can be questioned about other crimes; the need to take blood and urine samples promptly in drug cases) with one exception: awaiting completion of investigations and filing of investigation reports by various state and federal agencies. Id., at 16-17. We have long held, of course, that delaying a probable cause determination for the latter reason - effecting what Judge Posner has aptly called "imprisonment on suspicion, while the police look for evidence to confirm their suspicion," Llaguno v. Mingey, 763 F.2d 1560, 1568 (CA7 1985) - is improper. See Gerstein, 420 U.S., at 120 , n. 21, citing Mallory v. United States, 354 U.S. 449, 456 (1957). </s> [500 U.S. 44, 72]

United States Supreme Court MARTIN et ux v. FRANKLIN CAPITAL CORP.(2005) No. 04-1140 Argued: November 8, 2005Decided: December 7, 2005 </s> In removing petitioner Martins' state-court class action to federal court on diversity grounds, respondents (collectively, Franklin) acknowledged that the amount in controversy was not clear from the face of the state-court complaint, but argued that this requirement for federal diversity jurisdiction was nonetheless satisfied under precedent suggesting that punitive damages and attorney's fees could be aggregated in making the calculation. The District Court denied the Martins' motion to remand to state court and eventually dismissed the case with prejudice. Reversing and remanding with instructions to remand to state court, the Tenth Circuit agreed with the Martins that their suit failed to satisfy the amount-in-controversy requirement and rejected Franklin's aggregation theory under decisions issued after the District Court's remand decision. The latter court then denied the Martins' motion for attorney's fees because Franklin had legitimate grounds for believing this case fell within federal-court jurisdiction. Affirming, the Tenth Circuit disagreed with the Martins' argument that attorney's fees should be granted on remand as a matter of course under 28 U.S.C. §1447(c), which provides that a remand order "may require payment of just costs and any actual expenses, including attorney fees," but provides little guidance on when fees are warranted. The court noted that fee awards are left to the district court's discretion, subject to review only for abuse of discretion; pointed out that, under Circuit precedent, the key factor in deciding whether to award fees is the propriety of removal; and held that, because Franklin had relied on case law only subsequently held to be unsound, its basis for removal was objectively reasonable, and the fee denial was not an abuse of discretion. Held:Absent unusual circumstances, attorney's fees should not be awarded under §1447(c) when the removing party has an objectively reasonable basis for removal. Conversely, where no objectively reasonable basis exists, fees should be awarded. This Court rejects the Martins' argument for adopting a strong presumption in favor of awarding fees. The reasons for adopting such a presumption in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (per curiam), are absent here. Also rejected is Franklin's argument that §1447(c) simply grants courts jurisdiction to award costs and attorney's fees when otherwise warranted. Were the statute strictly jurisdictional, there would be no need to limit awards to "just" costs; any award authorized by other provisions of law would presumably be "just." The Court therefore gives the statute its natural reading: Section 1447(c) authorizes courts to award costs and fees, but only when such an award is just. That standard need not be defined narrowly, as the Solicitor General argues, by awarding fees only on a showing that the unsuccessful party's position was frivolous, unreasonable, or without foundation. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, and Flight Attendants v. Zipes, 491 U.S. 754, 762, distinguished. The fact that a §1447(c) fee award is discretionary does not mean that there is no governing legal standard. When applying fee-shifting statutes, the Court has found limits in "the large objectives" of the relevant Act. E.g., Zipes, 510 U.S. 517, 534, n.19. Pp.3-9. 393 F.3d 1143, affirmed. Roberts, C.J., delivered the opinion for a unanimous Court. </s> GERALD T. MARTIN, et ux., PETITIONERS v.FRANKLIN CAPITAL CORPORATION etal. on writ of certiorari to the united states court ofappeals for the tenth circuit [December 7, 2005] </s> Chief Justice Roberts delivered the opinion of the Court. </s> A civil case commenced in state court may, as a general matter, be removed by the defendant to federal district court, if the case could have been brought there originally. 28 U.S.C. §1441 (2000 ed. and Supp. II). If it appears that the federal court lacks jurisdiction, however, "the case shall be remanded." §1447(c). An order remanding a removed case to state court "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Ibid. Although §1447(c) expressly permits an award of attorney's fees, it provides little guidance on when such fees are warranted. We granted certiorari to determine the proper standard for awarding attorney's fees when remanding a case to state court. I </s> Petitioners Gerald and Juana Martin filed a class-action lawsuit in New Mexico state court against respondents Franklin Capital Corporation and Century-National Insurance Company (collectively, Franklin). Franklin removed the case to Federal District Court on the basis of diversity of citizenship. See §§1332, 1441 (2000 ed. and Supp. II). In its removal notice, Franklin acknowledged that the amount in controversy was not clear from the face of the complaint--no reason it should be, since the complaint had been filed in state court--but argued that this requirement for federal diversity jurisdiction was nonetheless satisfied. In so arguing, Franklin relied in part on precedent suggesting that punitive damages and attorney's fees could be aggregated in a class action to meet the amount-in-controversy requirement. See App. 35. Fifteen months later, the Martins moved to remand to state court on the ground that their claims failed to satisfy the amount-in-controversy requirement. The District Court denied the motion and eventually dismissed the case with prejudice. On appeal, the Court of Appeals for the Tenth Circuit agreed with the Martins that the suit failed to satisfy the amount-in-controversy requirement. The Tenth Circuit rejected Franklin's contention that punitive damages and attorney's fees could be aggregated in calculating the amount in controversy, in part on the basis of decisions issued after the District Court's remand decision. The Court of Appeals reversed and remanded to the District Court with instructions to remand the case to state court. 251 F.3d 1284, 1294 (2001). </s> Back before the District Court, the Martins moved for attorney's fees under §1447(c). The District Court reviewed Franklin's basis for removal and concluded that, although the Court of Appeals had determined that removal was improper, Franklin "had legitimate grounds for believing this case fell within th[e] Court's jurisdiction." App. to Pet. for Cert. 20a. Because Franklin "had objectively reasonable grounds to believe the removal was legally proper," the District Court denied the Martins' request for fees. Ibid. </s> The Martins appealed again, arguing that §1447(c) requires granting attorney's fees on remand as a matter of course. The Tenth Circuit disagreed, noting that awarding fees is left to the "wide discretion" of the district court, subject to review only for abuse of discretion. 393 F.3d 1143, 1146 (2004). Under Tenth Circuit precedent, the "'key factor'" in deciding whether to award fees under §1447(c) is "'the propriety of defendant's removal.'" Ibid. (quoting Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 322 (CA10 1997)). In calculating the amount in controversy when it removed the case, Franklin had relied on case law only subsequently held to be unsound, and therefore Franklin's basis for removal was objectively reasonable. 393 F. 3d, at 1148. Because the District Court had not abused its discretion in denying fees, the Tenth Circuit affirmed. Id., at 1151. </s> We granted certiorari, 544 U.S. ___ (2005), to resolve a conflict among the Circuits concerning when attorney's fees should be awarded under §1447(c). Compare, e.g., Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (CA5 2004) ("Fees should only be awarded if the removing defendant lacked objectively reasonable grounds to believe the removal was legally proper" (internal quotation marks omitted)), with Sirotzky v. New York Stock Exchange, 347 F.3d 985, 987 (CA7 2003) ("[P]rovided removal was improper, the plaintiff is presumptively entitled to an award of fees"), and Hofler v. Aetna U.S. Healthcare of Cal., Inc., 296 F.3d 764, 770 (CA9 2002) (affirming fee award even when "the defendant's position may be fairly supportable" (internal quotation marks omitted)). We hold that, absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable basis for removal. We therefore affirm the judgment of the Tenth Circuit. II </s> The Martins argue that attorney's fees should be awarded automatically on remand, or that there should at least be a strong presumption in favor of awarding fees. Section 1447(c), however, provides that a remand order "may" require payment of attorney's fees--not "shall" or "should." As Chief Justice Rehnquist explained for the Court in Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994), "[t]he word 'may' clearly connotes discretion. The automatic awarding of attorney's fees to the prevailing party would pretermit the exercise of that discretion." Congress used the word "shall" often enough in §1447(c)--as when it specified that removed cases apparently outside federal jurisdiction "shall be remanded"--to dissuade us from the conclusion that it meant "shall" when it used "may" in authorizing an award of fees. The Martins are on somewhat stronger ground in pressing for a presumption in favor of awarding fees. As they explain, we interpreted a statute authorizing a discretionary award of fees to prevailing plaintiffs in civil rights cases to nonetheless give rise to such a presumption. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam). But this case is not at all like Piggie Park. In Piggie Park, we concluded that a prevailing plaintiff in a civil rights suit serves as a "'private attorney general,'" helping to ensure compliance with civil rights laws and benefiting the public by "vindicating a policy that Congress considered of the highest priority." Ibid. We also later explained that the Piggie Park standard was appropriate in that case because the civil rights defendant, who is required to pay the attorney's fees, has violated federal law. See Flight Attendants v. Zipes, 491 U.S. 754, 762 (1989) ("Our cases have emphasized the crucial connection between liability for violation of federal law and liability for attorney's fees under federal fee-shifting statutes"). </s> In this case, plaintiffs do not serve as private attorneys general when they secure a remand to state court, nor is it reasonable to view the defendants as violators of federal law. To the contrary, the removal statute grants defendants a right to a federal forum. See 28 U.S.C. §1441 (2000 ed. and Supp. II). A remand is necessary if a defendant improperly asserts this right, but incorrectly invoking a federal right is not comparable to violating substantive federal law. The reasons for adopting a strong presumption in favor of awarding fees that were present in Piggie Park are accordingly absent here. In the absence of such reasons, we are left with no sound basis for a similar presumption. Instead, had Congress intended to award fees as a matter of course to a party that successfully obtains a remand, we think that "[s]uch a bold departure from traditional practice would have surely drawn more explicit statutory language and legislative comment." Fogerty, supra, at 534. </s> For its part, Franklin begins by arguing that §1447(c) provides little guidance on when fees should be shifted because it is not a fee-shifting statute at all. According to Franklin, the provision simply grants courts jurisdiction to award costs and attorney's fees when otherwise warranted, for example when Federal Rule of Civil Procedure 11 supports awarding fees. Although Franklin is correct that the predecessor to §1447(c) was enacted, in part, because courts would otherwise lack jurisdiction to award costs on remand, see Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 386-387 (1884), there is no reason to assume Congress went no further than conferring jurisdiction when it acted. Congress could have determined that the most efficient way to cure this jurisdictional defect was to create a substantive basis for ordering costs. The text supports this view. If the statute were strictly jurisdictional, there would be no need to limit awards to "just" costs; any award authorized by other provisions of law would presumably be "just." We therefore give the statute its natural reading: Section 1447(c) authorizes courts to award costs and fees, but only when such an award is just. The question remains how to define that standard. </s> The Solicitor General would define the standard narrowly, arguing that fees should be awarded only on a showing that the unsuccessful party's position was "frivolous, unreasonable, or without foundation"--the standard we have adopted for awarding fees against unsuccessful plaintiffs in civil rights cases, see Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), and unsuccessful intervenors in such cases, see Zipes, supra, at 762. Brief for United States as Amicus Curiae 14-16. But just as there is no basis for supposing Congress meant to tilt the exercise of discretion in favor of fee awards under §1447(c), as there was in Piggie Park, so too there is no basis here for a strong bias against fee awards, as there was in Christiansburg Garment and Zipes. The statutory language and context strike us as more evenly balanced between a pro-award and anti-award position than was the case in either Piggie Park or Christiansburg Garment and Zipes; we see nothing to persuade us that fees under §1447(c) should either usually be granted or usually be denied. </s> The fact that an award of fees under §1447(c) is left to the district court's discretion, with no heavy congressional thumb on either side of the scales, does not mean that no legal standard governs that discretion. We have it on good authority that "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 758 (1982). For these reasons, we have often limited courts' discretion to award fees despite the absence of express legislative restrictions. That is, of course, what we did in Piggie Park, supra, at 402 (A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust"), Christiansburg Garment, supra, at 422 ("[A] plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless"), and Zipes, 491 U.S., at 761 (Attorney's fees should be awarded against intervenors "only where the intervenors' action was frivolous, unreasonable, or without foundation"). </s> In Zipes, we reaffirmed the principle on which these decisions are based: "Although the text of the provision does not specify any limits upon the district courts' discretion to allow or disallow fees, in a system of laws discretion is rarely without limits." Id., at 758. Zipes also explains how to discern the limits on a district court's discretion. When applying fee-shifting statutes, "we have found limits in 'the large objectives' of the relevant Act, which embrace certain 'equitable considerations.'" Id., at 759 (citation omitted).** </s> By enacting the removal statute, Congress granted a right to a federal forum to a limited class of state-court defendants. If fee shifting were automatic, defendants might choose to exercise this right only in cases where the right to remove was obvious. See Christiansburg Garment, supra, at 422 (awarding fees simply because the party did not prevail "could discourage all but the most airtight claims, for seldom can a [party] be sure of ultimate success"). But there is no reason to suppose Congress meant to confer a right to remove, while at the same time discouraging its exercise in all but obvious cases. </s> Congress, however, would not have enacted §1447(c) if its only concern were avoiding deterrence of proper removals. Instead, Congress thought fee shifting appropriate in some cases. The process of removing a case to federal court and then having it remanded back to state court delays resolution of the case, imposes additional costs on both parties, and wastes judicial resources. Assessing costs and fees on remand reduces the attractiveness of removal as a method for delaying litigation and imposing costs on the plaintiff. The appropriate test for awarding fees under §1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress' basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied. </s> In light of these "'large objectives,'" Zipes, supra, at 759, the standard for awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney's fees under §1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied. See, e.g., Hornbuckle, 385 F.3d, at 541; Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (CA5 2000). In applying this rule, district courts retain discretion to consider whether unusual circumstances warrant a departure from the rule in a given case. For instance, a plaintiff's delay in seeking remand or failure to disclose facts necessary to determine jurisdiction may affect the decision to award attorney's fees. When a court exercises its discretion in this manner, however, its reasons for departing from the general rule should be "faithful to the purposes" of awarding fees under §1447(c). Fogerty, 515 U.S. 189, 196, n.8 (1995) ("[A]s is always the case when an issue is committed to judicial discretion, the judge's decision must be supported by a circumstance that has relevance to the issue at hand"). *  *  * The District Court denied the Martins' request for attorney's fees because Franklin had an objectively reasonable basis for removing this case to federal court. The Court of Appeals considered it a "close question," 393 F.3d, at 1148, but agreed that the grounds for removal were reasonable. Because the Martins do not dispute the reasonableness of Franklin's removal arguments, we need not review the lower courts' decision on this point. The judgment of the Court of Appeals is therefore affirmed. It is so ordered. </s> FOOTNOTESFootnote **In Fogerty, we did not identify a standard under which fees should be awarded. But that decision did not depart from Zipes because we granted certiorari to decide only whether the same standard applied to prevailing plaintiffs and prevailing defendants. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 521 (1994). Having decided this question and rejected the claim that fee shifting should be automatic, we remanded to the Court of Appeals to consider the appropriate test in the first instance. Id., at 534-535.

United States Supreme Court AERONAUTICAL INDUSTRIAL DIST. LODGE 727 V. CAMPBELL(1949) No. 333 Argued: Decided: June 20, 1949 </s> Mr. Maurice J. Hindin, Los Angeles, Cal., for petitioner. Mr. H. Graham Morison, Washington, D.C., for respondents Campbell et al. Mr. Robert H. Canan, Burbank, Cal., for respondent Lockheed Aircraft Corporation. [ Aeronautical Industrial Dist. Lodge 727 v. Campbell 337 U.S. 521 (1949) ] </s> [337 U.S. 521 , 522] </s> Mr. Justice FRANKFURTER delivered the opinion of the Court. We brought this case here, 335 U.S. 869 , to resolve a conflict of views between two Courts of Appeals in their interpretation of the rights given to veterans of World War II by 8 of the Selective Training and Service Act of 1940, as amended, 54 Stat. 885, 890, 58 Stat. 798, 50 U.S.C.App. 308, 50 U.S.C.A.Appendix, 308. Three veterans brought this suit for compensation for the period of a layoff while employed at Lockheed Aircraft Corporation, a respondent here. The facts controlling the legal claims of all three may be represented by the circumstances attending Kirk's employment and layoff. 1 </s> The petitioner, Aeronautical Industrial District Lodge No. 727, was the duly recognized collective bargaining agent of the employees at Lockheed Aircraft Corporation. In September, 1941, the union had negotiated an agreement with Lockheed covering the range of subjects touching conditions of employment typical of such agreements in the aircraft industry. This agreement was in effect when Kirk was employed in August, 1942, by Vega Aircraft Corporation, which afterwards was merged with Lockheed. He joined the union and has remained a member throughout this controversy. He left Lockheed two years later to enter the Army, from which he was honorably discharged in January, 1946, and was restored to his job at Lockheed in accordance with 8(a) of the Selective Service Act. 54 Stat. 885, 890, as amended, 50 U.S.C.App. 308(a) 50 U.S.C.Appendix, 308(a). While Kirk was in military service his union made a new agreement with Lockheed modi- </s> [337 U.S. 521 , 523] </s> fying the terms of the 1941 agreement in various particulars. Crucial to the issue here was a change in the seniority provisions of the former agreement. The change provided that 'Union Chairmen who have acquired seniority shall be deemed to have top seniority as long as they remain Chairmen.'2 In plain English this means that thereafter employees who served as </s> [337 U.S. 521 , 524] </s> union chairmen were entitled to be retained in case of layoffs regardless of their length of service in the plant. In the latter part of June, 1946, and within a year after Kirk's reemployment, it was necessary to lay off employees in Kirk's industrial unit. These layoffs followed the conventional sequence of seniority, time for military service being duly credited, with the exception that union chairmen were retained in accordance with the 1945 agreement, even though they had less time with the company than those who were laid off, veterans or not. Kirk was among those laid off, and the retention as union chairmen of men who were junior to him is the basis of his claim that 8 of the Act had been infringed. 3 Kirk </s> [337 U.S. 521 , 525] </s> was brought back to work within a month, but Lockheed refused to pay him for the time he was laid off. For this sum he brought this suit. Petitioner Union was allowed to intervene in order to protect its labor contract. Judgment went for Kirk, and the Union alone took the case to the Court of Appeals for the Ninth Circuit. That court affirmed the judgment,4 169 F.2d 252, holding that 8 of the Act forbade disregard of length of employment, so far as veterans are affected, in enforcing provisions in a collective agreement for the retention of union chairmen in the event of layoffs regardless of their length of service. In so holding it ran counter to a series of decisions in the Court of Appeals for the Third Circuit. Gauweiler v. Elastic Stop Nut Corp., 162 F.2d 448; Koury v. Elastic Stop Nut Corp., 162 F.2d 544; DiMaggio v. Elastic Stop Nut Corp., 162 F.2d 546, and Payne v. Wright Aeronautical Corp., 162 F.2d 549. It is of the essence of collective bargaining that it is a continuous process. Neither the conditions to which it addresses itself nor the benefits to be secured by it remain static. They are not frozen even by war. Thus, under the Act the veteran accumulates time toward his seniority while in the service; he also becomes the beneficiary of </s> [337 U.S. 521 , 526] </s> those gains the achievement of which is the constant thrust of collective bargaining. In other words, the Act gives him the status of one who has been 'on furlough or leave of absence' but uninterruptedly a member of the working force on whose behalf successive collective agreements are made. In this way the Act protects the furloughed employee from being prejudiced by any change in the terms of a collective agreement because he is 'on furlough,' but he is not to be favored as a furloughed employee as against his fellows. This is the essence of our decision in Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 , 167 A. L.R. 110. In providing that a veteran shall be restored to the position he had before he entered the military service 'without loss of seniority,' 8 of the Act uses the term 'seniority' without definition. It is thus apparent that Congress was not creating a system of seniority but recognizing its operation as part of the process of collective bargaining. We must therefore look to the conventional uses of the seniority system in the process of collective bargaining in order to determine the rights of seniority which the Selective Service Act guaranteed the veteran. Barring legislation not here involved, seniority rights derive their scope and significance from union contracts, confined as they almost exclusively are to unionized industry. See Trailmobile Co. v. Whirls, 331 U.S. 40 , 53, note 21, 988. There are great variations in the use of the seniority principle through collective bargaining bearing on the time when seniority begins, determination of the units subject to the same seniority, and the consequences which flow from seniority. All these variations disclose limitations upon the dogmatic use of the principle of seniority in the interest of the ultimate aims of collective bargaining. Thus, probationary conditions must often be met before seniority begins to operate; sometimes it becomes retroactive to the date of employment; in other </s> [337 U.S. 521 , 527] </s> instances it is effective only as from the qualifying date; in some industries it is determined on a company basis, in others the occupation or the plant is taken as the unit for seniority determination; sometimes special provisions are made for workers in key positions; and then again these factors are found in varying combinations. See Williamson & Harris, Tren in Collective Bargaining, 100-102 (1945); Harbison, Seniority Policies and Procedures as Developed through Collective Bargaining 1-10 ( 1941). To draw from the Selective Service Act an implication that date of employment is the inflexible basis for determining seniority rights as reflected in layoffs is to ignore a vast body of long-established controlling practices in the process of collective bargaining of which the seniority system to which that Act refers is a part. One of the safeguards insisted upon by unions for the effective functioning of collective bargaining is continuity in office for its shop stewards or union chairmen. To that end provision is made, as it was made here, against laying them off merely on the basis of temporal seniority. Because they are union chairmen they are not regarded as merely individual members of the union; they are in a special position in relation to collective bargaining for the benefit of the whole union. To retain them as such is not an encroachment on the seniority system but a due regard of union interests which embrace the system of seniority rights. These considerations are decisive of the case. The agreements made by the Union with Lockheed represent familiar developments in the process of collective bargaining which the Selective Service Act presupposes and in the context of which it must be placed. Kirk's rights, including seniority, before he entered the service were derived from the agreement of 1941. So, likewise, were his rights, including seniority, as an employee on fur- </s> [337 U.S. 521 , 528] </s> lough defined by the agreement of 1945, inasmuch as that agreement in no wise disadvantaged his position because he was in the military service. In the ordinary and orderly course of formulating the terms of employment, the 1945 agreement between the union and Lockheed in some directions modified the provisions of the 1941 agreement. A labor agreement is a code for the government of an industrial enterprise and, like all government, ultimately depends for its effectiveness on the quality of enforcement of its code. Because a labor agreement assumes the proper adjustment of grievances at their source, the union chairmen play a very important role in the whole process of collective bargaining. Therefore it is deemed highly desirable that union chairmen have the authority and skill which are derived from continuity in office. A provision for the retention of union chairmen beyond the routine requirements of seniority is not at all uncommon and surely ought not to be deemed arbitrary or discriminatory. 5 The fact that it may involve, as in Kirk's case, the temporary layoff of a </s> [337 U.S. 521 , 529] </s> veteran while a nonveteran chairman with less time at the plant is retained, is wholly unrelated to the veteran's absence in the service. Under the 1945 agreement chairmen were to be elected once a year, and unless the election occurred on the day before a veteran returned to the plant, his chance of election would be the same as that of persons who had been continuously at work in the plant. Of course, the Selective Service Act restricts a readjustment of seniority rights during the veteran's absence to the disadvantage of the veteran. But it would be an undue restriction of the process of collective bargaining (without compensating gain to the veteran) to forbid changes in collective bargaining arrangements which secure a fixed tenure for union chairmen, whereby veterans as well as nonveterans are benefited by promoting greater protection of their rights and smoother operation of labormanagement relations. All this presupposes, obviously, that an agreement containing the 1945 provisions expresses honest desires for the protection of the interests of all members of the union and is not a skillful device of hostility to veterans. There is not the remotest suggestion that the 1945 agreement was other than what it purported to be-the means for securing both to veterans and to non-veterans better working conditions through elected leaders not subject to the contingencies of a labor turnover. Reversed. Mr. Justice DOUGLAS concurs in the result. Footnotes </s> [Footnote 1 One of the three yeterans, James L. Campbell, withdrew from the Union on the first day of March, 1946, but this did not affect his status as an employee with the company. There is no contention that his withdrawal from the Union affects in any manner his rights under 8 of the Act, or that withdrawal from the Union should cause a different result. </s> [Footnote 2 The collective bargaining agreement signed in 1941 so far as seniority was concerned provided: 'In case of a slack in production, layoffs are to be made primarily on the basis of the principle of seniority. Due consideration will be given, however, to (a) knowledge, training, ability, skill and efficiency, and (b) deportment record and other factors. If it becomes necessary to reduce the working force in any plant or department, a plan of layoff procedure will be prepared by the management and submitted to the Union for approval. If such plan is not acceptable to the nion the Company agrees to enter negotiations with the Union and to attempt to arrive at a mutually agreeable plan. If, however, at the end of one working week from the date the Company submitted its original plan of layoff procedure to the Union no new plan has been mutually agreed to, the Company may proceed according to its proposed plan of layoff subject to Article II, Section 6.' 1941 Agreement, Art. III, 5. </s> The later agreement provided: '(A) General Layoff Procedure. Layoffs shall be made in order of Company-wide seniority applied by occupation where ability, skill and efficiency are substantially equal. However, in the case of employees with four years' or more seniority, the Company may, in its discretion, retain them in order of their Company-wide seniority, regardless of occupation, where ability, skill and efficiency are substantially equal. Any claim of unjust discrimination in the exercise of such discretion may be taken up as a grievance. Employees who have not acquired seniority rights may be laid off without regard to relative length of service. </s> '(D) Top Seniority for Union Chairmen for Purpose of Layoffs. For the purpose of applying the Temporary and General Layoff Procedures, Union Chairmen who have acquired seniority shall be deemed to have top seniority so long as they remain Chairmen. * * *' 1945 Agreement, Art. IV, 3(A)(D). </s> [Footnote 3 These are the relevant statutory provisions: '(a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3(b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. * * * </s> '(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one yearÄ </s> '(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like niority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so; </s> '(c) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration. * * *' 54 Stat. 885, 890, as amended, 50 U.S.C.App. 308, 50 U.S.C.A.Appendix, 308. </s> [Footnote 4 Lockheed, the respondent in the District Court, did not appeal. But since the judgment was not merely for money damages but also involved the construction of the collective agreement, the union had the right to appeal. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 , 281Ä284, 1109Ä1110, 167 A.L.R. 110. </s> [Footnote 5 See Greenman, Getting Along With Unions 26 (1948); Union Agreements in the Cotton-Textile Industry, U.S. Dept. of Labor, Bull. No. 885 28 ( 1946); Thomas, Automobile Unionism 56 (1941); Collective Bargaining Provisions, Seniority Provisions, U.S. Dept. of Labor 28Ä29 (1948); Collective Bargaining in the Office, American Management Assn., Research Rep. No. 12 72. The advantage of this modification in seniority according to length of service in the plant is 'the mutual interest of union and management in preserving the continuity of the bargaining and grievance adjustment personnel.' Seniority Provisions in Union Agreements, U.S. Dept. of Labor, Serial No. R. 1308 7 (1941). While there is not complete agreement on the advantage of seniority for union chairmen, it is certainly within the area of collective bargaining. See Williamson and Harris, Trends in Collective Bargaining 101Ä103 (1945); see Greenman, Getting Along With Unions 85Ä86 (1948). The Nation l War Labor Board recognized 'that the functions of shop stewards and other local union officials were of value to a company as well as to its employees in settling and preventing labor grievances. For this reason, it usually directed seniority preference for union officials in disputes over the issue.' The Termination Report of the National War Labor Board, U.S. Dept. of Labor, Vol. I, p. 148.

United States Supreme Court SMITH v. SPERLING(1957) No. 316 Argued: Decided: June 10, 1957 </s> This is a stockholder's derivative suit brought in a Federal District Court in California on grounds of diversity of citizenship by a citizen of New York against two Delaware corporations and the directors of one of them, who are citizens of California. The complaint alleged fraudulent wastage of the assets of Warner Bros., the plaintiff's corporation, for the benefit of a son-in-law of one of its directors and the son-in-law's corporation. It alleged that a demand on the directors of Warner Bros. to institute the suit was not made because it would have been futile, since all or a majority of them had approved the contracts involved. The District Court found that (1) the contracts were made in good faith and without fraud, (2) the stockholders, officers or directors were not "antagonistic to the financial interests" of Warner Bros., (3) none of the directors "wrongfully participated" in the acts complained of, and (4) if a demand had been made on Warner Bros. to institute suit, the management would not have been disqualified "from faithfully doing their duty," but that "such a demand would have been futile." On these grounds, the District Court realigned Warner Bros. as a party plaintiff and dismissed the bill for want of diversity jurisdiction. Held: It erred in doing so, and the judgment is reversed and the cause remanded. Pp. 92-98. </s> (a) In considering the issue of federal diversity jurisdiction, the District Court should have considered only the face of the pleadings and the nature of the controversy without attempting to adjudicate the merits of the charges of wrongdoing. Pp. 94-98. </s> (b) Federal law governs the question of federal jurisdiction; but local law will govern the decision on the merits. Pp. 95-96. </s> (c) There is "antagonism" between a corporation and its stockholder whenever the management is aligned against the stockholder and defends a course of action which the stockholder attacks, even though the management acts in good faith. Pp. 95, 96-98. </s> (d) Absent collusion, there is diversity jurisdiction when the real collision of issues is between citizens of different States. P. 97. [354 U.S. 91, 92] </s> (e) On the record in this case, it is evident that there is such a collision here. Pp. 97-98. </s> (f) Diversity jurisdiction having once vested, it was not lost merely because the original plaintiff died while the suit was pending and the special administrator substituted for him was a citizen of California. P. 93, n. 1. </s> (g) The bill meets the requirements of Rule 23 (b) of the Rules of Civil Procedure that the stockholder show with particularity what efforts he made to get those who control the corporation to take action, "and the reasons for his failure to obtain such action or the reasons for not making such effort." P. 94, n. 2. </s> 237 F.2d 317, reversed and remanded. </s> Herman H. Levy argued the cause for petitioner. With him on the brief was Morris J. Pollack. </s> Eugene D. Williams and Oliver B. Schwab argued the cause for respondents. On the briefs were Mr. Williams and Ralph E. Lewis for Warner Bros. Pictures, Inc., et al., and Mr. Schwab, Marvin Sears and Norman Altman for United States Pictures, Inc., et al., respondents. </s> MR. JUSTICE DOUGLAS delivered the opinion of the Court. </s> This suit was filed in a Federal District Court in California by reason of diversity of citizenship. It is a stockholder's derivative suit. The first cause of action, the only one involved here, is based on alleged fraudulent wastage of assets of Warner Bros. Pictures, Inc. (which we will call Warner Bros.) for the benefit of one Sperling, a son-in-law of a director of Warner Bros., and United States Pictures, Inc. (which we will call United), the son-in-law's corporation. Extended allegations are made concerning various agreements between Warner Bros. and United which, it is charged, are unfair to Warner Bros. Demand on the directors of Warner Bros. to institute this action was not made because, it is averred, such a demand would be futile since, inter alia, all or a majority of the [354 U.S. 91, 93] board of directors approved the contracts. The plaintiff is a citizen of New York; 1 the defendant directors are citizens of California; and Warner Bros. and United are Delaware corporations. </s> The complaint joined Warner Bros. as a defendant. It was urged before the District Court, and it is claimed here, that since the cause of action sought to be enforced is one that belongs to the corporation and since the corporation is not "antagonistic" to the stockholder within the meaning of that term as used in Doctor v. Harrington, 196 U.S. 579, 588 , Warner Bros. should be realigned as plaintiff. In that event there would be no diversity of citizenship since Delaware corporations would be on both sides of the lawsuit. Strawbridge v. Curtiss, 3 Cranch 267. </s> The District Court held a hearing on the issue - a hearing that lasted 15 days. It found: </s> (1) that the contracts in controversy were made in good faith and without fraud; that they were considered by the [354 U.S. 91, 94] directors to be in the best interests of Warner Bros. and that, in approving them, they exercised their best business judgment; </s> (2) that Warner Bros. was not under the domination or control of the Warners on the board; and that the stockholders, officers, or directors were not "antagonistic to the financial interests" of Warner Bros.; </s> (3) that neither all nor a majority nor any of the directors and officers of Warner Bros. "wrongfully participated" in the acts complained of; that the board was not dominated or controlled by the Warners and Sperling or by any one or more of them; </s> (4) that if demand had been made on Warner Bros. to institute suit, the management would not have been disqualified "from faithfully doing their duty" as officers and directors but that "such a demand would have been futile." 2 </s> For these reasons the District Court realigned Warner Bros. as a party plaintiff and dismissed the bill. 117 F. Supp. 781. The Court of Appeals affirmed. 237 F.2d 317. The case is here on a writ of certiorari. 352 U.S. 865 . </s> This is a corporate cause of action brought by a stockholder. Whether it is a proper case for assertion by a stockholder of that cause of action is not the question here. Such was the problem involved in Hawes v. Oakland, 104 U.S. 450 , upon which so much reliance is placed in supporting the court below. Here we assume that this corporate cause of action may be enforced by the stockholder. [354 U.S. 91, 95] We are concerned only with a question of federal diversity jurisdiction. </s> The gist of the findings of the District Court is that since there was no fraud on the part of the directors in making the contracts but only an exercise of independent business judgment, the management was not antagonistic to the financial interests of the corporation. That is an issue that goes to the merits, not to the question of jurisdiction. There will, of course, be antagonism between the stockholder and the management where the dominant officers and directors are guilty of fraud or misdeeds. But wrongdoing in that sense is not the sole measure of antagonism. There is antagonism whenever the management is aligned against the stockholder and defends a course of conduct which he attacks. The charge normally is cast in terms of fraud, breach of trust, or illegality. See Doctor v. Harrington, supra; Venner v. Great Northern R. Co., 209 U.S. 24 ; Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 522 , 523. The answer, of course, always denies the charge of wrongdoing. To stop and try the charge of wrongdoing is to delve into the merits. That does not seem to us to be the proper course. It is a time-consuming, wasteful exertion of energy on a preliminary issue in the case. The instant case is a good illustration, for it has been over eight years in the courts on this question of jurisdiction. </s> Since our decision in Erie R. Co. v. Tompkins, 304 U.S. 64 , the law which governs the merits in these derivative actions is local law. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 555 -556. The result, then, of the approach followed by the court below is to have more than a preliminary trial on matters going to the merits of the controversy. Obviously federal law would govern the preliminary trial on the issues of wrongdoing, for that matter goes to the question of federal jurisdiction. Yet should the District Court decide those issues in favor of [354 U.S. 91, 96] the stockholder, a second trial on the merits will require that the same issues be tried out according to the set of rules supplied by local law. </s> It seems to us that the proper course is not to try out the issues presented by the charges of wrongdoing but to determine the issue of antagonism on the face of the pleadings and by the nature of the controversy. The bill and answer normally determine whether the management is antagonistic to the stockholder, as Central R. Co. v. Mills, 113 U.S. 249 , and Doctor v. Harrington, supra, indicate. 3 The management may refuse or fail to act for any number of reasons. Fraud may be one; the reluctance to take action against a close business associate may be another; honest belief in the wisdom of the course of action which the management has approved may be still another; and so on. As the Court said in Delaware & Hudson Co. v. Albany & S. R. Co., 213 U.S. 435, 451 , [354 U.S. 91, 97] where the management was deemed to be antagonistic to the stockholder, "The attitude of the directors need not be sinister. It may be sincere." Whenever the management refuses to take action to undo a business transaction or whenever, as in this case, it so solidly approves it that any demand to rescind would be futile, antagonism is evident. The cause of action, to be sure, is that of the corporation. But the corporation has become through its managers hostile and antagonistic to the enforcement of the claim. </s> Collusion to satisfy the jurisdictional requirements of the District Courts may, of course, always be shown; 4 and it will always defeat jurisdiction. Absent collusion, there is diversity jurisdiction when the real collision of issues, Indianapolis v. Chase National Bank, 314 U.S. 63, 69 , or as stated in Helm v. Zarecor, 222 U.S. 32, 36 , "the actual controversy," is between citizens of different States. This is a practical not a mechanical determination and is resolved by the pleadings and the nature of the dispute. </s> Here it is plain that the stockholder and those who manage the corporation are completely and irrevocably opposed on a matter of corporate practice and policy. A trial may demonstrate that the stockholder is wrong and the management right. It may show a dispute that lies in the penumbra of business judgment, unaffected by fraud. But that issue goes to the merits, not to jurisdiction. There is jurisdiction if there is real collision between [354 U.S. 91, 98] the stockholder and his corporation. That there is such a collision is evident here. </s> The judgment must therefore be reversed and the case remanded to the District Court. </s> Reversed. </s> Footnotes [Footnote 1 While the action was pending plaintiff died and for him a special administrator has been substituted. The latter is a citizen of California. Had the suit been originally commenced by the decedent's representative, it would have been the citizenship of the representative which would have been determinative of jurisdiction in this diversity case. See Chappedelaine v. Dechenaux, 4 Cranch 306; Childress v. Emory, 8 Wheat. 642, 669; Mexican Central R. Co. v. Eckman, 187 U.S. 429, 434 ; Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 186 . But jurisdiction, once attached, is not impaired by a party's later change of domicile. Mollan v. Torrance, 9 wheat. 537. As Chief Justice Marshall said in that case: "It is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events." Id., p. 539. The rationale, that jurisdiction is tested by the facts as they existed when the action is brought, is applied to a situation where a party dies and a non-diverse representative is substituted. Dunn v. Clarke, 8 Pet. 1 (1834). </s> [Footnote 2 The bill therefore meets the requirements of Rule 23 (b) of the Rules of Civil Procedure that the stockholder show with particularity what efforts he made to get those who control the corporation to take action, "and the reasons for his failure to obtain such action or the reasons for not making such effort." And see Hawes v. Oakland, 104 U.S. 450 ; Delaware & Hudson Co. v. Albany & S. R. Co., 213 U.S. 435 . </s> [Footnote 3 The Court in Doctor v. Harrington, supra, at p. 587, said, "The ultimate interest of the corporation made defendant may be the same as that of the stockholder made plaintiff, but the corporation may be under a control antagonistic to him, and made to act in a way detrimental to his rights. In other words, his interests, and the interests of the corporation, may be made subservient to some illegal purpose. If a controversy hence arise, and the other conditions of jurisdiction exist, it can be litigated in a Federal court." The complaint in that case charged fraud by a dominant director and stockholder to his advantage and to the detriment of the minority stockholders. The answer denied the fraud. The Court did not stop, as the District Court did in the instant case, to inquire if transactions complained of were colorable or were sustained by sound business judgment. After reviewing the earlier decisions, the Court concluded, "The case at bar is brought within the doctrine of those cases by the allegations of the bill." Id., p. 588. The leading case cited by the Court was Hawes v. Oakland, 104 U.S. 450 , where in determining whether a proper case for a derivative action had been made out, the Court looked only to the nature of the charges contained in the bill. Id., pp. 461-462. </s> [Footnote 4 28 U.S.C. 1359 provides: "A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court." Collusion is shown, for example, where the neglect or refusal of the directors to take the desired action on the part of the corporation is simulated so that it may be made to appear that the diversity of citizenship necessary for federal jurisdiction exists. Detroit v. Dean, 106 U.S. 537 ; Quincy v. Steel, 120 U.S. 241 . </s> MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON, MR. JUSTICE HARLAN, and MR. JUSTICE WHITTAKER join, dissenting.Fn </s> The Court holds that, collusion aside, whenever a corporation refuses to bring a suit and a derivative suit is brought by a stockholder on its behalf, the corporation is always to be aligned as a defendant for purposes of determining diversity jurisdiction. The Court thus makes the exception the rule, and by confounding the requirements for establishing a substantive cause of action with the requirements of diversity jurisdiction, it overturns a half-century's precedents in this Court. The scope and significance of this undoing cannot be appreciated without a brief review of the history of the jurisdictional adjudications - which control the present cases - and of the wholly different precedents establishing the substantive rules that govern stockholders' suits when there is unquestionable jurisdiction in the constitutional sense. It will also be necessary to set forth generous portions of the opinions of the Court in prior cases to demonstrate that not only do they not support the Court's view but that they are being overturned by it. </s> The present cases involve the jurisdiction of the federal courts, and that question alone. No aspect of the substantive cause of action is before us. At the outset, two guiding principles governing this litigation must be kept clearly in mind: (1) These are constitutional cases, involving the "judicial power" of the United States over [354 U.S. 91, 99] controversies "between citizens of different States." (2) These are stockholders' suits; the stockholder sues not in his own right but in the right and on behalf of the corporation. </s> The contrasting difference between a stockholder's suit for his corporation and a suit by him against it, is crucial. In the former, he has no claim of his own; he merely has a personal controversy with his corporation regarding the business wisdom or legal basis for the latter's assertion of a claim against third parties. Whatever money or property is to be recovered would go to the corporation, not a fraction of it to the stockholder. When such a suit is entertained, the stockholder is in effect allowed to conscript the corporation as a complainant on a claim that the corporation, in the exercise of what it asserts to be its uncoerced discretion, is unwilling to initiate. This is a wholly different situation from that which arises when the corporation is charged with invasion of the stockholder's independent right. Thus, for instance, if a corporation rearranges the relationship of different classes of security holders to the detriment of one class, a stockholder in the disadvantaged class may proceed against the corporation as a defendant to protect his own legal interest. </s> The basic principles of diversity jurisdiction, often stated, obviously bear repeating: </s> "To sustain diversity jurisdiction there must exist an `actual,' Helm v. Zarecor, 222 U.S. 32, 36 , `substantial,' Niles-Bement-Pond Co. v. Iron Moulders Union, 254 U.S. 77, 81 , controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side. Strawbridge v. Curtiss, 3 Cranch 267. Diversity jurisdiction cannot be conferred upon the federal courts by the parties' own [354 U.S. 91, 100] determination of who are plaintiffs and who defendants. It is our duty, as it is that of the lower federal courts, to `look beyond the pleadings and arrange the parties according to their sides in the dispute.' Dawson v. Columbia Trust Co., 197 U.S. 178, 180 ." Indianapolis v. Chase National Bank, 314 U.S. 63, 69 . </s> The initial and leading case dealing with the alignment of parties for jurisdictional purposes in a stockholder's suit is Doctor v. Harrington, 196 U.S. 579 . That was a suit by stockholders against two individuals alleged to control the company in question and a third-party corporation. Realigning the corporation as a plaintiff, the Circuit Court held that there was no diversity, and it dismissed the bill for lack of jurisdiction. This Court reversed. After stating that Equity Rule 94 (now Rule 23 (b) of the Federal Rules of Civil Procedure) contemplated suits "brought by a stockholder in a corporation founded on rights which may properly be asserted by the corporation," the Court went on to indicate what must have been the basis for aligning the corporation in that case as a defendant: </s> "And the decisions of this court establish that such a suit, when between citizens of different States, involves a controversy cognizable in a Circuit Court of the United States. The ultimate interest of the corporation made defendant may be the same as that of the stockholder made plaintiff, but the corporation may be under a control antagonistic to him, and made to act in a way detrimental to his rights. In other words, his interests, and the interests of the corporation, may be made subservient to some illegal purpose. If a controversy hence arise, and the other conditions of jurisdiction exist, it can be litigated in a Federal court." 196 U.S., at 587 . [354 U.S. 91, 101] </s> The Court then went on to discuss these other "conditions of jurisdiction," i. e., the complainants' compliance with the substantive and procedural requirements of Equity Rule 94. In refusing to realign, the Court did not state that mere refusal to sue on the part of the corporation was a sufficient reason to align the corporation as a defendant. The Court referred to "antagonistic" control and the stockholder's "interests, and the interests of the corporation" being made "subservient to some illegal purpose." </s> This question of what constitutes "antagonistic" control is the crux of the present cases. The District Court in No. 316, in the course of its thorough opinion, stated: </s> "For a corporation to be `in antagonistic hands,' . . . or to have a `hostile attitude,'. . . such as would permit alignment on the side against its presumptive financial interests, surely requires more than a mere argument or difference of opinion between the corporation and the suing stockholder as to the desirability of bringing the suit. Patently, if difference of opinion were all the `controversy' required to be shown between the stockholder and his corporation in order to preclude alignment of the latter with the plaintiff-stockholder, then there can be no occasion for all the pages of discussion of corporate domination or control, since every stockholder's derivative suit is by definition predicated upon the assumption that the corporation has refused to sue." 117 F. Supp. 781, 802. </s> This has been the view that this Court has consistently taken since Doctor v. Harrington. Three years later, Doctor v. Harrington was reaffirmed and its basis made clear in Venner v. Great Northern R. Co., 209 U.S. 24 . That was a stockholder's suit brought in a state court [354 U.S. 91, 102] against the Great Northern Railroad and its President, James J. Hill, with an allegation that the `railroad and its board of directors were under his absolute control." Id., at 29. Both defendants were citizens of the same State. They removed the case into the federal court and the plaintiff, claiming that the corporation should be realigned, sought remand to the state court on the ground that the federal court lacked jurisdiction. The Court, if such was its thought, obviously would have said simpliciter that since the corporation refused to sue, the corporation must be aligned as a defendant. It did not do so. The whole thought of Mr. Justice Moody's opinion is completely contrary. </s> "Let it be assumed for the purposes of this decision that the court may disregard the arrangement of parties made by the pleader, and align them upon the side where their interest in and attitude to the controversy really places them, and then may determine the jurisdictional question in view of this alignment. [Citing the Removal Cases, 100 U.S. 457 , and other cases.] If this rule should be applied it would leave the parties here where the pleader has arranged them. It would doubtless be for the financial interests of the defendant railroad that the plaintiff should prevail. But that is not enough. Both defendants unite, as sufficiently appears by the petition and other proceedings, in resisting the plaintiff's claim of illegality and fraud. They are alleged to have engaged in the same illegal and fraudulent conduct, and the injury is alleged to have been accomplished by their joint action. The plaintiff's controversy is with both, and both are rightfully and necessarily made defendants, and neither can, for jurisdictional purposes, be regarded otherwise than as a defendant. . . ." Id., at 31-32. [354 U.S. 91, 103] </s> To make explicit the case's relation to the prior case of Doctor v. Harrington, the Court continued: </s> "The case of Doctor v. Harrington is precisely in point on this branch of the case, and is conclusive. In that case the plaintiffs, stockholders in a corporation, brought an action in the Circuit Court against the corporation and Harrington, another stockholder, `who directed the management of the affairs of the corporation, dictated its policy, and selected its directors.' It was alleged that Harrington fraudulently caused the corporation to make its promissory note without consideration, obtained a judgment on the note, and sold, on execution, for much less than their real value, the assets of the corporation to persons acting for his benefit. On the face of the pleadings there was the necessary diversity of citizenship, but it was insisted that the corporation, because its interest was the same as that of the plaintiff, should be regarded as a plaintiff. The court below so aligned the corporation defendant, and, as that destroyed the diversity of citizenship, dismissed the suit for want of jurisdiction. This court reversed the decree, saying [the quotation is of the part of the Court's opinion in Doctor, quoted supra, p. 100]. There was therefore in the case at bar the diversity of citizenship which confers jurisdiction." Id., at 32-33. </s> The jurisdictional doctrine of Doctor v. Harrington, as reaffirmed and elaborated in Venner v. Great Northern R. Co., was accepted without question only ten years ago in Koster v. Lumbermens Mutual Co., 330 U.S. 518 . The Court in that case summarized the jurisdictional doctrine of alignment of parties in stockholders' suits: </s> "The cause of action which such a plaintiff brings before the court is not his own but the corporation's. [354 U.S. 91, 104] It is the real party in interest and he is allowed to act in protection of its interest somewhat as a `next friend' might do for an individual, because it is disabled from protecting itself. If, however, such a case as this were treated as other actions, the federal court would realign the parties for jurisdictional purposes according to their real interests. In this case, which is typical of many, this would put [the corporation] on the plaintiff's side. . . . and jurisdiction would be ousted. Indianapolis v. Chase National Bank, 314 U.S. 63 . But jurisdiction is saved in this class of cases by a special dispensation because the corporation is in antagonistic hands. Doctor v. Harrington, 196 U.S. 579 ." Id., at 522-523. </s> Mr. Justice Jackson's opinion for the Court throws further light on what is meant by "antagonistic hands" by characterizing "the real party in interest," the corporation, as "disabled from protecting itself." That cannot mean anything else except what the Venner case, quoting from Doctor v. Harrington, set forth as the reason for disablement, viz., that the very individuals who have a stranglehold over the corporation are the people against whom suit is sought to be brought and, therefore, in any sense that has any meaning, they are the defendants for that reason. And it is not merely that the obvious sense of the foregoing paragraph quoted from Koster gives the significance to Doctor v. Harrington that Venner gave it. That meaning is reinforced by the Court's succeeding reference to a stockholder's interest in "bringing faithless managers to book." Id., at 524. </s> In the District Court in No. 316, Smith v. Sperling, Judge Mathes made an exhaustive survey of all the precedents relating to the jurisdictional test to be applied in stockholders' suits, 117 F. Supp. 781, aff'd, 237 F.2d 317, [354 U.S. 91, 105] and stated the jurisdictional test to be derived from the cases as follows: </s> "If the corporation has suffered actionable wrong and is `in antagonistic hands' - i. e. so dominated that it is incapacitated to act in keeping with its own financial interests - then a federal court should not, because of such disability, align the corporation with the plaintiff-stockholder in determining whether diversity jurisdiction exists." 117 F. Supp., at 801. </s> The Court of Appeals for the Seventh Circuit took the same view in No. 149, Swanson v. Traer, 230 F.2d 228, 237. </s> The jurisdictional rules that the Court has laid down for over half a century - emerging from all the cases and not merely from Doctor v. Harrington standing by itself - do not represent a capricious or formalistic determination as to when there is or is not diversity jurisdiction. On the contrary, they represent a true appreciation of the nature of the stockholder's suit and a faithful application of well-settled principles of diversity jurisdiction: when a suit is brought that is in fact and in law the corporation's, the corporation from the nature of the cause of action is a plaintiff and must appear among the plaintiffs, except when the corporation is in fact the tool of the very people against whom a judgment is sought. In the latter circumstances the corporation is merely a compendious name for the controlling defendants who are hiding behind it. </s> The Court, purporting to interpret this half-century of precedents, sweeps them away. In so doing, it greatly expands the diversity jurisdiction. "Antagonism" is a difficult standard to meet and is a more unusual situation. Refusal to sue provides automatic entry. Moreover, whenever the corporation and the real defendants are of the same citizenship, there would be no diversity jurisdiction [354 U.S. 91, 106] unless antagonism could be shown. No similar restriction on jurisdiction is made because of possible non-diverseness of the stockholder and the corporation defendant because it is generally not too difficult to find a non-diverse stockholder to institute suit. </s> The Court professes to do no more than to apply well-settled precedents. But the well-settled precedents that are applied have absolutely "nothing to do with the case." The Court has found support in the line of cases that deal solely with substantive requirements or with the procedural rules for establishing compliance with those requirements. These have nothing to do with the constitutional jurisdiction of the federal courts in diversity suits. </s> Prior to the Judiciary Act of 1875, 18 Stat. 470, there was only very limited federal question jurisdiction in the District Courts. See Hart and Wechsler, The Federal Courts and the Federal System, 727-730. Moreover, diversity jurisdiction was established on the basis of the alignment set forth in the pleadings. Removal Cases, 100 U.S. 457, 469 . If a corporation desiring to bring suit could not come within the requirements of diversity jurisdiction, the only way its suit could be tried in the federal courts, prior to the vast enlargement of their jurisdiction by the Act of 1875, was by virtue of a suit brought on its behalf by a stockholder of the requisite citizenship. This was the procedure followed in the important case of Dodge v. Woolsey, the Court noting that any suspected issue of contrivance should have been alleged and proved by the defendant. 18 How. 331, 346. </s> The result of this practice was described by Mr. Justice Miller for the Court in the leading case of Hawes v. Oakland, 104 U.S. 450, 452 . </s> "Since the decision of this court in Dodge v. Woolsey . . . the frequency with which the most ordinary [354 U.S. 91, 107] and usual chancery remedies are sought in the Federal courts by a single stockholder of a corporation who possesses the requisite citizenship, in cases where the corporation whose rights are to be enforced cannot sue in those courts, seems to justify a consideration of the grounds on which that case was decided, and of the just limitations of the exercise of those principles. </s> "This practice has grown until the corporations created by the laws of the States bring a large part of their controversies with their neighbors and fellow-citizens into the courts of the United States for adjudication, instead of resorting to the State courts, which are their natural, their lawful, and their appropriate forum. . . . A corporation having such a controversy, which it is foreseen must end in litigation, and preferring for any reason whatever that this litigation shall take place in a Federal court, in which it can neither sue its real antagonist nor be sued by it, has recourse to a holder of one of its shares, who is a citizen of another State. This stockholder is called into consultation, and is told that his corporation has rights which the directors refuse to enforce or to protect. He instantly demands of them to do their duty in this regard, which of course they fail or refuse to do, and thereupon he discovers that he has two causes of action entitling him to equitable relief in a court of chancery; namely, one against his own company . . . for refusing to do what he has requested them to do; and the other against the party which contests the matter in controversy with that corporation. These two causes of action he combines in an equity suit in the Circuit Court of the United States, because he is a citizen of a different State, though the real parties to the controversy [354 U.S. 91, 108] could have no standing in that court. . . . the whole case is prepared for hearing on the merits, the right of the stockholder to a standing in equity receives but little attention, and the overburdened courts of the United States have this additional important litigation imposed upon them by a simulated and conventional arrangement, unauthorized by the facts of the case or by the sound principles of equity jurisdiction." Id., at 452-453. </s> The Court in Hawes v. Oakland was not concerned at all with control of the corporation by allegedly wrong-doing directors for purposes of aligning the parties. The Court was concerned with imposition on the jurisdiction of the federal judiciary in the general run of stockholders' actions, and more particularly, in the usual situation where the defendants would not be directors at all but third parties having nothing to do with the management of the corporation. </s> The Court in Hawes, therefore, announced restriction upon a stockholder attempting to bring "a suit founded on a right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff." Id., at 460. Not only must a complainant show some ultra vires or fraudulent action by the directors but he must also demonstrate that he was a shareholder at the time of the transaction complained of (or acquired shares thereafter by operation of law), that he has made efforts to induce the desired action by the directors and, if necessary, by the stockholders, and that "the suit is not a collusive one to confer on a court of the United States jurisdiction in a case of which it could otherwise have no cognizance . . . ." Id., at 461. These rules were codified that Term in Equity Rule 94, see 104 U.S. IX, now Rule 23 (b) of the Federal Rules of Civil Procedure. Their history and purpose indicate the character of the [354 U.S. 91, 109] requirements laid down by the Court. They do not define the constitutional jurisdiction of the Court; they are the allegations in any event requisite to the Court's proceeding to consider the case. In Hawes itself, the Court, after finding that the stockholder had not complied with the requisites for suit, dismissed the action, not for want of jurisdiction, but for want of equity. The argument that compliance with the rule was a jurisdictional requirement was made and rejected in Venner v. Great Northern R. Co., 209 U.S., at 33 -34: "this argument overlooks the purpose and nature of the rule. . . . Neither the rule nor the decision from which it was derived deals with the question of the jurisdiction of the courts, but only prescribes the manner in which the jurisdiction shall be exercised." </s> Compliance with Rule 94 was the issue in Delaware & Hudson Co. v. Albany & S. R. Co., 213 U.S. 435 . In that case, the lower court certified to this Court questions concerning maintenance of a stockholders' suit in the face of failure to allege demand for relief upon the directors and stockholders of the corporation. The Court held that such a demand would have been futile in view of the control of the defendant corporation by the other corporate defendant. It was during the course of its discussion of the futility of making a demand in such a situation that the Court stated what is relied upon by the Court in the present case - that the "attitude of the directors need not be sinister. It may be sincere." Id., at 451. Of course, the Court in that case was quite correct. But it was not concerned with, or adverting to, jurisdictional alignment, any more than it was talking about jurisdictional alignment in Hawes, also now relied upon by the Court. Both cases involved the preliminary requirements for stating a cause of action under the Rules. (For a similar discussion of what stockholders must allege with respect to the attitude of directors, but in a case where there was clearly [354 U.S. 91, 110] federal question jurisdiction, see Ashwander v. TVA, 297 U.S. 288, 318 -323, and 341-344.) * </s> Further confusion is introduced by the fact that both problems - jurisdictional alignment and compliance with Rule 94 - may be present in the same case. This was true in Doctor v. Harrington, where the Court was not very careful in making explicit separation of the two issues; it was also true of Venner v. Great Northern R. Co., supra, where the Court was very careful to separate the two issues. Such separation of very different concepts is of course essential when one characterizes the attitude of the directors. It is one thing when suit is against a third party to hold that a demand on the directors need not be made if such demand would for any reason be futile, and that sincere opposition by directors would make such a demand futile. It is quite something else to state that, since sincere opposition is sufficient for that purpose, it is also sufficient to demonstrate that the corporation is "disabled from protecting itself" and should therefore be aligned as a defendant. That, as we have seen, is factually false and is contrary to what this Court for 52 years has laid down as the controlling rules governing diversity jurisdiction. </s> One final matter of general importance should be discussed before applying the general principles adduced to the facts of the present cases. The Court states: "[T]he proper course is not to try out the issues presented by the charges of wrongdoing but to determine the issue of antagonism on the face of the pleadings and by the nature of the controversy." Of course the charges of wrongdoing need not be determined to ascertain the jurisdiction of [354 U.S. 91, 111] the federal courts. What must be determined when directors or other persons alleged to control the corporation are joined as defendants is the relation of these people to the corporation. And while in certain cases the issues may be determined from the face of the pleadings, the courts are not so limited. The Court speaks of making "a practical not a mechanical determination," but a more mechanical determination could hardly be imagined. If anything had been regarded as settled until today about federal jurisdiction, it was that "It is our duty, as it is that of the lower federal courts, to `look beyond the pleadings and arrange the parties according to their sides in the dispute.' Dawson v. Columbia Trust Co., 197 U.S. 178, 180 ." Indianapolis v. Chase National Bank, 314 U.S. 63, 69 . Of course, this may take time and may not always be easy of determination. I had not thought up to now that such considerations should lead us to disregard our constitutional obligation, for as the District Court in No. 316 stated, "It is more than costly error therefore - it is an unconstitutional invasion of the jurisdiction of the state courts - for a federal court to sustain federal jurisdiction of a civil action between private persons where `the matter in controversy' exceeds the sum or value of $3,000 . . . but does not arise `under the Constitution, laws or treaties of the United States,'. . . and diversity of citizenship as to `the matter in controversy' does not exist. U.S. Const. Art. III; 28 U.S.C. 1332. . . ." 117 F. Supp., at 808. </s> The proceedings in each of the present cases have followed different paths. In No. 316, Smith v. Sperling, the District Court held a hearing to determine the presence of the special circumstances that this Court's decisions indicated would require alignment of the corporation as a defendant. It did not find such circumstances and, aligning the corporation as a plaintiff, it dismissed the cause of action for lack of the requisite diversity. 117 [354 U.S. 91, 112] F. Supp. 781. On appeal, the Court of Appeals for the Ninth Circuit affirmed this aspect of the case. 237 F.2d 317. I find no justification for overturning the findings and conclusions of the District Court made after extended hearing and analysis and affirmed by the Court of Appeals. I would therefore affirm. </s> In No. 149, Swanson v. Traer, the District Court dismissed plaintiffs' complaint on the merits because it did not appear that they had "laid a foundation sufficient to support a derivative stockholders' suit." On appeal, the Court of Appeals for the Seventh Circuit affirmed, but on the ground that necessary realignment of the corporation as a plaintiff destroyed diversity and required dismissal of the suit for lack of jurisdiction. 230 F.2d 228. Examining the pleadings, the position taken by the corporation in the litigation, especially the affidavit and statement by counsel for the corporation, the Court of Appeals concluded that "in their business judgment, both the directors and Mr. Busch [the corporation's counsel] were of the sincere opinion that the filing of such a suit would not be for the best interests of the corporation and its stockholders. The named plaintiffs disagreed. This difference of opinion is not of itself evidence of antagonism on the part of the Railway Company." Id., at 237. </s> The court stated that the allegation of the complaint that "several members" of the corporation's board of directors at the time suit was filed had been a part of the alleged conspiracy was insufficient to allege antagonism by a majority of the board. The court was also impressed by a lengthy, detailed affidavit filed by the corporation's counsel, retained after the transactions complained of, who stated that he had reviewed the transaction pursuant to the direction of the board of directors and had advised against suit. The facts relied on by the Court of Appeals are not without weight in support of its conclusion. The plaintiffs' general allegations, however, [354 U.S. 91, 113] imply hostility on the part of the whole board of directors, and in this state of the record, plaintiffs should have been given an opportunity to substantiate their allegations at a hearing before the District Court, as was the indicated course of proceeding when the matter initially came before the District Court. For this reason, I would remand the case for such a hearing. </s> Fn [354 U.S. 91, 98] [This opinion applies also to No. 149, Swanson v. Traer, post, p. 114.] </s> [Footnote * The confusion between these two lines of cases - the jurisdictional alignment cases and the cases dealing with the problems with which former Equity Rule 94 was concerned - is fully treated in the opinion of District Judge Mathes in No. 316. See 117 F. Supp. 781, 792-809. </s> [354 U.S. 91, 114]

United States Supreme Court MINE WORKERS v. BAGWELL(1994) No. 92-1625 Argued: November 29, 1993Decided: June 30, 1994 </s> A month after enjoining petitioners (collectively, the union) from conducting unlawful strike-related activities against certain mining companies, a Virginia trial court held a contempt hearing, fined the union for its disobedience, and announced that the union would be fined for any future breach of the injunction. In subsequent contempt hearings, the court levied against the union over $64,000,000 in what it termed coercive, civil fines, ordering most of the money to be paid to the Commonwealth and the counties affected by the unlawful activities. After the strike was settled, the court refused to vacate the fines owed to the Commonwealth and counties, concluding that they were payable in effect to the public. Ultimately, it appointed respondent Bagwell to act as Special Commissioner to collect the unpaid fines. The Virginia Court of Appeals reversed and ordered that the fines be vacated. The Virginia Supreme Court, reversing in its turn, rejected petitioners' contention that the fines were criminal and could not be imposed absent a criminal trial. </s> Held: </s> The serious contempt fines imposed here were criminal, and constitutionally could be imposed only through a jury trial. Pp. 5-19. </s> (a) A criminal contempt fine is punitive, and can be imposed only through criminal proceedings, including the right to jury trial. A contempt fine is considered civil and remedial if it either coerces a defendant into compliance with a court order or compensates the complainant for losses sustained. United States v. United Mine Workers of America, 330 U.S. 258, 303 -304. Where a fine is not compensatory, it is civil only if the contemnor has an opportunity Page II to purge, such as with per diem fines and fixed, suspended fines. Pp. 5-9. </s> (b) Most contempt sanctions share punitive and coercive characteristics, and the fundamental question underlying the distinction between civil and criminal contempts is what process is due for the imposition of any particular contempt sanction. Direct contempts can be penalized summarily in light of the court's substantial interest in maintaining order and because the need for extensive factfinding and the likelihood of an erroneous deprivation are reduced. Greater procedural protections are afforded for sanctions of indirect contempts. Certain indirect contempts are particularly appropriate for imposition through civil proceedings, including contempts impeding the court's ability to adjudicate the proceedings before it and those contempts involving discrete, readily ascertainable acts. For contempts of more complex injunctions, however, criminal procedures may be required. Pp. 13-17. </s> (c) The mere fact that the contempt fines here were announced in advance did not render them civil. Criminal laws generally provide notice of the sanction to be imposed, and the union's ability to avoid the contempt fines was indistinguishable from the ability of any citizen to avoid a criminal sanction. Other considerations confirm that the fines challenged here are criminal. Neither the parties nor the Commonwealth's courts have suggested that the fines are compensatory. The union's sanctionable conduct did not occur in the court's presence or otherwise implicate the core of the judicial contempt power, where lesser protections may be appropriate. Nor did the union's contumacy involve simple, affirmative acts, where the sanctions' force is primarily coercive and elaborate factfinding is not required. Instead the court levied fines for widespread, ongoing, out-of-court violations of a complex injunction, effectively policing the union's compliance with an entire code of conduct the court itself imposed. The contumacy lasted many months and spanned several counties, and the fines assessed were serious. Under these circumstances, disinterested factfinding and evenhanded adjudication were essential, and the union was entitled to a criminal jury trial. Pp. 13-17. </s> 244 Va. 463, 423 S. E. 2d 349, reversed. </s> BLACKMUN, J., delivered the opinion for a unanimous Court with respect to Parts I, II-A, II-C, and III, and the opinion of the Court with respect to Part II-B, in which STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C.J., joined. </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE BLACKMUN delivered the opinion of the Court. </s> We are called upon once again to consider the distinction between civil and criminal contempt. Specifically, we address whether contempt fines levied against a union for violations of a labor injunction are coercive civil fines, or are criminal fines that constitutionally could be imposed only through a jury trial. We conclude that the fines are criminal and, accordingly, we reverse the judgment of the Supreme Court of Virginia. </s> I </s> Petitioners, the International Union, United Mine Workers of America and United Mine Workers of America, District 28 (collectively, the union) engaged in a protracted labor dispute with the Clinchfield Coal Company and Sea "B" Mining Company (collectively, the companies) over alleged unfair labor practices. In April, 1989, the companies filed suit in the Circuit Court of Russell County, Virginia, to enjoin the union from conducting unlawful strike-related activities. The trial court entered an injunction which, as later amended, prohibited the union and its members from, among other things, obstructing ingress and egress to company facilities, throwing objects at and physically threatening </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 2] </s> company employees, placing tire-damaging "jackrocks" on roads used by company vehicles, and picketing with more than a specified number of people at designated sites. The court additionally ordered the union to take all steps necessary to ensure compliance with the injunction, to place supervisors at picket sites, and to report all violations to the court. App. to Pet. for Cert. 114a-116a. </s> On May 16, 1989, the trial court held a contempt hearing and found that petitioners had committed 72 violations of the injunction. After fining the union $642,000 for its disobedience, 1 the court announced that it would fine the union $100,000 for any future violent breach of the injunction and $20,000 for any future nonviolent infraction, "such as exceeding picket numbers, [or] blocking entrances or exits." Id., at 111a. The Court early stated that its purpose was to "impos[e] prospective civil fines[,] the payment of which would only be required if it were shown the defendants disobeyed the Court's orders." Id., at 40a. </s> In seven subsequent contempt hearings held between June and December, 1989, the court found the union in contempt for more than 400 separate violations of the injunction, many of them violent. Based on the court's stated "intention that these fines are civil and coercive," id., at 104a, each contempt hearing was conducted as a civil proceeding before the trial judge, in which the parties conducted discovery, introduced evidence, and called and cross-examined witnesses. The trial court required that contumacious acts be proved beyond a reasonable doubt, but did not afford the union a right to jury trial. </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 3] </s> As a result of these contempt proceedings, the court levied over $64,000,000 in fines against the union, approximately $12,000,000 of which was ordered payable to the companies. Because the union objected to payment of any fines to the companies and in light of the law enforcement burdens posed by the strike, the court ordered that the remaining roughly $52,000,000 in fines be paid to the Commonwealth of Virginia and Russell and Dickenson Counties, "the two counties most heavily affected by the unlawful activity." Id., at 44a. </s> While appeals from the contempt orders were pending, the union and the companies settled the underlying labor dispute, agreed to vacate the contempt fines, and jointly moved to dismiss the case. A special mediator representing the Secretary of Labor, App. 48-49, and the governments of Russell and Dickenson Counties, id., at 48 and 54, supported the parties' motion to vacate the outstanding fines. The trial court granted the motion to dismiss, dissolved the injunction, and vacated the $12,000,000 in fines payable to the companies. After reiterating its belief that the remaining $52,000,000 owed to the counties and the Commonwealth were coercive, civil fines, the trial court refused to vacate these fines, concluding they were "payable, in effect, to the public." App. to Pet. for Cert. 47a. </s> The companies withdrew as parties in light of the settlement, and declined to seek further enforcement of the outstanding contempt fines. Because the Commonwealth Attorneys of Russell and Dickenson Counties also had asked to be disqualified from the case, the court appointed respondent John L. Bagwell to act as Special Commissioner to collect the unpaid contempt fines on behalf of the counties and the Commonwealth. Id., at 48a. </s> The Court of Appeals of Virginia reversed, and ordered that the contempt fines be vacated pursuant to the settlement agreement. Assuming for the purposes of </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 4] </s> argument that the fines were civil, the court concluded "that civil contempt fines imposed during or as a part of a civil proceeding between private parties are settled when the underlying litigation is settled by the parties, and the court is without discretion to refuse to vacate such fines." Id., at 36a. </s> On consolidated appeals, the Supreme Court of Virginia reversed. The court held that whether coercive, civil contempt sanctions could be settled by private parties was a question of state law, and that Virginia public policy disfavored such a rule, "if the dignity of the law and public respect for the judiciary are to be maintained." Id., at 17a. The court also rejected petitioners' contention that the outstanding fines were criminal and could not be imposed absent a criminal trial. Because the trial court's prospective fine schedule was intended to coerce compliance with the injunction and the union could avoid the fines through obedience, the court reasoned, the fines were civil and coercive and properly imposed in civil proceedings: </s> "When a court orders a defendant to perform an affirmative act and provides that the defendant shall be fined a fixed amount for each day he refuses to comply, the defendant has control of his own destiny. The same is true with respect to the court's orders in the present case. A prospective fine schedule was established solely for the purpose of coercing the Union to refrain from engaging in certain conduct. Consequently, the Union controlled its own fate." Id., at 15a. </s> This Court granted certiorari. 508 U.S. ___ (1993). </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 5] </s> II </s> A </s> "Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self-incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U.S., at 199 ; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required. 2 </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 6] </s> Although the procedural contours of the two forms of contempt are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear. 3 In the leading early case addressing this issue in the context of imprisonment, Gompers v. Bucks Stove & Range Co., 221 U.S., at 441, the Court emphasized that whether a contempt is civil or criminal turns on the "character and purpose" of the sanction involved. Thus, a contempt sanction is considered civil if it "is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Ibid. </s> As Gompers recognized, however, the stated purposes of a contempt sanction alone cannot be determinative. Id., at 443. "[W]hen a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law's purpose of modifying the contemnor's behavior to conform to the terms required in the order." Hicks, 485 U.S., at 624 . Most contempt sanctions, like most criminal punishments, to some extent punish a prior offense as well as coerce an offender's future obedience. The Hicks Court accordingly </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 7] </s> held that conclusions about the civil or criminal nature of a contempt sanction are properly drawn, not from "the subjective intent of a State's laws and its courts," id., at 635, but "from an examination of the character of the relief itself," id., at 636. </s> The paradigmatic coercive, civil contempt sanction, as set forth in Gompers, involves confining a contemnor indefinitely until he complies with an affirmative command such as an order "to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance." Gompers, 221 U.S., at 442; see also McCrone v. United States, 307 U.S. 61, 64 (1939) (failure to testify). Imprisonment for a fixed term similarly is coercive when the contemnor is given the option of earlier release if he complies. Shillitani v. United States, 384 U.S. 364, 370 , n. 6 (1966) (upholding as civil "a determinate [two-year] sentence which includes a purge clause"). In these circumstances, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus "carries the keys of his prison in his own pocket." Gompers, 221 U.S., at 442, quoting In re Nevitt, 117 Fed. 451 (1902). </s> By contrast, a fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a "completed act of disobedience," Gompers, 221 U.S., at 443, such that the contemnor cannot avoid or abbreviate the confinement through later compliance. Thus, the Gompers Court concluded that a 12-month sentence imposed on Samuel Gompers for violating an anti-boycott injunction was criminal. When a contempt involves the prior conduct of an isolated, prohibited act, the resulting sanction has no coercive effect. "[T]he defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense." Id., at 442. </s> This dichotomy between coercive and punitive imprisonment has been extended to the fine context. A contempt </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 8] </s> fine accordingly is considered civil and remedial if it either "coerce[s] the defendant into compliance with the court's order, [or] . . . compensate[s] the complainant for losses sustained." United States v. United Mine Workers of America, 330 U.S. 258, 303 -304 (1947). Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge. See Penfield Co. v. SEC, 330 U.S. 585, 590 (1947). Thus, a "flat, unconditional fine" totalling even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance. Id., at 588. </s> A close analogy to coercive imprisonment is a per diem fine imposed for each day a contemnor fails to comply with an affirmative court order. Like civil imprisonment, such fines exert a constant coercive pressure, and once the jural command is obeyed, the future, indefinite, daily fines are purged. Less comfortable is the analogy between coercive imprisonment and suspended, determinate fines. In this Court's sole prior decision squarely addressing the judicial power to impose coercive civil contempt fines, United Mine Workers, supra, it held that fixed fines also may be considered purgable and civil when imposed and suspended pending future compliance. See also Penfield, 330 U.S., at 590 ("One who is fined, unless by a day certain he [complies] . . ., has it in his power to avoid any penalty"); but see Hicks, 485 U.S., at 639 , and n. 11 (suspended or probationary sentence is criminal). United Mine Workers involved a $3,500,000 fine imposed against the union for nationwide post-World War II strike activities. Finding that the determinate fine was both criminal and excessive, the Court reduced the sanction to a flat criminal fine of $700,000. The Court then imposed and suspended the remaining $2,800,000 as a coercive civil fine, conditioned on the union's ability to purge the fine through full, timely </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 9] </s> compliance with the trial court's order. 4 The Court concluded, in light of this purge clause, that the civil fine operated as "a coercive imposition upon the defendant union to compel obedience with the court's outstanding order." 330 U.S., at 307 . </s> This Court has not revisited the issue of coercive civil contempt fines addressed in United Mine Workers. Since that decision, the Court has erected substantial procedural protections in other areas of contempt law, such as criminal contempts, e.g., Bloom, 391 U.S. 194 , and summary contempts, e.g., Taylor v. Hayes, 418 U.S. 488 ; Codispoti v. Pennsylvania, 418 U.S. 506, 513 (1974); Johnson v. Mississippi, 403 U.S. 212 (1971); In re Oliver, 333 U.S. 257, 275 (1948). Lower federal courts and state courts such as the trial court here nevertheless have relied on United Mine Workers to authorize a relatively unlimited judicial power to impose noncompensatory civil contempt fines. </s> B </s> Underlying the somewhat elusive distinction between civil and criminal contempt fines, and the ultimate question posed in this case, is what procedural protections are due before any particular contempt penalty may be imposed. Because civil contempt sanctions are viewed as nonpunitive and avoidable, fewer procedural protections for such sanctions have been required. To the extent that such contempts take </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 10] </s> on a punitive character, however, and are not justified by other considerations central to the contempt power, criminal procedural protections may be in order. </s> The traditional justification for the relative breadth of the contempt power has been necessity: Courts independently must be vested with "power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and . . . to preserve themselves and their officers from the approach and insults of pollution." Anderson v. Dunn, 6 Wheat. 204, 227 (1821). Courts thus have embraced an inherent contempt authority, see Gompers, 221 U.S., at 450; Ex parte Robinson, 19 Wall. 505, 510 (1874), as a power "necessary to the exercise of all others." United States v. Hudson, 7 Cranch 32, 34 (1812). </s> But the contempt power also uniquely is "liable to abuse." Bloom, 391 U.S., at 202 , quoting Ex parte Terry, 128 U.S. 289, 313 (1888). Unlike most areas of law, where a legislature defines both the sanctionable conduct and the penalty to be imposed, civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct. Contumacy "often strikes at the most vulnerable and human qualities of a judge's temperament," Bloom, supra, at 202, and its fusion of legislative, executive, and judicial powers "summons forth . . . the prospect of `the most tyrannical licentiousness.'" Young v. United States ex rel. Vuitton, 481 U.S. 787, 822 (1987) (SCALIA, J., concurring in judgment), quoting Anderson, 6 Wheat., at 228. Accordingly, "in [criminal] contempt cases, an even more compelling argument can be made [than in ordinary criminal cases] for providing a right to jury trial as a protection against the arbitrary exercise of official power." Bloom, 391 U.S., at 202 . </s> Our jurisprudence in the contempt area has attempted to balance the competing concerns of necessity and </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 11] </s> potential arbitrariness by allowing a relatively unencumbered contempt power when its exercise is most essential, and requiring progressively greater procedural protections when other considerations come into play. The necessity justification for the contempt authority is at its pinnacle, of course, where contumacious conduct threatens a court's immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court. See Young, 481 U.S., at 820 -821 (SCALIA, J., concurring in judgment) (the judicial contempt power is a "power of self-defense," limited to sanctioning "those who interfere with the orderly conduct of [court] business or disobey orders necessary to the conduct of that business"). Thus, petty, direct contempts in the presence of the court traditionally have been subject to summary adjudication, "to maintain order in the courtroom and the integrity of the trial process in the face of an `actual obstruction of justice.'" Codispoti v. Pennsylvania, 418 U.S., at 513 , quoting In re McConnell, 370 U.S. 230, 236 (1962); cf. Wilson v. United States, 421 U.S. 309, 315 -316 (1975); Harris v. United States, 382 U.S. 162, 164 (1965). In light of the court's substantial interest in rapidly coercing compliance and restoring order, and because the contempt's occurrence before the court reduces the need for extensive factfinding and the likelihood of an erroneous deprivation, summary proceedings have been tolerated. </s> Summary adjudication becomes less justifiable once a court leaves the realm of immediately sanctioned, petty direct contempts. If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor's rights to notice and a hearing be respected. Taylor v. Hayes, 418 U.S. 488 (1974). There "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 12] </s> proceed with its business," id., at 498, particularly "in view of the heightened potential for abuse posed by the contempt power," id., at 500; see also Harris v. United States, 382 U.S. 162, 164 -165 (1965). Direct contempts also cannot be punished with serious criminal penalties absent the full protections of a criminal jury trial. Bloom, 391 U.S., at 210 . </s> Still further procedural protections are afforded for contempts occurring out of court, where the considerations justifying expedited procedures do not pertain. Summary adjudication of indirect contempts is prohibited, e.g., Cooke v. United States, 267 U.S. 517, 534 (1925), and criminal contempt sanctions are entitled to full criminal process. E.g., Hicks, 485 U.S., at 632 . Certain indirect contempts nevertheless are appropriate for imposition through civil proceedings. Contempts such as failure to comply with document discovery, for example, while occurring outside the court's presence, impede the court's ability to adjudicate the proceedings before it and thus touch upon the core justification for the contempt power. Courts traditionally have broad authority through means other than contempt - such as by striking pleadings, assessing costs, excluding evidence, and entering default judgment - to penalize a party's failure to comply with the rules of conduct governing the litigation process. See, e.g., Fed.Rule Civ.Proc. 11, 37. Such judicial sanctions never have been considered criminal, and the imposition of civil, coercive fines to police the litigation process appears consistent with this authority. Similarly, indirect contempts involving discrete, readily ascertainable acts, such as turning over a key or payment of a judgment, properly may be adjudicated through civil proceedings, since the need for extensive, impartial factfinding is less pressing. </s> For a discrete category of indirect contempts, however, civil procedural protections may be insufficient. </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 13] </s> Contempts involving out-of-court disobedience to complex injunctions often require elaborate and reliable factfinding. Cf. Green, 356 U.S., at 217 , n. 33 (Black, J., dissenting) (citation omitted) ("Alleged contempts committed beyond the court's presence where the judge has no personal knowledge of the material facts are especially suited for trial by jury. A hearing must be held, witnesses must be called, and evidence taken in any event. And often . . . crucial facts are in close dispute"). Such contempts do not obstruct the court's ability to adjudicate the proceedings before it, and the risk of erroneous deprivation from the lack of a neutral factfinder may be substantial. Id., at 214-215. Under these circumstances, criminal procedural protections such as the rights to counsel and proof beyond a reasonable doubt are both necessary and appropriate to protect the due process rights of parties and prevent the arbitrary exercise of judicial power. </s> C </s> In the instant case, neither any party nor any court of the Commonwealth has suggested that the challenged fines are compensatory. At no point did the trial court attempt to calibrate the fines to damages caused by the union's contumacious activities or indicate that the fines were "to compensate the complainant for losses sustained." United Mine Workers, 330 U.S., at 303 -304. The nonparty governments, in turn, never requested any compensation or presented any evidence regarding their injuries, never moved to intervene in the suit, and never actively defended the fines imposed. The issue before us accordingly is limited to whether these fines, despite their noncompensatory character, are coercive civil or criminal sanctions. </s> The parties propose two independent tests for determining whether the fines are civil or criminal. Petitioners argue that because the injunction primarily prohibited </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 14] </s> certain conduct rather than mandated affirmative acts, the sanctions are criminal. Respondent in turn urges that because the trial court established a prospective fine schedule that the union could avoid through compliance, the fines are civil in character. </s> Neither theory satisfactorily identifies those contempt fines that are criminal and thus must be imposed through the criminal process. Petitioners correctly note that Gompers suggests a possible dichotomy "between refusing to do an act commanded, - remedied by imprisonment until the party performs the required act; and doing an act forbidden, - punished by imprisonment for a definite term." 221 U.S., at 443. The distinction between mandatory and prohibitory orders is easily applied in the classic contempt scenario, where contempt sanctions are used to enforce orders compelling or forbidding a single, discrete act. In such cases, orders commanding an affirmative act simply designate those actions that are capable of being coerced. </s> But the distinction between coercion of affirmative acts and punishment of prohibited conduct is difficult to apply when conduct that can recur is involved, or when an injunction contains both mandatory and prohibitory provisions. Moreover, in borderline cases injunctive provisions containing essentially the same command can be phrased either in mandatory or prohibitory terms. Under a literal application of petitioners' theory, an injunction ordering the union: "Do not strike," would appear to be prohibitory and criminal, while an injunction ordering the union: "Continue working," would be mandatory and civil. See Tr. of Oral Arg. 8-9; Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 239 (1971). In enforcing the present injunction, the trial court imposed fines without regard to the mandatory or prohibitory nature of the clause violated. Accordingly, even though a parsing of the injunction's various provisions might support the classification of contempts </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 15] </s> such as rock-throwing and placing tire-damaging "jackrocks" on roads as criminal and the refusal to place supervisors at picket sites as civil, the parties have not asked us to review the order in that manner. In a case like this, involving an injunction that prescribes a detailed code of conduct, it is more appropriate to identify the character of the entire decree. Cf. Hicks, 485 U.S., at 639 , n. 10 (internal quotations omitted) (Where both civil and criminal relief is imposed "the criminal feature of the order is dominant and fixes its character for purposes of review"). </s> Despite respondent's urging, we also are not persuaded that dispositive significance should be accorded to the fact that the trial court prospectively announced the sanctions it would impose. Had the trial court simply levied the fines after finding the union guilty of contempt, the resulting "determinate and unconditional" fines would be considered "solely and exclusively punitive." Hicks, 485 U.S., at 632 -633; see also Penfield, supra. Respondent nevertheless contends that the trial court's announcement of a prospective fine schedule allowed the union to "avoid paying the fine[s] simply by performing the . . . act required by the court's order," Hicks, 485 U.S., at 632 , and thus transformed these fines into coercive, civil ones. Respondent maintains here, as the Virginia Supreme Court held below, that the trial court could have imposed a daily civil fine to coerce the union into compliance, and that a prospective fine schedule is indistinguishable from such a sanction. </s> Respondent's argument highlights the difficulties encountered in parsing coercive civil and criminal contempt fines. The fines imposed here concededly are difficult to distinguish either from determinate, punitive fines or from initially suspended, civil fines. Ultimately, however, the fact that the trial court announced the fines before the contumacy, rather than after the fact, does not, in itself, justify respondent's conclusion that the </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 16] </s> fines are civil or meaningfully distinguish these penalties from the ordinary criminal law. Due process traditionally requires that criminal laws provide prior notice both of the conduct to be prohibited and of the sanction to be imposed. The trial court here simply announced the penalty - determinate fines of $20,000 or $100,000 per violation - that would be imposed for future contempts. The union's ability to avoid the contempt fines was indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law. The fines are not coercive day fines, or even suspended fines, but are more closely analogous to fixed, determinate, retrospective criminal fines which petitioners had no opportunity to purge once imposed. We therefore decline to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law. </s> Other considerations convince us that the fines challenged here are criminal. The union's sanctionable conduct did not occur in the court's presence or otherwise implicate the court's ability to maintain order and adjudicate the proceedings before it. Nor did the union's contumacy involve simple, affirmative acts, such as the paradigmatic civil contempts examined in Gompers. Instead, the Virginia trial court levied contempt fines for widespread, ongoing, out-of-court violations of a complex injunction. In so doing, the court effectively policed petitioners' compliance with an entire code of conduct that the court itself had imposed. The union's contumacy lasted many months and spanned a substantial portion of the State. The fines assessed were serious, totalling over $52,000,000. 5 Under such circumstances, </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 17] </s> disinterested factfinding and evenhanded adjudication were essential, and petitioners were entitled to a criminal jury trial. </s> In reaching this conclusion, we recognize that this Court generally has deferred to a legislature's determination whether a sanction is civil or criminal, see, e.g., United States v. Ward, 448 U.S. 242, 248 (1980); Helvering v. Mitchell, 303 U.S. 391 (1938), and that, "[w]hen a State's proceedings are involved, state law provides strong guidance about whether or not the State is exercising its authority "in a nonpunitive, noncriminal manner." Hicks, 485 U.S., at 631 , quoting Allen v. Illinois, 478 U.S. 364, 368 (1986). We do not deviate from either tradition today. Where a single judge, rather than a legislature, declares a particular sanction to be civil or criminal, such deference is less appropriate. Cf. Madsen v. Women's Health Center, Inc., 512 U.S. ___, ___ (1994). Moreover, this Court has recognized that even for state proceedings, the label affixed to a contempt ultimately "will not be allowed to defeat the applicable protections of federal constitutional law." Hicks v. Feiock, 485 U.S., at 631 . We conclude that the serious contempt fines imposed here were criminal and </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 18] </s> constitutionally could not be imposed absent a jury trial. </s> III </s> Our decision concededly imposes some procedural burdens on courts' ability to sanction widespread, indirect contempts of complex injunctions through noncompensatory fines. Our holding, however, leaves unaltered the longstanding authority of judges to adjudicate direct contempts summarily, and to enter broad compensatory awards for all contempts through civil proceedings. See, e.g., Sheet Metal Workers v. Equal Employment Opportunity Comm'n, 478 U.S. 421 (1986). Because the right to trial by jury applies only to serious criminal sanctions, courts still may impose noncompensatory, petty fines for contempts such as the present ones without conducting a jury trial. We also do not disturb a court's ability to levy, albeit through the criminal contempt process, serious fines like those in this case. </s> Ultimately, whatever slight burden our holding may impose on the judicial contempt power cannot be controlling. The Court recognized more than a quarter-century ago: </s> "We cannot say that the need to further respect for judges and courts is entitled to more consideration than the interest of the individual not be subjected to serious criminal punishment without the benefit of all the procedural protections worked out carefully over the years and deemed fundamental to our system of justice. Genuine respect, which alone can lend true dignity to our judicial establishment, will be engendered not by the fear of unlimited authority, but by the firm administration of the law through those institutionalized procedures which have been worked out over the centuries." Bloom, 391 U.S., at 208 . </s> Where, as here, "a serious contempt is at issue, considerations of efficiency must give way to the more fundamental </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 19] </s> interest of ensuring the evenhanded exercise of judicial power." Id., at 209. </s> The judgment of the Supreme Court of Virginia is reversed. </s> It is so ordered. </s> Footnotes [Footnote 1 A portion of these fines was suspended conditioned on the union's future compliance. The court later vacated these fines, concluding that they were "criminal in nature." App. to Pet. for Cert. 4a, n. 2. </s> [Footnote 2 We address only the procedures required for adjudication of indirect contempts, i.e., those occurring out of court. Direct contempts that occur in the court's presence may be immediately adjudged and sanctioned summarily, see, e.g., Ex parte Terry, 128 U.S. 289 (1888), and, except for serious criminal contempts in which a jury trial is required, Bloom v. Illinois, 391 U.S. 194, 209 -210 (1968), the traditional distinction between civil and criminal contempt proceedings does not pertain, cf. United States v. Wilson, 421 U.S. 309, 316 (1975). </s> [Footnote 3 Numerous scholars have criticized as unworkable the traditional distinction between civil and criminal contempt. See, e.g., Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to Regulation of Indirect Contempts, 79 Va.L.Rev. 1025, 1033 (1993) (describing the distinction between civil and criminal contempt as "conceptually unclear and exceedingly difficult to apply"); Martineau, Contempt of Court: Eliminating the Confusion between Civil and Criminal Contempt, 50 U.Cin.L.Rev. 677 (1981) ("Few legal concepts have bedeviled courts, judges, lawyers, and legal commentators more than contempt of court"); Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum.L.Rev. 780 (1943); R. Goldfarb, The Contempt Power 58 (1963) (describing "the tangle of procedure and practice" resulting from this "unsatisfactory fiction"). </s> [Footnote 4 Although the size of the fine was substantial, the conduct required of the union to purge the suspended fine was relatively discrete. According to the Court, purgation consisted of (1) withdrawal of the union's notice terminating the Krug-Lewis labor agreement; (2) notifying the union members of this withdrawal; and (3) withdrawing and notifying the union members of the withdrawal of any other notice questioning the ongoing effectiveness of the Krug-Lewis agreement. United States v. United Mine Workers, 330 U.S. 258, 305 (1947). </s> [Footnote 5 "Petty contempt, like other petty criminal offenses, may be tried without a jury," Taylor v. Hayes, 418 U.S. 488, 495 (1974), and the imposition only of serious criminal contempt fines triggers the right to </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 17] </s> jury trial. Bloom, 391 U.S., at 210 . The Court to date has not specified what magnitude of contempt fine may constitute a serious criminal sanction, although it has held that a fine of $10,000 imposed on a union was insufficient to trigger the Sixth Amendment right to jury trial. See Muniz v. Hoffman, 422 U.S. 454, 477 (1975); see also 18 U.S.C. 1(3) (defining petty offenses as crimes "the penalty for which . . . does not exceed imprisonment for a period of six months or a fine of not more than $5,000 for an individual and $10,000 for a person other than an individual, or both"). We need not answer today the difficult question where the line between petty and serious contempt fines should be drawn, since a $52,000,000 fine unquestionably is a serious contempt sanction. </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE SCALIA, concurring. </s> I join the Court's opinion classifying the $52,000,000 in contempt fines levied against petitioners as criminal. As the Court's opinion demonstrates, our cases have employed a variety of not easily reconcilable tests for differentiating between civil and criminal contempts. Since all of those tests would yield the same result here, there is no need to decide which is the correct one - and a case so extreme on its facts is not the best case in which to make that decision. I wish to suggest, however, that, when we come to making it, a careful examination of historical practice will ultimately yield the answer. </s> That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers. See ante, at 10; Green v. United States, 356 U.S. 165, 198 -199 (1958) (Black, J., dissenting); cf. Bloom v. Illinois, 391 U.S. 194, 202 (1968); Cooke v. United States, 267 U.S. 517, 539 (1925). And it is worse still for that person to conduct the adjudication without affording the protections usually given in criminal trials. Only the clearest of historical practice could establish that such </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 2] </s> a departure from the procedures that the Constitution normally requires is not a denial of due process of law. See Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 623 -625 (1990); cf. Honda Motor Co. v. Oberg, ante, at ___ (slip op., at 14-15. </s> At common law, contempts were divided into criminal contempts, in which a litigant was punished for an affront to the court by a fixed fine or period of incarceration; and civil contempts, in which an uncooperative litigant was incarcerated (and, in later cases, fined * ) until he complied with a specific order of the court. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-444 (1911). Incarceration until compliance was a distinctive sanction, and sheds light upon the nature of the decrees enforced by civil contempt. That sanction makes sense only if the order requires performance of an identifiable act (or perhaps cessation of continuing performance of an identifiable act). A general prohibition for the future does not lend itself to enforcement through conditional incarceration, since no single act (or the cessation of no single act) can demonstrate compliance and justify release. One court has expressed the difference between criminal and civil contempts as follows: "Punishment in criminal contempt cannot undo or remedy the thing which has been done, but, in civil contempt, punishment remedies the disobedience." In re Fox, 96 F.2d 23, 25 (CA3 1938). </s> As one would expect from this, the orders that underlay civil contempt fines or incarceration were usually mandatory, rather than prohibitory, see Gompers, supra, at 442, directing litigants to perform acts that </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 3] </s> would further the litigation (for example, turning over a document), or give effect to the court's judgment (for example, executing a deed of conveyance). The latter category of order was particularly common, since the jurisdiction of equity courts was generally in personam, rather than in rem, and the relief they decreed would almost always be a directive to an individual to perform an act with regard to property at issue. See 4 J. Pomeroy, Equity Jurisprudence 1433, pp. 3386-3388 (4th ed. 1919). The mandatory injunctions issued upon termination of litigation usually required "a single simple act." H. McClintock, Principles of Equity 15, pp. 32-33 (2d ed. 1948). Indeed, there was a "historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act." Id., at 61, p. 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. See e.g., Marble Co. v. Ripley, 10 Wall. 339, 358-359 (1870); see also H. McClintock, supra, at 61, pp. 160-161; 1 J. Story, Commentaries on Equity Jurisprudence 778b, p. 782 (Redfield ed.; 10th ed. 1870). Compliance with these "single act" mandates could, in addition to being simple, be quick; and, once it was achieved, the contemnor's relationship with the court came to an end at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant's obligation to the court, and the court's coercive power over the litigant, ceased. See United States v. Mine Workers, 330 U.S. 258, 332 (1947) (Black, J., concurring in part and dissenting in part). The court did not engage in any ongoing supervision of the litigant's conduct, nor did its order continue to regulate his behavior. </s> Even equitable decrees that were prohibitory, rather than mandatory, were, in earlier times, much less sweeping than their modern counterparts. Prior to the </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 4] </s> labor injunctions of the late 1800's, injunctions were issued primarily in relatively narrow disputes over property. See, e.g., W. Kerr, A Treatise on the Law and Practice of Injunctions *7 (1880); see also F. Frankfurter & N. Greene, The Labor Injunction 23-24, 87-88 (1930). </s> Contemporary courts have abandoned these earlier limitations upon the scope of their mandatory and injunctive decrees. See G. McDowell, Equity and the Constitution 4, 9 (1982). They routinely issue complex decrees which involve them in extended disputes and place them in continuing supervisory roles over parties and institutions. See, e.g., Missouri v. Jenkins, 495 U.S. 33, 56 -58 (1990); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971). Professor Chayes has described the extent of the transformation: </s> "[The modern decree] differs in almost every relevant characteristic from relief in the traditional model of adjudication, not the least in that it is the centerpiece. . . . It provides for a complex, ongoing regime of performance, rather than a simple, one-shot, one-way transfer. Finally, it prolongs and deepens, rather than terminates, the court's involvement with the dispute." Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281, 1298 (1976). </s> The consequences of this change for the point under discussion here are obvious: when an order governs many aspects of a litigant's activities, rather than just a discrete act, determining compliance becomes much more difficult. Credibility issues arise, for which the factfinding protections of the criminal law (including jury trial) become much more important. And when continuing prohibitions or obligations are imposed, the order cannot be complied with (and the contempt "purged") in a single act; it continues to govern the party's behavior, on pain of punishment - not unlike the criminal law. </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 5] </s> The order at issue here provides a relatively tame example of the modern, complex decree. The amended injunction prohibited, inter alia, rock-throwing, the puncturing of tires, threatening, following or interfering with respondents' employees, placing pickets in other than specified locations, and roving picketing; and it required, inter alia, that petitioners provide a list of names of designated supervisors. App. to Pet. for Cert. 113a-116a. Although it would seem quite in accord with historical practice to enforce, by conditional incarceration or per diem fines, compliance with the last provision - a discrete command, observance of which is readily ascertained - using that same means to enforce the remainder of the order would be a novelty. </s> * * * </s> The use of a civil process for contempt sanctions "makes no sense except as a consequence of historical practice." Weiss v. United States, 510 U.S. ___, ___ (1994) (slip op., at 4) (SCALIA, J., concurring in part and concurring in judgment). As the scope of injunctions has expanded, they have lost some of the distinctive features that made enforcement through civil process acceptable. It is not that the times, or our perceptions of fairness, have changed (that is, in my view, no basis for either tightening or relaxing the traditional demands of due process), but rather that the modern judicial order is, in its relevant essentials, not the same device that, in former times, could always be enforced by civil contempt. So adjustments will have to be made. We will have to decide at some point which modern injunctions sufficiently resemble their historical namesakes to warrant the same extraordinary means of enforcement. We need not draw that line in the present case, and so I am content to join the opinion of the Court. </s> [Footnote * The per diem fines that came to be used to coerce compliance with decrees were, in most relevant respects, like conditional prison terms. With them, as with incarceration, the penalty continued until the contemnor complied, and compliance stopped any further punishment, but, of course, did not eliminate or restore any punishment already endured. </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 1] </s> JUSTICE GINSBURG, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the judgment. </s> The issue in this case is whether the contempt proceedings brought against the petitioner unions are to be classified as "civil" or "criminal." As the Court explains, if those proceedings were "criminal," then the unions were entitled, under our precedents, to a jury trial, and the disputed fines, imposed in bench proceedings, could not stand. See ante, at 5. </s> I </s> Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911), as the Court notes, see ante, at 6, is a path-marking case in this area. The civil contempt sanction, Gompers instructs, is designed "to coerce the defendant to do the thing required by the order for the benefit of the complainant," rather than "to vindicate the authority of the law." 221 U.S., at 442. The sanction operates coercively because it applies continuously until the defendant performs the discrete, "affirmative act" required by the court's order, for example, production of a document or presentation of testimony. Ibid. The civil contemnor thus "`carries the keys of his prison in </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 2] </s> his own pocket'": At any moment, "[h]e can end the sentence and discharge himself . . . by doing what he had previously refused to do." Ibid., quoting In re Nevitt, 117 F. 448, 461 (1902). </s> The criminal contempt sanction, by contrast, is "punitive, [imposed] to vindicate the authority of the court." Gompers, supra, at 441. Unlike the civil contemnor, who has refused to perform some discrete, affirmative act commanded by the court, Gompers explains, the criminal contemnor has "do[ne] that which he has been commanded not to do." 221 U.S., at 442. The criminal contemnor's disobedience is past, a "completed act," id., at 443, a deed no sanction can undo. See id., at 442. Accordingly, the criminal contempt sanction operates not to coerce a future act from the defendant for the benefit of the complainant, but to uphold the dignity of the law, by punishing the contemnor's disobedience. Id., at 442-443. Because the criminal contempt sanction is determinate and unconditional, the Court said in Gompers, "the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense." Id., at 442. </s> Even as it outlined these civil and criminal contempt prototypes, however, the Court in Gompers acknowledged that the categories, when filled by actual cases, are not altogether neat and tidy. Civil contempt proceedings, although primarily remedial, also "vindicat[e] . . . the court's authority"; and criminal contempt proceedings, although designed "to vindicate the authority of the law," may bestow "some incidental benefit" upon the complainant, because "such punishment tends to prevent a repetition of the disobedience." Id., at 443. </s> II </s> The classifications described in Gompers have come under strong criticism, particularly from scholars. Many have observed, as did the Court in Gompers itself, that </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 3] </s> the categories, "civil" and "criminal" contempt, are unstable in theory and problematic in practice. See ante, at 6, n. 3 (citing scholarly criticism); see also Dudley, Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 Va.L.Rev. 1025, 1025, n. 1 (1993) (citing additional scholarly criticism). </s> Our cases, however, have consistently resorted to the distinction between criminal and civil contempt to determine whether certain constitutional protections, required in criminal prosecutions, apply in contempt proceedings. See, e.g., United States v. Dixon, 509 U.S. ___, ___ (1993) (slip op., at 6) ("We have held that [certain] constitutional protections for criminal defendants . . . apply in nonsummary criminal contempt prosecutions just as they do in other criminal prosecutions.") (citing cases). And the Court has repeatedly relied upon Gompers' delineation of the distinction between criminal and civil contempt. See, e.g., Hicks v. Feiock, 485 U.S. 624, 631 -633, 635-636 (1988). The parties, accordingly, have presented their arguments within the Gompers framework. </s> Two considerations persuade me that the contempt proceedings in this case should be classified as "criminal," rather than "civil." First, were we to accept the logic of Bagwell's argument that the fines here were civil, because "conditional" and "coercive," no fine would elude that categorization. The fines in this case were "conditional," Bagwell says, because they would not have been imposed if the unions had complied with the injunction. The fines would have been "conditional" in this sense, however, even if the court had not supplemented the injunction with its fines schedule; indeed, any fine is "conditional" upon compliance or noncompliance before its imposition. Cf. ante, at 15 (the unions' ability to avoid imposition of the fines was "indistinguishable from the ability of any ordinary citizen to </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 4] </s> avoid a criminal sanction by conforming his behavior to the law"). Furthermore, while the fines were "coercive," in the sense that one of their purposes was to encourage union compliance with the injunction, criminal contempt sanctions may also "coerce" in this same sense, for they, too, "ten[d] to prevent a repetition of the disobedience." Gompers, 221 U.S., at 443. Bagwell's thesis that the fines were civil, because "conditional" and "coercive," would so broaden the compass of those terms that their line-drawing function would be lost. * </s> Second, the Virginia courts' refusal to vacate the fines, despite the parties' settlement and joint motion, see ante, at 3-4, is characteristic of criminal, not civil, proceedings. In explaining why the fines outlived the underlying civil dispute, the Supreme Court of Virginia stated: "Courts of the Commonwealth must have the authority to enforce their orders by employing coercive, civil sanctions if the dignity of the law and public respect for the judiciary are to be maintained." 244 Va. 463, 478, 423 S.E.2d 349, 358 (1992). The Virginia court's references to upholding public authority and maintaining "the dignity of the law" reflect the very purposes Gompers ranked on the criminal contempt side. See supra, at 2. Moreover, with the private complainant gone from the scene, and an official appointed by the Commonwealth to collect the fines for the Commonwealth's </s> [ MINE WORKERS v. BAGWELL, ___ U.S. ___ (1994) </s> , 5] </s> coffers, it is implausible to invoke the justification of benefiting the civil complainant. The Commonwealth here pursues the fines on its own account, not as the agent of a private party, and without tying the exactions exclusively to a claim for compensation. Cf. Hicks, 485 U.S., at 632 ("[A] fine . . . [is] punitive when it is paid to the court," but "remedial" or "civil" "when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order."). If, as the trial court declared, the proceedings were indeed civil from the outset, then the court should have granted the parties' motions to vacate the fines. </s> * * * </s> Concluding that the fines at issue "are more closely analogous to . . . criminal fines" than to civil fines, ante, at 16, I join the Court's judgment and all but Part II-B of its opinion. </s> [Footnote * Bagwell further likens the prospective fines schedule to the civil contempt fine imposed in United States v. Mine Workers, 330 U.S. 258 (1947). In that case, however, the contemnor union was given an opportunity, after the fine was imposed, to avoid the fine by "effect[ing] full compliance" with the injunction. As the Court explains, see ante, at 8-9, n. 4, for purposes of allowing the union to avoid the fine, "full compliance" with the broad no-strike injunction, see 330 U.S., at 266 , n. 12, was reduced to the performance of three affirmative acts. This opportunity to purge, consistent with the civil contempt scenario described in Gompers, see supra, at 1-2, was unavailable to the unions in this case. Page I

United States Supreme Court CELOTEX CORP. v. EDWARDS(1995) No. 93-1504 Argued: December 6, 1994Decided: April 19, 1995 </s> The United States District Court for the Northern District of Texas entered a judgment in favor of respondents and against petitioner Celotex Corp. To stay execution of the judgment pending appeal, petitioner posted a supersedeas bond, with an insurance company (Northbrook) serving as surety. After the Fifth Circuit affirmed the judgment, Celotex filed for Chapter 11 bankruptcy in the Bankruptcy Court for the Middle District of Florida. Exercising its equitable powers under 11 U.S.C. 105(a), the Bankruptcy Court issued an injunction, which, in pertinent part, prohibited judgment creditors from proceeding against sureties without the Bankruptcy Court's permission. Respondents thereafter filed a motion pursuant to Federal Rule of Civil Procedure 65.1 in the Northern District of Texas seeking permission to execute against Northbrook on the bond. The District Court granted the motion. The Fifth Circuit affirmed and later denied Celotex' petition for rehearing, rejecting the argument that its decision allowed a collateral attack on the Bankruptcy Court order. </s> Held: </s> Respondents must obey the Bankruptcy Court's injunction. The well-established rule that "persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to that order," GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 386 , applies to bankruptcy cases, Oriel v. Russell, 278 U.S. 358. A bankruptcy court has jurisdiction over proceedings "arising under," "arising in," or "related to" a Chapter 11 case. 28 U.S.C. 1334(b) and 157(a). The "related to" language must be read to grant jurisdiction over more than simply proceedings involving the debtor's property or the estate. Page II Respondents' immediate execution on the bond is at least a question "related to" Celotex' bankruptcy. While the proceeding against Northbrook does not directly involve Celotex, the Bankruptcy Court found that allowing respondents and other bonded judgment creditors to execute immediately on the bonds would have a direct and substantial adverse effect on Celotex' ability to undergo a successful Chapter 11 reorganization. The fact that Federal Rule of Civil Procedure 65.1 provides an expedited procedure for executing on supersedeas bonds does not mean that such a procedure cannot be stayed by a lawfully entered injunction. Board of Governors v. MCorp Financial, 502 U.S. 32 , distinguished. The issue whether the Bankruptcy Court properly issued the injunction need not be addressed here. Since it is for the court of first instance to determine the question of the validity of the law, and since its orders are to be respected until its decision is reversed, respondents should have challenged the injunction in the Bankruptcy Court rather than collaterally attacking the injunction in the Texas federal courts. Pp. 6-13. </s> 6 F.3d 312, reversed. </s> REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. Stevens, J., filed a dissenting opinion, in which GINSBURG, J., joined. </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 1] </s> CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. </s> The United States Court of Appeals for the Fifth Circuit held that respondents should be allowed to execute against petitioner's surety on a supersedeas bond posted by petitioner where the judgment which occasioned the bond had become final. It so held even though the United States Bankruptcy Court for the Middle District of Florida previously had issued an injunction prohibiting respondents from executing on the bond without the Bankruptcy Court's permission. We hold that respondents were obligated to obey the injunction issued by the Bankruptcy Court. </s> I </s> In 1987 respondents Bennie and Joann Edwards filed suit in the United States District Court for the Northern District of Texas against petitioner Celotex (and others) alleging asbestos-related injuries. In April 1989 the District Court entered a $281,025.80 judgment in favor of respondents and against Celotex. To stay execution of the judgment pending appeal, Celotex posted a supersedeas bond in the amount of $294,987.88, with Northbrook Property and Casualty Insurance Company serving as surety on the bond. As collateral for the </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 2] </s> bond, Celotex allowed Northbrook to retain money owed to Celotex under a settlement agreement resolving insurance coverage disputes between Northbrook and Celotex. </s> The United States Court of Appeals for the Fifth Circuit affirmed, issuing its mandate on October 12, 1990, and thus rendering "final" respondents' judgment against Celotex. Edwards (Edwards I) v. Armstrong World Industries, Inc., 911 F.2d 1151 (1990). That same day, Celotex filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Middle District of Florida. 1 The filing of the petition automatically stayed both the continuation of "proceeding[s] against" Celotex and the commencement of "any act to obtain possession of property" of Celotex. 2 11 U.S.C. 362(a)(1) and (3). </s> On October 17, 1990, the Bankruptcy Court exercised its equitable powers under 11 U.S.C. 105(a) and issued an injunction (the "Section 105 Injunction") to augment the protection afforded Celotex by the automatic stay. In pertinent part, the Section 105 Injunction stayed all proceedings involving Celotex "regardless of . . . whether the matter is on appeal and a supersedeas bond has been posted by [Celotex]." App. to Pet. for Cert. A-28. 3 Respondents, whose bonded judgment </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 3] </s> against Celotex had already been affirmed on appeal, filed a motion pursuant to Federal Rule of Civil Procedure 65.1 in the District Court seeking permission to execute against Northbrook on the supersedeas bond. Both Celotex and Northbrook opposed this motion, asserting that all proceedings to enforce the bonds had been enjoined by the Bankruptcy Court's Section 105 Injunction. Celotex brought to the District Court's attention the fact that, since respondents had filed their Rule 65.1 motion, the Bankruptcy Court had reaffirmed the Section 105 Injunction and made clear that the injunction prohibited judgment creditors like respondents from proceeding against sureties without the Bankruptcy Court's permission: </s> "Where at the time of filing the petition, the appellate process between Debtor and the judgment creditor had been concluded, the judgment creditor is precluded from proceeding against any supersedeas bond posted by Debtor without first seeking to vacate the Section 105 stay entered by this Court." In re Celotex (Celotex I), 128 B. R. 478, 485 (Bkrtcy. Ct. MD Fla. 1991). </s> Despite the Bankruptcy Court's reaffirmation and clarification of the Section 105 Injunction, the District Court allowed respondents to execute on the bond against Northbrook. 4 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 4] </s> Celotex appealed, and the Fifth Circuit affirmed. Edwards (Edwards II) v. Armstrong World Industries, </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 5] </s> Inc., 6 F.3d 312 (1993). It first held that, because the appellate process for which the supersedeas bond was posted had been completed, Celotex no longer had a property interest in the bond and the automatic stay provisions of 11 U.S.C. 362 therefore did not prevent respondents from executing against Northbrook. Edwards II, supra, at 315-317. The Court then acknowledged that "[t]he jurisdiction of bankruptcy courts has been extended to include stays on proceedings involving third parties under the auspices of 28 U.S.C. 1334(b)," 6 F.3d, at 318, and that the Bankruptcy Court itself had ruled that the Section 105 Injunction enjoined respondents' proceeding against Northbrook to execute on the supersedeas bond. Ibid. The Fifth Circuit nevertheless disagreed with the merits of the Bankruptcy Court's Section 105 Injunction, holding that "the integrity of the estate is not implicated in the present case because the debtor has no present or future interest in this supersedeas bond." Id., at 320. The Court reasoned that the Section 105 Injunction was "manifestly unfair" and an "unjust result" because the supersedeas bond was posted "to cover precisely the type of eventuality which occurred in this case, insolvency of the judgment debtor." Id., at 319. In concluding that the Section 105 Injunction was improper, the Fifth Circuit expressly disagreed with the reasoning and result of Willis v. Celotex Corp., 978 F.2d 146 (CA4 1992), cert. denied, 507 U.S. ___ (1993), where the Court of Appeals for the Fourth Circuit, examining the same Section 105 Injunction, held that the Bankruptcy Court had the power under 11 U.S.C. 105(a) to stay proceedings against sureties on the supersedeas bonds. 6 F.3d, at 320. </s> Celotex filed a petition for rehearing, arguing that the Fifth Circuit's decision allowed a collateral attack on an order of the Bankruptcy Court sitting under the jurisdiction of the Court of Appeals for the Eleventh </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 6] </s> Circuit. The Fifth Circuit denied the petition, stating in part that "we have not held that the bankruptcy court in Florida was necessarily wrong; we have only concluded that the district court, over which we do have appellate jurisdiction, was right." Id., at 321. Because of the conflict between the Fifth Circuit's decision in this case and the Fourth Circuit's decision in Willis, we granted certiorari. 511 U.S. ___. We now reverse. </s> II </s> Respondents acknowledge that the Bankruptcy Court's Section 105 Injunction prohibited them from attempting to execute against Northbrook on the supersedeas bond posted by Celotex. Brief in Opposition 6, n. 2 (recognizing that the Section 105 Injunction "was intended to, and did, enjoin collection attempts like those made by [respondents] against Northbrook in this case"). In GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U.S. 375, 386 (1980), we reaffirmed the well established rule that "persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to the order." In GTE Sylvania, we went on to say: </s> "There is no doubt that the Federal District Court in Delaware had jurisdiction to issue the temporary restraining orders and preliminary and permanent injunctions. Nor were those equitable decrees challenged as only a frivolous pretense to validity, although of course there is disagreement over whether the District Court erred in issuing the permanent injunction. Under these circumstances, the CPSC was required to obey the injunctions out of respect for judicial process." Id., at 386-387 (internal quotation marks, citations, and footnote omitted). </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 7] </s> This rule was applied in the bankruptcy context more than 60 years ago in Oriel v. Russell, 278 U.S. 358 (1929), where the Court held that turnover orders issued under the old bankruptcy regime could not be collaterally attacked in a later contempt proceeding. Respondents acknowledge the validity of the rule but contend that it has no application here. They argue that the Bankruptcy Court lacked jurisdiction to issue the Section 105 Injunction, though much of their argument goes to the correctness of the Bankruptcy Court's decision to issue the injunction rather than to its jurisdiction to do so. </s> The jurisdiction of the bankruptcy courts, like that of other federal courts, is grounded in and limited by statute. Title 28 U.S.C. 1334(b) provides that "the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. 1334(b). The district courts may, in turn, refer "any or all proceedings arising under title 11 or arising in or related to a case under title 11 . . . to the bankruptcy judges for the district." 28 U.S.C. 157(a). Here, the Bankruptcy Court's jurisdiction to enjoin respondents' proceeding against Northbrook must be based on the "arising under," "arising in," or "related to" language of 1334(b) and 157(a). </s> Respondents argue that the Bankruptcy Court had jurisdiction to issue the Section 105 Injunction only if their proceeding to execute on the bond was "related to" the Celotex bankruptcy. Petitioner argues the Bankruptcy Court indeed had such "related to" jurisdiction. Congress did not delineate the scope of "related to" 5 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 8] </s> jurisdiction, but its choice of words suggests a grant of some breadth. The jurisdictional grant in 1334(b) was a distinct departure from the jurisdiction conferred under previous acts, which had been limited to either possession of property by the debtor or consent as a basis for jurisdiction. See S. Rep. No. 95-989, pp. 153-154 (1978). We agree with the views expressed by the Court of Appeals for the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984 (1984), that "Congress intended to grant comprehensive jurisdiction to the bankruptcy courts so that they might deal efficiently and expeditiously with all matters connected with the bankruptcy estate," id., at 994; see also H. Rep. No. 95-595, pp. 43-48 (1977), and that the "related to" language of 1334(b) must be read to give district courts (and bankruptcy courts under 157(a)) jurisdiction over more than simply proceedings involving the property of the debtor or the estate. We also agree with that Court's observation that a bankruptcy court's "related to" jurisdiction cannot be limitless. See Pacor, supra, at 994; cf. Board of Governors v. MCorp Financial, 502 U.S. 32, 40 (1991) (stating that Congress has vested "limited authority" in bankruptcy courts). 6 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 9] </s> We believe that the issue of whether respondents are entitled to immediate execution on the bond against Northbrook is at least a question "related to" Celotex' bankruptcy. 7 Admittedly, a proceeding by respondents </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 10] </s> against Northbrook on the supersedeas bond does not directly involve Celotex, except to satisfy the judgment against it secured by the bond. But to induce Northbrook to serve as surety on the bond, Celotex agreed to allow Northbrook to retain the proceeds of a settlement resolving insurance coverage disputes between Northbrook and Celotex. The Bankruptcy Court found that allowing respondents - and 227 other bonded judgment creditors - to execute immediately on the bonds would have a direct and substantial adverse effect on Celotex' ability to undergo a successful reorganization. It stated: </s> "[I]f the Section 105 stay were lifted to enable the judgment creditors to reach the sureties, the sureties in turn would seek to lift the Section 105 stay to reach Debtor's collateral, with corresponding actions by Debtor to preserve its rights under the settlement agreements. Such a scenario could completely destroy any chance of resolving the prolonged insurance coverage disputes currently being adjudicated in this Court. The settlement of the insurance coverage disputes with all of Debtor's insurers may well be the linchpin of Debtor's formulation of a feasible plan. Absent the confirmation of a feasible plan, Debtor may be liquidated or cease to exist after a carrion feast by the victors in a race to the courthouse." In re Celotex (Celotex II), 140 B. R. 912, 915 (MD Fla. 1992). </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 11] </s> In light of these findings by the Bankruptcy Court, it is relevant to note that we are dealing here with a reorganization under Chapter 11, rather than a liquidation under Chapter 7. The jurisdiction of bankruptcy courts may extend more broadly in the former case than in the latter. Cf. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 676 (1935). And we think our holding - that respondents' immediate execution on the supersedeas bond is at least "related to" the Celotex bankruptcy - is in accord with representative recent decisions of the Courts of Appeals. See American Hardwoods, Inc. v. Deutsche Credit Corp., 885 F.2d 621, 623 (CA9 1989) (finding "related to" jurisdiction where enforcement of state court judgment by creditor against debtor's guarantors would affect administration of debtor's reorganization plan); cf. MacArthur Co. v. Johns-Manville Corp., 837 F.2d 89, 93 (CA2) (noting that a bankruptcy court's injunctive powers under 105(a) allow it to enjoin suits that "might impede the reorganization process"), cert. denied, 488 U.S. 868 (1988); In re A. H. Robins Co., 828 F.2d 1023, 1024-1026 (CA4 1987) (affirming bankruptcy court's 105(a) injunction barring products liability plaintiffs from bringing actions against debtor's insurers because such actions would interfere with debtor's reorganization), cert. denied sub nom., 485 U.S. 969 (1988). 8 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 12] </s> Respondents, relying on our decision in Board of Governors v. MCorp Financial, 502 U.S. 32 (1991), contend that 1334(b)'s statutory grant of jurisdiction must be reconciled and harmonized with Federal Rule of Civil Procedure 65.1, which provides an expedited procedure for executing on supersedeas bonds. In MCorp, we held that the grant of jurisdiction in 1334(b) to district courts sitting in bankruptcy did not authorize an injunction against a regulatory proceeding, but there we relied on "the specific preclusive language" of 12 U.S.C. 1818(i)(1) which stated that "no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any [Board] notice or order." MCorp, supra, at 39, 42. There is no analogous statutory prohibition against enjoining the maintenance of a proceeding under Rule 65.1. That Rule provides: </s> "Whenever these rules . . . require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. . . ." Fed. Rule Civ. Proc. 65.1. </s> This rule outlines a streamlined procedure for executing on bonds. It assures judgment creditors like respondents that they do not have to bring a separate action against sureties, and instead allows them to collect on the supersedeas bond by merely filing a motion. Just because the rule provides a simplified procedure for collecting on a bond, however, does not mean that such a procedure, like the more complicated procedure of a </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 13] </s> full-fledged law suit, cannot be stayed by a lawfully entered injunction. </s> Much of our discussion dealing with the jurisdiction of the Bankruptcy Court under the "related to" language of 1334(b) and 157(a) is likewise applicable in determining whether or not the Bankruptcy Court's Section 105 Injunction has "only a frivolous pretense to validity." GTE Sylvania, 445 U.S., at 386 (internal quotation marks and citation omitted). The Fourth Circuit has upheld the merits of the Bankruptcy Court's Section 105 Injunction, see Willis, 978 F.2d, at 149-150, and even the Fifth Circuit in this case did not find "that the bankruptcy court in Florida was necessarily wrong." See Edwards II, 6 F.3d, at 321. But we need not, and do not, address whether the Bankruptcy Court acted properly in issuing the Section 105 Injunction. 9 </s> We have made clear that "`[i]t is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected.'" Walker v. Birmingham, 388 U.S. 307, 314 (1967) (quoting Howat v. Kansas, 258 U.S. 181, 189-190 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 14] </s> (1922)). If respondents believed the Section 105 Injunction was improper, they should have challenged it in the Bankruptcy Court, like other similarly situated bonded judgment creditors have done. See Celotex II, 140 B. R., at 912. If dissatisfied with the Bankruptcy Court's ultimate decision, respondents can appeal "to the district court for the judicial district in which the bankruptcy judge is serving," see 28 U.S.C. 158(a), and then to the Court of Appeals for the Eleventh Circuit. See 158(d). Respondents chose not to pursue this course of action, but instead to collaterally attack the Bankruptcy Court's Section 105 Injunction in the Federal Courts in Texas. This they cannot be permitted to do without seriously undercutting the orderly process of the law. </s> The judgment of the Court of Appeals, accordingly, is reversed. </s> It is so ordered. </s> Footnotes [Footnote 1 For purposes of this case, we assume respondents' judgment became final before Celotex filed its petition in bankruptcy. </s> [Footnote 2 As of the filing date, more than 141,000 asbestos-related bodily injury lawsuits were pending against Celotex, and over 100 asbestos-related bodily injury cases were in some stage of appeal, with judgments totaling nearly $70 million being stayed by supersedeas bonds that Celotex had posted. </s> [Footnote 3 The Bankruptcy Court noted that, upon request of a party in interest and following 30 days written notice and a hearing, it would "consider granting relief from the restraints imposed" by the Section 105 Injunction. App. to Pet. for Cert. A-28. Several of </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 3] </s> Celotex' bonded judgment creditors whose cases were still on appeal filed motions requesting that the Bankruptcy Court lift the Section 105 Injunction (1) to enable their pending appellate actions to proceed and (2) to permit them to execute upon the bonds once the appellate process concluded in their favor. The Bankruptcy Court granted the first request but denied the second. In re Celotex (Celotex I), 128 B. R. 478, 484 (Bkrtcy. Ct. MD Fla. 1991). </s> [Footnote 4 Two days after the District Court entered its order, the Bankruptcy Court ruled on motions to lift the Section 105 Injunction that had been filed by several bonded judgment creditors who, like </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 4] </s> respondents, had prevailed against Celotex on appeal. The Bankruptcy Court again reaffirmed the Section 105 Injunction and it again explained that the injunction prohibited judgment creditors like respondents from executing on the supersedeas bonds against third parties without its permission. In re Celotex (Celotex II), 140 B. R. 912, 914 (Bkrtcy. Ct. MD Fla. 1992). It refused to lift the Section 105 Injunction at that time, finding that Celotex would suffer irreparable harm. It reasoned that if the judgment creditors were allowed to execute against the sureties on the supersedeas bonds, the sureties would in turn seek to lift the Section 105 Injunction to reach Celotex' collateral under the settlement agreements, possibly destroying any chance of a successful reorganization plan. See id., at 914-915. </s> To protect the bonded judgment creditors, the Bankruptcy Court ordered that: (1) the sureties involved, including Northbrook, establish escrow accounts sufficient to insure full payment of the bonds; (2) Celotex create an interest-bearing reserve account or increase the face amount of any supersedeas bond to cover the full amount of judgment through confirmation; and (3) Celotex provide in any plan that the bonded claimants' claims be paid in full unless otherwise determined by the court or agreed by the claimant. Id., at 917. The Bankruptcy Court also directed Celotex to file "any preference action or any fraudulent transfer action or any other action to avoid or subordinate any judgment creditor's claim against any judgment creditor or against any surety on any supersedeas bond within 60 days of the entry" of its order. Ibid. Accordingly, Celotex filed an adversary proceeding against respondents, 227 other similarly situated bonded judgment creditors in over 100 cases, and the sureties on the supersedeas bonds, including Northbrook. See Second Amended Complaint in Celotex Corp. v. Allstate Ins. Co., Adversary No. 92-584 (Bkrtcy. Ct. MD Fla.). In that proceeding, Celotex asserts that the bonded judgment creditors should not be able to execute on their bonds because, by virtue of the collateralization of the bonds, the bonded judgment creditors are beneficiaries of Celotex asset transfers that are voidable as preferences and fraudulent transfers. See ibid. Celotex also contends that the punitive damages portions of the judgments can be voided or subordinated on other bankruptcy law grounds. See ibid. This adversary proceeding is currently pending in the Bankruptcy Court. </s> [Footnote 5 Proceedings "related to" the bankruptcy include (1) causes of action owned by the debtor which become property of the estate pursuant to 11 U.S.C. 541, and (2) suits between third parties which have an effect on the bankruptcy estate. See 1 Collier on Bankruptcy § 3.011.[c][iv], p. 3-28 (15th ed. 1994). The first type </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 8] </s> of "related to" proceeding involves a claim like the state law breach of contract action at issue in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). The instant case involves the second type of "related to" proceeding. </s> [Footnote 6 In attempting to strike an appropriate balance, the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984 (1984), devised the following test for determining the existence of "related to" jurisdiction: </s> "The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. . . . Thus, the proceeding need not necessarily be against the debtor or against the debtor's property. An action is related to bankruptcy if the outcome could alter the debtor's rights, liabilities, options, or freedom of action (either positively or </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 9] </s> negatively) and which in any way impacts upon the handling and administration of the bankrupt estate." Id., at 994 (emphasis in original; citations omitted). </s> The First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and Eleventh Circuits have adopted the Pacor test with little or no variation. See In re G. S. F. Corp., 938 F.2d 1467, 1475 (CA1 1991); A. H. Robins Co. v. Piccinin, 788 F.2d 994, 1002, n. 11 (CA4), cert. denied, 479 U.S. 876 (1986); In re Wood, 825 F.2d 90, 93 (CA5 1987); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 583-584 (CA6 1990); In re Dogpatch U.S.A., Inc., 810 F.2d 782, 786 (CA8 1987); In re Fietz, 852 F.2d 455, 457 (CA9 1988); In re Gardner, 913 F.2d 1515, 1518 (CA10 1990); In re Lemco Gypsum, Inc., 910 F.2d 784, 788, and n. 19 (CA11 1990). The Second and Seventh Circuits, on the other hand, seem to have adopted a slightly different test. See In re Turner, 724 F.2d 338, 341 (CA2 1983); In re Xonics, Inc., 813 F.2d 127, 131 (CA7 1987); Home Ins. Co. v. Cooper & Cooper, Ltd., 889 F.2d 746, 749 (CA7 1989). But whatever test is used, these cases make clear that bankruptcy courts have no jurisdiction over proceedings that have no effect on the debtor. </s> [Footnote 7 The dissent agrees that respondents' proceeding to execute on the supersedeas bond is "related to" Celotex' bankruptcy, post, at 6 n. 5, but noting that "only the district court has the power [under 28 U.S.C. 157(c) (1)] to enter `any final order or judgment'" in related "non-core proceedings," post, at 9, the dissent concludes that the Bankruptcy Court here did not possess sufficient "related to" jurisdiction to issue the Section 105 Injunction. Post, at 10. The Section 105 Injunction, however, is only an interlocutory stay which respondents have yet to challenge. See infra, at 13. Thus, the Bankruptcy Court did not lack jurisdiction under 157(c)(1) to issue the Section 105 Injunction because that injunction was not a "final order or judgment." </s> In any event, respondents have waived any claim that the granting of the Section 105 Injunction was a "non-core" proceeding under 157(c)(1). Respondents base their arguments solely on 28 U.S.C. 1334, and concede in their brief that the "bankruptcy court had subject matter jurisdiction to issue orders affecting the bond, then, </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 10] </s> only if the proceedings on the bond were `related' to the Celotex bankruptcy itself within the meaning of 1334(b)." Brief for Respondent 22. We conclude, and the dissent agrees, that those proceedings are so related. See post, at 5-6, and n. 5. We thus need not (and do not) reach the question whether the granting of the Section 105 Injunction was a "core" proceeding. </s> [Footnote 8 We recognize the theoretical possibility of distinguishing between the proceeding to execute on the bond in the Fifth Circuit and the 105 stay proceeding in the Bankruptcy Court in the Eleventh Circuit. One might argue, technically, that though the proceeding to execute on the bond is "related to" the title 11 case, the stay proceeding "arises under" title 11, or "arises in" the title 11 case. See In re Monroe Well Serv., Inc., 67 B. R. 746, 753 (Bkrtcy. Ct. ED Pa. 1986). We need not and do not decide this question here. </s> [Footnote 9 The dissent contends that Celotex' attempts to set aside the supersedeas bond are "patently meritless" because none of Celotex' claims can impair Northbrook's obligation to respondents. See post, at 14. That premise, however, is not so clear as to give the Section 105 Injunction "only a frivolous pretense to validity." There is authority suggesting that, in certain circumstances, transfers from the debtor to another for the benefit of a third party may be recovered from that third party. See In re Air Conditioning, Inc. of Stuart, 845 F.2d 293, 296-299 (CA11), cert. denied, 488 U.S. 993 (1988); In re Compton Corp., 831 F.2d 586, 595 (1987), modified on other grounds, 835 F.2d 584 (CA5 1988). Although we offer no opinion on the merits of that authority or on whether it fits the facts here, it supports our conclusion that the stay was not frivolous. </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 1] </s> JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, dissenting. </s> Today the majority holds that an Article III court erred when it allowed plaintiffs who prevailed on appeal to collect on a supersedeas bond in the face of an injunction issued by a non-Article III judge. Because, in my view, the majority attaches insufficient weight to the fact that the challenged injunction was issued by a non-Article III judge, I respectfully dissent. </s> I </s> The outlines of the problems I perceive are best drawn by starting with an examination of the injunctions and opinions issued by the bankruptcy judge in this case. As the majority notes, Bennie and Joann Edwards (the Edwards) won a tort judgment against Celotex for damages Bennie Edwards suffered as a result of exposure to asbestos. To stay the judgment pending appeal, Celotex arranged for Northbrook Property and Casualty Insurance Company (Northbrook) to post a supersedeas bond to cover the full amount of the judgment. On October 12, 1990, before Celotex filed its voluntary petition under Chapter 11 of the Bankruptcy Code, the Court of Appeals for the Fifth Circuit affirmed the Edwards' judgment against Celotex. It is </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 2] </s> undisputed that, when the Edwards' judgment was affirmed, any property interest that Celotex retained in the supersedeas bond was extinguished. </s> The filing of Celotex's bankruptcy petition on October 12, 1990, triggered the automatic stay provisions of the Bankruptcy Code. See 11 U.S.C. 362(a). On October 17, 1990, the bankruptcy judge, acting pursuant to 11 U.S.C. 105(a), 1 supplemented the automatic stay provisions with an emergency order staying, inter alia, all proceedings "involving any of the Debtors [i.e., Celotex]." App. to Pet. for Cert. 28. The supersedeas bond filed in the Edwards' case, however, evidences an independent obligation on the part of Northbrook. For that reason, neither the automatic stay of proceedings against the debtor pursuant to 362(a) of the Bankruptcy Code nor the bankruptcy judge's October 17, 105(a) stay restrained the Edwards from proceeding against Northbrook to enforce Northbrook's obligations under the bond. As the Court of Appeals correctly held, the October 17 order enjoined the prosecution of proceedings involving "the Debtors," but did not expressly enjoin the Edwards from proceeding against Northbrook. See 6 F.3d 312, 315 (CA5 1993). </s> On May 3, 1991, the Edwards commenced their proceeding against Northbrook by filing a motion pursuant to Rule 65.1 of the Federal Rules of Civil Procedure 2 to enforce the supersedeas bond. Several </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 3] </s> weeks later - on June 13, 1991 - the Bankruptcy Court entered a new three-paragraph order enjoining all of Celotex's judgment creditors from collecting on their supersedeas bonds. Paragraph 1 of the order addressed creditors whose appellate process had not yet concluded. Paragraph 2 addressed creditors whose appellate process concluded only after Celotex had filed for bankruptcy. Paragraph 3 applied to judgment creditors, such as the Edwards, whose appeals had concluded before the filing of the bankruptcy petition. Paragraph 3 expressly precluded those creditors from proceeding against any bond "without first seeking to vacate the Section 105 stay entered by this Court." In re Celotex Corp., 128 B. R. 478, 485 (Bkrtcy. Ct. MD Fla. 1991). </s> The opinion supporting that order explains that Paragraphs 1 and 2 rest in part on the theory that the debtor retains a property interest in the supersedeas bonds until the appellate process is complete, and any attempt to collect on those bonds is therefore covered in the first instance by 362(a)'s automatic stay provisions. The opinion recognized that that rationale did not cover supersedeas bonds posted in litigation with judgment creditors, such as the Edwards, whose appellate process was complete. The bankruptcy judge concluded, however, that 105(a) gave him the power to stay the collection efforts of such bonded judgment creditors. The bankruptcy judge contended that other courts had utilized the 105(a) stay "to preclude actions which may </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 4] </s> `impede the reorganization process,'" id., at 483, quoting In re Johns-Manville Corp., 837 F.2d 89, 93 (CA2), cert. denied, 488 U.S. 868 (1988), or "`which will have an adverse impact on the Debtor's ability to formulate a Chapter 11 plan,'" 128 B. R., at 483, quoting A. H. Robins Co. v. Piccinin, 788 F.2d 994 (CA4), cert. denied, 479 U.S. 876 (1986). But cf. n. 12, infra. Apparently viewing his own authority as virtually limitless, the bankruptcy judge described a general bankruptcy power "to stop ongoing litigation and to prevent peripheral court decisions from dealing with issues . . . without first allowing the bankruptcy court to have an opportunity to review the potential effect on the debtor." 128 B. R., at 484. He concluded that in "mega" cases in which "potential conflicts with other judicial determinations" might arise, "the powers of the bankruptcy court under Section 105 must in the initial stage be absolute." Ibid. </s> I do not agree that the powers of a bankruptcy judge, a non-Article III judge, "must . . . be absolute" at the initial stage or indeed at any stage. Instead, the jurisdiction and the power of bankruptcy judges are cabined by specific and important statutory and constitutional constraints that operate at every phase of a bankruptcy. In my view, those constraints require that the judgment of the Court of Appeals be affirmed. </s> The majority concludes that the Court of Appeals must be reversed because the bankruptcy judge had jurisdiction to issue the injunction and because the injunction had more than a "`frivolous pretense to validity.'" Ante, at 13. Even applying the majority's framework, I would affirm the Court of Appeals. As I will demonstrate, the constraints on the jurisdiction and authority of the bankruptcy judge compel the conclusion that the bankruptcy judge lacked jurisdiction to issue the challenged injunction, and that the injunction has only a "frivolous pretense to validity." I will also explain, however, why </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 5] </s> the majority's deferential approach seems particularly inappropriate as applied to this particular injunction, now in its fifth year of preventing enforcement of supersedeas bonds lodged in an Article III court. </s> II </s> In my view, the bankruptcy judge lacked jurisdiction to issue an injunction that prevents an Article III court from allowing a judgment creditor to collect on a supersedeas bond posted in that court by a nondebtor. In reaching the contrary conclusion, the majority relies primarily on the bankruptcy judge's "related to" jurisdiction, and thus I will address that basis of jurisdiction first. The majority properly observes that, under 28 U.S.C. 1334(b), the district court has broad bankruptcy jurisdiction, extending to "all civil proceedings arising under title 11, or arising in or related to cases under title 11." 3 The majority also notes correctly that the </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 6] </s> Edwards' action to enforce the supersedeas bond is within the district court's "related to" jurisdiction, 4 because allowing creditors such as the Edwards "to execute immediately on the bonds would have a direct and substantial adverse effect on Celotex's ability to undergo a successful reorganization." Ante, at 10. 5 The </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 7] </s> majority then observes that, under 28 U.S.C. 157(a), the district court may "refe[r]" to the bankruptcy judge "any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11." 6 Thus, the majority concludes that, because the Edwards' action to enforce the supersedeas bond was within the District Court's "related to" jurisdiction and because the District Court referred all matters to the bankruptcy judge, the bankruptcy judge had jurisdiction over the Edwards' action. </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 8] </s> In my view, the majority's approach pays insufficient attention to the remaining provisions of 157, and, more importantly, to the decision of this Court that gave rise to their creation. The current jurisdictional structure of the Bankruptcy Code reflects this Court's decision in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), which in turn addressed the Bankruptcy Reform Act of 1978, 92 Stat. 2549. The 1978 Act significantly restructured the Bankruptcy Code. The Act created "bankruptcy courts" and vested in them "jurisdiction over all `civil proceedings arising under title 11 [the Bankruptcy title] or arising in or related to cases under title 11.'" Northern Pipeline, 458 U.S., at 54 , quoting 28 U.S.C. 1471(b) (1976 ed., Supp. IV). As the plurality opinion in Northern Pipeline observed, "[t]his jurisdictional grant empowers bankruptcy courts to entertain a wide variety of cases," involving "claims based on state law as well as those based on federal law." 458 U.S., at 54 . The Act also bestowed upon the judges of the bankruptcy courts broad powers to accompany this expanded jurisdiction. See infra, at __; Northern Pipeline, 458 U.S., at 55 . The Act did not, however, make the newly empowered bankruptcy judges Article III judges. In particular, it denied bankruptcy judges the life tenure and salary protection that the Constitution requires for Article III judges. See U.S. Const., Art. III, 1. </s> In Northern Pipeline, this Court held that the Act was unconstitutional, at least insofar as it allowed a non-Article III court to "entertain and decide" a purely state law claim. 458 U.S., at 91 (Rehnquist, J., concurring in judgment); see also id., at 86 (plurality opinion). The plurality opinion distinguished the revamped bankruptcy courts from prior district court "adjuncts" which the Court had found did not violate Article III. The plurality noted that, in contrast to the narrow, specialized jurisdiction exercised by these prior adjuncts, "the </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 9] </s> subject-matter jurisdiction of the bankruptcy courts encompasses not only traditional matters of bankruptcy, but also `all civil proceedings arising under title 11 or arising in or related to cases under title 11.'" Id., at 85. In addition, prior adjuncts "engaged in statutorily channeled factfinding functions," while the bankruptcy courts "exercis[e] `all of the jurisdiction' conferred by the Act on the district courts." 7 Ibid. </s> In response to Northern Pipeline, Congress passed the Bankruptcy Amendments and Federal Judgeship Act of 1984 (1984 amendments), 98 Stat. 333. Section 157 was passed as part of the 1984 amendments. Section 157 establishes two broad categories of proceedings: "core proceedings" and "non-core proceedings." For "all core proceedings arising under title 11, or arising in a case under title 11 referred under [ 157(a)]," 157(b)(1) permits bankruptcy judges to "hear and determine" the proceedings and to "enter appropriate orders and judgments." For noncore proceedings "otherwise related to a case under title 11", 157(c)(1) permits the bankruptcy court only to "hear" the proceedings and to "submit proposed findings of fact and conclusions of law to the district court." See 1 Collier § 3.011.[c][iv], at 3-28 ("Civil proceedings `related to cases under title 11'" are "excluded from being treated as `core proceedings' by 28 U.S.C. 157(b)(1), and are the subject of special procedures contained in section 157(c)(1) and (c)(2)"). For these "related proceedings," 1 Collier § 3.011.[c][iv], at 3-28, only the district court has the power to enter "any final order or judgment." 8 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 10] </s> In my view, the distinction between the jurisdiction to "hear and determine" core proceedings on the one hand and the jurisdiction only to "hear" related proceedings on the other hand is critical, if not dispositive. I believe that the jurisdiction to hear (and yet not to determine) a case under 157(c)(1) provides insufficient jurisdiction to a bankruptcy judge to permit him to issue a binding injunction that prevents an Article III court from exercising its conceded jurisdiction over the case. 9 The </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 11] </s> unambiguous text of 157(c)(1) requires that the bankruptcy judge's participation in related proceedings be merely advisory rather than adjudicative. In my view, having jurisdiction to grant injunctions over cases that one may not decide is inconsistent with such an advisory role. An injunction is an extraordinary remedy whose impact on private rights may be just as onerous as a final determination. The constitutional concerns that animate the current jurisdictional provisions of the Bankruptcy Code and that deny non-Article III tribunals the power to determine private controversies apply with equal force to the entry of an injunction interfering with the exercise of the admitted jurisdiction of an Article III tribunal. 10 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 12] </s> In sum, my view on the sufficiency of "related to" jurisdiction to sustain the injunction in this case can be stated quite simply: If a bankruptcy judge lacks jurisdiction to "determine" a question, the judge also lacks jurisdiction to issue an injunction that prevents an Article III court, which concededly does have jurisdiction, from determining that question. 11 Any conclusion to the contrary would trivialize the constitutional imperatives that shaped the Bankruptcy Code's jurisdictional provisions. 12 </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 13] </s> III </s> Petitioners and the majority rely primarily on "related to" jurisdiction. Indeed, the Court's holding appears to rest almost entirely on the view that a bankruptcy judge has jurisdiction to enjoin proceedings in Article III courts whenever those proceedings are "related to" a pending Title 11 case. See ante, at 7-11. Two footnotes in the Court's opinion, however, might be read as suggesting alternative bases of jurisdiction. See ante, at 3, n. 4, 11, n. 8. Those two footnotes require a brief response. </s> In footnote 4 of its opinion, the Court refers to two different claims advanced by Celotex in the bankruptcy proceedings: a claim that "the bonded judgment creditors should not be able to execute on their bonds because, by virtue of the collateralization of the bonds, the bonded judgment creditors are beneficiaries of Celotex asset transfers that are voidable as preferences and fraudulent transfers"; and a claim that "the punitive damages portions of the judgments can be voided or subordinated." There is little doubt that those claims are properly characterized as ones "arising under" Title 11 within the meaning of 28 U.S.C. 1334(b); 13 however, it does not </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 14] </s> necessarily follow from that characterization that the bankruptcy judge had jurisdiction to issue the injunction in support of the prosecution of those claims. Celotex's complaint was not filed until months after the bankruptcy judge's injunction issued. The claims raised in that complaint cannot retroactively provide a jurisdictional basis for the bankruptcy judge's injunction. </s> Moreover, Celotex's attempts to set aside the Edwards' supersedeas bond are patently meritless. It strains credulity, to suggest that a supersedeas bond, posted almost a year and a half before the bankruptcy petition was filed, could be set aside as a preference or as a fraudulent transfer for the benefit of Celotex's adversaries in bitterly contested litigation. Conceivably, Celotex's provision of security to Northbrook might be voidable, but that possibility could not impair the rights of the judgment creditors to enforce the bond against Northbrook even though they might be unwitting beneficiaries of the fraud. That possibility, at most, would be relevant to the respective claims of Northbrook and Celotex to the pledged collateral. Similarly, the fact that the Edwards' judgment included punitive as well as compensatory damages does not provide even an arguable basis for reducing Northbrook's obligations under the supersedeas bond. Even if there is a basis for subordinating a portion of Northbrook's eventual claim against Celotex on "bankruptcy law grounds," that has nothing to do with the Edwards' claim against Northbrook. It thus seems obvious that, at least with respect to the Edwards, Celotex has raised frivolous claims in an attempt to manufacture bankruptcy jurisdiction and thereby to justify a bankruptcy judge's injunction that had been issued over one year earlier. </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 15] </s> Cf. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191 (1909) ("Of course, the Federal question must not be merely colorable or fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction"). </s> In its footnote 8, the Court appears to suggest that the injunction prohibiting the Edwards from proceeding against Northbrook (described in the footnote as the "stay proceeding") may "aris[e] under" Title 11 or may "arise in" the Title 11 case. Perhaps this is accurate in a literal sense: the injunction did, of course, "arise under" Title 11 because 11 U.S.C. 105(a) created whatever power the bankruptcy judge had to issue the injunction. Similarly, the injunction "arises in" the Title 11 case because that is where it originated. It cannot be the law, however, that a bankruptcy judge has jurisdiction to enter any conceivable order that a party might request simply because 105(a) authorizes some injunctions or because the request was first made in a pending Title 11 case. Cf. 2 Collier § 105.011., at 105-2 (Section 105 "is not an independent source of jurisdiction, but rather it grants the courts flexibility to issue orders which preserve and protect their jurisdiction"). The mere filing of a motion for a 105 injunction to enjoin a proceeding in another forum cannot be a jurisdictional bootstrap enabling a bankruptcy judge to exercise jurisdiction that would not otherwise exist. </s> IV </s> Even if I believed that the bankruptcy judge had jurisdiction to issue its injunction, I would still affirm the Court of Appeals because in my view the bankruptcy judge's injunction has only a "frivolous pretense to validity." </s> In 1898, Congress codified the bankruptcy laws. Under the 1898 Bankruptcy Act, most bankruptcy proceedings were conducted by "referees" who resolved controversies involving property in the actual or constructive </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 16] </s> possession of the court, as well as certain disputes involving property in the possession of third parties. In 2(a)(15) of the 1898 Act, Congress vested in bankruptcy courts the power to: </s> "[M]ake such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Act." Act of July 1, 1898, 30 Stat. 546. </s> In 1938, Congress clarified both the powers and the limitations on the injunctive authority of referees in bankruptcy by adding to the end of 2(a)(15), "Provided, however, That an injunction to restrain a court may be issued by the judge only." 52 Stat. 843 (emphasis in original). </s> In 1978, through the Bankruptcy Reform Act, Congress significantly revised the Bankruptcy Code and the role of bankruptcy referees. 14 Though stopping short of making bankruptcy referees Article III judges, Congress significantly increased the status, the duties, and the powers of those referees. For example, as we noted in Northern Pipeline, the expanded powers under the new Act included "the power to hold jury trials, to issue declaratory judgments, [and] to issue writs of habeas corpus under certain circumstances." 458 U.S., at 55 . In addition, Congress again provided for broad injunctive powers. Thus, for example, in the place of 2(a)(15), Congress added 11 U.S.C. 105, which provided in relevant part: "The bankruptcy court may issue any order, process, or judgment that is necessary or </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 17] </s> appropriate to carry out the provisions of this title." See also 458 U.S., at 55 ("Congress has allowed bankruptcy judges the power . . . to issue all writs necessary in aid of the bankruptcy court's jurisdiction"). Once again, however, along with both this marked expansion of the power of bankruptcy judges and the broad delegation of injunctive authority, Congress indicated its intent to limit the power of those judges to enjoin other courts: Although Congress provided that "[a] bankruptcy court shall have the powers of a court of equity, law, and admiralty," it also provided that bankruptcy courts "may not enjoin another court." 28 U.S.C. 1481 (1982 ed.). 15 Thus, for well over 50 years prior to the adoption of the 1984 amendments to the Bankruptcy Code, it was clear that Congress intended to deny bankruptcy judges the power to enjoin other courts. </s> The 1984 amendments, inter alia, repealed 1481 (and its express limitation on injunctive authority), leaving 105 as the only source of the bankruptcy judge's injunctive authority. 16 Given that Northern Pipeline required a contraction in the authority of bankruptcy judges, 17 and given that the 1984 amendments regarding the powers of the bankruptcy courts were passed to comply with Northern Pipeline, 18 it would be </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 18] </s> perverse - and in my view "frivolous" - to contend that Congress intended the repeal of 1481 to operate as an authorization for those judges to enjoin proceedings in other courts, thus significantly expanding the powers of bankruptcy judges. </s> My view of the consequence of the 1984 amendments is reinforced by the structure of 1481. When Congress placed restrictions on the injunctive power of the bankruptcy courts, it did so in 1481, right after the clause granting those courts "the powers of a court of equity, law, and admiralty." In my view, this suggests that Congress saw 1481 - and not 105(a) - as the source of any power to enjoin other courts. Thus, the removal of 1481 by the 1984 amendments is properly viewed as eliminating the sole source of congressionally-granted authority to enjoin other courts. Cf. In re Hipp, 895 F.2d 1503, 1515-1516 (CA5 1990) (concluding on similar reasoning that 1481, not 105(a), was the source of the bankruptcy court's power to punish criminal contempt under the 1978 Act). </s> Nor does anything in the 1986 amendments to the Bankruptcy Code alter my analysis. 19 The primary effect of those amendments was to give the bankruptcy judges the power to issue orders sua sponte. 20 The </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 19] </s> 1986 amendments, therefore, do not reflect any expansion of the power of bankruptcy judges to enjoin other courts. </s> The bankruptcy judge's error with respect to this injunction thus seems clear, and the injunction falls, therefore, within the exception recognized by the majority for injunctions with only a "frivolous pretense to validity." I recognize, of course, that one may legitimately question the "frivolousness" of the injunction in light of the Fourth Circuit's upholding the very injunction at issue in this case, see Willis v. Celotex Corp., 978 F.2d 146 (1992), cert. denied, 507 U.S. __ (1993), and the disagreement of a substantial number of my colleagues. In my view, however, the bankruptcy judge's error is sufficiently plain that the Court of Appeals was justified in allowing the Edwards to collect on their bond. 21 </s> V </s> The Court's holding today rests largely on its view that the Edwards' proper remedy is to appeal the bankruptcy judge's injunction, first to the District Court and </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 20] </s> then to the Court of Appeals for the Eleventh Circuit. The Court concedes, however, that the Edwards need not do so if the bankruptcy judge exceeded his jurisdiction, or if the injunction is supported by nothing more than "a frivolous pretense to validity." Ante, at 6. For the reasons already stated, I think both of those conditions are satisfied in this case. The non-Article III bankruptcy judge simply lacked both jurisdiction and authority to prevent an Article III court from exercising its unquestioned jurisdiction to decide a matter that is related only indirectly to the bankruptcy proceeding. I think it important, however, to add a few brief words explaining why I find this injunction especially troubling and why the injunction should be viewed with a particularly critical eye. </s> First, the justification offered by the bankruptcy judge should give the court pause. As originally articulated, the justification for this injunction was that emergency relief was required lest the reorganization of Celotex become impossible and liquidation follow. Apart from the fact that the "emergency" rationale is plainly insufficient to support an otherwise improper injunction that has now lasted for more than four years, the judge's reasoning reveals reliance on the misguided notion that a good end is a sufficient justification for the existence and exercise of power. His reference to the need to exercise "absolute" power to override "potential conflicts with other judicial determinations" that might have a "potential impact on the debtor" should invite far more exacting scrutiny of his order than the Court deems appropriate. </s> Second, that the subject of the injunction was a supersedeas bond makes the injunction suspect. A supersedeas bond may be viewed as putting the integrity of the Court in which it is lodged on the line. As the Court of Appeals noted, the Edwards were "promised by the court" that the supersedeas bond would be available if </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 21] </s> they prevailed on appeal. 6 F.3d, at 320. For that reason, in my opinion, questions relating to the enforceability of a supersedeas bond should generally be answered in the forum in which the bond is posted. </s> Moreover, whenever possible, such questions should be resolved before the court accepts the bond as security for collection of the judgment being appealed. After a debtor has benefitted from the postponement of collection of an adverse judgment, both that debtor and its successors-in-interest should normally be estopped from asserting that the judgment creditors who relied to their detriment on the validity of the bond had no right to do so. The very purpose of a supersedeas bond is to protect judgment creditors from the risk that insolvency of the debtor may impair their ability to enforce the judgment promptly. When the bond has served the purpose of forestalling immediate levies on the judgment debtor's assets - levies that might have precipitated an earlier bankruptcy it is inequitable to postpone payment merely because the risk against which the bond was intended to provide protection has actually occurred. See id., at 319 ("It is manifestly unfair to force the judgment creditor to delay the right to collect with a promise to protect the judgment only to later refuse to allow that successful plaintiff to execute the bond because the debtor has sought protection under the laws of bankruptcy"); In re Southmark, 138 B. R. 820, 827-828 (Bkrtcy. Ct. ND Tex. 1992) (internal quotation marks omitted) ("The principal risk against which such bonds are intended as a protection is insolvency. To hold that the very contingency against which they guard shall, if it happens, discharge them, seems to us bad law and worse logic"). The inequity that the Court today condones does not, of course, demonstrate that its legal analysis is incorrect. It does, however, persuade me that the Court should not review this case as though it presented an ordinary collateral attack on an injunction </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 22] </s> entered by an Article III court. 22 Instead, the Court should, I believe, more carefully consider which of the two competing tribunals is guilty of trespassing in the other's domain. </s> Accordingly, I respectfully dissent. </s> [Footnote 1 Title 11 U.S.C. 105(a) provides: </s> "The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process." </s> [Footnote 2 Federal Rule of Civil Procedure 65.1 states: </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 3] </s> "Whenever these rules . . . require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action." </s> [Footnote 3 The full text of 1334 reads as follows: </s> "(a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11. </s> "(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceeding arising under title 11, or arising in or related to cases under title 11. </s> "(c)(1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceedings arising under title 11 or arising in or related to a case under title 11. </s> "(2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 6] </s> in a State forum of appropriate jurisdiction. Any decision to abstain or not to abstain made under this subsection is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title. This subsection shall not be construed to limit the applicability of the stay provided for by section 362 of title 11, United States Code, as such section applies to an action affecting the property of the estate in bankruptcy. </s> "(d) The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate." 28 U.S.C. 1334 (1988 ed. and supp. V). </s> [Footnote 4 As 1334(b) indicates, the district court's "related to" jurisdiction is "original but not exclusive." </s> [Footnote 5 I do not take issue with the conclusion that the Edwards' attempt to collect on the supersedeas bond falls within the "related to" jurisdiction of the district court. Cf. 1 L. King, Collier on Bankruptcy § 3.011.[c][iv], p. 3-29 (15th ed. 1994) (hereinafter Collier) ("`Related' proceedings which involve litigation between third parties, which could have some effect on the administration of the bankruptcy case, are illustrated by suits by creditors against guarantors"). Despite the Edwards' argument to the contrary, it seems to me quite clear that allowing the Edwards to recover from Northbrook on the supersedeas bond would have an adverse impact on Celotex because Northbrook would then be able to retain the insurance proceeds that Celotex pledged as collateral when the bond was issued. Indeed, I am willing to assume that if all of the bonds were enforced, the reorganization efforts would fail and Celotex would have to be liquidated. In my judgment, however, the specter of liquidation is not an acceptable basis for concluding that a bankruptcy judge, and not just the district court, has jurisdiction to interfere with the performance of a third party's fixed obligation to a judgment creditor. </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 7] </s> I also agree with the majority, ante, at 8, n. 6, that the facts of this case do not require us to resolve whether Pacor v. Higgins, 743 F.2d 984 (CA3 1984), articulates the proper test for determining the scope of the district court's "related to" jurisdiction. </s> [Footnote 6 The text of 28 U.S.C. 157 reads in relevant part as follows: </s> "(a) Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district. </s> "(b)(1) Bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11, or arising in a case under title 11, referred under subsection (a) of this section, and may enter appropriate orders and judgments, subject to review under section 158 of this title. </s> . . . . . </s> "(c)(1) A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. </s> "(2) Notwithstanding the provisions of paragraph (1) of this subsection, the district court, with the consent of all the parties to the proceeding, may refer a proceeding related to a case under title 11 to a bankruptcy judge to hear and determine and to enter appropriate orders and judgments, subject to review under section 158 of this title." </s> [Footnote 7 The plurality also noted that, in contrast to the limited powers possessed by prior adjuncts, "the bankruptcy courts exercise all ordinary powers of district courts." 458 U.S., at 85 . See infra, at __. </s> [Footnote 8 The district court may enter judgment only after de novo review of the bankruptcy judge's recommendation with respect to any </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 10] </s> matters to which one of the parties has raised a timely objection. See 28 U.S.C. 157(c)(1). </s> [Footnote 9 It should be noted that the bankruptcy judge's order cannot be upheld on the ground that it purported to enjoin only the Edwards and thus did not enjoin directly the Article III court. First, the bankruptcy judge's orders cannot be interpreted so narrowly. The October 17 order enjoined, inter alia, "all Entities" from "commencing or continuing any judicial, administrative or other proceeding involving any of the Debtors." App. to Pet. for Cert. 28. In my view, the word "entities" includes courts. Indeed, the bankruptcy judge's order tracks 362(a)'s automatic stay provisions, which provide, in part, that the automatic stay is applicable "to all entities" and which enjoin "the commencement or continuation . . . of a judicial, administrative, or other proceeding against the debtor." 11 U.S.C. 362(a)(1). The Courts of Appeals have uniformly held that "entities," as used in 362, include courts. See, e. g., Maritime Electric Co. v. United Jersey Bank, 959 F.2d 1194, 1206 (CA3 1991) (" 362's stay is mandatory and `applicable to all entities', including state and federal courts"); Pope v. Manville Forest Products Corp., 778 F.2d 238, 239 (CA5 1985) ("just the entry of an order of dismissal, even if entered sua sponte, constitutes a judicial act toward the disposition of the case and hence may be construed as a `continuation' of a judicial proceeding"); Ellis v. Consolidated Diesel Electric Corp., 894 F.2d 371, 372-373 (CA10 1990) (district court's entry of summary judgment violated 362(a)'s automatic stay); see also Maritime Electric Co. v. United Jersey Bank, 959 F.2d, at 1206 (collecting cases). Cf. 2 Collier § 101.15, at 101-62 to 101-63 ("`Entity' is the broadest of all definitions which relate to bodies or units"). </s> More importantly, though the bankruptcy judge's June 13 order enjoins "`the judgment creditor,'" In re Celotex Corp., 128 B. R. 478, </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 11] </s> 485 (Bkrtcy. Ct. MD Fla. 1991), the order clearly has the same practical effect as if it enjoined the court directly. My objection to the majority's approach does not at all depend on whether the order that prevents the Article III court from exercising its jurisdiction does so directly or indirectly. Instead, my view is simply that a bankruptcy judge who lacks jurisdiction to decide an issue may not prevent an Article III court that is ready and willing to exercise its conceded jurisdiction from doing so. </s> [Footnote 10 In addition, 28 U.S.C. 1334(c)(2) provides for mandatory abstention in cases involving state law claims for which the sole basis of bankruptcy jurisdiction is "related to" jurisdiction. That provision thus makes clear that no order could have been entered over the Edwards' objection if their tort action had been tried in a state rather than a federal court. The bankruptcy judge's order, which does not distinguish proceedings to enforce supersedeas bonds that were posted in state court proceedings, fails to address the implications of this mandatory abstention provision. </s> I also believe that Congress would have expected bankruptcy judges to show the same deference to federal courts adjudicating state law claims under diversity jurisdiction, at least when the bankruptcy judge purports to act on the basis of his "related to" jurisdiction and when the federal action can be "timely adjudicated." Ibid. </s> [Footnote 11 I agree with the majority that the bankruptcy judge's order is a temporary injunction, and thus it is not a "final order or judgment." Ante, at 9, n. 7. The temporary nature of the injunction, however, is irrelevant. As I have stated repeatedly in the text, I believe that a statutory scheme that deprives a bankruptcy judge of jurisdiction to "determine" a case also deprives that judge of jurisdiction to issue binding injunctions - even temporary ones - that would prevent an Article III court with jurisdiction over the case from determining it. </s> [Footnote 12 The cases on which the bankruptcy judge relied are entirely consistent with my approach, and they provide at most indirect support for his order. In A. H. Robins Co., the challenged injunction was issued by an Article III court, see A. H. Robins Co. v. Piccinin, 788 F.2d 994, 997 (CA4), cert. denied, 479 U.S. 876 (1986) ("the district court granted Robins' request for a preliminary injunction"); and in In re Johns-Manville Corp., the Court of Appeals found that the bankruptcy judge had jurisdiction to enter the injunction in a core proceeding because the insurance policies that were the subject of the injunction were property of the bankruptcy estate, see 837 F.2d 89, 91-92 (CA2), cert. denied, 488 U.S. 868 (1988). Thus, those cases do not support the present injunction, which was issued by a non-Article III judge and which affects supersedeas bonds that are concededly not property of the debtor's estate. </s> I also note that in Willis v. Celotex Corp., 978 F.2d 146 (1992), cert. denied, 507 U.S. __ (1993), though upholding the very injunction at issue in this case, the Fourth Circuit engaged in no detailed jurisdictional analysis and entirely omitted any discussion of the significance of the bankruptcy judge's non-Article III status. </s> [Footnote 13 "[W]hen a cause of action is one which is created by title 11, then that civil proceeding is one `arising under title 11.'" 1 Collier § 3.011. [c][iii], at 3-26. A perusal of the complaint reveals that Celotex seeks relief under causes of action created by the Bankruptcy Code. See, e. g., Count I (11 U.S.C. 547(b) (seeking to avoid preferential transfers)); Count III (11 U.S.C. 548(a)(2)(A) (seeking to avoid constructively fraudulent transfers)); Count IV (11 U.S.C. 544 (seeking to avoid transactions that would constitute constructively fraudulent transfers under state law)); Count VII (11 U.S.C. 502 (seeking to disallow punitive damage awards); Count VII (11 U.S.C. 510(c)(1) (seeking equitable subordination of pending punitive damages awards to the claims of unsecured creditors)). Cf. e. g., 1 Collier § 3.011.[c][iii], at 3-27 ("[C]ourts interpreting this language have held that `arising under title 11' includes causes of </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 14] </s> action to recover fraudulent conveyances"). My acknowledgement of these claims, of course, is not intended as a suggestion that they have merit. </s> [Footnote 14 In 1973, bankruptcy "referees" were redesignated as "judges." See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 53 n. 2 (1982). As did the plurality opinion in Northern Pipeline, see ibid., I will continue to refer to all judges under the pre-1978 Act as "referees." </s> [Footnote 15 Congress also limited the power of bankruptcy courts to "punish a criminal contempt not committed in the presence of the judge of the court or warranting a punishment of imprisonment." 28 U.S.C. 1481 (1982 ed.). </s> [Footnote 16 The 1984 amendments also repealed the authorization of bankruptcy judges to act pursuant to the All Writs Act. See 2 Collier § 105.011., at 105-3. </s> [Footnote 17 The plurality opinion expressly noted its concerns about the bankruptcy judge's exercise of broad injunctive powers. See n. 7, supra. </s> [Footnote 18 See, e. g., 130 Cong. Rec. 20089 (1984) ("[Northern Pipeline] held that the broad powers granted to bankruptcy judges under the Bankruptcy Act of 1978 were judicial powers and violated Article III </s> [ CELOTEX CORP. v. EDWARDS, ___ U.S. ___ (1995) </s> , 18] </s> of the Constitution. The present Bill attempts to cure the problem"). </s> [Footnote 19 See Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986, Pub L. 99-554, 100 Stat. 3088. With respect to 11 U.S.C. 105, the 1986 amendments added the second sentence of the current version of 105(a). See 100 Stat., at 3097. </s> [Footnote 20 The only relevant legislative history regarding the changes to 105(a) is contained in Senator Hatch's view that the amendment "allows a bankruptcy court to take any action on its own, or to make any necessary determination to prevent an abuse of process and to help expedite a case in a proper and justified manner." 132 Cong. Rec. 28610 (1986). </s> [Footnote 21 Neither of the cases cited by the majority, ante, at 13, n. 9, provides any reason to conclude otherwise. As the majority notes, those cases hold that the bankruptcy trustee may recover from a third party (e. g., the Edwards) funds transferred from the debtor (e. g., Celotex) to another (e. g., Northbrook) for the benefit of that third party. Both cases, however, make clear that the obligation of the Northbrook-like guarantor (a bank in each case) to pay the third party was not at issue. See In re Compton Corp., 831 F.2d 586, 590 (1987) ("[T]he trustee is not attempting to set aside the post petition payments by [the bank] to [the third party] under the letter of credit as a preference"), modified on other grounds, 835 F.2d 584 (CA5 1988); In re Air Conditioning, Inc., of Stuart, 845 F.2d 293, 295-296 (CA11), cert. denied sub nom. First Interstate Credit Alliance v. American Bank of Martin County, 488 U.S. 993 (1988). Thus, in my view, those cases cannot form the basis for any nonfrivolous argument that Northbrook may avoid its obligation to pay the Edwards. </s> [Footnote 22 Indeed, one wonders if the same analysis would apply to a bankruptcy judge's injunction that purported to prevent this Court from allowing a successful litigant to enforce a supersedeas bond posted by a nondebtor in this Court pursuant to our Rule 23.4. Page I

United States Supreme Court SCHENCK et al. v. PRO CHOICE NETWORK OF WESTERN NEW YORK et al.(1997) No. 95-1065 Argued: October 16, 1996Decided: February 19, 1997 </s> </s> Respondents, upstate New York abortion doctors and clinics and an organization dedicated to maintaining access to abortion services, filed a complaint in the District Court seeking to enjoin petitioners, other individuals, and three organizations from engaging in blockades and other illegal conduct at the clinics. The record shows that, before the complaint was filed, the clinics were subjected to numerous large scale blockades in which protesters marched, stood, knelt, sat, or lay in clinic parking lot driveways and doorways, blocking or hindering cars from entering the lots, and patients and clinic employees from entering the clinics. In addition, smaller groups of protesters consistently attempted to stop or disrupt clinic operations by, among other things, milling around clinic doorways and driveway entrances, trespassing onto clinic parking lots, crowding around cars, and surrounding, crowding, jostling, grabbing, pushing, shoving, and yelling and spitting at women entering the clinics and their escorts. On the sidewalks outside the clinics, protesters called "sidewalk counselors" used similar methods in attempting to dissuade women headed toward the clinics from having abortions. The local police were unable to respond effectively to the protests due, in part, to the fact that the defendants harassed them verbally and by mail. The District Court issued a temporary restraining order (TRO), and later, after the protests and sidewalk counseling continued, a preliminary injunction. As relevant here, injunction provisions banned "demonstrating within fifteen feet . . . of . . . doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of [clinic] facilities" ("fixed buffer zones"), or "within fifteen feet of any person or vehicle seeking access to or leaving such facilities" ("floating buffer zones"). Another provision allowed two sidewalk counselors inside the buffer zones, but required them to "cease and desist" their counseling if the counselee so requested. In its accompanying opinion, the District Court, inter alia, rejected petitioners' assertion that the injunction violated their First Amendment right to free speech. The en banc Court of Appeals affirmed. </s> Held: The injunction provisions imposing "fixed buffer zone" limitations are constitutional, but the provisions imposing "floating buffer zone" limitations violate the First Amendment. Pp. 12-26. </s> (a) Because Madsen v. Women's Health Center, Inc., 512 U.S. 753 , bears many similarities to this case and because many of the parties' arguments depend on the application of Madsen here, the Court reviews that decision. In Madsen, the Court said that "standard time, place, and manner analysis is not sufficiently rigorous" for evaluating content neutral injunctions that restrict speech, and held, instead, that the test is "whether the challenged provisions . . . burden no more speech than necessary to serve a significant government interest." Id., at 765. Pp. 12-14. </s> (b) Petitioners' argument that no significant governmental interests support the injunction at issue is rejected. Given the factual similarity between this case and Madsen, the Court concludes that the governmental interests underlying the injunction there--ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy related services, 512 U.S., at 767 -768--also underlie the injunction here, and in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics. Pp. 15-17. </s> (c) The floating buffer zones are struck down because they burden more speech than is necessary to serve the relevant governmental interests. Such zones around people prevent defendants--except for sidewalk counselors tolerated by the targeted individual--from communicating a message from a normal conversational distance or handing out leaflets on the public sidewalks. This is a broad prohibition, both because of the type of speech restricted and the nature of the location. Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum. See, e.g., Boos v. Barry, 485 U.S. 312, 322 . Although a record of abusive conduct sometimes makes a prohibition on classic speech in limited parts of a public sidewalk permissible, see, e.g., Madsen, supra, at 769-770, the Court need not decide whether the governmental interests involved would ever justify a separation zone measured by the distancebetween targeted individuals and protesters, since the fact that this broad speech prohibition "floats" renders it unsustainable on this record. Protesters on the public sidewalks who wish to communicate their message to a targeted individual and to remain as close as possible (while maintaining an acceptable conversational distance) must move as the individual moves, maintaining 15 feet of separation. But this would be difficult to accomplish at, e.g., one of the respondent clinics which is bordered by a 17 foot wide sidewalk. The lack of certainty as to how to remain in compliance with the injunction leads to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits. There may well be other ways to both effect the desired separation and yet provide certainty (so that speech protected by the injunction's terms is not burdened). Because the Court strikes down the floating zones around people, it does not address the constitutionality of the "cease and desist" provision respecting those zones. The floating buffer zones around vehicles also fail the Madsen test. Such zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout, or hold signs peacefully. Nothing in the record or the District Court's opinion contradicts the commonsense notion that a more limited injunction--e.g., one that keeps protesters away from driveways and parking lot entrances and off the streets--would be sufficient to ensure that drivers are not confused about how to enter the clinic and are able to gain access to its driveways and parking lots safely and easily. Pp. 17-21. </s> (d) The fixed buffer zones around the clinic doorways, driveways, and driveway entrances are upheld. That these zones are necessary to ensure that people and vehicles can enter or exit the clinic property or parking lots is demonstrated by evidence in the record showing that, both before and after the TRO issued, protesters purposefully or effectively blocked or hindered people from entering and exiting the doorways and from driving up to and away from the entrances and in and out of the lots; that sidewalk counselors followed and crowded people right up to the doorways (and sometimes beyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside; and that defendants' harassment of the local police made it far from certain that the police would be able to quickly and effectively counteract protesters who blocked doorways or threatened the safety of entering patients and employees. Deference is due the District Court's reasonable assessment that 15 feet is the proper distance to ensure access. See Madsen, supra, at 769-770. Petitioners' various arguments against the fixed buffer zones--that other, unchallenged injunction provisions are sufficient to ensure access to the clinics; that the District Court should first have tried a "non speech restrictive" injunction; that there is no extraordinary record of pervasive lawlessness here; and that the injunction's term "demonstrating" is vague--are rejected. Also rejected is petitioners' contention that the "cease and desist" provision limiting the sidewalk counselors exception in connection with the fixed buffer zone violates the First Amendment. This limitation must be assessed in light of the fact that the entire exception for counselors was an effort to enhance petitioners' speech rights. Moreover, the "cease and desist" provision is not content based simply because it allows a patient to terminate a protester's right to speak when the patient disagrees with the message being conveyed. Counselors remain free to espouse their message outside the 15-foot zone, and the condition on their freedom to espouse it within the zone is the result of their own previous harassment and intimidation of patients. Pp. 21-26. </s> 67 F. 3d 377, affirmed in part, reversed in part, and remanded. </s> Rehnquist, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II-A, the opinion of the Court with respect to Part II-C, in which Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and the opinion of the Court with respect to Parts II-B and II-D, in which Stevens, O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Kennedy and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. </s> NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. </s> U.S. Supreme Court </s> No. 95-1065 </s> PAUL SCHENCK and DWIGHT SAUNDERS, PETITIONERS v. PRO CHOICE NETWORK OF WESTERN NEW YORK et al. </s> on writ of certiorari to the united states court of appeals for the second circuit [February 19, 1997] </s> Chief Justice Rehnquist delivered the opinion of the The question presented is whether an injunction that places restrictions on demonstrations outside abortion clinics violates the First Amendment. We uphold the provisions imposing "fixed bubble" or "fixed buffer zone" limitations, as hereinafter described, but hold that the provisions imposing "floating bubble" or "floating buffer zone" limitations violate the First Amendment. </s> Respondents include three doctors and four medical clinics (two of which are part of larger hospital complexes) in and around Rochester and Buffalo in upstate New York. These health care providers perform abortions and other medical services at their facilities. The eighth respondent is Pro Choice Network of Western New York, a not for profit corporation dedicated to maintaining access to family planning and abortion services. </s> On September 24, 1990, respondents filed a complaint in the District Court for the Western District of New York against fifty individuals and three organizations-- Operation Rescue, Project Rescue Western New York, </s> and Project Life of Rochester. The complaint alleged that defendants had consistently engaged in illegal blockades and other illegal conduct at facilities in the Western District of New York where abortions were performed. (For convenience, we refer to these facilities as "clinics" throughout.) The complaint alleged one federal and six state causes of action: conspiracy to deprive women seeking abortions or other family planning services of the equal protection of the laws, in violation of Rev. Stat. §1980, 42 U.S.C. § 1985(3); discrimination against and harassment of women seeking abortions and other family planning services, in violation of N. Y. Civ. Rights Law §40-c (McKinney 1992) and N. Y. Exec. Law §296 (McKinney 1993); trespass; tortious interference with business; tortious harassment; false imprisonment; and intentional infliction of emo tional harm. The complaint alleged that a large blockade was planned for September 28, and requested that the court issue a temporary restraining order (TRO) to stop it. The complaint also sought a permanent injunction and damages. </s> Before the complaint was filed, the clinics were subjected to numerous large scale blockades in which protesters would march, stand, kneel, sit, or lie in parking lot driveways and in doorways. This conduct blocked or hindered cars from entering clinic parking lots, and patients, doctors, nurses, and other clinic employees from entering the clinics. </s> In addition to these large scale blockades, smaller groups of protesters consistently attempted to stop or disrupt clinic operations. Protesters trespassed onto clinic parking lots and even entered the clinics themselves. Those trespassers who remained outside the clinics crowded around cars or milled around doorways and driveway entrances in an effort to block or hinder access to the clinics. Protesters sometimes threw themselves on top of the hoods of cars or crowdedaround cars as they attempted to turn into parking lot driveways. Other protesters on clinic property handed literature and talked to people entering the clinics-- especially those women they believed were arriving to have abortions--in an effort to persuade them that abortion was immoral. Sometimes protesters used more aggressive techniques, with varying levels of belligerence: getting very close to women entering the clinics and shouting in their faces; surrounding, crowding, and yelling at women entering the clinics; or jostling, grabbing, pushing, and shoving women as they attempted to enter the clinics. Male and female clinic volunteers who attempted to escort patients past protesters into the clinics were sometimes elbowed, grabbed, or spit on. Sometimes the escorts pushed back. Some protesters remained in the doorways after the patients had entered the clinics, blocking others from entering and exiting. </s> On the sidewalks outside the clinics, protesters called "sidewalk counselors" used similar methods. Counselors would walk alongside targeted women headed toward the clinics, handing them literature and talking to them in an attempt to persuade them not to get an abortion. Unfortunately, if the women continued toward the clinics and did not respond positively to the counselors, such peaceful efforts at persuasion often devolved into "in your face" yelling, and sometimes into pushing, shoving, and grabbing. Men who accompanied women attempting to enter the clinics often became upset by the aggressive sidewalk counseling and sometimes had to be restrained (not always successfully) from fighting with the counselors. The District Court found that the local police had been "unable to respond effectively" to the protests, for a number of reasons: the protests were constant, overwhelming police resources; when the police arrived, the protesters simply dispersed and returned later; prosecution of arrested protesters was difficult because patients were often reluctant to cooperate for fear of makingtheir identity public; and those who were convicted were not deterred from returning to engage in unlawful conduct. In addition, the court found that defendants harassed the police officers verbally and by mail, including the deputy police chief. Also harassed were people who testified against the protesters and "those who invoke[d] legal process against" the protesters. This, testified the deputy police chief, "made it more difficult for him to do his job." Pro Choice Network of Western N. Y. v. Project Rescue Western N. Y., 799 F. Supp. 1417, 1426-1427 (WDNY 1992). See also id., at 1431 ("[T]here has been substantial uncontradicted evidence that defendants' activities are intended, and do in fact, prevent and hinder local police from protecting the right of women to choose to have an abortion"). </s> On September 27, 1990, three days after respondents filed their complaint and one day before the scheduled large scale blockade, the District Court issued a TRO. The parties stipulated that the TRO might remain in force until decision on respondents' motion for a preliminary injunction. In pertinent part, the TRO enjoined defendants from physically blockading the clinics, physically abusing or tortiously harassing anyone entering or leaving the clinics, and "demonstrating within 15 feet of any person" entering or leaving the clinics. As an exception to this 15 foot "buffer zone" around people, the TRO allowed two sidewalk counselors to have "a conversation of a nonthreatening nature" with individuals entering or leaving the clinic. If the individuals indicated that they did not want the counseling, however, the counselors had to "cease and desist" from counseling. 1 </s> At first, defendants complied with the TRO, holding a peaceful demonstration rather than the scheduled blockade. Subsequently, they stipulated that "physical blockades" could be enjoined, and they conducted no such blockades between the issuance of the TRO and the issuance of the preliminary injunction 17 months later. Defendants, however, continued to engage in protests that the District Court labeled "constructive blockades," as well as sidewalk counseling. Constructive blockades consisted of "demonstrating and picketing around the entrances of the clinics, and . . . harassing patients and staff entering and leaving the clinics." Id., at 1424. This included many of the protest elements described above, including attempts to intimidate or impede cars from entering the parking lots, congregating in driveway entrances, and crowding around, yelling at, grabbing, pushing, and shoving people entering and leaving the clinics. The purpose of constructive blockades was the same as physical blockades: "to prevent or dissuade patients from entering the clinic." Ibid. Clinic volunteer escorts testified that the protests were much quieter, calmer, and smaller during the first month after the TRO issued, but that the protests returned to their prior intensity thereafter, including aggressive sidewalk counseling with occasional shoving and elbowing, trespassing into clinic buildings to continue counseling of patients, and blocking of doorways and driveways. </s> Alleging that Project Rescue and five individual defendants (including petitioner Schenck) breached the TRO on five separate occasions from late October 1990 through December 1990, respondents sought four contempt citations. A fifth contempt citation for a 1991 incident was sought against petitioner Schenck and another individualdefendant. Throughout 1991 and into 1992, the District Court held 27 days of hearings in these contempt proceedings, and issued opinions concluding that five of the six incidents justified a finding of civil contempt. 2 </s> In February 1992, after hearing 12 additional days of testimony, the District Court issued the injunction, parts of which are challenged here. The relevant provisions are set forth in the margin. 3 Although the injunctionlargely tracked the TRO, there were significant changes. First, while the TRO banned "demonstrating . . . within fifteen feet of any person" entering or leaving the clinics, the injunction more broadly banned "demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities" ("fixed buffer zones"), or "within fifteen feet of any person or vehicle seeking access to or leaving such facilities" ("floating buffer zones"). In addition, the injunction clarified the "cease and desist" provision, specifying that once sidewalk counselors who had entered the buffer zones were required to "cease and desist" their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones. </s> In its opinion accompanying the preliminary injunction, the District Court stated the relevant inquiry as whether respondents had established (i) that they would be irreparably harmed if the injunction was not granted and (ii) that they were likely to succeed on the merits. The court held that the irreparable harm requirement was met, because "those women denied unimpeded access to [the clinics] cannot be compensated merely by money damages. Injunctive relief alone can assure women unimpeded access to [the] clinics." Id., at 1428. The court also held that respondents were likely to succeed on at least three of their claims. First, relying on New York State National Organization for Women v. Terry, 886 F. 2d 1339 (CA2 1989), cert. denied, 495 U.S. 947 (1990), the court held that women seeking abortions constituted a protected class under 42 U.S.C. § 1985(3), and that their constitutional right to travel between States and to choose to have an abortion was likely infringed by defendants, in violation of §1985(3). Second, the court held that the same conduct that infringed this class of women's constitutional rights under §1985(3) "clearly violates N. Y. Civ. Rights Law §40-c." 4 799 F. Supp., at 1431. Finally, the court heldthat in light of the "overwhelming evidence that defendants have repeatedly trespassed upon [the clinics'] property in the past and may continue to trespass in the future," respondents had shown a likelihood of success on their trespass claim. Id., at 1432. Having already found likelihood of success on these claims, the court chose not to address respondents' other four state law claims. Id., at 1432, n. 11. </s> In analyzing defendants' assertion that the injunction violated their First Amendment right to free speech, the court applied our standard "time, place, and manner analysis," asking whether the speech restrictions in the injunction (i) were content neutral, (ii) were narrowly tailored to serve a significant government interest, and (iii) left open ample alternative channels for communication of the information. Id., at 1432 (citing Frisby v. Schultz, 487 U.S. 474, 481 (1988)). The court held that the injunction was content neutral because "it merely restricts the volume, location, timing and harassing and intimidating nature of defendants' expressive speech." 799 F. Supp., at 1433. The court held that the injunction served three significant governmental interests-- public safety, ensuring that abortions are performed safely, and ensuring that a woman's constitutional rights to travel interstate and to choose to have an abortion were not sacrificed in the interest of defendants' First Amendment rights. 5 </s> As to narrow tailoring, the court explained that the 15 foot buffer zones "around entrances and . . . around people and vehicles seeking access . . . are necessary to ensure that people and vehicles seeking access to the clinics will not be impeded, and will be able to determine readily where the entrances are located." Id., at 1434. The court added that the buffer zones would also provide the benefit of "prevent[ing] defendants from crowding patients and invading their personal space." Ibid. The court explained the "cease and desist" provision--allowing two sidewalk counselors inside the buffer zones but requiring them to "cease and desist" their counseling if the counselee asked to be left alone--as "an exception" to the buffer zones and as "an attempt to accommodate fully defendants' First Amendment rights." Ibid. The court held that this provision was "necessary in order to protect the right of people approaching and entering the facilities to be left alone." Id., at 1435. Finally, the court held that the injunction left open ample alternative channels for communication, because defendants could still "picket, carry signs, pray, sing or chant in full view of people going into the clinics." Id., at 1437. </s> After the District Court issued its opinion, we held in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993), that "women seeking an abortion" were not a protected class under 42 U.S.C. § 1985(3). In light of Bray, the District Court dismissed respondents' §1985(3) claim, with leave to file an amended §1985(3) cause of action. Pro Choice Network of Western N. Y. v. Project Rescue Western N. Y., 828 F. Supp. 1018, 1025 (WDNY 1993). The court then decided to exercise pendent jurisdiction over respondents' remaining causesof action (the six state claims), regardless of the ultimate disposition of the §1985(3) claim. In so deciding, the court noted that "the preliminary injunction is grounded not only on the §1985(3) claim, but two state law claims [the N. Y. Civ. Rights Law §40-c claim and the trespass claim] as well." Id., at 1026, n. 4. The court explained that judicial economy, convenience, and fairness all suggested that it keep the case, since it had expanded substantial resources on the case and its involvement in the case was ongoing. Id., at 1028-1029 (citing the contempt motions filed by respondents in 1990 and 1991, criminal contempt charges brought against six individuals for protests in 1992, and civil and criminal contempt motions filed in 1993). </s> Petitioners, two individual defendants, appealed to the Court of Appeals for the Second Circuit. While the case was on appeal, we decided Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994), a case which also involved the effect of an injunction on the expressive activities of antiabortion protesters. (We discuss Madsen in greater depth in Part II-A, infra.) We held that "our standard time, place, and manner analysis is not sufficiently rigorous" when it comes to evaluating content neutral injunctions that restrict speech. The test instead, we held, is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Id., at 765. </s> Applying Madsen, a panel of the Court of Appeals reversed the District Court in a split decision. 67 F. 3d 359 (1994). The Court of Appeals then heard the case en banc, and affirmed the District Court by a divided vote. 67 F. 3d 377 (1995). Each of two opinions garnered a majority of the court. Judge Oakes' lead opinion, joined by eight other judges, affirmed for reasons that closely track the reasoning of the District Court. Id., at 388-392. A concurring opinion by Judge Winter, joined by nine other judges, affirmed primarilyon the ground that the protesters' expressive activities were not protected by the First Amendment at all, and because the District Court's injunction was a "reasonable response" to the protesters' conduct. Id., at 396, 398. We granted certiorari. 516 U. S. ___ (1996). </s> Petitioners challenge three aspects of the injunction: (i) the floating 15 foot buffer zones around people and vehicles seeking access to the clinics; (ii) the fixed 15 foot buffer zones around the clinic doorways, driveways, and parking lot entrances; and (iii) the "cease and desist" provision that forces sidewalk counselors who are inside the buffer zones to retreat 15 feet from the person being counseled once the person indicates a desire not to be counseled. Because Madsen bears many similarities to this case and because many of the parties' arguments depend on the application of Madsen here, we review our determination in that case. </s> A Florida state court had issued a permanent injunction enjoining specified organizations and individuals from blocking or interfering with clinic access and from physically abusing people entering or leaving the clinic. Six months after the injunction issued, the court found that protesters still impeded access by demonstrating on the street and in the driveways, and that sidewalk counselors approached entering vehicles in an effort to hand literature to the occupants. In the face of this evidence, the court issued a broader injunction that enjoined the defendant protesters from " `physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting' " anyone entering or leaving the clinic; from " `congregating, picketing, patrolling, demonstrating or entering that portion of public right of way or private property within [36] feet of the property line of the Clinic' "; from approaching anyone " `seeking the services of the Clinic' " who is within 300 feet of the clinic, unless the person " `indicates a desire to communicate' "; and from making any noise or displaying any image which could be heard or seen inside the clinic. 512 U.S., at 759 -760. </s> After determining that the injunction was not a prior restraint and was content neutral, id., at 762-764, we held that the proper test for evaluating content neutral injunctions under the First Amendment was "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest," id., at 765. The Florida Supreme Court had concluded that the injunction was based on a number of governmental interests: protecting a woman's freedom to seek pregnancy related services, ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting the medical privacy of patients whose psychological and physical well being were threatened as they were held "captive" by medical circumstance. Id., at 767-768. We held that the combination of these interests was "quite sufficient to justify an appropriately tailored injunction" to protect unimpeded access to the clinic by way of public streets and sidewalks. Id., at 768. </s> We held that some of the injunction's provisions burdened more speech than necessary to serve these interests, and that others did not. We upheld the 36 foot buffer zone as applied to the street, sidewalks, and driveways "as a way of ensuring access to the clinic." We explained that the trial court had few other options to protect access to the clinic: allowing protesters to remain on the sidewalks and in the clinic driveway was not a valid option because of their past conduct, and allowing them to stand in the street was obviously impractical. In addition, we stated that "some deference must be given to the state court's familiarity with thefacts and the background of the dispute between the parties even under our heightened review." Id., at 769-770 (citing Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287, 294 (1941)) </s> We struck down the 300 foot no approach zone around the clinic, however, stating that it was difficult </s> "to justify a prohibition on all uninvited approaches . . . regardless of how peaceful the contact may be . . . . Absent evidence that the protesters' speech is independently proscribable (i.e., `fighting words' or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see Milk Wagon Drivers, 312 U.S., at 292 -293, this provision cannot stand. `As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' Boos v. Barry, 485 U. S. [312, 322 (1988)] (internal quotation marks omitted). The `consent' requirement alone invalidates this provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to the clinic." 512 U.S., at 774 . </s> We now apply Madsen to the challenged provisions of the injunction and ask whether they burden more speech than necessary to serve a significant governmental interest. 6 </s> Petitioners first argue that there are no significant governmental interests that support the injunction. The argument goes as follows: of the seven causes of action in respondents' complaint, the only one left standing after the District Court's most recent opinion is respondents' trespass claim; a trespass cause of action can support an injunction banning trespass, but nothing else; thus, the injunction's provisions banning "demonstrating" within 15 feet of people, cars, and entrances are overbroad. </s> First, this argument is factually incorrect. The trespass claim is not the only one left standing at this point. In its opinion issuing the preliminary injunction, the District Court held that the conduct that satisfied the elements of a §1985(3) claim under federal law also satisfied the elements of a §40-c claim under state law. After our decision in Bray, the District Court dismissed respondents' §1985(3) claim. Petitioners argue that in doing so, the District Court necessarily and implicitly dismissed the §40-c claim as well, since the two claims were based on the same conduct. But our opinion in Bray did not attempt to construe any statute other than 42 U.S.C. § 1985(3). And the fact that certain conduct does not state a claim under §1985(3) does not necessarily mean that the same conduct does not state a claim under a state law that uses the same or similar language as §1985(3), since state courts may of course choose to construe their own law more broadly (or more narrowly) than its federal counterpart. In any event, the language of the two statutes is noticeably different. See n. 4, supra. Thus, the dismissal of the §1985(3) claim in light of Bray did not also act as a dismissal of respondents' §40-c claim. This is confirmed by the District Court's comment in its post Bray opinion that "the preliminary injunction is grounded not only on the§1985(3) claim, but two state law claims as well." 828 F. Supp., at 1026, n. 4. </s> Although petitioners contend that the §40-c cause of action is no longer valid simply because the §1985(3) claim is no longer valid, an argument we reject, they do not contend that the District Court erred in concluding as an independent matter that respondents were likely to succeed on their §40-c and trespass claims. See Brief for Petitioners 32. The injunction's terms are clearly crafted to remedy these violations. </s> An injunction tailored to respondents' claims for relief may nonetheless violate the First Amendment. In making their First Amendment challenge, petitioners focus solely on the interests asserted by respondents in their complaint. But in assessing a First Amendment challenge, a court looks not only at the private claims asserted in the complaint, but also inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. Madsen, 512 U.S., at 767 -768; Milk Wagon Drivers, 312 U.S., at 294 -295. Both the injunction in Madsen and the injunction here are supported by this governmental interest. In Madsen, it was permissible to move protesters off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks. 512 U.S., at 767 -768. Here, the District Court cited public safety as one of the interests justifying the injunction--certainly a reasonable conclusion, if only because of the dangerous situation created by the interaction between cars and protesters and because of the fights that threatened to (and sometimes did) develop. Even though the governmental interest in public safety is clearly a valid interest here, as it was in Madsen, plaintiffs in neither case pleaded a claim for "threat to public safety." Indeed, this would be a strange concept, since a plaintiff customarily allegesviolations of private rights, while "public safety" expresses a public right enforced by the government through its criminal laws and otherwise. Thus, the fact that "threat to public safety" is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petitioners' First Amendment argument. 7 </s> Given the factual similarity between this case and Madsen, we conclude that the governmental interests underlying the injunction in Madsen--ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy related services, 8 ibid.--also underlie the injunction here, and in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics. </s> We strike down the floating buffer zones around people entering and leaving the clinics because theyburden more speech than is necessary to serve the relevant governmental interests. The floating buffer zones prevent defendants--except for two sidewalk counselors, while they are tolerated by the targeted individual--from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks. This is a broad prohibition, both because of the type of speech that is restricted and the nature of the location. Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum. See, e.g., Boos v. Barry, 485 U.S. 312, 322 (1988); United States v. Grace, 461 U.S. 171, 180 (1983). On the other hand, we have before us a record that shows physically abusive conduct, harassment of the police that hampered law enforcement, and the tendency of even peaceful conversations to devolve into aggressive and sometimes violent conduct. In some situations, a record of abusive conduct makes a prohibition on classic speech in limited parts of a public sidewalk permissible. See, e.g., Part II-D infra; Madsen, 512 U. S. at 769-770. We need not decide whether the governmental interests involved would ever justify some sort of zone of separation between individuals entering the clinics and protesters, measured by the distance between the two. We hold here that because this broad prohibition on speech "floats," it cannot be sustained on this record. </s> Since the buffer zone floats, protesters on the public sidewalks who wish (i) to communicate their message to an incoming or outgoing patient or clinic employee and (ii) to remain as close as possible (while maintaining an acceptable conversational distance) to this individual, must move as the individual moves, maintaining 15 feet of separation. But this would be difficult to accomplishat, for instance, the GYN Womenservices clinic in Buffalo, one of the respondent clinics. The sidewalk outside the clinic is 17 feet wide. This means that protesters who wish to walk alongside an individual entering or leaving the clinic are pushed into the street, unless the individual walks a straight line on the outer edges of the sidewalk. Protesters could presumably walk 15 feet behind the individual, or 15 feet in front of the individual while walking backwards. But they are then faced with the problem of watching out for other individuals entering or leaving the clinic who are heading the opposite way from the individual they have targeted. With clinic escorts leaving the clinic to pick up incoming patients and entering the clinic to drop them off, it would be quite difficult for a protester who wishes to engage in peaceful expressive activities to know how to remain in compliance with the injunction. 9 This lack of certainty leads to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits. That is, attempts to stand 15 feet from someone entering or leaving a clinic and to communicate a message--certainly protected on the face of the injunction--will be hazardous if one wishes to remain in compliance with the injunction. 10 Sincethere may well be other ways to both effect such separation and yet provide certainty (so that speech protected by the injunction's terms is not burdened), we conclude that the floating buffer zones burden more speech than necessary to serve the relevant governmental interests. Because we strike down the floating buffer zones, we do not address the constitutionality of the "cease and desist" provision that allows sidewalk counselors within those buffer zones. </s> We likewise strike down the floating buffer zones around vehicles. Nothing in the record or the District Court's opinion contradicts the commonsense notion that a more limited injunction--which keeps protesters away from driveways and parking lot entrances (as the fixed buffer zones do) and off the streets, for instance--would be sufficient to ensure that drivers are not confused about how to enter the clinic and are able to gain access to its driveways and parking lots safely and easily. In contrast, the 15 foot floating buffer zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout, or hold signs peacefully. We therefore conclude that the floating buffer zones around vehicles burden more speech than necessary to serve the relevant governmental interests. </s> We uphold the fixed buffer zones around the doorways, driveways, and driveway entrances. These buffer zones are necessary to ensure that people and vehicles trying to enter or exit the clinic property or clinic parking lots can do so. As in Madsen, the record shows that protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots. Based on this conduct--both before and after the TRO issued--the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations away from the driveways and parking lot entrances. Similarly, sidewalk counselors--both before and after the TRO--followed and crowded people right up to the doorways of the clinics (and sometimesbeyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside. In addition, as the District Court found, defendants' harassment of the local police made it far from certain that the police would be able to quickly and effectively counteract protesters who blocked doorways or threatened the safety of entering patients and employees. Based on this conduct, the District Court was entitled to conclude that protesters who were allowed close to the entrances would continue right up to the entrance, and that the only way to ensure access was to move all protesters away from the doorways. 11 Although one might quibble about whether 15 feet is too great or too small a distance if the goal is to ensure access, we defer to the District Court's reasonable assessment of the number of feet necessary to keep the entrances clear. See Madsen, 512 U.S., at 769 -770 ("[S]ome deference must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review"). </s> Petitioners claim that unchallenged provisions of the injunction are sufficient to ensure this access, pointingto the bans on trespassing, excessive noise, and "blocking, impeding or obstructing access to" the clinics. They claim that in light of these provisions, the only effect of a ban on "demonstrating" within the fixed buffer zone is "a ban on peaceful, nonobstructive demonstrations on public sidewalks or rights of way." Brief for Petitioners 47. This argument, however, ignores the record in this case. Based on defendants' past conduct, the District Court was entitled to conclude that some of the defendants who were allowed within 5 to 10 feet of clinic entrances would not merely engage in stationary, nonobstructive demonstrations but would continue to do what they had done before: aggressively follow and crowd individuals right up to the clinic door and then refuse to move, or purposefully mill around parking lot entrances in an effort to impede or block the progress of cars. And because defendants' harassment of police hampered the ability of the police to respond quickly to a problem, a prophylactic measure was even more appropriate. Cf. Burson v. Freeman, 504 U.S. 191, 206 -207 (1992) (upholding 100 foot "no campaign zone" around polling places: "Intimidation and interference laws fall short of serving a State's compelling interests because they `deal with only the most blatant and specific attempts' to impede elections. Moreover, because law enforcement officers generally are barred [under state law] from the vicinity of the polls to avoid any appearance of coercion in the electoral process, many acts of interference would go undetected. These undetected or less than blatant acts may nonetheless drive the voter away before remedial action can be taken" (citations omitted)). The ban on "blocking, impeding, and obstructing access" was therefore insufficient by itself to solve the problem, and the fixed buffer zone was a necessary restriction on defendants' demonstrations. </s> Petitioners also argue that under Madsen, the fixed buffer zones are invalid because the District Court couldnot impose a "speech restrictive" injunction (or TRO) without first trying a "non speech restrictive" injunction, as the trial court did in Madsen. But in Madsen we simply stated that the failure of an initial injunction "to accomplish its purpose may be taken into consideration" in determining the constitutionality of a later injunction. 512 U.S., at 770 . The fact that the District Court's TRO included a "speech restrictive" provision certainly does not mean that the subsequent injunction is automatically invalid. Since we can uphold the injunction under the Madsen standard without this "consideration" being present, petitioners' argument fails. </s> Finally, petitioners make several arguments that may be quickly refuted. They argue that, unlike Madsen, there is "no extraordinary record of pervasive lawlessness," Brief for Petitioners 45, and that the buffer zones are therefore unnecessary. As explained above, our review of the record convinces us that defendants' conduct was indeed extraordinary, and that based on this conduct the District Court was entitled to conclude that keeping defendants away from the entrances was necessary to ensure access. Petitioners also argue that the term "demonstrating" is vague. When the injunction is read as a whole, see Grayned v. City of Rockford, 408 U.S. 104, 110 (1972), we believe that people "of ordinary intelligence" (and certainly defendants, whose demonstrations led to this litigation in the first place) have been given "a reasonable opportunity to know what is prohibited," id., at 108. </s> Petitioners also contend that the "cease and desist" provision which limits the exception for sidewalk counselors in connection with the fixed buffer zone is contrary to the First Amendment. We doubt that the District Court's reason for including that provision--%to protect the right of the people approaching and entering the facilities to be left alone"--accurately reflects our First Amendment jurisprudence in this area. Madsensustained an injunction designed to secure physical access to the clinic, but not on the basis of any generalized right "to be left alone" on a public street or sidewalk. As we said in Madsen, quoting from Boos v. Barry, 485 U.S. 322 , " `[a]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' " 512 U.S., at 774 . </s> But as earlier noted, the entire exception for sidewalk counselors was an effort to enhance petitioners' speech rights, see n. 11, supra, and the "cease and desist" limitation must be assessed in that light. 12 </s> Petitioners and some of their amici attack the "cease and desist" provision accompanying the exception for sidewalk counselors as content based, because it allows a clinic patient to terminate a protester's right to speak based on, among other reasons, the patient's disagreement with the message being conveyed. But in Madsen we held that the injunction in that case was not content based, even though it was directed only at abortion protesters, because it was only abortion protesters who had done the acts which were being enjoined. Here, the District Court found that "[m]any of the `sidewalk counselors' and other defendants ha[d] been arrested on more than one occasion for harassment, yet persist in harassing and intimidating patients, patient escorts and medical staff." 799 F. Supp., at 1425. These counselors remain free to espouse their message outside the 15 foot buffer zone, and the condition on their freedom to espouse it within the buffer zone is the result of their own previous harassment and intimidation of patients. 13 </s> * * * </s> The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> U.S. Supreme Court </s> No. 95-1065 </s> PAUL SCHENCK and DWIGHT SAUNDERS, PETITIONERS v. PRO CHOICE NETWORK OF WESTERN NEW YORK et al. </s> on writ of certiorari to the united states court of appeals for the second circuit [February 19, 1997] </s> Justice Scalia , with whom Justice Kennedy and Instead of evaluating the injunction before us on the basis of the reasons for which it was issued, the Court today postulates other reasons that might have justified it and pronounces those never determined reasons adequate. This is contrary to the settled practice governing appellate review of injunctions, and indeed of all actions committed by law to the initial factfinding, predictive and policy judgment of an entity other than the appellate court, see, e.g., SEC v. Chenery Corp., 318 U.S. 80 (1943). The Court's opinion also claims for the judiciary a prerogative I have never heard of: the power to render decrees that are in its view justified by concerns for public safety, though not justified by the need to remedy the grievance that is the subject of the lawsuit. I dissent. </s> The most important holding in today's opinion is tucked away in the seeming detail of the "cease and desist" discussion in the penultimate paragraph of analysis: There is no right to be free of unwelcomespeech on the public streets while seeking entrance to or exit from abortion clinics. Ante, at 24-25. "As we said in Madsen [v. Women's Health Center, Inc., 512 U.S. 753 (1994)], quoting from Boos v. Barry, 485 U.S. 322 , `[a]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' " Ibid. (internal quotation marks omitted). But the District Court in this case (like the Court of Appeals) believed that there was such a right to be free of unwanted speech, and the validity of the District Court's action here under review cannot be assessed without taking that belief into account. That erroneous view of what constituted remediable harm shaped the District Court's injunction, and it is impossible to reverse on this central point yet maintain that the District Court framed its injunction to burden "no more speech than necessary," Madsen v. Women's Health Center, Inc., 512 U.S. 753, 765 (1994), to protect legitimate governmental interests. </s> The District Court justified the "fixed buffer" provision of the injunction on two separate grounds, each apparently tied to a different feature of the provision. First, the court said, the fixed buffer zone was "necessary to ensure that people . . . seeking access to the clinics will not be impeded." Pro Choice Network of Western New York v. Project Rescue Western New York, 799 F. Supp. 1417, 1434 (WDNY 1992). And second, "the `clear zones' will prevent defendants from crowding patients and invading their personal space." Ibid. Thus, the fixed buffer had a dual purpose: In order to prevent physical obstruction of access, it excluded crowds of protesters from a 15 foot zone around clinic entrances, while permitting two nonobstructive "sidewalk counselors" to enter that zone. (Allowing a small number of protesters is a common practice in picketing injunctions, e.g., MineWorkers v. Bagwell, 512 U.S. 821, 823 (1994), and of course a required practice when no more than that is necessary, see Madsen, supra, at 765.) And the second purpose of the fixed buffer provision, the purpose that justified the requirement that even the two nonobstruc tive sidewalk counselors "cease and desist" if the "targeted person" did not wish to hear them, was to assure "personal space" on the public streets--or, as the District Court described it in the next paragraph of its order, "to protect the right of people approaching and entering the facilities to be left alone." 799 F. Supp., at 1435. </s> The terms of the injunction's cease and desist provision make no attempt to conceal the fact that the supposed right to be left alone, and not the right of unobstructed access to clinics, was the basis for the provision: </s> "[N]o one is required to accept or listen to sidewalk counseling, and . . . if anyone or any group of persons who is sought to be counseled wants not to have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all persons seeking to counsel that person or group of persons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of [the injunction] pertaining to not demonstrating within fifteen feet of persons seeking access to or leaving a facility." Id., at 1440 (preliminary injunction, paragraph 1(c)) (emphasis added). </s> It is difficult to imagine a provision more dependent upon the right to be free of unwanted speech that today's opinion rejects as applied to public streets. The District Court's own explanation of the provision makes that dependency even more starkly clear: </s> "Th[e] `cease and desist' provision is necessary in order to protect the right of people approaching and entering the facilities to be left alone. </s> ". . . [Defendants] argue that, because their `sidewalk counseling' occurs on a public sidewalk, they cannot be forced to cease communicating their message just because their audience may be unwilling to hear it. The Court, however, rejects this argument. </s> . . . . . </s> ". . . The evidence adduced at the hearings clearly shows that, even when women seeking access to the clinics signal their desire to be left alone, defendants continue to follow right alongside them and persist in communicating their message. [W]omen seeking access to plaintiffs' facilities cannot, as a practical matter, escape defendants' message. . . . </s> ". . . [T]he . . . `cease and desist' provision advances the values of the marketplace of ideas by permitting listeners to exercise their autonomy to make their own determinations among competing ideas. Once a women seeking access to one of the clinics has made a determination not to listen to defendants' message, defendants must respect her choice." Id., at 1435-1436 (emphasis added). </s> The District Court thought the supposed "right to be left alone" central enough to its order to devote two full pages in the federal reports to the subject, ibid., and both majority opinions of the Court of Appeals discussed it in extenso, 67 F. 3d 377, 391-393 (CA2 1995); id., at 395-397. The magic of today's opinion for this Court is that it renders this essential element of the injunction that was issued irrelevant by the simple device of approving instead an injunction that the District Court (in the exercise of its discretion) chose not to issue--viz., an absolute ban on all protesters within the 15 foot zone. Ante, at 22, n. 11. </s> The Court asserts (in carefully selected words) that "the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations." Ante, at 21 (emphasis added). And again: "[T]he District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zone from unprotected conduct . . . would have been to keep the entire area clear of defendant protesters." Ante, at 22, n. 11 (emphasis added). And (lest the guarded terminology be thought accidental), yet a third time: "Based on [the defendants'] conduct, the District Court was entitled to conclude . . . that the only way to ensure access was to move all protesters away from the doorways." Ante, at 22 (first emphasis added; second in original). But prior to the question of whether it was entitled to conclude that is the question whether it did conclude that. We are not in the business (or never used to be) of making up conclusions that the trial court could permissibly have reached on questions involving assessments of fact, credibility and future conduct--and then affirming on the basis of those posited conclusions, whether the trial court in fact arrived at them or not. 1 That is so even in ordinary cases, but it is doubly true when we review a trial court's order imposing a prior restraint upon speech. As we said in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), when a court decides to impose a speech restrictive injunction, the conclusions it reaches must be "supported by findings that adequatelydisclose the[ir] evidentiary basis . . . , that carefully identify the impact of [the defendants'] unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity." Id., at 933-934. </s> The Court candidly concedes that the nonexistent "right to be left alone" underlay the District Court's imposition of the cease and desist provision. Ante, at 24. It appears not to grasp, however, the decisive import of this concession--which is that the District Court did not think it necessary to exclude all demonstrators from the buffer zone as a means of preventing physical obstruction of clinic entrances or other violations of law (other than the faux violation of intruding upon the speech targets' "private space"). Thus, the Court's statements about what "the District Court was entitled to conclude" are not only speculative (which is fatal enough) but positively contrary to the record of what the District Court did conclude--which was that permitting a few demonstrators within the buffer zone was perfectly acceptable, except when it would infringe the clinic employees' and patrons' right to be free of unwanted speech on public streets. In fact, the District Court expressly stated that if in the future it found that a complete ban on speech within the buffer zone were necessary, it would impose one. 799 F. Supp., at 1436, n. 13. </s> I do not grasp the relevance of the Court's assertions that admitting the two counselors into the buffer zone was "an effort to enhance petitioners' speech rights," ante, at 25, "an effort to bend over backwards to `accommodate' defendants' speech rights," ante, at 22, n. 11, and that "the `cease and desist' limitation must be assessed in that light," ante, at 25. If our First Amendment jurisprudence has stood for anything, it is that courts have an obligation "to enhance speech rights," and a duty "to bend over backwards to `accommodate'speech rights." That principle was reaffirmed in Madsen, which requires that a judicial injunction against speech burden "no more speech than necessary to serve a significant government interest." Madsen, 512 U.S., at 765 (emphasis added). Thus, if the situation confronting the District Court permitted "accommodation" of petitioners' speech rights, it demanded it. The Court's effort to recharacterize this responsibility of special care imposed by the First Amendment as some sort of judicial gratuity is perhaps the most alarming concept in an opinion that contains much to be alarmed about. </s> I disagree with the Court's facile rejection of the argument that no cause of action was properly found to support the present injunction. Petitioners contend that the only cause of action which could conceivably support the injunction is a trespass claim; but that cannot support the restrictions at issue, which are designed, as the District Court stated, to prevent obstruction of access and the invasion of "personal space," 799 F. Supp., at 1434, rather than to prevent trespass. </s> The Court responds by pointing out that the case contains a nontrespass claim under N.Y. Civ. Rights Law §40-c(2) (McKinney 1992), which provides that "[n]o person shall, because of . . . sex . . . be subjected to any discrimination in his civil rights, or to any harassment . . . in the exercise thereof, by any other person." That is true enough, but it seems to me clear that that imaginative state law claim cannot support a preliminary injunction because it does not have a probability of success on the merits. See 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3 (2d ed. 1995). It is, to put it mildly, far from apparent that seeking to prevent both men and women from aborting both male and female human fetuses constitutes discrimination on the basis of sex. Moreover, the reasoningwhich led the District Court to conclude otherwise has been specifically rejected by this Court. The District Court wrote: "Having demonstrated a likelihood of success on the merits of their federal §1985(3) claim, plaintiffs have also, by definition, demonstrated a likelihood of success on their claim under N.Y. Civ. Rights Law §40-c." 799 F. Supp., at 1431. Subsequently, however, this Court's opinion in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 -273 (1993), held that claims of the sort at issue here do not constitute discrimination on the basis of sex under 42 U.S.C. § 1985(3). Since there is also, as far as I have been able to determine, no decision by any New York court saying that they constitute sex discrimination under §40-c, there is no basis on which the District Court could have concluded (or this Court could affirm) that the chance of success on this claim was anything other than a long shot. 2 </s> The Court proceeds from there to make a much more significant point: An injunction on speech may be upheld even if not justified on the basis of the interests asserted by the plaintiff, as long as it serves "public safety." "[I]n assessing a First Amendment challenge, a court . . . inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. . . . Here, the District Court cited public safety as one of the interests justifying the injunction. . . . [T]he fact that `threat topublic safety' is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petitioners' First Amendment argument." Ante, at 16-17. </s> This is a wonderful expansion of judicial power. Rather than courts' being limited to according relief justified by the complaints brought before them, the Court today announces that a complaint gives them, in addition, ancillary power to decree what may be necessary to protect--not the plaintiff, but the public interest! Every private suit makes the district judge a sort of one man Committee of Public Safety. There is no precedent for this novel and dangerous proposition. In Madsen, the Court says, "it was permissible to move protesters off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks." Ante, at 16; see also Madsen, 512 U.S., at 769 . But acknowledging, as we did in Madsen, that some remedial options are eliminated because they conflict with considerations of public safety is entirely different from asserting, as the Court does today, that public safety can provide part of the justification for the remedy. 3 The only other case cited by the Court is Milk Wagon Drivers v. Meadow moor Dairies, Inc., 312 U.S. 287, 294 -295 (1941). Ante, at 16. But Meadowmoor upheld an injunction against a union's intimidation of storekeepers, not because "the public interest" demanded it, but because the storekeepers were customers of the plaintiff dairy, which it was the purpose and effect of the intimidation to harm. 312 U.S., at 294 -295. </s> We have in our state and federal systems a specific entity charged with responsibility for initiating action to guard the public safety. It is called the Executive Branch. When the public safety is threatened, that branch is empowered, by invoking judicial action and by other means, to provide protection. But the Judicial Branch has hitherto been thought powerless to act except as invited by someone other than itself. That is one of the reasons it was thought to be "the least dangerous to the political rights of the [C]onstitution"-- because it "can take no active resolution whatever" and "may truly be said to have neither force nor will, but merely judgment." The Federalist No. 78, p. 396 (M. Beloff ed. 1987). It is contrary to the most fundamental principles of separation of powers for the District Court to decree measures that would eliminate obstruction of traffic, in a lawsuit which has established nothing more than trespass. 4 </s> * * * </s> Today's opinion makes a destructive inroad upon First Amendment law in holding that the validity of an injunction against speech is to be determined by an appellate court on the basis of what the issuing court might reasonably have found as to necessity, rather than on the basis of what it in fact found. And it makes a destructive inroad upon the separation of powers in holding that an injunction may contain measures justified by the public interest apart from remediation of the legal wrong that is the subject of the complaint. Insofar as the first point is concerned, the Court might properly have upheld the fixed buffer zone without the cease and desist provision, since the District Court evidently did conclude (with proper factual support, in my view) that limiting the protesters to two was necessary to prevent repetition of the obstruction of access that had occurred in the past. But even that more limited injunction would be invalidated by the second point: the fact that no cause of action related to obstruction of access was properly found to support the injunction. Accordingly, I dissent from the Court's judgment upholding the fixed buffer zone, and would reverse the decision of the Court of Appeals in its entirety. </s> Footnotes </s> [Footnote 1 Although the TRO (and the preliminary injunction) states that the "cease and desist" provision is triggered whenever the individual "wants to not have counseling," the District Court has construed this provision to apply only if "the targeted person or group of personsindicates, either verbally or non verbally, that they do not wish to be counseled." 799 F. Supp., at 1434. See also 67 F. 3d 377, 391 (CA2 1995) (same). </s> [Footnote 2 Respondents filed other contempt motions after the District Court issued its preliminary injunction. Since we are only concerned with the propriety of the injunction, we consider only the evidence that was before the court when it issued the injunction. </s> [Footnote 3 "Defendants, the officers, directors, agents, and representatives of defendants, and all other persons whomsoever, known or unknown, acting in their behalf or in concert with them, and receiving actual or constructive notice of this Order, are: "1. Enjoined and restrained in any manner or by any means from: "(a) trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed in the Western District of New York; "(b) demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities, or within fifteen feet of any person or vehicle seeking access to or leaving such facilities, except that the form of demonstrating known as sidewalk counseling by no more than two persons as specified in paragraph (c) shall be allowed; "(c) physically abusing, grabbing, touching, pushing, shoving, or crowding persons entering or leaving, working at or using any services at any facility at which abortions are performed; provided, however, that sidewalk counseling consisting of a conversation of a non threatening nature by not more than two people with each person or group of persons they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling, and that if anyone or any group of persons who is sought to be counseled wants to not have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all persons seeking to counsel that personor group of persons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of paragraph (b) pertaining to not demonstrating within fifteen feet of persons seeking access to or leaving a facility. In addition, it is further provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or such reasonably necessary rules and regulations as they decide are necessary at each particular demonstration site; "(d) using any mechanical loudspeaker or sound amplification device or making any excessively loud sound which injures, disturbs, or endangers the health or safety of any patient or employee of a health care facility at which abortions are performed, nor shall any person make such sounds which interfere with the rights of anyone not in violation of this Order; "(e) attempting, or inducing, directing, aiding, or abetting in any manner, others to take any of the actions described in paragraphs (a) through (d) above." 799 F. Supp., at 1440-1441. </s> [Footnote 4 Nevertheless, in explaining why respondents were likely to succeed on this claim, the District Court used different language to describe respondents' §40-c claim than it had used to describe respondents' §1985(3) claim. Compare 799 F. Supp., at 1431 (§40-c: "defendants' conspiracy is intended to deprive women of their constitutional rights to travel and to choose to have an abortion, and subjects them to harassment when they seek to exercise those rights"), with id., at 1430 (§1985(3): "[defendants are] engaging in a conspiracy . . . against a cognizable class of persons, with invidious class based animus[,] . . . [they are] committing overt acts in furtherance of the conspiracy[,] . . . [and the] conspiracy infringes two constitutional rights of women seeking abortions"). This was presumably to track the different language of §40-c. Compare N. Y. Civ. Rights Law §40-c(2) (McKinney 1992) ("No person shall, because of . . . sex . . . be subjected to any discrimination in his civil rights, or to any harassment . . . in the exercise thereof, by any other person . . ."), with 42 U.S.C. § 1985(3) ("If two or more persons . . . conspire . . . for the purpose of depriving . . . any person . . . of the equal protection of the laws . . . [and] one or more persons engaged therein do . . . any act in furtherance of theobject of such conspiracy, whereby another is . . . deprived of having and exercising any right or privilege of a citizen of the United States, the party so . . . deprived may have an action for the recovery of damages . . ."). </s> [Footnote 5 The court noted that although defendants had stipulated to the entry of "an injunction against `blocking or obstructing' access" to the clinics and against trespassing on clinic property "for the purpose of `blocking or obstructing" access, the injunction's terms were "more comprehensive" than the term "blocking or obstructing access." A broader injunction was justified in this case, said the court,because it was "better tailored to the evidence." 799 F. Supp., at 1433. </s> [Footnote 6 Petitioners argue that the injunction is an unlawful prior restraint and that the standard we set out in Madsen is therefore inapplicable. Because we rejected this argument in Madsen and because petitioners make no effort to distinguish Madsen on this ground, we reject it again. As in Madsen, alternative channels of communication were left open to the protesters, and "the injunction was issued not because of the content of [the protesters'] expression, . . . but because of their prior unlawful conduct." Madsen, 512 U.S., at 764 , n. 2. </s> [Footnote 7 Justice Scalia in dissent contends that the District Court's reliance on "public safety" was not permissible because only the government may seek an injunction based on that factor. But the District Court's reliance on this factor was not to use it as an element which supported respondents' claim for an injunction. Rather, the court used this factor as a basis for rejecting petitioners' challenge to the injunction on First Amendment grounds. </s> [Footnote 8 We need not decide whether the governmental interest in protecting the medical privacy and well being of patients "held `captive' by medical circumstance"--at issue in Madsen--is implicated here. That interest was relevant in Madsen because patients while inside the clinic heard the chanting and shouting of the protesters and suffered increased health risks as a result. See id., at 772. Here, although the District Court found that the loud voices of sidewalk counselors could be heard inside the clinic, petitioners do not challenge the injunction's ban on excessive noise. </s> [Footnote 9 We suspect that these floating buffer zones would also be quite difficult for a District Court to enforce. Contempt proceedings would likely focus on whether protesters who thought they were keeping pace with the targeted individual from a distance of 15 feet actually strayed to within 14 or 13 feet of the individual for a certain period of time. </s> [Footnote 10 Significantly, the District Judge himself expressed this same concern at the September 27 TRO hearing, stating his understanding that a "moving" buffer zone would be quite infeasible. Nevertheless, the terms of the TRO and the injunction provide exactly that, and the District Court never authoritatively put a limiting construction on the injunction. Justice Breyer in dissent places great stress on the DistrictCourt's statement at this September 27 hearing, and concludes that the District Court never understood the TRO, or even the injunction, to contain floating buffer zones. We believe Justice Breyer misreads the record. First, despite the District Court's statements at the September 27 hearing, the court held petitioner and one other defendant in contempt for violating paragraph 1(a) of the TRO, because they came within 15 feet of an individual attempting to enter the clinic even though they were more than 15 feet from any doorway or driveway entrance to the clinic. See Pro Choice Network of Western N. Y. v. Project Rescue Western N. Y., No. 90-CV%1004A (WDNY) Sept 28, 1992), pp. 7-8, 20-21 (doctor parked several hundred feet from clinic and then attempted to walk on sidewalk toward clinic; contemnors followed doctor the length of the sidewalk, yelling at him from a distance of only a few feet, up until the point where doctor was 10 to 20 feet from clinic driveway entrance; court held that this conduct violates the TRO's "proscription against demonstrating within fifteen feet of any person seeking access to a clinic"). Thus, we conclude that the District Court read the TRO the way an ordinary person would--to create a floating buffer zone. Second, the District Court's opinion accompanying the issuance of the preliminary injunction shows that the court interpreted the injunction to contain floating buffer zones. The court described paragraph (b) of the injunction as "setting dual `clear zones' of fifteen feet around entrances and fifteen feet around people and vehicles seeking access." 799 F. Supp., at 1434 (emphasis added). And the injunction by its terms bans "demonstrating" within 15 feet of clinic entrances "or within fifteen feet of any person or vehicle seeking access to [the clinic]" (emphasis added). Finally, we note that no judge of the en banc Court of Appeals expressed doubt that the injunction included floating buffer zones, cf. 67 F. 3d, at 389, n. 4 (discussing "how far from a clinic a floating buffer zone may reach," not, as Justice Breyer suggests, whether the injunction creates floating buffer zones at all), and that none of the parties before us has suggested that the injunction does not provide for such zones. </s> [Footnote 11 The fact that the injunction allows two sidewalk counselors into the fixed buffer zones--subject to the "cease and desist" provision-- does not detract from this conclusion. It is clear from the District Court's opinion that its decision to allow two sidewalk counselors inside the buffer zones was an effort to bend over backwards to "accommodate" defendants' speech rights. See 799 F. Supp., at 1434. Because the District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zone from unprotected conduct--especially with law enforcement efforts hampered by defendants' harassment of the police--would have been to keep the entire area clear of defendant protesters, the District Court's extra effort to enhance defendants' speech rights by allowing an exception to the fixed buffer zone should not redound to the detriment of respondents. </s> [Footnote 12 Although petitioners argue that our disapproval of the 300-foot no approach zone in Madsen requires disapproval of the "cease and desist" provision, Madsen is easily distinguishable on this point, since the no approach zone was eight times broader than the "buffer zone" deemed necessary to ensure access to the clinic in Madsen. Justice Scalia in dissent suggests that our failure to endorse the District Court's reason for including the "cease and desist" provision requires us to reverse the District Court's decision setting the injunction's terms. This suggestion is inconsistent with our precedents. See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 76 (1990) ("[A]lthough we affirm the Seventh Circuit's judgment . . . , we do not adopt the Seventh Circuit's reasoning"); Smith v. Phillips, 455 U.S. 209, 215 , n. 6 (1982) ("Respondent may, of course, defend the judgment below on any ground which the law and the record permit, provided the asserted ground would not expand the relief which has been granted"); SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) ("[W]e do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct `although the lower court relied upon a wrong ground or gave a wrong reason' " (quoting Helvering v. Gowran, 302 U.S. 238, 245 (1937)); Langnes v. Green, 282 U.S. 531, 536-537 (1931) ("[T]he entire record is before this court with power to review the action of the court of appeals and direct such disposition of the case as that court might have done upon the writ of error sued out for the review of the [district] court"); Williams v. Norris, 12 Wheat. 117, 120 (1827) (Marshall, C.J.) ("If the judgment [of the lower court]should be correct, although the reasoning, by which the mind of the Judge was conducted to it, should be deemed unsound, that judgment would certainly be affirmed in [this] Court"). </s> [Footnote 13 The defendants, including the two petitioners, stipulated before the District Court that "[i]f [the District Court] concludes that some or all of the relief requested by plaintiffs should be granted on a preliminary injunctive basis, defendants will consent to the entry of such an injunction against each and every one of them." App. to Pet. for Cert. A 136. </s> [Footnote 1 The Court's lengthy citation of cases standing for the proposition that an appellate court can affirm on a mandatory legal ground different from that relied upon by the trial court, ante, at 25, n. 12, has no relevance to the question whether an appellate court can substitute its own assessments of past facts, of future probabilities, and hence of injunctive necessities, for the assessments made (and required to be made) by the trial court. </s> [Footnote 2 The Court contends that petitioners only raise the issue whether the §40-c cause of action is "valid," and not the issue whether the District Court erred in concluding that the claim was "likely to succeed." Ante, at 16. The concept of an invalid claim that is likely to succeed is an interesting one, but there is no doubt that petitioners did not entertain it: They plainly challenged "[t]he district court's ruling that respondents were likely to prevail on their state antidiscrimination claim." Brief for Petitioners 32; see also id., at 15. </s> [Footnote 3 Madsen also refers to "public safety" as one of the government interests on which the state court relied in justifying the challenged injunction, 512 U.S., at 768 , but nothing in our decision approved or relied upon that feature of the state court's approach. </s> [Footnote 4 The Court approves reliance on "public safety" not "as an element which supported respondents' claim for an injunction," but only "as a basis for rejecting petitioners' challenge to the injunction on First Amendment grounds." Ante, at 17, n. 7. Such a distinction makes no sense. In the context before us here, whether there is "a basis for rejecting petitioners' challenge to the injunction on First Amendment grounds" depends entirely on whether the "element[s] which suppor[t] the respondents' claim for an injunction" are strong enough. The issues are one and the same. Any injunction must be justified by the elements that support it. The involvement of First Amendment rights does not alter that rule, but merely increases the degree of justification required. Of course, illogical or not, by simply saying so, the Court can limit its novel "public safety" rationale to injunctions involving the freedom of speech. But I would hardly consider that a small and unimportant area for the newly created judicial Committees of Public Safety to control.

United States Supreme Court BEECH AIRCRAFT CORP. v. RAINEY(1988) No. 87-981 Argued: October 4, 1988Decided: December 12, 1988 </s> Respondents' spouses, a Navy flight instructor and her student, were killed when, during training exercises, their Navy aircraft banked sharply to avoid another plane, lost altitude, and crashed. At the trial of respondents' product liability suit against petitioners, the companies which manufactured and serviced the plane in question, the only seriously disputed issue was whether the crash was caused by pilot error or equipment malfunction. Having previously determined that a Navy investigative report of the incident (the JAG Report or Report) was sufficiently trustworthy to be admissible, the District Court admitted, over respondents' objections, most of the Report's "opinions," including a statement suggesting that pilot error was the most probable cause of the accident. Moreover, after respondent Rainey, who was himself a Navy flight instructor, admitted on direct examination as an adverse witness that he had made certain statements arguably supporting a pilot error theory in a detailed letter in which he took issue with some of the JAG Report's findings, his counsel attempted to ask him on cross-examination whether the letter did not also say that the most probable primary cause of the mishap was a loss of power due to equipment malfunction. However, before Rainey could answer, the court sustained a defense objection on the ground that the question asked for Rainey's opinion, and cut off further questioning along this line. After the jury returned a verdict for petitioners, the Court of Appeals reversed and remanded for a new trial. The court held itself bound by Smith v. Ithaca Corp., 612 F.2d 215 (CA5), such that Federal Rule of Evidence 803(8)(C) - which excepts from the hearsay rule "public records and reports" setting forth "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness" - did not encompass the JAG Report's evaluative conclusions or opinions. The court also held that Federal Rule of Evidence 106 forbade the trial court to prohibit cross-examination about additional portions of Rainey's letter which would [488 U.S. 153, 154] have put in context the admissions elicited from him on direct examination. On rehearing en banc the Court of Appeals did not disturb the panel's judgment. </s> Held: </s> 1. Statements in the form of opinions or conclusions are not by that fact excluded from the scope of Rule 803(8)(C). The Rule's language does not call for the distinction between "fact" and "opinion" drawn by Smith, supra, and other proponents of a narrow interpretation of the Rule's "factual findings" phrase, since "finding of fact" is commonly defined to include conclusions by way of reasonable inference from the evidence, and since in specifying the kinds of reports that are admissible the Rule does not create a distinction between "fact" and "opinion." Nor is any such distinction required by the intent of the Rule's framers, as expressed in the Advisory Committee's Notes on the Rule. This conclusion is strengthened by the analytical difficulty of drawing such a distinction. Rather than requiring that some inevitably arbitrary line be drawn between the various shades of fact/opinion that invariably will be present in investigatory reports, the Rule instructs courts - as its plain language states - to admit "reports . . . setting forth . . . factual findings." Appropriate limitations and safeguards lie in the fact that the Rule's requirement that reports contain factual findings bars the admission of statements not based on factual investigation, and in the Rule's trustworthiness requirement. Thus, as long as a conclusion satisfies the latter requirements, it should be admissible along with other portions of the Report. Here, since the District Court determined that certain of the JAG Report's conclusions were trustworthy, it rightly admitted them into evidence. Pp. 161-170. </s> 2. On the facts of this litigation, the District Court abused its discretion in restricting the scope of cross-examination of respondent Rainey by his counsel in regard to his letter. Pp. 170-175. </s> (a) While the letter did make the statements to which Rainey admitted on direct examination which tended to support a pilot error theory, the letter's thrust was to challenge that theory as inconsistent with the evidence and the likely actions of the two pilots, and to expound at length on Rainey's theory of equipment malfunction and demonstrate how the various pieces of evidence supported that theory. Since it is plausible that the jury would have concluded from Rainey's testimony that he did not believe in his equipment malfunction theory when he wrote the letter but developed it only later for litigation purposes, the jury was given a distorted and prejudicial impression of the letter, which Rainey's counsel was unable to counteract due to the District Court's refusal to allow him to present additional information on cross-examination. The common-law "rule of completeness," which has been [488 U.S. 153, 155] partially codified in Rule 106 - whereby, when a party has introduced part of a writing, an adverse party may require the introduction of any other part which ought in fairness to be considered contemporaneously - was designed to prevent exactly this type of prejudice. However, although the concerns underlying Rule 106 are clearly relevant to this litigation, it is unnecessary to determine whether the Rule applies, since, where misunderstanding or distortion can be averted only through presentation of an additional portion of a document, the material required for completeness is necessarily relevant and admissible. The question posed by Rainey's counsel on cross-examination was not asked for the purpose of eliciting Rainey's opinion as to the cause of the accident, but rather inquired whether he had made a certain statement in his letter, a question he was eminently qualified to answer. Defense counsel's objection to that question as calling for an opinion could not avail in view of the obvious purpose for which the statement was offered. Pp. 170-173. </s> (b) Petitioners' contention that Rainey waived the right to pursue the cross-examination testimony issue on appeal because he did not properly raise it in the trial court is not persuasive. The nature of Rainey's proposed testimony was abundantly apparent from the very question put by his counsel, such that the offer-of-proof requirement of Federal Rule of Evidence 103(a)(2) was satisfied. Moreover, Rainey's counsel substantially satisfied the requirement of Federal Rule of Civil Procedure 46 that he put the court on notice as to his objection to the exclusion and the grounds therefor, when, in the colloquy following the defense objection to his question, and before he was cut off, he began to articulate his completeness argument. Pp. 174-175. </s> 827 F.2d 1498, affirmed in part, reversed in part, and remanded. </s> BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined, and in Parts I and II of which REHNQUIST, C. J., and O'CONNOR, J., joined. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR, J., joined, post, p. 176. </s> [Footnote * Together with No. 87-1028, Beech Aerospace Services, Inc. v. Rainey et al., also on certiorari to the same court. </s> Jos. W. Womack argued the cause for petitioners in both cases and filed briefs for petitioner Beech Aircraft Corp. W. H. F. Wiltshire filed briefs for petitioner Beech Aerospace Services, Inc. </s> Dennis K. Larry argued the cause for respondents in both cases. With him on the brief were Edward R. Curtis and Donald H. Partington. [488 U.S. 153, 156] </s> JUSTICE BRENNAN delivered the opinion of the Court. </s> In this action we address a longstanding conflict among the Federal Courts of Appeals over whether Federal Rule of Evidence 803(8)(C), which provides an exception to the hearsay rule for public investigatory reports containing "factual findings," extends to conclusions and opinions contained in such reports. We also consider whether, on the facts of this litigation, the trial court abused its discretion in refusing to admit, on cross-examination, testimony intended to provide a more complete picture of a document about which the witness had testified on direct. </s> I </s> This litigation stems from the crash of a Navy training aircraft at Middleton Field, Alabama, on July 13, 1982, which took the lives of both pilots on board, Lieutenant Commander Barbara Ann Rainey and Ensign Donald Bruce Knowlton. The accident took place while Rainey, a Navy flight instructor, and Knowlton, her student, were flying "touch-and-go" exercises in a T-34C Turbo-Mentor aircraft, number 3E955. Their aircraft and several others flew in an oval pattern, each plane making successive landing/takeoff maneuvers on the runway. Following its fourth pass at the runway, 3E955 appeared to make a left turn prematurely, cutting out the aircraft ahead of it in the pattern and threatening a collision. After radio warnings from two other pilots, the plane banked sharply to the right in order to avoid the other aircraft. At that point it lost altitude rapidly, crashed, and burned. </s> Because of the damage to the plane and the lack of any survivors, the cause of the accident could not be determined with certainty. The two pilots' surviving spouses brought a product liability suit against petitioners Beech Aircraft Corporation, the plane's manufacturer, and Beech Aerospace Services, which serviced the plane under contract with the Navy. 1 The plaintiffs alleged that the crash had been [488 U.S. 153, 157] caused by a loss of engine power, known as "rollback," due to some defect in the aircraft's fuel control system. The defendants, on the other hand, advanced the theory of pilot error, suggesting that the plane had stalled during the abrupt avoidance maneuver. </s> At trial, the only seriously disputed question was whether pilot error or equipment malfunction had caused the crash. Both sides relied primarily on expert testimony. One piece of evidence presented by the defense was an investigative report prepared by Lieutenant Commander William Morgan on order of the training squadron's commanding officer and pursuant to authority granted in the Manual of the Judge Advocate General. This "JAG Report," completed during the six weeks following the accident, was organized into sections labeled "finding of fact," "opinions," and "recommendations," and was supported by some 60 attachments. The "finding of fact" included statements like the following: </s> "13. At approximately 1020, while turning crosswind without proper interval, 3E955 crashed, immediately caught fire and burned. </s> . . . . . </s> "27. At the time of impact, the engine of 3E955 was operating but was operating at reduced power." App. 10-12. </s> Among his "opinions" Lieutenant Commander Morgan stated, in paragraph 5, that due to the deaths of the two pilots and the destruction of the aircraft "it is almost impossible to determine exactly what happened to Navy 3E955 from the time it left the runway on its last touch and go until it impacted the ground." He nonetheless continued with a detailed reconstruction of a possible set of events, based on pilot error, that could have caused the accident. 2 The next two paragraphs stated a caveat and a conclusion: [488 U.S. 153, 158] </s> "6. Although the above sequence of events is the most likely to have occurred, it does not change the possibility that a `rollback' did occur. </s> "7. The most probable cause of the accident was the pilots [sic] failure to maintain proper interval." Id., at 15. </s> The trial judge initially determined, at a pretrial conference, that the JAG Report was sufficiently trustworthy to be admissible, but that it "would be admissible only on its factual [488 U.S. 153, 159] findings and would not be admissible insofar as any opinions or conclusions are concerned." Id., at 35. The day before trial, however, the court reversed itself and ruled, over the plaintiffs' objection, that certain of the conclusions would be admitted. Id., at 40-41. Accordingly, the court admitted most of the report's "opinions," including the first sentence of paragraph 5 about the impossibility of determining exactly what happened, and paragraph 7, which opined about failure to maintain proper interval as "[t]he most probable cause of the accident." Id., at 97. On the other hand, the remainder of paragraph 5 was barred as "nothing but a possible scenario," id., at 40, and paragraph 6, in which investigator Morgan refused to rule out rollback, was deleted as well. 3 </s> This action also concerns an evidentiary ruling as to a second document. Five or six months after the accident, plaintiff John Rainey, husband of the deceased pilot and himself a Navy flight instructor, sent a detailed letter to Lieutenant Commander Morgan. Based on Rainey's own investigation, the letter took issue with some of the JAG Report's findings and outlined Rainey's theory that "[t]he most probable primary cause factor of this aircraft mishap is a loss of useful power (or rollback) caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit." Id., at 104, 111. </s> At trial Rainey did not testify during his side's case in chief, but he was called by the defense as an adverse witness. On direct examination he was asked about two statements contained in his letter. The first was to the effect that his wife had unsuccessfully attempted to cancel the ill-fated training flight because of a variety of adverse factors including her student's fatigue. The second question concerned a portion of Rainey's hypothesized scenario of the accident: [488 U.S. 153, 160] </s> "Didn't you say, sir, that after Mrs. Rainey's airplane rolled wings level, that Lieutenant Colonel Habermacher's plane came into view unexpectedly at its closest point of approach, although sufficient separation still existed between the aircraft. However, the unexpected proximitely [sic] of Colonel Habermacher's plane caused one of the aircrew in Mrs. Rainey's plane to react instinctively and abruptly by initiating a hard right turn away from Colonel Habermacher's airplane?" Id., at 75. </s> Rainey admitted having made both statements. On cross-examination, Rainey's counsel asked the following question: "In the same letter to which Mr. Toothman made reference to in his questions, sir, did you also say that the most probably [sic] primary cause of this mishap was rollback?" Id., at 77. Before Rainey answered, the court sustained a defense objection on the ground that the question asked for Rainey's opinion. Further questioning along this line was cut off. </s> Following a 2-week trial, the jury returned a verdict for petitioners. A panel of the Eleventh Circuit reversed and remanded for a new trial. 784 F.2d 1523 (1986). Considering itself bound by the Fifth Circuit precedent of Smith v. Ithaca Corp., 612 F.2d 215 (1980), 4 the panel agreed with Rainey's argument that Federal Rule of Evidence 803(8)(C), which excepts investigatory reports from the hearsay rule, did not encompass evaluative conclusions or opinions. Therefore, it held, the "conclusions" contained in the JAG Report should have been excluded. One member of the panel, concurring specially, urged however that the Circuit reconsider its interpretation of Rule 803(8)(C), suggesting that "Smith is an anomaly among the circuits." 784 F.2d, at 1530 (opinion of Johnson, J.). The panel also held, citing Federal Rule of Evidence 106, that it was reversible error for the trial court [488 U.S. 153, 161] to have prohibited cross-examination about additional portions of Rainey's letter which would have put in context the admissions elicited from him on direct. 5 </s> On rehearing en banc, the Court of Appeals divided evenly on the question of Rule 803(8)(C). 827 F.2d 1498 (CA11 1987). It therefore held that Smith was controlling and consequently reinstated the panel judgment. On the Rule 106 question, the court unanimously reaffirmed the panel's decision that Rule 106 (or alternatively Rule 801(d)(1)(B)) required reversal. We granted certiorari to consider both issues. 485 U.S. 903 (1988). </s> II </s> Federal Rule of Evidence 803 provides that certain types of hearsay statements are not made excludable by the hearsay rule, whether or not the declarant is available to testify. Rule 803(8) defines the "public records and reports" which are not excludable, as follows: </s> "Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness." </s> Controversy over what "public records and reports" are made not excludable by Rule 803(8)(C) has divided the federal courts from the beginning. In the present litigation, the Court of Appeals followed the "narrow" interpretation of Smith v. Ithaca Corp., supra, at 220-223, which held that the [488 U.S. 153, 162] term "factual findings" did not encompass "opinions" or "conclusions." Courts of Appeals other than those of the Fifth and Eleventh Circuits, however, have generally adopted a broader interpretation. For example, the Court of Appeals for the Sixth Circuit, in Baker v. Elcona Homes Corp., 588 F.2d 551, 557-558 (1978), cert. denied, 441 U.S. 933 (1979), held that "factual findings admissible under Rule 803(8)(C) may be those which are made by the preparer of the report from disputed evidence . . . ." 6 The other Courts of Appeals that have squarely confronted the issue have also adopted the broader interpretation. 7 We agree and hold that factually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C). [488 U.S. 153, 163] </s> Because the Federal Rules of Evidence are a legislative enactment, we turn to the "traditional tools of statutory construction," INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987), in order to construe their provisions. We begin with the language of the Rule itself. Proponents of the narrow view have generally relied heavily on a perceived dichotomy between "fact" and "opinion" in arguing for the limited scope of the phrase "factual findings." Smith v. Ithaca Corp. contrasted the term "factual findings" in Rule 803(8) (C) with the language of Rule 803(6) (records of regularly conducted activity), which expressly refers to "opinions" and "diagnoses." "Factual findings," the court opined, must be something other than opinions. 612 F.2d, at 221-222. 8 </s> For several reasons, we do not agree. In the first place, it is not apparent that the term "factual findings" should be [488 U.S. 153, 164] read to mean simply "facts" (as opposed to "opinions" or "conclusions"). A common definition of "finding of fact" is, for example, "[a] conclusion by way of reasonable inference from the evidence." Black's Law Dictionary 569 (5th ed. 1979). To say the least, the language of the Rule does not compel us to reject the interpretation that "factual findings" includes conclusions or opinions that flow from a factual investigation. Second, we note that, contrary to what is often assumed, the language of the Rule does not state that "factual findings" are admissible, but that "reports . . . setting forth . . . factual findings" (emphasis added) are admissible. On this reading, the language of the Rule does not create a distinction between "fact" and "opinion" contained in such reports. </s> Turning next to the legislative history of Rule 803(8)(C), we find no clear answer to the question of how the Rule's language should be interpreted. Indeed, in this litigation the legislative history may well be at the origin of the dispute. Rather than the more usual situation where a court must attempt to glean meaning from ambiguous comments of legislators who did not focus directly on the problem at hand, here the Committees in both Houses of Congress clearly recognized and expressed their opinions on the precise question at issue. Unfortunately, however, they took diametrically opposite positions. Moreover, the two Houses made no effort to reconcile their views, either through changes in the Rule's language or through a statement in the Report of the Conference Committee. </s> The House Judiciary Committee, which dealt first with the proposed rules after they had been transmitted to Congress by this Court, included in its Report but one brief paragraph on Rule 803(8): </s> "The Committee approved Rule 803(8) without substantive change from the form in which it was submitted by the Court. The Committee intends that the phrase `factual findings' be strictly construed and that evaluations or opinions contained in public reports shall not be [488 U.S. 153, 165] admissible under this Rule." H. R. Rep. No. 93-650, p. 14 (1973). </s> The Senate Committee responded at somewhat greater length, but equally emphatically: </s> "The House Judiciary Committee report contained a statement of intent that `the phrase "factual findings" in subdivision (c) be strictly construed and that evaluations or opinions contained in public reports shall not be admissible under this rule.' The committee takes strong exception to this limiting understanding of the application of the rule. We do not think it reflects an understanding of the intended operation of the rule as explained in the Advisory Committee notes to this subsection. . . . We think the restrictive interpretation of the House overlooks the fact that while the Advisory Committee assumes admissibility in the first instance of evaluative reports, they are not admissible if, as the rule states, `the sources of information or other circumstances indicate lack of trustworthiness.' </s> . . . . . </s> "The committee concludes that the language of the rule together with the explanation provided by the Advisory Committee furnish sufficient guidance on the admissibility of evaluative reports." S. Rep. No. 93-1277, p. 18 (1974). </s> Clearly this legislative history reveals a difference of view between the Senate and the House that affords no definitive guide to the congressional understanding. It seems clear however that the Senate understanding is more in accord with the wording of the Rule and with the comments of the Advisory Committee. 9 </s> [488 U.S. 153, 166] </s> The Advisory Committee's comments are notable, first, in that they contain no mention of any dichotomy between statements of "fact" and "opinions" or "conclusions." What was on the Committee's mind was simply whether what it called "evaluative reports" should be admissible. Illustrating the previous division among the courts on this subject, the Committee cited numerous cases in which the admissibility of such reports had been both sustained and denied. It also took note of various federal statutes that made certain kinds of evaluative reports admissible in evidence. What is striking about all of these examples is that these were reports that stated conclusions. E. g., Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467, 472-473 (CA3 1950) (report of Bureau of Mines concerning the cause of a gas tank explosion admissible); Franklin v. Skelly Oil Co., 141 F.2d 568, 571-572 (CA10 1944) (report of state fire marshal on the cause of a gas explosion inadmissible); 42 U.S.C. 269(b) (bill of health by appropriate official admissible as prima facie evidence of vessel's sanitary history and condition). The Committee's concern was clearly whether reports of this kind should be admissible. Nowhere in its comments is there the slightest indication that it even considered the solution of admitting only "factual" statements from such reports. 10 </s> [488 U.S. 153, 167] Rather, the Committee referred throughout to "reports," without any such differentiation regarding the statements they contained. What the Committee referred to in the Rule's language as "reports . . . setting forth . . . factual findings" is surely nothing more or less than what in its commentary it called "evaluative reports." Its solution as to their admissibility is clearly stated in the final paragraph of its report on this Rule. That solution consists of two principles: First, "the rule . . . assumes admissibility in the first instance . . . ." Second, it provides "ample provision for escape if sufficient negative factors are present." </s> That "provision for escape" is contained in the final clause of the Rule: evaluative reports are admissible "unless the sources of information or other circumstances indicate lack of trustworthiness." This trustworthiness inquiry - and not an arbitrary distinction between "fact" and "opinion" - was the Committee's primary safeguard against the admission of unreliable evidence, and it is important to note that it applies to all elements of the report. Thus, a trial judge has the discretion, and indeed the obligation, to exclude an entire report or portions thereof - whether narrow "factual" statements or broader "conclusions" - that she determines to be untrustworthy. 11 Moreover, safeguards built into other portions of [488 U.S. 153, 168] the Federal Rules, such as those dealing with relevance and prejudice, provide the court with additional means of scrutinizing and, where appropriate, excluding evaluative reports or portions of them. And of course it goes without saying that the admission of a report containing "conclusions" is subject to the ultimate safeguard - the opponent's right to present evidence tending to contradict or diminish the weight of those conclusions. </s> Our conclusion that neither the language of the Rule nor the intent of its framers calls for a distinction between "fact" and "opinion" is strengthened by the analytical difficulty of drawing such a line. It has frequently been remarked that the distinction between statements of fact and opinion is, at best, one of degree: </s> "All statements in language are statements of opinion, i. e., statements of mental processes or perceptions. So-called `statements of fact' are only more specific statements of opinion. What the judge means to say, when he asks the witness to state the facts, is: `The nature of this case requires that you be more specific, if you can, in your description of what you saw.'" W. King & D. Pillinger, Opinion Evidence in Illinois 4 (1942) (footnote omitted), quoted in 3 J. Weinstein & M. Berger, Weinstein's Evidence § 70101., p. 701-6 (1988). </s> See also E. Cleary, McCormick on Evidence 27 (3d ed. 1984) ("There is no conceivable statement however specific, detailed and `factual,' that is not in some measure the product of inference and reflection as well as observation and memory"); R. Lempert & S. Saltzburg, A Modern Approach to Evidence 449 (2d ed. 1982) ("A factual finding, unless it is a simple report of something observed, is an opinion as to what more basic facts imply"). Thus, the traditional requirement that lay witnesses give statements of fact rather than opinion may [488 U.S. 153, 169] be considered, "[l]ike the hearsay and original documents rules . . . a `best evidence' rule." McCormick, Opinion Evidence in Iowa, 19 Drake L. Rev. 245, 246 (1970). </s> In the present action, the trial court had no difficulty in admitting as a factual finding the statement in the JAG Report that "[a]t the time of impact, the engine of 3E955 was operating but was operating at reduced power." Surely this "factual finding" could also be characterized as an opinion, which the investigator presumably arrived at on the basis of clues contained in the airplane wreckage. Rather than requiring that we draw some inevitably arbitrary line between the various shades of fact/opinion that invariably will be present in investigatory reports, we believe the Rule instructs us - as its plain language states - to admit "reports . . . setting forth . . . factual findings." The Rule's limitations and safeguards lie elsewhere: First, the requirement that reports contain factual findings bars the admission of statements not based on factual investigation. Second, the trustworthiness provision requires the court to make a determination as to whether the report, or any portion thereof, is sufficiently trustworthy to be admitted. </s> A broad approach to admissibility under Rule 803(8)(C), as we have outlined it, is also consistent with the Federal Rules' general approach of relaxing the traditional barriers to "opinion" testimony. Rules 702-705 permit experts to testify in the form of an opinion, and without any exclusion of opinions on "ultimate issues." And Rule 701 permits even a lay witness to testify in the form of opinions or inferences drawn from her observations when testimony in that form will be helpful to the trier of fact. We see no reason to strain to reach an interpretation of Rule 803(8)(C) that is contrary to the liberal thrust of the Federal Rules. 12 </s> [488 U.S. 153, 170] </s> We hold, therefore, that portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along with other portions of the report. 13 As the trial judge in this action determined that certain of the JAG Report's conclusions were trustworthy, he rightly allowed them to be admitted into evidence. We therefore reverse the judgment of the Court of Appeals in respect of the Rule 803(8)(C) issue. </s> III </s> Respondents also contended on appeal that reversal was required because the District Court improperly restricted the cross-examination of plaintiff Rainey by his own counsel in regard to the letter Rainey had addressed to Lieutenant Commander Morgan. We agree with the unanimous holding of the Court of Appeals en banc that the District Court erred in refusing to permit Rainey to present a more complete picture of what he had written to Morgan. </s> We have no doubt that the jury was given a distorted and prejudicial impression of Rainey's letter. The theory of Rainey's case was that the accident was the result of a power failure, and, read in its entirety, his letter to Morgan was fully consistent with that theory. While Rainey did discuss problems his wife had encountered the morning of the accident which led her to attempt to cancel the flight, and also agreed that her airplane had violated pattern integrity in turning left prematurely, the thrust of his letter was to challenge [488 U.S. 153, 171] Morgan's theory that the crash had been caused by a stall that took place when the pilots turned sharply right and pitched up in attempting to avoid the other plane. Thus Rainey argued that Morgan's hypothesis was inconsistent with the observations of eyewitnesses, the physical findings in the wreckage, and the likely actions of the two pilots. He explained at length his theory of power failure and attempted to demonstrate how the various pieces of evidence supported it. What the jury was told, however, through the defendants' direct examination of Rainey as an adverse witness, was that Rainey had written six months after the accident (1) that his wife had attempted to cancel the flight, partly because her student was tired and emotionally drained, and that "unnecessary pressure" was placed on them to proceed with it; and (2) that she or her student had abruptly initiated a hard right turn when the other aircraft unexpectedly came into view. It is plausible that a jury would have concluded from this information that Rainey did not believe in his theory of power failure and had developed it only later for purposes of litigation. Because the court sustained defense counsel's objection, Rainey's counsel was unable to counteract this prejudicial impression by presenting additional information about the letter on cross-examination. </s> The common-law "rule of completeness," which underlies Federal Rule of Evidence 106, was designed to prevent exactly the type of prejudice of which Rainey complains. In its aspect relevant to this litigation, the rule of completeness was stated succinctly by Wigmore: "[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance." 7 J. Wigmore, Evidence in Trials at Common Law 2113, p. 653 (J. Chadbourn rev. 1978). 14 The [488 U.S. 153, 172] Federal Rules of Evidence have partially codified the doctrine of completeness in Rule 106: </s> "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." </s> In proposing Rule 106, the Advisory Committee stressed that it "does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case." Advisory Committee's Notes on Fed. Rule Evid. 106, 28 U.S.C. App., p. 682. We take this to be a reaffirmation of the obvious: that when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402. See 1 J. Weinstein & M. Berger, Weinstein's Evidence § 10602., p. 106-20 (1986). The District Court's refusal to admit the proffered completion evidence was a clear abuse of discretion. </s> While much of the controversy in this suit has centered on whether Rule 106 applies, we find it unnecessary to address that issue. Clearly the concerns underlying Rule 106 are relevant here, but, as the general rules of relevancy permit a ready resolution to this litigation, we need go no further in exploring the scope and meaning of Rule 106. 15 </s> Unfortunately for the clarity of the proceedings, the defendants' objection to the question put by Rainey's counsel was couched not in terms of relevance but rather as calling [488 U.S. 153, 173] for an opinion. 16 While the question put to Rainey indeed inquired about an opinion Rainey had earlier expressed, it should have been obvious from the context that the purpose of the question was not to elicit Rainey's opinion on the cause of the accident. Rather, Rainey was asked, in effect, whether he had made a certain statement in his letter. That was a question he was eminently qualified to answer. 17 Counsel's objection that Rainey was not entitled to give opinion evidence could not avail in view of the obvious purpose for which the statement was offered. 18 </s> [488 U.S. 153, 174] </s> Petitioners have also objected that Rainey waived the right to pursue this issue on appeal because he did not properly raise it in the trial court. We disagree. Rule 103(a)(2) requires, in the first place, that to preserve an argument that evidence was wrongly excluded the proponent must make known the substance of the evidence sought to be admitted by an offer of proof unless it "was apparent from the context within which questions were asked." 19 Here the nature of the proposed testimony was abundantly apparent from the very question put by Rainey's counsel. The proponent must also comply with Federal Rule of Civil Procedure 46, which requires that a party seeking to preserve an objection to the court's ruling must "mak[e] known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor." Although, as is frequently the case in the heat of a trial, counsel did not explain the evidentiary basis of his argument as thoroughly as might ideally be desired, we are satisfied that he substantially satisfied the requirement of putting the court on notice as to his concern. In the colloquy following the defense objection to his question, 20 and before he was cut off first by defense counsel and then by the judge, Rainey's counsel began to articulate the argument that his question should be allowed because the defense had been able to question Rainey concerning his letter. Moreover, the judge's response 21 suggests that he perceived the completeness argument. We cannot say that the point was not sufficiently [488 U.S. 153, 175] made. 22 Rainey therefore was not barred from pursuing this issue on appeal. </s> IV </s> We hold, first, that statements in the form of opinions or conclusions are not by that fact excluded from the scope of Federal Rule of Evidence 803(8)(C). We therefore reverse the judgment of the Court of Appeals in that respect. Second, we hold that on the facts of this litigation the District Court abused its discretion in restricting the scope of cross-examination of respondent Rainey by his counsel, and to that extent we affirm the Court of Appeals' judgment. The case is remanded for further proceedings consistent with this opinion. </s> It is so ordered. </s> Footnotes [Footnote 1 The manufacturer of the plane's engine, Pratt & Whitney Canada, Ltd., was also a defendant, but it subsequently settled with respondents and is no longer a party to this action. </s> [Footnote 2 Paragraph 5 reads in its entirety as follows: </s> "Because both pilots were killed in the crash and because of the nearly total destruction of the aircraft by fire, it is almost impossible to determine exactly what happened to Navy 3E955 from the time it left the [488 U.S. 153, 158] runway on its last touch and go until it impacted the ground. However, from evidence available and the information gained from eyewitnesses, a possible scenario can be constructed as follows: </s> "a. 3E955 entered the Middleton pattern with ENS Knowlton at the controls attempting to make normal landings. </s> "b. After two unsuccessful attempts, LCDR Rainey took the aircraft and demonstrated two landings `on the numbers.' After getting the aircraft safely airborne from the touch and go, LCDR Rainey transferred control to ENS Knowlton. </s> "c. Due to his physical strength, ENS Knowlton did not trim down elevator as the aircraft accelerated toward 100 knots; in fact, due to his inexperience, he may have trimmed incorrectly, putting in more up elevator. </s> "d. As ENS Knowlton was climbing to pattern altitude, he did not see the aircraft established on downwind so he began his crosswind turn. Due to ENS Knowlton's large size, LCDR Rainey was unable to see the conflicting traffic. </s> "e. Hearing the first call, LCDR Rainey probably cautioned ENS Knowlton to check for traffic. Hearing the second call, she took immediate action and told ENS Knowlton she had the aircraft as she initiated a turn toward an upwind heading. </s> "f. As the aircraft was rolling from a climbing left turn to a climbing right turn, ENS Knowlton released the stick letting the up elevator trim take effect causing the nose of the aircraft to pitch abruptly up. </s> "g. The large angle of bank used trying to maneuver for aircraft separation coupled with the abrupt pitch up caused the aircraft to stall. As the aircraft stalled and went into a nose low attitude, LCDR Rainey reduced the PCL (power control lever) toward idle. As she was rolling toward wings level, she advanced the PCL to maximum to stop the loss of altitude but due to the 2 to 4 second lag in engine response, the aircraft impacted the ground before power was available." App. 14-15. </s> [Footnote 3 The record gives no indication why paragraph 6 was deleted. See, e. g., id., at 40 (striking most of paragraph 5, as well as paragraphs 8 and 9, but silent on paragraph 6). Neither at trial nor on appeal have respondents raised any objection to the deletion of paragraph 6. </s> [Footnote 4 In Bonner v. Prichard, 661 F.2d 1206 (1981), the newly created Eleventh Circuit adopted as binding precedent Fifth Circuit decisions rendered prior to October 1981. </s> [Footnote 5 In the alternative the court held that Rainey's testimony should have been admitted as a prior consistent statement under Rule 801(d)(1)(B). </s> [Footnote 6 Baker involved a police officer's report on an automobile accident. While there was no direct witness as to the color of the traffic lights at the moment of the accident, the court held admissible the officer's conclusion on the basis of his investigations at the accident scene and an interview with one of the drivers that "apparently unit #2 . . . entered the intersection against a red light." 588 F.2d, at 555. </s> [Footnote 7 See Melville v. American Home Assurance Co., 584 F.2d 1306, 1315-1316 (CA3 1978); Ellis v. International Playtex, Inc., 745 F.2d 292, 300-301 (CA4 1984); Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 618 (CA8 1983); Jenkins v. Whittaker Corp., 785 F.2d 720, 726 (CA9), cert. denied, 479 U.S. 918 (1986); Perrin v. Anderson, 784 F.2d 1040, 1046-1047 (CA10 1986). </s> Nor is the scope of Rule 803(8)(C) unexplored terrain among legal scholars. The leading evidence treatises are virtually unanimous in recommending the broad approach. See E. Cleary, McCormick on Evidence 890, n. 7 (3d ed. 1984); M. Graham, Handbook of Federal Evidence 886 (2d ed. 1986); R. Lempert & S. Saltzburg, A Modern Approach to Evidence 449-450 (2d ed. 1982); G. Lilly, An Introduction to the Law of Evidence 275-276 (2d ed. 1987); 4 D. Louisell & C. Mueller, Federal Evidence 455, pp. 740-741 (1980); 4 J. Weinstein & M. Berger, Weinstein's Evidence § 803(8)03., pp. 803-250 to 803-252 (1987). See generally Grant, The Trustworthiness Standard for the Public Records and Reports Hearsay Exception, 12 Western St. U. L. Rev. 53, 81-85 (1984) (favoring broad admissibility); Note, The Scope of Federal Rule of Evidence 803(8)(C), 59 Texas L. Rev. 155 (1980) (advocating narrow interpretation); Comment, The Public Documents Hearsay Exception for Evaluative Reports: Fact or Fiction?, 63 Tulane L. Rev. 121 (1988) (same). </s> [Footnote 8 The court in Smith found it significant that different language was used in Rules 803(6) and 803(8)(C): "Since these terms are used in similar context within the same Rule, it is logical to assume that Congress intended that the terms have different and distinct meanings." 612 F.2d, at 222. The Advisory Committee Notes to Rule 803(6) make clear, however, that the Committee was motivated by a particular concern in drafting the language of that Rule. While opinions were rarely found in traditional "business records," the expansion of that category to encompass documents such as medical diagnoses and test results brought with it some uncertainty in earlier versions of the Rule as to whether diagnoses and the like were admissible. "In order to make clear its adherence to the [position favoring admissibility]," the Committee stated, "the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries." Advisory Committee's Notes on Fed. Rule Evid. 803(6), 28 U.S.C. App., p. 723. Since that specific concern was not present in the context of Rule 803(8)(C), the absence of identical language should not be accorded much significance. See 827 F.2d, 1498, 1511-1512 (CA11 1987) (en banc) (Tjoflat, J., concurring). What is more, the Committee's report on Rule 803(8)(C) strongly suggests that that Rule has the same scope of admissibility as does Rule 803(6): "Hence the rule, as in Exception [paragraph] (6), assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present." Advisory Committee's Notes on Fed. Rule Evid. 803(8), 28 U.S.C. App., p. 725 (emphasis added). </s> [Footnote 9 See Advisory Committee's Notes on Fed. Rule Evid. 803(8), 28 U.S.C. App., pp. 724-725. As Congress did not amend the Advisory Committee's draft in any way that touches on the question before us, the [488 U.S. 153, 166] Committee's commentary is particularly relevant in determining the meaning of the document Congress enacted. </s> [Footnote 10 Our conclusion that the Committee was concerned only about the question of the admissibility vel non of "evaluative reports," without any distinction between statements of "fact" and "conclusions," draws support from the fact that this was the focus of scholarly debate on the official reports question prior to adoption of the Federal Rules. Indeed, the problem was often phrased as whether official reports could be admitted in view of the fact that they contained the investigator's conclusions. Thus Professor McCormick, in an influential article relied upon by the Committee, stated his position as follows: "[E]valuative reports of official investigators, though partly based upon statements of others, and though embracing conclusions, are admissible as evidence of the facts reported." McCormick, Can the Courts Make Wider Use of Reports of Official Investigations?, 42 Iowa L. Rev. 363, 365 (1957) (emphasis added). </s> [Footnote 11 The Advisory Committee proposed a nonexclusive list of four factors it thought would be helpful in passing on this question: (1) the timeliness of the investigation; (2) the investigator's skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation (citing Palmer v. Hoffman, 318 U.S. 109 (1943)). Advisory Committee's Notes on Fed. Rule Evid. 803(8), 28 U.S.C. App., p. 725; see Note, The Trustworthiness of Government Evaluative Reports under Federal Rule of Evidence 803(8)(C), 96 Harv. L. Rev. 492 (1982). </s> In a case similar in many respects to these, the trial court applied the trustworthiness requirement to hold inadmissible a JAG Report on the causes of a Navy airplane accident; it found the report untrustworthy because it "was prepared by an inexperienced investigator in a highly complex field of investigation." Fraley v. Rockwell Int'l Corp., 470 F. Supp. 1264, 1267 (SD Ohio 1979). In the present litigation, the District [488 U.S. 153, 168] Court found the JAG Report to be trustworthy. App. 35. As no party has challenged that finding, we have no occasion to express an opinion on it. </s> [Footnote 12 The cited Rules refer, of course, to situations - unlike that at issue - where the opinion testimony is subject to cross-examination. But the determination that cross-examination was not indispensable in regard to official investigatory reports has already been made, and our point is [488 U.S. 153, 170] merely that imposing a rigid distinction between fact and opinion would run against the Rules' tendency to deemphasize that dichotomy. </s> [Footnote 13 We emphasize that the issue in this litigation is whether Rule 803(8) (C) recognizes any difference between statements of "fact" and "opinion." There is no question here of any distinction between "fact" and "law." We thus express no opinion on whether legal conclusions contained in an official report are admissible as "findings of fact" under Rule 803(8)(C). </s> [Footnote 14 In addition to this concern that the court not be misled because portions of a statement are taken out of context, the rule has also addressed the danger that an out-of-context statement may create such prejudice that [488 U.S. 153, 172] it is impossible to repair by a subsequent presentation of additional material. The issue in this litigation, however, involves only the first concern. </s> [Footnote 15 Nor, in view of our disposition of the action, need we address the alternative ground cited by the Court of Appeals for its decision, namely that Rainey's proposed testimony would have constituted a "prior consistent statement" under Rule 801(d)(1)(B). </s> [Footnote 16 The colloquy before the District Court was as follows: </s> "Q. One last point. In the same letter to which Mr. Toothman made reference to in his questions, sir, did you also say that the most probably [sic] primary cause of this mishap was rollback? </s> "Mr. Toothman: I would object to this, Your Honor. Probable cause is an opinion. </s> "The Court: I beg your pardon? </s> "Mr. Toothman: He's trying to get an opinion out of him now, not a fact. </s> "The Court: Objection sustained. </s> "Mr. Larry: Your Honor, he has had the ability - </s> "Mr. Toothman: I object to him arguing. </s> "Mr. Larry: May I be heard on this? </s> "The Court: Yes, sir. Go ahead. </s> "Mr. Larry: On the basis that this letter constitutes an admission by Commander Rainey, he has been asked to answer every single question Mr. Toothman had respecting - </s> "The Court: I don't recall going into anything except the matter about that right turn and so forth, and that's all he went into. He did express that opinion and that came in as an admission against him, I suppose, but that doesn't mean you can qualify him for the questions you are now asking. The objection is sustained." App. 77-78. </s> [Footnote 17 The defendants would, of course, have been entitled to a limiting instruction pursuant to Rule 105 had they requested it. </s> [Footnote 18 Nor would a hearsay objection have been availing. Although the question called for Rainey to testify to an out-of-court statement, that statement was not offered "to prove the truth of the matter asserted." Rule 801(c). Rather, it was offered simply to prove what Rainey had said about the accident six months after it happened, and to contribute to a fuller understanding of the material the defense had already placed in evidence. </s> [Footnote 19 Rule 103(a) provides in relevant part: </s> "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and </s> . . . . . </s> "(2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." </s> [Footnote 20 See n. 16, supra. </s> [Footnote 21 "I don't recall going into anything except the matter about that right turn and so forth, and that's all he went into." App. 78. </s> [Footnote 22 Even if, as the dissent contends, counsel's "brief presentation" was "ambiguous at best," it is incumbent upon a reviewing court to take into consideration the circumstances under which this "brief presentation" was made. Rainey's counsel attempted twice to articulate the basis on which the proposed testimony should be admitted. After first being interrupted by an objection from opposing counsel and having obtained the court's permission to make his argument, he was interrupted anew, this time by the court, which cut him off and ruled on the defense objection before he had been allowed to complete even a single sentence. See n. 16, supra. We have no quarrel with the proposition that counsel must articulate the grounds on which evidence should be admitted, and Rainey's counsel had indeed begun to do so. Surely the degree of precision with which counsel is required to argue must be judged, among other things, in accordance with the leeway the court affords him in advancing his argument. None of the cases the dissent cites is to the contrary. </s> We add that we find surprising the degree of certainty manifested by the dissent as to what the trial judge understood Rainey's counsel to be arguing - so certain indeed that it would correct what he actually said. Compare n. 16, supra ("that doesn't mean you can qualify him"), with post, at 176 ("that doesn't mean you can['t] qualify him"). The dissent has the trial judge suggest that counsel qualify Rainey as an expert, and implicitly faults counsel for not having proceeded to do so. Yet there is no basis whatever - other than the dissent's apparent belief that it is what he should have said - for assuming that the trial judge meant to say "can't" when he in fact said "can." [488 U.S. 153, 176] </s> CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins, concurring in part and dissenting in part. </s> I join Parts I and II of the Court's opinion, but dissent from Part III. I do not believe the District Court abused its discretion in refusing to admit this particular testimony. The Court concedes that "counsel did not explain the evidentiary basis of his argument as thoroughly as might ideally be desired . . ." ante, at 174, but I would go further and say that counsel's brief presentation to the District Court was ambiguous at best. </s> Rainey's attorney was faced with an objection to testimony he wished to elicit from his client based on opposing counsel's perception that it would be nonexpert opinion. 1 He responded by saying "[o]n the basis that this letter constitutes an admission by Commander Rainey, he has been asked to answer every single question [opposing counsel] had respecting -." App. 77. At that point the court cut in with an explanation of why that answer was insufficient. The judge explained: </s> "I don't recall going into anything except the matter about the right turn and so forth, and that's all he went into. He did express that opinion and that came in as an admission against him, I suppose, but that doesn't mean you can['t] qualify him for the questions you are now asking. The objection is sustained." Id., at 78. </s> Rainey's lawyer seems to have been arguing that, because no one objected to Rainey's answers to defendant's questions about the letter as nonexpert opinion, Rainey should be able to answer similar questions put by his own attorney without that objection. The argument looks more like one based on [488 U.S. 153, 177] fairness or waiver (often known as "opening the door" 2 ) than one based specifically on completeness. That is how the judge understood it. He explained his ruling sustaining the objection by noting that although the defense questioning had elicited some opinion, it was admissible on other grounds and then suggested that Rainey's lawyer qualify Rainey as an expert. Here the trial judge ruled on the basis of a reasonable understanding of respondents' stated reasons for allowing the evidence to be admitted, and the trial judge made this understanding clear to respondents' counsel. The evidence was not admissible under this view, and counsel made no attempt to clarify his position. </s> Today, the Court offers sound reasons for the admission of the testimony in question, but they are reasons which it has adduced from briefs and careful research, not the reasons expressed by counsel at trial. </s> "If counsel specifies a purpose for which the proposed evidence is inadmissible and the judge excludes, counsel cannot complain of the ruling on appeal though it could have been rightly admitted for another purpose." E. Cleary, McCormick on Evidence 51, p. 125 (3d ed. 1984). </s> Trial judges do not have the luxury of briefs or research when making a typical evidentiary ruling, and for this reason we have traditionally required the proponent of evidence to defend it against objection by showing why it should be admissible. Federal Rule of Evidence 103(a)(2) requires an "offer of proof" in order to preserve for review a perceived error excluding evidence. 3 Most courts and treatises have [488 U.S. 153, 178] interpreted the need for an "offer of proof" as requiring a specific and timely defense of the evidence. See 1 J. Weinstein & M. Berger, Weinstein's Evidence § 10303., pp. 103-36 to 103-38 (1988); 21 C. Wright & K. Graham, Federal Practice and Procedure 5040, pp. 209-211 (1977); United States v. Peters, 732 F.2d 1004 (CA1 1984); United States v. Grapp, 653 F.2d 189, 194 (CA5 1981); Huff v. White Motor Corp., 609 F.2d 286 (CA7 1979). The need for a showing of evidence is the same, whether it is an essential part of the "offer of proof," or, as the Court agrees, required by Federal Rule of Civil Procedure 46. 4 </s> The disagreement in these cases is not about applicable Rules of Evidence, but how a trial judge should fairly have understood an offer of proof under these circumstances. This Court, far removed from the factual context and on the basis of a cold record, is in no position to say that the trial court's ruling in this situation was an abuse of discretion. Cf. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). </s> [Footnote 1 The entire colloquy relevant to the exclusion of Rainey's testimony about the letter is set out ante, at 173, n. 16. </s> [Footnote 2 According to 21 C. Wright & K. Graham, Federal Practice and Procedure 5039, p. 199 (1977) one doctrine which allows even a valid and timely objection to be defeated is variously known as "waiver," "estoppel," "opening the door," "fighting fire with fire," and "curative admissibility." The doctrine's soundness depends on the specific situation in which it is used and calls for an exercise of judicial discretion. </s> [Footnote 3 For the full text of the Rule, see ante, at 174, n. 19. </s> [Footnote 4 Ante, at 174. </s> [488 U.S. 153, 179]

United States Supreme Court FLORIDA POWER & LIGHT v. ELECTRICAL WORKERS(1974) No. 73-556 Argued: April 24, 1974Decided: June 24, 1974 </s> [Footnote * Together with No. 73-795, National Labor Relations Board v. International Brotherhood of Electrical Workers, AFL-CIO, et al., also on certiorari to the same court. </s> A union does not commit an unfair labor practice under 8 (b) (1) (B) of the National Labor Relations Act (NLRA) when it disciplines supervisor-members for crossing a picket line and performing rank-and-file struck work during a lawful economic strike against the employer. Pp. 798-813. </s> (a) Both the language and legislative history of 8 (b) (1) (B) reflect a clear congressional concern with protecting employers in the selection of representatives to engage in two particular and explicitly stated activities, viz., collective bargaining and adjustment of grievances. Therefore, a union's discipline of supervisor-members can violate 8 (b) (1) (B) only when it may adversely affect the supervisors' conduct in performing the duties of, and acting in the capacity of, grievance adjusters or collective bargainers, in neither of which capacities the supervisors involved in these cases were acting when they crossed the picket lines to perform rank-and-file work. Pp. 802-805. </s> (b) The concern that to permit a union to discipline supervisor-members for performing rank-and-file work during an economic strike will deprive the employer of those supervisors' full loyalty, is a problem that Congress addressed, not through 8 (b) (1) (B), but through 2 (3), 2 (11), and 14 (a) of the NLRA, which, while permitting supervisors to become union members, assure the employer of his supervisors' loyalty by reserving in him the rights to refuse to hire union members as supervisors, to discharge supervisors for involvement in union activities or union membership, and to refuse to engage in collective bargaining with supervisors. Pp. 805-813. </s> 159 U.S. App. D.C. 272, 487 F.2d 1143, affirmed. [417 U.S. 790, 791] </s> STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, and POWELL, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 813. </s> Ray C. Muller argued the cause and filed a brief for petitioner in No. 73-556. Norton J. Come argued the cause for petitioner in No. 73-795 and for respondent National Labor Relations Board in No. 73-556. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, and Patrick Hardin. </s> Laurence J. Cohen argued the cause for respondent unions in both cases. With him on the brief were Robert E. Fitzgerald and Seymour A. Gopman. </s> Laurence Gold argued the cause for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. With him on the brief were J. Albert Woll and Thomas E. Harris.Fn </s> Fn [417 U.S. 790, 791] Lawrence T. Zimmerman filed a brief for the Graphic Arts Union Employers of America, a Division of the Printing Industries of America, Inc., as amicus curiae urging reversal. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> Section 8 (b) (1) (B) of the National Labor Relations Act, 61 Stat. 141, 29 U.S.C. 158 (b) (1) (B), makes it an unfair labor practice for a union "to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." The respondent unions in these consolidated cases called economic strikes against the employer companies. During the strikes, supervisory employees of the companies, some of whom were members of bargaining units and some of whom were not, but all of whom were union members, crossed [417 U.S. 790, 792] the picket lines and performed rank-and-file struck work, i. e., work normally performed by the nonsupervisory employees then on strike. The unions later disciplined these supervisors for so doing. The question to be decided is whether the unions committed unfair labor practices under 8 (b) (1) (B) when they disciplined their supervisor-members for crossing the picket lines and performing rank-and-file struck work during lawful economic strikes against the companies. </s> I </s> Since 1909, Local 134, International Brotherhood of Electrical Workers, AFL-CIO, one of the respondents in No. 73-795, has been recognized by the Illinois Bell Telephone Co. (Illinois Bell) and its predecessors as the exclusive bargaining representative for both rank-and-file and certain supervisory personnel, including general foremen, P. B. X. installation foremen, and building cable foremen. Rather than exercise its right to refuse to hire union members as supervisors, the company agreed to the inclusion of a union security clause in the collective-bargaining agreement which required that these supervisors, like the rank-and-file employees, maintain membership in Local 134. In addition, the bargaining agreement in effect at the time of this dispute contained provisions for the conditions of employment and certain wages of these foremen. </s> Other higher ranking supervisors, however, were neither represented by the union for collective-bargaining purposes nor covered by the agreement, although they were permitted to maintain their union membership. 1 </s> [417 U.S. 790, 793] By virtue of that membership, these supervisors, like those within the bargaining units, received substantial benefits, including participation in the International's pension and death-benefit plans and in group life insurance and old-age-benefit plans sponsored by Local 134. </s> Under the International's constitution, all union members could be penalized for committing any of 23 enumerated offenses, including "[w]orking in the interest of any organization or cause which is detrimental to, or opposed to, the I. B. E. W.," App. 76, and "[w]orking for any individual or company declared in difficulty with a [local union] or the I. B. E. W." Id., at 77. </s> Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the company. At the inception of the strike, Illinois Bell informed its supervisory personnel that it would like to have them come to work during the stoppage but that the decision whether or not to do so would be left to each individual, and that those who chose not to work would not be penalized. Local 134, on the other hand, warned its supervisor-members that they would be subject to disciplinary action if they performed rank-and-file work during the strike. Some of the supervisor-members crossed the union picket lines to perform rank-and-file struck work. Local 134 thereupon initiated disciplinary proceedings against these supervisors, and those found guilty were [417 U.S. 790, 794] fined $500 each. 2 Charges were then filed with the NLRB by the Bell Supervisors Protective Association, an association formed by five supervisors to obtain counsel for and otherwise protect the supervisors who worked during the strike. The Board, one member dissenting, held that in thus disciplining the supervisory personnel, the union had violated 8 (b) (1) (B) of the Act, 3 in accord with its decision of the same day in Local 2150, IBEW (Wisconsin Electric Power Co.), 192 N. L. R. B. 77 (1971), enforced, 486 F.2d 602 (CA7 1973), cert. pending No. 73-877, holding: </s> "The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. </s> . . . . . </s> "The purpose of Section 8 (b) (1) (B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer. . . ." 192 N. L. R. B., at 78. </s> Accordingly, the Board ordered the unions to rescind the fines, to expunge all records thereof, and to reimburse the supervisors for any portions of the fines paid. </s> The Florida Power & Light Co. (Florida Power), the petitioner in No. 73-556, has maintained a collective-bargaining agreement with the International [417 U.S. 790, 795] Brotherhood of Electrical Workers, AFL-CIO and Locals 641, 622, 759, 820, and 1263, represented by the System Council U-4, 4 since 1953. That agreement does not require employees to become union members as a condition of employment, but many of its supervisory personnel have in fact joined the union. The company has elected to recognize the union as the exclusive bargaining representative of these supervisors, and certain aspects of their wages and conditions of employment are provided for in the agreement. 5 In addition, other higher supervisory personnel not covered by the agreement were allowed to maintain union membership, 6 and, although not represented by the union for collective-bargaining purposes, received substantial benefits as a result of their union membership, including pension, disability, and death benefits under the terms of the International's constitution. [417 U.S. 790, 796] </s> Since the same International union was involved in both No. 73-556 and No. 73-795, the union members of Florida Power bore the same obligations under the International's constitution as did the union members of Illinois Bell. See supra, at 793. With respect to union discipline of supervisor members, however, the Florida Power collective-bargaining agreement itself provided: </s> "It is further agreed that employees in [supervisory] classifications have definite management responsibilities and are the direct representatives of the Company at their level of work. Employees in these classifications and any others in a supervisory capacity are not to be jacked up or disciplined through Union machinery for the acts they may have performed as supervisors in the Company's interest. The Union and the Company do not expect or intend for Union members to interfere with the proper and legitimate performance of the Foreman's management responsibilities appropriate to their classification. . . ." App. 47. </s> From October 22, 1969, through December 28, 1969, the International union and its locals engaged in an economic strike against Florida Power. During the strike, many of the supervisors who were union members crossed the picket lines maintained at nearly all the company's operation facilities, and performed rank-and-file work normally performed by the striking nonsupervisory employees. Following the strike, the union brought charges against those supervisors covered by the bargaining agreement as well as those not covered, alleging violations of the International union constitution. Those found guilty of crossing the picket lines to perform rank-and-file work, as opposed to their usual supervisory functions, received fines ranging from $100 to $6,000 and most were expelled from the union, thereby [417 U.S. 790, 797] terminating their right to pension, disability, and death benefits. Upon charges filed by Florida Power, the Board, in reliance upon its prior decisions in Wisconsin Electric and Illinois Bell, held that the penalties imposed "struck at the loyalty an employer should be able to expect from its representatives for the adjustment of grievances and therefore restrained and coerced employers in their selection of such representatives," in violation of 8 (b) (1) (B) of the Act. Accordingly, the Board ordered the union to cease and desist, to rescind and refund all fines, to expunge all records of the disciplinary proceedings, and to restore those disciplined to full union membership and benefits. 7 </s> The Illinois Bell case was first heard by a panel of the Court of Appeals for the District of Columbia Circuit, 159 U.S. App. D.C. 242, 487 F.2d 1113 (1973), and then on rehearing was consolidated with Florida Power and considered en banc. In a 5-4 decision, the court held that "[s]ection 8 (b) (1) (B) cannot reasonably be read to prohibit discipline of union members - supervisors though they be - for performance of rank-and-file struck work," 159 U.S. App. D.C. 272, 300, 487 F.2d 1143, 1171 (1973), and accordingly refused to enforce the Board's orders. 8 Section 8 (b) (1) (B), the court held, was intended to proscribe only union efforts to discipline supervisors for their actions in representing management in collective bargaining and the adjustment of grievances. It was the court's view that when a supervisor forsakes his supervisory role to do work normally performed by nonsupervisory employees, he no longer acts as a managerial representative and hence "no longer merits any immunity from discipline." Id., at 286, 487 F.2d, at 1157. We granted [417 U.S. 790, 798] certiorari, 414 U.S. 1156 , to consider an important and novel question of federal labor law. </s> II </s> Section 8 (b) of the National Labor Relations Act provides in pertinent part: </s> "It shall be an unfair labor practice for a labor organization or its agents - (1) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances." </s> The basic import of this provision was explained in the Senate Report as follows: </s> "[A] union or its responsible agents could not, without violating the law, coerce an employer into joining or resigning from an employer association which negotiates labor contracts on behalf of its members; also, this subsection would not permit a union to dictate who shall represent an employer in the settlement of employee grievances, or to compel the removal of a personnel director or supervisor who has been delegated the function of settling grievances." 9 </s> For more than 20 years after 8 (b) (1) (B) was enacted in 1947, the Board confined its application to situations clearly falling within the metes and bounds of the statutory language. Thus, in Los Angeles Cloak Joint Board ILGWU (Helen Rose Co.), 127 N. L. R. B. 1543 (1960), the Board held that 8 (b) (1) (B) barred a union from picketing a company in an attempt to force the employer to dismiss an industrial relations consultant thought to be hostile to the union. See also Local [417 U.S. 790, 799] 986, Miscellaneous Warehousemen, Drivers & Helpers (Tak-Trak, Inc.), 145 N. L. R. B. 1511 (1964); Southern California Pipe Trades District Council No. 16 (Paddock Pools of California, Inc.), 120 N. L. R. B. 249 (1958). Similarly, the Board held that 8 (b) (1) (B) was violated by union attempts to force employers to join or resign from multi-employer bargaining associations, United Slate, Tile & Composition Roofers, Local 36 (Roofing Contractors Assn. of Southern California), 172 N. L. R. B. 2248 (1968); Orange Belt District Council of Painters No. 48 (Painting & Decorating Contractors of America, Inc.), 152 N. L. R. B. 1136 (1965); General Teamsters Local Union No. 324 (Cascade Employers Assn., Inc.), 127 N. L. R. B. 488 (1960), as well as by attempts to compel employers to select foremen from the ranks of union members, International Typographical Union & Baltimore Typographical Union No. 12 (Graphic Arts League), 87 N. L. R. B. 1215 (1949); International Typographical Union (American Newspaper Publishers Assn.), 86 N. L. R. B. 951 (1949), enforced, 193 F.2d 782 (CA7 1951); International Typographical Union (Haverhill Gazette Co.), 123 N. L. R. B. 806 (1959), enforced, 278 F.2d 6 (CA1 1960), aff'd by an equally divided Court, 365 U.S. 705 (1961). 10 </s> In 1968, however, the Board significantly expanded the reach of 8 (b) (1) (B), with its decision in San Francisco-Oakland [417 U.S. 790, 800] Mailers' Union No. 18 (Northwest Publications, Inc.), 172 N. L. R. B. 2173. In that case, three union-member foremen were expelled from the union for allegedly assigning bargaining unit work in violation of the collective-bargaining agreement. Despite the absence of union pressure or coercion aimed at securing the replacement of the foremen, the Board held that the union had violated 8 (b) (1) (B) by seeking to influence the manner in which the foremen interpreted the contract: </s> "That Respondent may have sought the substitution of attitudes rather than persons, and may have exerted its pressures upon the Charging Party by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the Charging Party's control over its representatives. Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them." 172 N. L. R. B. 2173. </s> Subsequent Board decisions extended 8 (b) (1) (B) to proscribe union discipline of management representatives both for the manner in which they performed their collective-bargaining and grievance-adjusting functions, and for the manner in which they performed other supervisory functions if those representatives also in fact possessed authority to bargain collectively or to adjust grievances. See Detroit Newspaper Printing Pressmen's Union 13, 192 N. L. R. B. 106 (1971); Meat Cutters Union Local 81, 185 N. L. R. B. 884 (1970), enforced, 147 U.S. App. D.C. 375, 458 F.2d 794 (1972); Houston Typographical Union 87, 182 N. L. R. B. 592 (1970); Dallas Mailers Union Local 143 (Dow Jones Co., Inc.), 181 N. L. R. B. 286 (1970), enforced, 144 U.S. App. D.C. 254, 445 F.2d 730 (1971); Sheet Metal Workers' International [417 U.S. 790, 801] Assn., Local Union 49 (General Metal Products, Inc.), 178 N. L. R. B. 139 (1969), enforced, 430 F.2d 1348 (CA10 1970); New Mexico District Council of Carpenters & Joiners of America (A. S. Horner, Inc.), 176 N. L. R. B. 797 and 177 N. L. R. B. 500 (1969), both enforced, 454 F.2d 1116 (CA10 1972); Toledo Locals Nos. 15-P & 272, Lithographers & Photoengravers International (Toledo Blade Co., Inc.), 175 N. L. R. B. 1072 (1969), enforced, 437 F.2d 55 (CA6 1971). 11 </s> These decisions reflected a further evolution of the Oakland Mailers doctrine. In Oakland Mailers, the union had disciplined its supervisor-members for an alleged misinterpretation or misapplication of the collective-bargaining agreement, and the Board had reasoned that the natural and foreseeable effect of such discipline was that in interpreting the agreement in the future, the supervisor would be reluctant to take a position adverse to that of the union. In the subsequent cases, [417 U.S. 790, 802] however, the Board held that the same coercive effect was likely to arise from the disciplining of a supervisor whenever he was engaged in management or supervisory activities, even though his collective-bargaining or grievance-adjustment duties were not involved. Through the course of these decisions, 8 (b) (1) (B) thus began to evolve in the view of the Board and the courts "as a general prohibition of a union's disciplining supervisor-members for their conduct in the course of representing the interests of their employers." Toledo Locals Nos. 15-P & 272, Lithographers & Photoengravers International, 175 N. L. R. B., at 1080, or for acts "performed in the course of [their] management duties," Meat Cutters Union Local 81 v. NLRB, 147 U.S. App. D.C., at 377, 458 F.2d, at 796. 12 </s> In the present cases, the Board has extended that doctrine to hold that 8 (b) (1) (B) forbids union discipline of supervisors for performance of rank-and-file work on the theory that the performance of such work during a strike is an activity furthering management's interests. 13 </s> [417 U.S. 790, 803] We agree with the Court of Appeals that 8 (b) (1) (B) cannot be so broadly read. Both the language and the legislative history of 8 (b) (1) (B) reflect a clearly focused congressional concern with the protection of employers in the selection of representatives to engage in two particular and explicitly stated activities, namely collective bargaining and the adjustment of grievances. By its terms, the statute proscribes only union restraint or coercion of an employer "in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances," and the legislative history makes clear that in enacting the provision Congress was exclusively concerned with union attempts to dictate to employers who would represent them in collective bargaining and grievance adjustment. </s> The specific concern of Congress was to prevent unions from trying to force employers into or out of multi-employer bargaining units. 14 As Senator Taft, cosponsor of the legislation, explained: </s> "Under this provision it would be impossible for a union to say to a company, `We will not bargain with you unless you appoint your national employers' association as your agent so that we can bergain nationally.' Under the bill the employer has a right to say, `No, I will not join in national bargaining. Here is my representative, and this is the man you have to deal with.' I believe the provision is a necessary one, and one which will accomplish substantially wise purposes." 93 Cong. Rec. 3837. [417 U.S. 790, 804] </s> That the legislative creation of this unfair labor practice was in no sense intended to cut the broad swath attributed to it by the Board in the present cases is pointed up by the further observation of Senator Taft: </s> "This unfair labor practice referred to is not perhaps of tremendous importance, but employees cannot say to their employer, `we do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y.' That has been done. It would prevent their saying to the employer, `You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you will have to fire him, or we will not go to work.'" 93 Cong. Rec. 3837. 15 </s> Nowhere in the legislative history is there to be found any implication that Congress sought to extend protection to the employer from union restraint or coercion when engaged in any activity other than the selection of its representatives for the purposes of collective bargaining and grievance adjustment. The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of 8 (b) (1) (B) only when that discipline may [417 U.S. 790, 805] adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer. </s> We may assume without deciding that the Board's Oakland Mailers decision fell within the outer limits of this test, but its decisions in the present cases clearly do not. For it is certain that these supervisors were not engaged in collective bargaining or grievance adjustment, or in any activities related thereto, when they crossed union picket lines during an economic strike to engage in rank-and-file struck work. 16 </s> III </s> It is strenuously asserted, however, that to permit a union to discipline supervisor-members for performing [417 U.S. 790, 806] rank-and-file work during an economic strike will deprive the employer of the full loyalty of those supervisors. Indeed, it is precisely that concern that is reflected in these and other recent decisions of the Board holding that the statutory language "restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances" is not confined to situations in which the union's object is to force a change in the identity of the employer's representatives, but may properly be read to encompass any situation in which the union's actions are likely to deprive the employer of the undivided loyalty of his supervisory employees. As the Board stated in Wisconsin Electric: </s> "During the strike of the Union, the Employer clearly considered its supervisors among those it could depend on during this period. The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective-bargaining agents or to act for it in adjusting grievances. Moreover, such fines clearly interfere with the Employer's control over its own representatives. </s> "The purpose of Section 8 (b) (1) (B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an [417 U.S. 790, 807] effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer." 192 N. L. R. B., at 78. </s> The Board in the present cases echoes this view in arguing that "where a supervisor is disciplined by the union for performing other supervisory or management functions, the likely effect of such discipline is to make him subservient to the union's wishes when he performs those functions in the future. Thus, even if the effect of this discipline did not carry over to the performance of the supervisor's grievance adjustment or collective bargaining functions, the result would be to deprive the employer of the full allegiance of, and control over, a representative he has selected for grievance adjustment or collective bargaining purposes." Brief for Petitioner in No. 73-795, p. 34. </s> The concern expressed in this argument is a very real one, but the problem is one that Congress addressed, not through 8 (b) (1) (B), but through a completely different legislative route. Specifically, Congress in 1947 amended the definition of "employee" in 2 (3), 29 U.S.C. 152 (3), to exclude those denominated supervisors under 2 (11), 29 U.S.C. 152 (11), thereby excluding them from the coverage of the Act. 17 See [417 U.S. 790, 808] NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). Further, Congress enacted 14 (a), 29 U.S.C. 164 (a), explicitly providing: </s> "Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining." </s> Thus, while supervisors are permitted to become union members, Congress sought to assure the employer of the loyalty of his supervisors by reserving in him the right to refuse to hire union members as supervisors, see Carpenters District Council v. NLRB, 107 U.S. App. D.C. 55, 274 F.2d 564 (1959); A. H. Bull S. S. Co. v. National Marine Engineers' Beneficial Assn., 250 F.2d 332 (CA2 1957), the right to discharge such supervisors because of their involvement in union activities or union membership, see Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653 (1974); see also Oil City Brass Works v. NLRB, 357 F.2d 466 (CA5 1966); NLRB v. Fullerton Publishing Co., 283 F.2d 545 (CA9 1960); NLRB v. Griggs Equipment, Inc., 307 F.2d 275 (CA5 1962); NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (CA6 1948), cert. denied, 335 U.S. 908 (1949), 18 and the right to refuse to engage in collective bargaining with them, see L. A. Young Spring & Wire Corp. v. NLRB, 82 [417 U.S. 790, 809] U.S. App. D.C. 327, 163 F.2d 905 (1947), cert. denied, 333 U.S. 837 (1948). </s> The legislative history of 2 (3) and 14 (a) of the Act clearly indicates that those provisions were enacted in response to the decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), in which this Court upheld the Board's finding that the statutory definition of "employee" included foremen, and that they were therefore entitled to the coverage of the Act in the absence of a decision by Congress to exclude them. 19 In recommending passage of this legislation, the Senate Report noted: </s> "It is natural to expect that unless this Congress [417 U.S. 790, 810] takes action, management will be deprived of the undivided loyalty of its foremen. There is an inherent tendency to subordinate their interests wherever they conflict with those of the rank and file." Senate Report 5. (Emphasis supplied.) </s> A similar concern with this conflict-of-loyalties problem was reflected in the House Report: </s> "The evidence before the committee shows clearly that unionizing supervisors under the Labor Act is inconsistent with . . . our policy to protect the rights of employers; they, as well as workers, are entitled to loyal representatives in the plants, but when the foremen unionize, even in a union that claims to be `independent' of the union of the rank and file, they are subject to influence and control by the rank and file union, and, instead of their bossing the rank and file, the rank and file bosses them. </s> . . . . . </s> "The bill does not forbid anyone to organize. It does not forbid any employer to recognize a union of foremen. Employers who, in the past, have bargained collectively with supervisors may continue to do so. What the bill does is to say what the law always has said until the Labor Board, in the exercise of what it modestly calls its `expertness', changed the law: That no one, whether employer or employee, need have as his agent one who is obligated to those on the other side, or one whom, for any reason, [417 U.S. 790, 811] he does not trust." House Report 14-17. 20 (Emphasis supplied.) </s> It is clear that the conflict-of-loyalties problem that the Board has sought to reach under 8 (b) (1) (B) was intended by Congress to be dealt with in a very different manner. 21 As we concluded in Beasley v. Food Fair of North Carolina, Inc., 416 U.S., at 661 -662: </s> "This history compels the conclusion that Congress' dominant purpose in amending 2 (3) and 2 (11), and enacting 14 (a) was to redress a perceived imbalance in labor-management relationships that was found to arise from putting supervisors in the position of serving two masters with opposed interests." </s> While we recognize that the legislative accommodation adopted in 1947 is fraught with difficulties of its own, "[i]t is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute." Colgate-Palmolive [417 U.S. 790, 812] Peet Co. v. NLRB, 338 U.S. 355, 363 (1949). 22 </s> Congress' solution was essentially one of providing the employer with an option. On the one hand, he is at liberty to demand absolute loyalty from his supervisory personnel by insisting, on pain of discharge, that they neither participate in, nor retain membership in, a labor union, see Beasley v. Food Fair of North Carolina, Inc., [417 U.S. 790, 813] supra. Alternatively, an employer who wishes to do so can permit his supervisors to join or retain their membership in labor unions, resolving such conflicts as arise through the traditional procedures of collective bargaining. 23 But it is quite apparent, given the statutory language and the particular concerns that the legislative history shows were what motivated Congress to enact 8 (b) (1) (B), that it did not intend to make that provision any part of the solution to the generalized problem of supervisor-member conflict of loyalties. </s> For these reasons, we hold that the respondent unions did not violate 8 (b) (1) (B) of the Act when they disciplined their supervisor-members for performing rank-and-file struck work. Accordingly, the judgment is </s> Affirmed. </s> Footnotes [Footnote 1 Under a Letter of Understanding signed by Illinois Bell and Local 134 in 1954 and reaffirmed in 1971, it was provided: </s> "As District Installation Superintendents and District Construction Supervisors their wages and conditions of employment will not [417 U.S. 790, 793] be a matter of union-management negotiations but they will not be required to discontinue their membership in the union as it is recognized that they have accumulated a vested interest in pension and insurance benefits as a result of their membership in the union. However, any allegiance they owe to the union shall not affect their judgment in the disposition of their supervisory duties. Since they will have under their supervision employees who are members of unions other than Local 134 and perhaps some with no union affiliations whatever, the company will expect the same impartial judgment that it demands from all Supervisory personnel." App. 113. </s> [Footnote 2 Local 134 also imposed fines of $1,000 upon each of the five supervisors who had formed the Bell Supervisors Protective Association. </s> [Footnote 3 International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, 192 N. L. R. B. 85 (1971) (hereinafter Illinois Bell). </s> [Footnote 4 System Council U-4 was named as a respondent in the complaint, but the Board dismissed all charges against it and entered an order only against the local unions. </s> [Footnote 5 Supervisory employees thus included are district supervisors, assistant district supervisors, assistant supervisors, plant superintendents, plant supervisors, assistant plant superintendents, distribution assistants, results assistants, assistant plant engineers, and subsection supervisors. </s> [Footnote 6 In both Illinois Bell and this case, some of the supervisors involved, though union members, did not actively participate in union affairs and paid no dues. This was because they held "honorary" withdrawal cards, permitting them to return to active membership without paying normal initiation fees in the event they returned to rank-and-file work. These cards also permitted their holders to continue participation in the International's death-benefit fund. Other supervisors held "participating" withdrawal cards under which they continued to pay a fee equal to the monthly dues and remained eligible for pension, death, and disability benefits. The holders of these cards were also not permitted to participate in other union affairs. </s> [Footnote 7 International Brotherhood of Electrical Workers System Council U-4, 193 N. L. R. B. 30, 31 (1971) (hereinafter Florida Power). </s> [Footnote 8 159 U.S. App. D.C. 272, 487 F.2d 1143 (1973). </s> [Footnote 9 S. Rep. No. 105, 80th Cong., 1st Sess. (hereinafter Senate Report), pt. 1, p. 21 (1947). </s> [Footnote 10 The Haverhill Gazette case was typical. There the union had demanded the inclusion of a "foreman clause" providing that the composing room foreman, who had the power to hire, fire, and process grievances, must be a member of the union, although he would be exempted from union discipline in certain circumstances for activities on behalf of management. As the Court of Appeals pointed out: "Not only would the clause . . . limit the employers' choice of foremen to union members, but it would also give the unions power to force the discharge or demotion of a foreman by expelling him from the union." 278 F.2d, at 12. </s> [Footnote 11 In Toledo Blade, two supervisors were disciplined by the union for working in a crew smaller than the contractually prescribed minimum and for doing production work in excess of the contractually permitted maximum. These activities occurred during an economic strike. The Trial Examiner, in a holding which foreshadowed the cases now before us, noted that such discipline is an unwarranted interference with the employer's control over its own representatives and </s> "deprives the employer of the undivided loyalty of the supervisor to which it is entitled. If, therefore, the supervisor has actually been designated as the employer's bargaining or grievance representative . . . the Union's discipline of the supervisor is unquestionably a restraint upon, and coercion of the employer's continuing its selection of, and reliance upon, the supervisor as its bargaining and grievance representative." 175 N. L. R. B., at 1080-1081. </s> In enforcing the Board's order, the Court of Appeals noted: "This conduct of the union would further operate to make the employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer would thereby be impaired." 437 F.2d, at 57. </s> [Footnote 12 Indeed, in its original panel decision in the instant Illinois Bell case, the Court of Appeals spoke of 8 (b) (1) (B) as prohibiting union discipline of supervisory employees "for actions performed by them within the general scope of their supervisory or managerial responsibilities." 159 U.S. App. D.C. 242, 248, 487 F.2d 1113, 1119. </s> [Footnote 13 As the Court of Appeals for the Seventh Circuit reasoned in enforcing the Board's order in Wisconsin Electric: </s> "What a supervisor's proper functions are when the full complement of employees is at work under the regime of a collective bargaining agreement then in force is not determinative of supervisory responsibility during a strike. Otherwise, with no employees to supervise, many supervisors would simply have no managerial responsibilities during a strike. . . . Insofar as the supervisors work to give the employer added economic leverage, they are acting as members of the management team are expected to act when the employer and union are at loggerheads in their most fundamental of disputes." 486 F.2d 602, 608 (1973). </s> [Footnote 14 Section 8 (b) (1) (B) was in fact a more restrained solution to the problem of multi-employer bargaining than originally proposed. Proposed 9 (f) (i) of the House bill, H. R. 3020, would have prohibited multi-employer bargaining altogether, see H. R. Rep. No. 245, 80th Cong., 1st Sess. (hereinafter House Report), 8-9, 56 (1947). </s> [Footnote 15 In a similar vein, Senator Ellender observed: </s> "The bill prevents a union from dictating to an employer on the question of bargaining with union representatives through an employer association. The bill, in subsection 8 (b) (1) on page 14, makes it an unfair labor practice for a union to attempt to coerce an employer either in the selection of his bargaining representative or in the selection of a personnel director or foreman, or other supervisory official. Senators who heard me discuss the issue early in the afternoon will recall that quite a few unions forced employers to change foremen. They have been taking it upon themselves to say that management should not appoint any representative who is too strict with the membership of the union. This amendment seeks to prescribe a remedy in order to prevent such interferences." 93 Cong. Rec. 4143. </s> [Footnote 16 To hold that union discipline of supervisor-members for performing rank-and-file struck work is not proscribed by 8 (b) (1) (B) of the Act is not to hold that such discipline is expressly permitted by 8 (b) (1) (A) of the Act, as construed in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). The decision in that case is inapposite where the union seeks to fine not employee-members but supervisor-members, who are explicitly excluded from the definition of "employee" by 2 (3), 29 U.S.C. 152 (3), and hence from the coverage of 8 (b) (1) (A). See Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653 (1974). The Act, therefore, neither protects nor prohibits union discipline of supervisor-members for engaging in rank-and-file struck work. In light of the fact that "Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions," NLRB v. Drivers Local Union No. 639, 362 U.S. 274, 282 -283 (1960), the admonition against regulation of the choice of economic weapons that may be used as part of collective bargaining absent a particularized statutory mandate is particularly apt in this context. NLRB v. Insurance Agents, 361 U.S. 477, 490 (1960). See Summers, Disciplinary Powers of Unions, 3 Ind. & Lab. Rel. Rev. 483 (1950); Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049 (1951); Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L. J. 1327 (1958); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819 (1960). </s> [Footnote 17 Title 29 U.S.C. 152 (3) provides in pertinent part: </s> "The term `employee' shall include any employee, . . . but shall not include . . . any individual employed as a supervisor . . . ." </s> Title 29 U.S.C. 152 (11) provides: </s> "The term `supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." </s> [Footnote 18 It has been held that this right is limited to the extent that an employer cannot discharge supervisory personnel for participation in the union where the discharge is found to interfere with, restrain, or coerce employees in the exercise of their protected rights, see NLRB v. Talladega Cotton Factory, Inc., 213 F.2d 209 (CA5 1954), or where it is prompted by the supervisors' refusal to engage in unlawful activity, see NLRB v. Lowe, 406 F.2d 1033 (CA6 1969). </s> [Footnote 19 Prior to the passage of the National Labor Relations Act in 1935, foremen and rank-and-file workers were often members of the same bargaining unit, and such conflict-of-interest problems as arose were dealt with through the collective-bargaining process. After first holding that supervisors could organize in independent or affiliated unions in Union Collieries Coal Co., 41 N. L. R. B. 961 (1942) and Godchaux Sugars, Inc., 44 N. L. R. B. 874 (1942), the Board, concerned by the conflict of interests created thereby, reversed its position in Maryland Drydock Co., 49 N. L. R. B. 733 (1943), and held that except where foremen had been organized in 1935 when the Act was passed, supervisory units were not appropriate collective-bargaining units under the Wagner Act. The Board then reversed its position again in Packard Motor Car Co., 61 N. L. R. B. 4, enforced, 157 F.2d 80 (CA6), aff'd, 330 U.S. 485 (1947), holding that supervisory employees as a class were entitled to the rights of self-organization and collective bargaining. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 277 (1974); Beasley v. Food Fair of North Carolina, Inc., 416 U.S., at 658 n. 4. See also House Report 13-14. In discussing the proposed legislation dealing with supervisory personnel, the Senate Report stated: </s> "It should be noted that all that the bill does is to leave foremen in the same position in which they were until the Labor Board reversed the position it had originally taken in 1943 in the Maryland Drydock case (49 N. L. R. B. 733). In other words, the bill does not prevent anyone from organizing nor does it prohibit any employer [417 U.S. 790, 810] from recognizing a union of foremen. It merely relieves employers who are subject to the national act free from any compulsion by this National Board or any local agency to accord to the front line of management the anomalous status of employees." Senate Report 5. </s> [Footnote 20 Instructive as well is the fact that 2 (3) and 14 (a) were both slightly modified versions of 9 (a) and (c) of the Case bill, H. R. 4908, 79th Cong., 2d Sess. (1946), which was passed by Congress in 1946 but vetoed by President Truman. See Senate Report 5. That earlier bill, however, contained no provision bearing any resemblance to 8 (b) (1) (B), which first appeared in S. 1126, 80th Cong., 1st Sess. (1947). </s> [Footnote 21 Further support for the proposition that 8 (b) (1) (B) was addressed to a separate and far more limited problem than that of conflict of loyalties dealt with in 2 (3), 2 (11), and 14 (a) is found in the differing scope of the provisions themselves. Section 8 (b) (1) (B) purports to cover only those selected as the employer's representative "for the purposes of collective bargaining or the adjustment of grievances," whereas the class of supervisors excluded from the definition of employees in 2 (3) is defined by 2 (11) to include individuals engaged in a substantially broader range of activities. See supra, n. 17; NLRB v. Bell Aerospace Co., supra. The two groups coincide only with respect to the function of grievance adjustment. </s> [Footnote 22 There can be no denying that the supervisors involved in the present cases found themselves in something of a dilemma, and were pulled by conflicting loyalties. But inherent in the option afforded the employer by Congress, must be the recognition that supervisors permitted by their employers to maintain union membership will necessarily incur obligations to the union. See Nassau & Suffolk Contractors' Assn., Inc., 118 N. L. R. B. 174, 182 (1957). See Summers, Legal Limitations on Union Discipline, 64 Harv. L. Rev. 1049 (1951). And, while both the employer and the union may have conflicting but nonetheless legitimate expectations of loyalty from supervisor-members during a strike, the fact that the supervisor will in some measure be the beneficiary of any advantages secured by the union through the strike makes it inherently inequitable that he be allowed to function as a strikebreaker without incurring union sanctions. </s> The supervisor-member is, of course, not bound to retain his union membership absent a union security clause, and if, for whatever reason, he chooses to resign from the union, thereby relinquishing his union benefits, he could no longer be disciplined by the union for working during a strike. NLRB v. Textile Workers, 409 U.S. 213 (1972); Booster Lodge 405 v. NLRB, 412 U.S. 84 (1973). </s> In these cases, the supervisors' dilemma has been somewhat exaggerated by the petitioners. In Illinois Bell, the company did not command its supervisors to work during the strike and expressly left the decision to each individual. Those who chose not to work were not penalized, and some were in fact promoted by their employer after the strike had ended. Those who did work during the strike but performed only their regular duties were not disciplined by the union. In Florida Power, the record does not disclose whether the supervisors crossed the picket lines at the company's request or not, but in any event, the union did not discipline those who did so only to perform their normal supervisory functions. </s> [Footnote 23 Thus, while a union violates 8 (b) (1) (B) by striking to force an employer to agree to hire only union members as foremen, International Typographical Union Local 38 v. NLRB, 278 F.2d 6 (CA1 1960), aff'd by an equally divided Court, 365 U.S. 705 (1961), see n. 7, supra, it can propose that supervisors be covered by the collective-bargaining agreement, Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902 (CA9 1964), cert. denied, 379 U.S. 961 (1965). Similarly, it is clear that an employer may request that supervisors be excluded from the bargaining unit, Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631 (CA6 1968); NLRB v. Corral Sportswear Co., 383 F.2d 961 (CA10 1967). </s> The parties in Florida Power in fact agreed to the inclusion in the collective-bargaining agreement of provisions governing the disciplining by the union of supervisory personnel, basically providing that such matters were to be dealt with through the grievance adjustment and arbitration provisions of the agreement. See supra, at 796. </s> MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting. </s> Believing that the majority has improperly substituted its judgment for a fair and reasonable interpretation by [417 U.S. 790, 814] the Board of 8 (b) (1) (B) in light of the statutory language and legislative history of that provision and other provisions dealing with supervisors, I must dissent substantially for the reasons expressed by the dissent below. </s> While it might be unreasonable for the Board to interpret 8 (b) (1) (B) to permit an employer to require absolute loyalty from a supervisor-member in all circumstances, it is certainly apparent that during an economic strike, the supervisor's performance of rank-and-file struck work, which represents a classic "use of economic pressure by the parties to a labor dispute . . . [,] is part and parcel of the process of collective bargaining." NLRB v. Insurance Agents' International Union, 361 U.S. 477, 495 (1960). 1 "As management representatives, supervisory personnel may be requested by management to enhance the bargaining position of their employer during a dispute between it and the particular union involved." 159 U.S. App. D.C. 272, 304, 487 F.2d 1143, 1175 (1973) (en banc) (dissenting opinion) (footnote omitted). Moreover, these union sanctions would unavoidably decrease a supervisor's loyalty to his employer and thereby materially interfere with the performance of those responsibilities which the employer quite properly demands of him. Local Union No. 2150, IBEW (Wisconsin Electric Power Co.), 192 N. L. R. B. 77, 78 (1971), enforced, 486 F.2d 602 (CA7 1973). Nothing in [417 U.S. 790, 815] the language or legislative history of the statute contradicts the conclusion that </s> "[w]hen a union disciplines a supervisor for crossing a picket line to perform rank-and-file work at the request of his employer, that discipline equally interferes with the employer's control over his representative and equally deprives him of the undivided loyalty of that supervisor as in the case where the discipline was imposed because of the way the supervisor interpreted the collective bargaining agreement or performed his `normal' supervisory duties." 159 U.S. App. D.C., at 305, 487 F.2d, at 1176 (dissenting opinion). 2 </s> In a steady progression of decisions leading up to the instant cases, the Board concluded that 8 (b) (1) (B) interdicted not only direct union pressure on an employer to replace a supervisor with collective-bargaining or grievance-adjustment functions, but also indirect coercion of an employer by means of attempting, through the application of union discipline apparatus against supervisor-members, to dictate the manner in which they would exercise their supervisory responsibilities. Far from seeing the present cases as a radical extension of this principle, I view the Board's decisions as a reasoned and realistic application of 8 (b) (1) (B). For my part, the Board's findings are based upon substantial record evidence and enjoy "a reasonable basis in law." NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131 (1944). It may be true that special concerns prompted 8 (b) (1) (B), but the provision, as is often the case, was written [417 U.S. 790, 816] more broadly. Nor do I see anything in the legislative history foreclosing the Board from applying the section to prevent unions from imposing sanctions on supervisors in the circumstances present here. This Court is not a super-Board authorized to overrule an agency's choice between reasonable constructions of the controlling statute. We should not impose our views on the Board as long as it stays within the outer boundaries of the statute it is charged with administering. Respectfully, I dissent. </s> [Footnote 1 The court below acknowledged the practical realities of the use of supervisors during a strike: "in the highly automated public utility industries involved in these cases a small work force composed of strikebreakers and non-union management personnel can evidently provide sufficient manpower to continue vital services in a strike, thereby cutting into the strike's effectiveness." 159 U.S. App. D.C. 272, 290 n. 21, 487 F.2d 1143, 1161 n. 21 (1973) (en banc). </s> [Footnote 2 I do not read the Court to say that 8 (b) (1) (B) would allow a union to discipline supervisor-members for performing supervisory or management functions, as opposed to customary rank-and-file work, during a labor dispute. </s> [417 U.S. 790, 817]

United States Supreme Court CROSBY, SECRETARY OF ADMINISTRATION AND FINANCE OF MASSACHUSETTS, et al. v. NATIONAL FOREIGN TRADE COUNCIL(2000) No. 99-474 Argued: March 22, 2000Decided: June 19, 2000 </s> In 1996, Massachusetts passed a law barring state entities from buying goods or services from companies doing business with Burma. Subsequently, Congress imposed mandatory and conditional sanctions on Burma. Respondent (hereinafter Council), which has several members affected by the state Act, filed suit against petitioner state officials (hereinafter State) in federal court, claiming that the state Act unconstitutionally infringes on the federal foreign affairs power, violates the Foreign Commerce Clause, and is preempted by the federal Act. The District Court permanently enjoined the state Act's enforcement, and the First Circuit affirmed. </s> Held: The state Act is preempted, and its application unconstitutional, under the Supremacy Clause. Pp. 7-26. </s> (a) Even without an express preemption provision, state law must yield to a congressional Act if Congress intends to occupy the field, California v. ARC America Corp., 490 U.S. 93, 100, or to the extent of any conflict with a federal statute, Hines v. Davidowitz, 312 U.S. 52, 66-67. This Court will find preemption where it is impossible for a private party to comply with both state and federal law and where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives. What is a sufficient obstacle is determined by examining the federal statute and identifying its purpose and intended effects. Here, the state Act is such an obstacle, for it undermines the intended purpose and natural effect of at least three federal Act provisions. Pp. 7-9. </s> (b) First, the state Act is an obstacle to the federal Act's delegation of discretion to the President to control economic sanctions against Burma. Although Congress put initial sanctions in place, it authorized the President to terminate the measures upon certifying that Burma has made progress in human rights and democracy, to impose new sanctions upon findings of repression, and, most importantly, to suspend sanctions in the interest of national security. Within the sphere defined by Congress, the statute has given the President as much discretion to exercise economic leverage against Burma, with an eye toward national security, as law permits. The plenitude of Executive authority controls the preemption issue here. The President has the authority not merely to make a political statement but to achieve a political result, and the fullness of his authority shows the importance in the congressional mind of reaching that result. It is implausible to think that Congress would have gone to such lengths to empower the President had it been willing to compromise his effectiveness by allowing state or local ordinances to blunt the consequences of his actions. Yet this is exactly what the state Act does. Its sanctions are immediate and perpetual, there being no termination provision. This unyielding application undermines the President's authority by leaving him with less economic and diplomatic leverage than the federal Act permits. Pp. 10-13. </s> (c) Second, the state Act interferes with Congress's intention to limit economic pressure against the Burmese Government to a specific range. The state Act stands in clear contrast to the federal Act. It prohibits some contracts permitted by the federal Act, affects more investment than the federal Act, and reaches foreign and domestic companies while the federal Act confines its reach to United States persons. It thus conflicts with the federal law by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions. That the two Acts have a common end hardly neutralizes the conflicting means, and the fact that some companies may be able to comply with both sets of sanctions does not mean the state Act is not at odds with achievement of the congressional decision about the right calibration of force. Pp. 13-16. </s> (d) Finally, the state Act is at odds with the President's authority to speak for the United States among the world's nations to develop a comprehensive, multilateral Burma strategy. Congress called for Presidential cooperation with other countries in developing such a strategy, directed the President to encourage a dialogue between the Burmese Government and the democratic opposition, and required him to report to Congress on these efforts. This delegation of power, like that over economic sanctions, invested the President with the maximum authority of the National Government. The state Act undermines the President's capacity for effective diplomacy. In response to its passage, foreign governments have filed formal protests with the National Government and lodged formal complaints against the United States in the World Trade Organization. The Executive has consistently represented that the state Act has complicated its dealing with foreign sovereigns and proven an impediment to accomplishing the objectives assigned it by Congress. In this case, the positions of foreign governments and the Executive are competent and direct evidence of the state Act's frustration of congressional objectives. Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, distinguished. Pp. 16-23. </s> (e) The State's remaining argument--that Congress's failure to preempt state and local sanctions demonstrates implicit permission--is unavailing. The existence of a conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict, and a failure to provide for preemption expressly may reflect nothing more than the settled character of implied preemption that courts will dependably apply. Pp. 23-25. </s> 181 F.3d 38, affirmed. </s> Souter, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, O'Connor, Kennedy, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. </s> STEPHEN P. CROSBY, SECRETARY OF ADMINISTRA-TION AND FINANCE OF MASSACHUSETTS, etal., PETITIONERS v. NATIONAL FOREIGN TRADE COUNCIL </s> on writ of certiorari to the united states court of appeals for the first circuit </s> [June 19, 2000] </s> Justice Souter delivered the opinion of the Court. </s> The issue is whether the Burma law of the Commonwealth of Massachusetts, restricting the authority of its agencies to purchase goods or services from companies doing business with Burma,1 is invalid under the Supremacy Clause of the National Constitution owing to its threat of frustrating federal statutory objectives. We hold that it is. </s> I </s> In June 1996, Massachusetts adopted "An Act Regulating State Contracts with Companies Doing Business with or in Burma (Myanmar)," 1996 Mass. Acts 239, ch. 130 (codified at Mass. Gen. Laws §§7:22G-7:22M, 40 F½ (1997). The statute generally bars state entities from buying goods or services from any person (defined to include a business organization) identified on a "restricted purchase list" of those doing business with Burma. §§7:22H(a), 7:22J. Although the statute has no general provision for waiver or termination of its ban, it does exempt from boycott any entities present in Burma solely to report the news, §7:22H(e), or to provide international telecommunication goods or services, ibid., or medical supplies, §7:22I. </s> "`Doing business with Burma'" is defined broadly to cover any person </s> "(a) having a principal place of business, place of incorporation or its corporate headquarters in Burma (Myanmar) or having any operations, leases, franchises, majority-owned subsidiaries, distribution agreements, or any other similar agreements in Burma (Myanmar), or being the majority-owned subsidiary, licensee or franchise of such a person; </s> "(b) providing financial services to the government of Burma (Myanmar), including providing direct loans, underwriting government securities, providing any consulting advice or assistance, providing brokerage services, acting as a trustee or escrow agent, or otherwise acting as an agent pursuant to a contractual agreement; </s> "(c) promoting the importation or sale of gems, timber, oil, gas or other related products, commerce in which is largely controlled by the government of Burma (Myanmar), from Burma (Myanmar); </s> "(d) providing any goods or services to the government of Burma (Myanmar)." §7:22G. </s> There are three exceptions to the ban: (1) if the procurement is essential, and without the restricted bid, there would be no bids or insufficient competition, §7:22H(b); (2) if the procurement is of medical supplies, §7:22I; and (3) if the procurement efforts elicit no "comparable low bid or offer" by a person not doing business with Burma, §7:22H(d), meaning an offer that is no more than 10 percent greater than the restricted bid, §7:22G. To enforce the ban, the Act requires petitioner Secretary of Administration and Finance to maintain a "restricted purchase list" of all firms "doing business with Burma,"2 §7:22J. </s> In September 1996, three months after the Massachusetts law was enacted, Congress passed a statute imposing a set of mandatory and conditional sanctions on Burma. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, §570, 110 Stat. 3009-166 to 3009-167 (enacted by the Omnibus Consolidated Appropriations Act, 1997, §101(c), 110 Stat. 3009-121 to 3009-172). The federal Act has five basic parts, three substantive and two procedural. </s> First, it imposes three sanctions directly on Burma. It bans all aid to the Burmese Government except for humanitarian assistance, counternarcotics efforts, and promotion of human rights and democracy. §570(a)(1). The statute instructs United States representatives to international financial institutions to vote against loans or other assistance to or for Burma, §570(a)(2), and it provides that no entry visa shall be issued to any Burmese government official unless required by treaty or to staff the Burmese mission to the United Nations, §570(a)(3). These restrictions are to remain in effect "[u]ntil such time as the President determines and certifies to Congress that Burma has made measurable and substantial progress in improving human rights practices and implementing democratic government." §570(a). </s> Second, the federal Act authorizes the President to impose further sanctions subject to certain conditions. He may prohibit "United States persons" from "new investment" in Burma, and shall do so if he determines and certifies to Congress that the Burmese Government has physically harmed, rearrested, or exiled Daw Aung San Suu Kyi (the opposition leader selected to receive the Nobel Peace Prize), or has committed "large-scale repression of or violence against the Democratic opposition." §570(b). "New investment" is defined as entry into a contract that would favor the "economical development of resources located in Burma," or would provide ownership interests in or benefits from such development, §570(f)(2), but the term specifically excludes (and thus excludes from any Presidential prohibition) "entry into, performance of, or financing of a contract to sell or purchase goods, services, or technology," ibid. </s> Third, the statute directs the President to work to develop "a comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." §570(c). He is instructed to cooperate with members of the Association of Southeast Asian Nations (ASEAN) and with other countries having major trade and investment interests in Burma to devise such an approach, and to pursue the additional objective of fostering dialogue between the ruling State Law and Order Restoration Council (SLORC) and democratic opposition groups. Ibid. </s> As for the procedural provisions of the federal statute, the fourth section requires the President to report periodically to certain congressional committee chairmen on the progress toward democratization and better living conditions in Burma as well as on the development of the required strategy. §570(d). And the fifth part of the federal Act authorizes the President "to waive, temporarily or permanently, any sanction [under the federal Act] ... if he determines and certifies to Congress that the application of such sanction would be contrary to the national security interests of the United States." §570(e). </s> On May 20, 1997, the President issued the Burma Executive Order, Exec. Order No. 13047, 3 CFR 202 (1997 Comp.). He certified for purposes of §570(b) that the Government of Burma had "committed large-scale repression of the democratic opposition in Burma" and found that the Burmese Government's actions and policies constituted "an unusual and extraordinary threat to the national security and foreign policy of the United States," a threat characterized as a national emergency. The President then prohibited new investment in Burma "by United States persons," Exec. Order No. 13047, §1, any approval or facilitation by a United States person of such new investment by foreign persons, §2(a), and any transaction meant to evade or avoid the ban, §2(b). The order generally incorporated the exceptions and exemptions addressed in the statute. §§3, 4. Finally, the President delegated to the Secretary of State the tasks of working with ASEAN and other countries to develop a strategy for democracy, human rights, and the quality of life in Burma, and of making the required congressional reports.3 §5. </s> II </s> Respondent National Foreign Trade Council (Council) is a nonprofit corporation representing companies engaged in foreign commerce; 34 of its members were on the Massachusetts restricted purchase list in 1998. National Foreign Trade Council v. Natsios, 181 F.3d 38, 48 (CA1 1999). Three withdrew from Burma after the passage of the state Act, and one member had its bid for a procurement contract increased by 10 percent under the provision of the state law allowing acceptance of a low bid from a listed bidder only if the next-to-lowest bid is more than 10 percent higher. Ibid. </s> In April 1998, the Council filed suit in the United States District Court for the District of Massachusetts, seeking declaratory and injunctive relief against the petitioner state officials charged with administering and enforcing the state Act (whom we will refer to simply as the State).4 The Council argued that the state law unconstitutionally infringed on the federal foreign affairs power, violated the Foreign Commerce Clause, and was preempted by the federal Act. After detailed stipulations, briefing, and argument, the District Court permanently enjoined enforcement of the state Act, holding that it "unconstitutionally impinge[d] on the federal government's exclusive authority to regulate foreign affairs." National Foreign Trade Council v. Baker, 26 F.Supp. 2d 287, 291 (Mass. 1998). </s> The United States Court of Appeals for the First Circuit affirmed on three independent grounds. 181 F.3d, at 45. It found the state Act unconstitutionally interfered with the foreign affairs power of the National Government under Zschernig v. Miller, 389 U.S. 429 (1968), see 181 F.3d, at 52-55; violated the dormant Foreign Commerce Clause, U.S. Const. Art. I, §8, cl.3, see 181 F.3d, at 61-71; and was preempted by the congressional Burma Act, see id., at 71-77. </s> The State's petition for certiorari challenged the decision on all three grounds and asserted interests said to be shared by other state and local governments with similar measures.5 Though opposing certiorari, the Council acknowledged the significance of the issues and the need to settle the constitutionality of such laws and regulations. Brief in Opposition 18-19. We granted certiorari to resolve these important questions, 528 U.S. 1018 (1999), and now affirm. </s> III </s> A fundamental principle of the Constitution is that Congress has the power to preempt state law. Art.VI, cl.2; Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); Savage v. Jones, 225 U.S. 501, 533 (1912); California v. ARC America Corp., 490 U.S. 93, 101 (1989). Even without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances. When Congress intends federal law to "occupy the field," state law in that area is preempted. Id., at 100; cf. United States v. Locke, 529 U.S. ___, ___ (2000) (slip op., at 23) (citing Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604 (1915)). And even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.6 Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941); ARC America Corp., supra, at 100-101; Locke, supra, at ___ (slip op., at 17). We will find preemption where it is impossible for a private party to comply with both state and federal law, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), and where "under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, supra, at 67. What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: </s> "For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished--if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect--the state law must yield to the regulation of Congress within the sphere of its delegated power." Savage, supra, 533, quoted in Hines, supra, at 67, n.20. </s> Applying this standard, we see the state Burma law as an obstacle to the accomplishment of Congress's full objectives under the federal Act.7 We find that the state law undermines the intended purpose and "natural effect" of at least three provisions of the federal Act, that is, its delegation of effective discretion to the President to control economic sanctions against Burma, its limitation of sanctions solely to United States persons and new investment, and its directive to the President to proceed diplomatically in developing a comprehensive, multilateral strategy towards Burma.8 </s> A </s> First, Congress clearly intended the federal act to provide the President with flexible and effective authority over economic sanctions against Burma. Although Congress immediately put in place a set of initial sanctions (prohibiting bilateral aid, §570(a)(1), support for international financial assistance, §570(a)(2), and entry by Burmese officials into the United States, §570(a)(3)), it authorized the President to terminate any and all of those measures upon determining and certifying that there had been progress in human rights and democracy in Burma. §570(a). It invested the President with the further power to ban new investment by United States persons, dependent only on specific Presidential findings of repression in Burma. §570(b). And, most significantly, Congress empowered the President "to waive, temporarily or permanently, any sanction [under the federal act] ... if he determines and certifies to Congress that the application of such sanction would be contrary to the national security interests of the United States." §570(e). </s> This express investiture of the President with statutory authority to act for the United States in imposing sanctions with respect to the government of Burma, augmented by the flexibility9 to respond to change by suspending sanctions in the interest of national security, recalls Justice Jackson's observation in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952): "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." See also id., at 635-636, n.2 (noting that the President's power in the area of foreign relations is least restricted by Congress and citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)). Within the sphere defined by Congress, then, the statute has placed the President in a position with as much discretion to exercise economic leverage against Burma, with an eye toward national security, as our law will admit. And it is just this plenitude of Executive authority that we think controls the issue of preemption here. The President has been given this authority not merely to make a political statement but to achieve a political result, and the fullness of his authority shows the importance in the congressional mind of reaching that result. It is simply implausible that Congress would have gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.10 </s> And that is just what the Massachusetts Burma law would do in imposing a different, state system of economic pressure against the Burmese political regime. As will be seen, the state statute penalizes some private action that the federal Act (as administered by the President) may allow, and pulls levers of influence that the federal Act does not reach. But the point here is that the state sanctions are immediate,11 see 1996 Mass. Acts 239, ch. 130, §3 (restricting all contracts after law's effective date); Mass. Gen Laws §7:22K (1997) (authorizing regulations for timely and effective implementation), and perpetual, there being no termination provision, see, e.g., §7:22J (restricted companies list to be updated at least every three months). This unyielding application undermines the President's intended statutory authority by making it impossible for him to restrain fully the coercive power of the national economy when he may choose to take the discretionary action open to him, whether he believes that the national interest requires sanctions to be lifted, or believes that the promise of lifting sanctions would move the Burmese regime in the democratic direction. Quite simply, if the Massachusetts law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence. In Dames & Moore v. Regan, 453 U.S. 654 (1981), we used the metaphor of the bargaining chip to describe the President's control of funds valuable to a hostile country, id., at 673; here, the state Act reduces the value of the chips created by the federal statute.12 It thus "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U.S., at 67. </s> B </s> Congress manifestly intended to limit economic pressure against the Burmese Government to a specific range. The federal Act confines its reach to United States persons, §570(b), imposes limited immediate sanctions, §570(a), places only a conditional ban on a carefully defined area of "new investment," §570(f)(2), and pointedly exempts contracts to sell or purchase goods, services, or technology, §570(f)(2). These detailed provisions show that Congress's calibrated Burma policy is a deliberate effort "to steer a middle path," Hines, supra, at 73.13 </s> The State has set a different course, and its statute conflicts with federal law at a number of points by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions. While the state Act differs from the federal in relying entirely on indirect economic leverage through third parties with Burmese connections, it otherwise stands in clear contrast to the congressional scheme in the scope of subject matter addressed. It restricts all contracts between the State and companies doing business in Burma, §7:22H(a), except when purchasing medical supplies and other essentials (or when short of comparable bids), §7:22I. It is specific in targeting contracts to provide financial services, §7:22G(b), and general goods and services, §7:22G(d), to the Government of Burma, and thus prohibits contracts between the State and United States persons for goods, services, or technology, even though those transactions are explicitly exempted from the ambit of new investment prohibition when the President exercises his discretionary authority to impose sanctions under the federal Act. §570(f)(2). </s> As with the subject of business meant to be affected, so with the class of companies doing it: the state Act's generality stands at odds with the federal discreteness. The Massachusetts law directly and indirectly imposes costs on all companies that do any business in Burma, §7:22G, save for those reporting news or providing international telecommunications goods or services, or medical supplies, §§7:22H(e), 7:22I. It sanctions companies promoting the importation of natural resources controlled by the government of Burma, or having any operations or affiliates in Burma. §7:22G. The state Act thus penalizes companies with pre-existing affiliates or investments, all of which lie beyond the reach of the federal act's restrictions on "new investment" in Burmese economic development. §§570(b), 570(f)(2). The state Act, moreover, imposes restrictions on foreign companies as well as domestic, whereas the federal Act limits its reach to United States persons. </s> The conflicts are not rendered irrelevant by the State's argument that there is no real conflict between the statutes because they share the same goals and because some companies may comply with both sets of restrictions. See Brief for Petitioners 21-22. The fact of a common end hardly neutralizes conflicting means,14 see Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 103 (1992), and the fact that some companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of pressure to employ. See Hines, 475 U.S. 282, 286 (1986) (quoting Garner v. Teamsters, 346 U.S. 485, 498-499 (1953)). Sanctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions here undermines the congressional calibration of force. </s> C </s> Finally, the state Act is at odds with the President's intended authority to speak for the United States among the world's nations in developing a "comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." §570(c). Congress called for Presidential cooperation with members of ASEAN and other countries in developing such a strategy, ibid., directed the President to encourage a dialogue between the government of Burma and the democratic opposition, ibid.,15 and required him to report to the Congress on the progress of his diplomatic efforts, §570(d). As with Congress's explicit delegation to the President of power over economic sanctions, Congress's express command to the President to take the initiative for the United States among the international community invested him with the maximum authority of the National Government, cf. Youngstown Sheet & Tube Co., 343 U.S., at 635, in harmony with the President's own constitutional powers, U.S. Const., Art. II, §2, cl.2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties" and "shall appoint Ambassadors, other public Ministers and Consuls"); §3 ("[The President] shall receive Ambassadors and other public Ministers"). This clear mandate and invocation of exclusively national power belies any suggestion that Congress intended the President's effective voice to be obscured by state or local action. </s> Again, the state Act undermines the President's capacity, in this instance for effective diplomacy. It is not merely that the differences between the state and federal Acts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments. We need not get into any general consideration of limits of state action affecting foreign affairs to realize that the President's maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.16 When such exceptions do qualify his capacity to present a coherent position on behalf of the national economy, he is weakened, of course, not only in dealing with the Burmese regime, but in working together with other nations in hopes of reaching common policy and "comprehensive" strategy.17 Cf. Dames & Moore, 453 U.S., at 673-674. </s> While the threat to the President's power to speak and bargain effectively with other nations seems clear enough, the record is replete with evidence to answer any skeptics. First, in response to the passage of the state Act, a number of this country's allies and trading partners filed formal protests with the National Government, see 181 F.3d, at 47 (noting protests from Japan, the European Union (EU), and ASEAN), including an official Note Verbale from the EU to the Department of State protesting the state Act.18 EU officials have warned that the state Act "could have a damaging effect on bilateral EU-US relations." Hugo Paemen, Ambassador, European Union, Delegation of the European Commission, to William F. Weld, Governor, State of Massachusetts, Jan. 23, 1997, App. 75. </s> Second, the EU and Japan have gone a step further in lodging formal complaints against the United States in the World Trade Organization (WTO), claiming that the state Act violates certain provisions of the Agreement on Government Procurement,19 H.R. Doc. No. 103-316, 1719 (1994) and the consequence has been to embroil the National Government for some time now in international dispute proceedings under the auspices of the WTO. In their brief before this Court, EU officials point to the WTO dispute as threatening relations with the United States, Brief for European Communities etal. as Amici Curiae 7, and n.7, and note that the state Act has become the topic of "intensive discussions" with officials of the United States at the highest levels, those discussions including exchanges at the twice yearly EU-U.S. Summit.20 </s> Third, the Executive has consistently represented that the state Act has complicated its dealings with foreign sovereigns and proven an impediment to accomplishing objectives assigned it by Congress. Assistant Secretary of State Larson, for example, has directly addressed the mandate of the federal Burma law in saying that the imposition of unilateral state sanctions under the state Act "complicates efforts to build coalitions with our allies" to promote democracy and human rights in Burma. A. Larson, State and Local Sanctions: Remarks to the Council of State Governments 5 (Dec. 8, 1998). "[T]he EU's opposition to the Massachusetts law has meant that U.S. government high level discussions with EU officials often have focused not on what to do about Burma, but on what to do about the Massachusetts Burma law." Id., at 3.21 This point has been consistently echoed in the StateDepartment: </s> "While the [Massachusetts sanctions on Burma] were adopted in pursuit of a noble goal, the restoration of democracy in Burma, these measures also risk shifting the focus of the debate with our European Allies away from the best way to bring pressure against the State Law and Order Restoration Council (SLORC) to a potential WTO dispute over its consistency with our international obligations. Let me be clear. We are working with Massachusetts in the WTO dispute settlement process. But we must be honest in saying that the threatened WTO case risks diverting United States' and Europe's attention from focusing where it should be--on Burma." Eizenstat testimony, App. 115.22 </s> This evidence in combination is more than sufficient to show that the state Act stands as an obstacle in addressing the congressional obligation to devise a comprehensive, multilateral strategy. </s> Our discussion in Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 327-329 (1994), of the limited weight of evidence of formal diplomatic protests, risk of foreign retaliation, and statements by the Executive does not undercut the point. In Barclays, we had the question of the preemptive effect of federal tax law on state tax law with discriminatory extraterritorial effects. We found the reactions of foreign powers and the opinions of the Executive irrelevant in fathoming congressional intent because Congress had taken specific actions rejecting the positions both of foreign governments, id., at 324-328, and the Executive, id., at 328-329. Here, however, Congress has done nothing to render such evidence beside the point. In consequence, statements of foreign powers necessarily involved in the President's efforts to comply with the federal Act, indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act.23 Although we do not unquestioningly defer to the legal judgments expressed in Executive Branch statements when determining a federal Act's preemptive character, id., at 328-329, we have never questioned their competence to show the practical difficulty of pursuing a congressional goal requiring multinational agreement. We have, after all, not only recognized the limits of our own capacity to "determin[e] precisely when foreign nations will be offended by particular acts," Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 194 (1983), but consistently acknowledged that the "nuances" of "the foreign policy of the United States ... are much more the province of the Executive Branch and Congress than of this Court," id., at 196; Barclays, supra, at 327. In this case, repeated representations by the Executive Branch supported by formal diplomatic protests and concrete disputes are more than sufficient to demonstrate that the state Act stands in the way of Congress's diplomatic objectives.24 </s> IV </s> The State's remaining argument is unavailing. It contends that the failure of Congress to preempt the state Act demonstrates implicit permission. The State points out that Congress has repeatedly declined to enact express preemption provisions aimed at state and local sanctions, and it calls our attention to the large number of such measures passed against South Africa in the 1980s, which various authorities cited have thought were not preempted.25 The State stresses that Congress was aware of the state Act in 1996, but did not preempt it explicitly when it adopted its own Burma statute.26 The State would have us conclude that Congress's continuing failure to enact express preemption implies approval, particularly in light of occasional instances of express preemption of state sanctions in the past.27 </s> The argument is unconvincing on more than one level. A failure to provide for preemption expressly may reflect nothing more than the settled character of implied preemption doctrine that courts will dependably apply, and in any event, the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict, Hines, 312 U.S., at 67. The State's inference of congressional intent is unwarranted here, therefore, simply because the silence of Congress is ambiguous. Since we never ruled on whether state and local sanctions against South Africa in the 1980s were preempted or otherwise invalid, arguable parallels between the two sets of federal and state Acts do not tell us much about the validity of the latter. </s> V </s> Because the state Act's provisions conflict with Congress's specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause. </s> The judgment of the Court of Appeals for the First Circuit is affirmed. </s> It is so ordered. </s> STEPHEN P. CROSBY, SECRETARY OF ADMINISTRA-TION AND FINANCE OF MASSACHUSETTS, etal., PETITIONERS v. NATIONAL FOREIGN TRADE COUNCIL </s> on writ of certiorari to the united states court of appeals for the first circuit </s> [June 19, 2000] </s> Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. </s> It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to "provid[e] the President with flexibility in implementing its Burma sanctions policy." Ante, at 10, n.9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[s]tatements by the sponsors of the federal Act" show that they shared this intent, ibid., and that a statement in a letter from a State Department officer shows that flexibility had "the explicit support of the Executive," ante, at 11, n.9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by "sponsors" or the "Executive") to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 12, n.10. </s> It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction," ante, at 13. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "the sponsors of the federal Act" shared this expectation, ante, at 13, n.12. </s> It is perfectly obvious on the face of the statute that Congress's Burma policy was a "calibrated" one, which "limit[ed] economic pressure against the Burmese Government to a specific range," ante, at 13. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 13-14, n.13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its "limits were deliberate," ante at 14, n.13. And I would feel this way even if I shared the Court's na ;ve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional "reject[ion]" of what the bill contained, ibid. Curiously, the Court later recognizes, in rejecting the argument that Congress's failure to enact express preemption implies approval of the state Act, that "the silence of Congress may be ambiguous." Ante, at 24. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress's failure to enact legislation, see ante, at 12, n.11, 13-14, n.13, 22, n. 23. </s> It is perfectly obvious on the face of the statute that Congress intended the President to develop a "multilateral strategy" in cooperation with other countries. In fact, the statute says that in so many words, see §570(c), 111 Stat. 3009-166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 17, n.15, 18, n. 17. </s> It is perfectly obvious from the record, as the Court discusses, ante, at 18-21, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a "multilateral strategy." And as the Court later says in another context, "the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict," ante, at 24. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the "congressional sponsors" of the Act and "the Executive" actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a "multilateral strategy," ante, at 22, n. 23. </s> Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),*1 nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intent--the only thing we know for sure can be attributed to all of them--is the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worse--calling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself!"). The Confessions, Book 2, ¶ ;9, in 18 Great Books of the Western World 10-11 (1952) (E. Pusey trans. 1952). </s> In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote type) even more of the opinion's content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel--which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes. </s> For this reason, I join only the judgment of the Court. </s> FOOTNOTES Footnote 1 </s> The Court of Appeals noted that the ruling military government of "Burma changed [the country's] name to Myanmar in 1989," but the court then said it would use the name Burma since both parties and amici curiae, the state law, and the federal law all do so. National Foreign Trade Council v. Natsios, 181 F.3d 38, 45, n.1 (CA1 1999). We follow suit, noting that our use of this term, like the First Circuit's, is not intended to express any political view. See ibid. </s> Footnote 2 </s> According to the District Court, companies may challenge their inclusion on the list by submitting an affidavit stating that they do no business with Burma. National Foreign Trade Council v. Baker, 26 F.Supp. 2d 287, 289 (Mass. 1998). The Massachusetts Executive Office's Operational Services Division makes a final determination. Ibid. </s> Footnote 3 </s> The President also delegated authority to implement the policy to the Secretary of the Treasury, in consultation with the Secretary of State. §6. On May 21, 1998, the Secretary of the Treasury issued federal regulations implementing the President's Executive Order. See 31 CFR pt. 537 (Burmese Sanctions Regulations). </s> Footnote 4 </s> One of the state offices changed incumbents twice during litigation before reaching this Court, see National Foreign Trade Council v. Natsios, 181 F.3d 38, 48, n. 4 (CA 1999), and once more after we granted certiorari. </s> Footnote 5 </s> "At least nineteen municipal governments have enacted analogous laws restricting purchases from companies that do business in Burma." 181 F.3d, at 47; Pet. for Cert. 13 (citing N. Y.C. Admin. Code §6-115 (1999); Los Angeles Admin. Code, Art. 12, §§10.38 et seq. (1999); Philadelphia Code §17-104(b) (1999); Vermont H.J. Res. 157 (1998); 1999 Vt. Laws No. 13). </s> Footnote 6 </s> We recognize, of course, that the categories of preemption are not "rigidly distinct." English v. General Elec. Co., 496 U.S. 72, 79, n. 5 (1990). Because a variety of state laws and regulations may conflict with a federal statute, whether because a private party cannot comply with both sets of provisions or because the objectives of the federal statute are frustrated, "field pre-emption may be understood as a species of conflict pre-emption." id., at 79-80, n. 5; see also Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 104, n. 2 (1992) (quoting English, supra); 505 U.S., at 115-116 (Souter, J., dissenting) (noting similarity between "purpose-conflict pre-emption" and pre-emption of a field, and citing L. Tribe, American Constitutional Law 486 (2d ed. 1988)); 1 L. Tribe, American Constitutional Law 1177 (3d ed. 2000) (noting that "field" preemp-tion may fall into any of the categories of express, implied, or conflict preemption). </s> Footnote 7 </s> The State concedes, as it must, that in addressing the subject of the federal Act, Congress has the power to preempt the state statute. See Reply Brief for Petitioners 2; Tr. of Oral Arg. 5-6. </s> We add that we have already rejected the argument that a State's "statutory scheme ... escapes pre-emption because it is an exercise of the State's spending power rather than its regulatory power." Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 287 (1986). In Gould, we found that a Wisconsin statute debarring repeat violators of the National Labor Relations Act, 29 U.S.C. §151 et seq., from contracting with the State was preempted because the state statute's additional enforcement mechanism conflicted with the federal Act. Gould, 475 U.S., at 288-289. The fact that the State "ha[d] chosen to use its spending power rather than its police power" did not reduce the potential for conflict with the federal statute. Ibid. </s> Footnote 8 </s> We leave for another day a consideration in this context of a presumption against preemption. See United States v. Locke, 529 U.S. ___, ___ (2000) (slip op., at 16). Assuming, arguendo, that some presumption against preemption is appropriate, we conclude, based on our analysis below, that the state Act presents a sufficient obstacle to the full accomplishment of Congress's objectives under the federal Act to find it preempted. See Hines v. Davidowits, 312 U.S. 52, 67 (1941). </s> Because our conclusion that the state Act conflicts with federal law is sufficient to affirm the judgment below, we decline to speak to field preemption as a separate issue, see n. 6, supra, or to pass on the First Circuit's rulings addressing the foreign affairs power or the dormant Foreign Commerce Clause. See Ashwander v. TVA, 297 U.S. 288, 346-347 (1936) (concurring opinion). </s> Footnote 9 </s> Statements by the sponsors of the federal Act underscore the statute's clarity in providing the President with flexibility in implementing its Burma sanctions policy. See 142 Cong. Rec. 19212 (1996) (emphasizing importance of providing "the administration flexibility in reacting to changes, both positive and negative, with respect to the behavior of the [Burmese regime]) (statement of principal sponsor Sen. Cohen); id., at 19213; id., at 19221 (describing the federal act as "giv[ing] the President, who, whether Democrat or Republican, is charged with conducting our Nation's foreign policy, some flexibility") (statement of cosponsor Sen. McCain); id., at 19220 ("We need to be able to have the flexibility to remove sanctions and provide support for Burma if it reaches a transition stage that is moving toward the restoration of democracy, which all of us support") (statement of cosponsor Sen. Feinstein). These sponsors chose a pliant policy with the explicit support of the Executive. See, e.g., id., at 19219 (letter from Barbara Larkin, Assistant Secretary, Legislative Affairs, U.S. Department of State to Sen. Cohen) (admitted by unanimous consent) ("We believe the current and conditional sanctions which your language proposes are consistent with Administration policy. As we have stated on several occasions in the past, we need to maintain our flexibility to respond to events in Burma and to consult with Congress on appropriate responses to ongoing and future development there"). </s> Footnote 10 </s> The State makes arguments that could be read to suggest that Congress's objective of Presidential flexibility was limited to discretion solely over the sanctions in the federal Act, and that Congress implicitly left control over state sanctions to the State. Brief for Petitioners 19-24. We reject this cramped view of Congress's intent as against the weight of the evidence. Congress made no explicit statement of such limited objectives. More importantly, the federal Act itself strongly indicates the opposite. For example, under the federal Act, Congress explicitly identified protecting "national security interests" as a ground on which the President could suspend federal sanctions. §570(e), 110 Stat. 3009-167. We find it unlikely that Congress intended both to enable the President to protect national security by giving him the flexibility to suspend or terminate federal sanctions and simultaneously to allow Massachusetts to act at odds with the President's judgment of what national security requires. </s> Footnote 11 </s> These provisions strongly resemble the immediate sanctions on investment that appeared in the proposed section of H.R. 3540 that Congress rejected in favor of the federal act. See H.R. 3540, 104th Cong., 2d Sess., §569(1) (1996). </s> Footnote 12 </s> The sponsors of the federal Act obviously anticipated this analysis. See, e.g., 142 Cong. Rec. at 19220 (1996) (statement of Sen. Feinstein) ("We may be able to have the effect of nudging the SLORC toward an increased dialog with the democratic opposition. That is why we also allow the President to lift sanctions"). </s> Footnote 13 </s> The fact that Congress repeatedly considered and rejected targeting a broader range of conduct lends additional support to our view. Most importantly, the federal Act, as passed, replaced the original proposed section of H.R. 3540, which barred "any investment in Burma" by a United States national without exception or limitation. See H.R. 3540, 104th Cong., 2d Sess., §569(1) (1996). Congress also rejected a competing amendment, S. 1511, 104th Cong., 1st Sess. (Dec. 29, 1995), which similarly provided that "United States nationals shall not make any investment in Burma," §4(b)(1), and would have permitted the President to impose conditional sanctions on the importation of "articles which are produced, manufactured, grown, or extracted in Burma," §4(c)(1), and would have barred all travel by United States nationals to Burma, §4(c)(2). Congress had rejected an earlier amendment that would have prohibited all United States investment in Burma, subject to the President's power to lift sanctions. S. 1092, 104th Cong., 1st Sess. (July 28, 1995). </s> Statements of the sponsors of the federal act also lend weight to the conclusions that the limits were deliberate. See, e.g., 142 Cong. Rec. 19279 (1996) (statement of Sen. Breaux) (characterizing the federal Act as "strik[ing] a balance between unilateral sanctions against Burma and unfettered United States investment in that country"). The scope of the exemptions was discussed, see ibid. (statements of Sens. Nickles and Cohen), and broader sanctions were rejected, see id., at 19212 (statement of Sen. Cohen); id., at 19280 (statement of Sen. Murkowski) ("Instead of the current draconian sanctions proposed in the legislation before us, we should adopt an approach that effectively secures our national interests"). </s> Footnote 14 </s> The State's reliance on CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 82-83 (1987), for the proposition that "[w]here the state law furthers the purpose of the federal law, the Court should not find conflict" is misplaced. See Brief for Petitioners 21-22. In CTS Corp., we found that an Indiana state securities law "further[ed] the federal policy of investor protection," 481 U.S., at 83, but we also examined whether the state law conflicted with federal law "[i]n implementing its goal," ibid. Identity of ends does not end our analysis of preemption. See Gould, 475 U.S., at 286. </s> Footnote 15 </s> The record supports the conclusion that Congress considered the development of a multilateral sanctions strategy to be a central objective of the federal act. See, e.g., 142 Cong. Rec. 19212 (1996) (remarks of Sen. Cohen) ("[T]o be effective, American policy in Burma has to be coordinated with our Asian friends and allies"); id., at 19219 (remarks of Sen. Feinstein) ("Only a multilateral approach is likely to be successful"). </s> Footnote 16 </s> Such concerns have been raised by the President's representatives in the Executive Branch. See Testimony of Under Secretary of State Eizenstat before the Trade Subcommittee of the House Ways and Means Committee (Oct. 23, 1997) (hereinafter Eizenstat testimony), App. 116 ("[U]nless sanctions measures are well conceived and coordinated, so that the United States is speaking with one voice and consistent with our international obligations, such uncoordinated responses can put the US on the political defensive and shift attention away from the problem to the issue of sanctions themselves"). We have expressed similar concerns in our cases on foreign commerce and foreign relations. See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 449 (1979); Chy Lung v. Freeman, 92 U.S., at 279; cf. The Federalist No. 80, pp. 535-536 (J. Cooke ed. 1961) (A. Hamilton) ("[T]he peace of the whole ought not to be left at the disposal of a part. The union will undoubtedly be answerable to foreign powers for the conduct of its members"). </s> Footnote 17 </s> The record reflects that sponsors of the federal Act were well aware of this concern and provided flexibility to the President over sanctions for that very reason. See, e.g., 142 Cong. Rec. at 19214 (statement of Sen. Thomas) ("Although I will readily admit that our present relationship with Burma is not especially deep, the imposition of mandatory sanctions would certainly downgrade what little relationship we have. Moreover, it would affect our relations with many of our allies in Asia as we try to corral them into following our lead"); id., at 19219 (statement of Sen. Feinstein) ("It is absolutely essential that any pressure we seek to put on the Government of Burma be coordinated with the nations of ASEAN and our European and Asian allies. If we act unilaterally, we are more likely to have the opposite effect--alienating many of these allies, while having no real impact on the ground"). </s> Footnote 18 </s> In amicus briefs here and in the courts below, the EU has consistently taken the position that the state Act has created "an issue of serious concern in EU-U.S. relations." Brief for European Communities etal. as Amici Curiae 6. </s> Footnote 19 </s> Although the WTO dispute proceedings were suspended at the request of Japan and the EU in light of the District Court's ruling below, Letter of Ole Lundby, Chairman of the Panel, to Ambassadors from the European Union, Japan, and the United States (Feb. 10, 1999), and have since automatically lapsed, Understanding on Rules and Procedures Governing the Settlement of Disputes, 33 International Legal Materials 1125, 1234 (1994), neither of those parties is barred from reinstating WTO procedures to challenge the state Act in the future. In fact, the EU, as amicus before us, specifically represents that it intends to begin new WTO proceedings should the current injunction on the law be lifted. Brief for European Communities etal. as Amici Curiae 7. We express no opinion on the merits of these proceedings. </s> Footnote 20 </s> Senior Level Group Report to the U.S.-EU Summit, Washington 3 (Dec. 17, 1999), http://www.eurunion.org/news/summit/Summit Annex/SLGRept.html. </s> Footnote 21 </s> Assistant Secretary Larson also declared that the state law "has hindered our ability to speak with one voice on the grave human rights situation in Burma, become a significant irritant in our relations with the EU and impeded our efforts to build a strong multilateral coalition on Burma where we, Massachusetts and the EU share a common goal." Assistant Secretary of State Alan P. Larson, State and Local Sanctions: Remarks to the Council of State Governments 3 (Dec. 8, 1998). </s> Footnote 22 </s> The United States, in its brief as amicus curiae, continues to advance this position before us. See Brief for United States as Amicus Curiae, 8-9, and n.7, 34-35. This conclusion has been consistently presented by senior United States officials. See also Testimony of Deputy Assistant Secretary of State David Marchick before the California State Assembly, Oct. 28, 1997, App. 137; Testimony of Deputy Assistant Secretary of State David Marchick before the Maryland House of Delegates Committee on Commerce and Government Matters, Mar. 25, 1998, id., at 166 (same). </s> Footnote 23 </s> We find support for this conclusion in the statements of the congressional sponsors of the federal Act, who indicated their opinion that inflexible unilateral action would be likely to cause difficulties in our relations with our allies and in crafting an effective policy toward Burma. See n.17, supra. Moreover, the facts that the Executive specifically called for flexibility prior to the passage of the federal Act, and that the Congress rejected less flexible alternatives and adopted the current law in response to the Executive's communications, bolster the relevance of the Executive's opinion with regard to its ability to accomplish Congress's goals. See n.9, supra. </s> Footnote 24 </s> The State appears to argue that we should ignore the evidence of the WTO dispute because under the federal law implementing the General Agreement on Tariffs and Trade (GATT), Congress foreclosed suits by private persons and foreign governments challenging a state law on the basis of GATT in federal or state courts, allowing only the National Government to raise such a challenge. See Uruguay Round Agreements Act (URRA), §102(c)(1), 108 Stat. 4818, 19 U.S.C. §§3512(b)(2)(A), 3512(c)(1); see also "Statement of Administrative Action" (SAA), reprinted in H.R. Doc. No. 103-216, pp. 656, 675-677 (1994). To consider such evidence, in their view, would effectively violate the ban by allowing private parties and foreign nations to challenge state procurement laws in domestic courts. But the terms of §102 of the URAA and of the SAA simply does not support this argument. They refer to challenges to state law based on inconsistency with any of the "Uruguay Round Agreements." The challenge here is based on the federal Burma law. We reject the State's argument that the National Government's decisions to bar such WTO suits and to decline to bring its own suit against the Massachusetts Burma law evince its approval. These actions simply do not speak to the preemptive effect of the federal sanctions against Burma </s> Footnote 25 </s> See, e.g., Board of Trustees v. Mayor and City Council of Baltimore, 317 Md. 72, 79-98, 562 A.2d 720, 744-749 (1989) (holding local divestment ordinance not preempted by Comprehensive Anti-Apartheid Act of 1986 (CAAA)), cert. denied subnom. Lubman v. Mayor and City Council of Baltimore, 493 U.S 1093 (1990); Constitutionality of South African Divestment Statutes Enacted by State and Local Goverments, 10 Op. Off. Legal Counsel 49, 64-66, 1986 WL 213238 (state and local divestment and selective purchasing laws not preempted by pre-CAAA federal law); H.R. Res. Nos. 99-548, 99-549 (1986) (denying preemptive intent of CAAA); 132 Cong. Rec. 23119-23129 (1986) (House debate on resolutions); id., at 23292 (Sen. Kennedy, quoting testimony of Laurence H. Tribe). Amicus Members of Congress in support of the State also note that when Congress revoked its federal sanctions in response to the democratic transition in that country, it refused to preempt the state and local measures, merely "urg[ing]" both state and local governments and private boycott participants to rescind their sanctions. Brief for Senator Boxer etal. as Amici Curiae 9, citing South African Democratic Transition Support Act of 1993, §4(c)(1), 107 Stat. 1503. </s> Footnote 26 </s> The State also finds significant the fact that Congress did not preempt state and local sanctions in a recent sanctions reform bill, even though its sponsor seemed to be aware of such measures. See H.R. Rep. No. 105-2708 (1997); 143 Cong. Rec. E2080 (Oct. 23, 1997) (Rep. Hamilton). </s> Footnote 27 </s> See Export Administration Act of 1979, 50 U.S.C. App. §2407(c) (1988 ed.) (Anti-Arab boycott of Israel provisions expressly "preempt any law, rule, or regulation"). </s> FOOTNOTES Footnote 1 </s> *Debate on the bill that became the present Act seems, in this respect, not to have departed from the ordinary. Cf. 142 Cong. Rec. 19263 (1996)(statement of Sen. McConnell) (noting, in debate regarding which amendment to take up next: "I do not see anyone on the Democratic side in the Chamber").

United States Supreme Court MITCHELL v. TRAWLER RACER, INC.(1960) No. 176 Argued: January 21, 1960Decided: May 16, 1960 </s> In an action by a seaman who was a member of the crew of a fishing trawler to recover damages for personal injuries sustained as a result of unseaworthiness due to the temporary presence on the ship's rail of slime and fish gurry remaining there from recent unloading operations, the shipowner's actual or constructive knowledge of the temporary unseaworthy condition is not an essential element of the seaman's case. Pp. 539-550. </s> (a) A shipowner's duty to furnish a seaworthy ship is absolute and it is not limited by concepts of common-law negligence. Pp. 542-549. </s> (b) Liability of the shipowner for a temporary unseaworthy condition is not different from the liability which attaches when the unseaworthy condition is permanent. Pp. 549-550. </s> 265 F.2d 426, reversed. </s> Morris D. Katz argued the cause and filed a brief for petitioner. </s> James A. Whipple argued the cause for respondent. With him on the brief was Paul J. Kirby. </s> Briefs of amici curiae urging reversal were filed by Samuel A. Neuburger, by Arthur J. Mandell, and by Philip F. DiCostanzo. </s> Walter E. Maloney, Thomas E. Byrne, Jr., M. L. Cook, J. Ward O'Neill, Louis J. Gusmano and James M. Estabrook filed a brief for the American Merchant Marine Institute, Inc., as amicus curiae, urging affirmance. </s> MR. JUSTICE STEWART delivered the opinion of the Court. </s> The petitioner was a member of the crew of the Boston fishing trawler Racer, owned and operated by the [362 U.S. 539, 540] respondent. On April 1, 1957, the vessel returned to her home port from a 10-day voyage to the North Atlantic fishing grounds, loaded with a catch of fish and fish spawn. After working that morning with his fellow crew members in unloading the spawn, 1 the petitioner changed his clothes and came on deck to go ashore. He made his way to the side of the vessel which abutted the dock, and in accord with recognized custom stepped onto the ship's rail in order to reach a ladder attached to the pier. He was injured when his foot slipped off the rail as he grasped the ladder. </s> To recover for his injuries he filed this action for damages in a complaint containing three counts: the first under the Jones Act, alleging negligence; the second alleging unseaworthiness; and the third for maintenance and cure. At the trial there was evidence to show that the ship's rail where the petitioner had lost his footing was covered for a distance of 10 or 12 feet with slime and fish gurry, apparently remaining there from the earlier unloading operations. </s> The district judge instructed the jury that in order to allow recovery upon either the negligence or unseaworthiness count, they must find that the slime and gurry had been on the ship's rail for a period of time long enough for the respondent to have learned about it and to have removed it. 2 Counsel for the petitioner requested that [362 U.S. 539, 541] the trial judge distinguish between negligence and unseaworthiness in this respect, and specifically requested him to instruct the jury that notice was not a necessary element in proving liability based upon unseaworthiness of the vessel. This request was denied. 3 The jury awarded the petitioner maintenance and cure, but found for the respondent shipowner on both the negligence and unseaworthiness counts. [362 U.S. 539, 542] </s> An appeal was taken upon the sole ground that the district judge had been in error in instructing the jury that constructive notice was necessary to support liability for unseaworthiness. The Court of Appeals affirmed, holding that at least with respect to "an unseaworthy condition which arises only during the progress of the voyage," the shipowner's obligation "is merely to see that reasonable care is used under the circumstances . . . incident to the correction of the newly arisen defect." 265 F.2d 426, 432. Certiorari was granted, 361 U.S. 808 , to consider a question of maritime law upon which the Courts of Appeals have expressed differing views. Compare Cookingham v. United States, 184 F.2d 213 (C. A. 3d Cir.), with Johnson Line v. Maloney, 243 F.2d 293 (C. A. 9th Cir.), and Poignant v. United States, 225 F.2d 595 (C. A. 2d Cir.). </s> In its present posture this case thus presents the single issue whether with respect to so-called "transitory" unseaworthiness the shipowner's liability is limited by concepts of common-law negligence. There are here no problems, such as have recently engaged the Court's attention, with respect to the petitioner's status as a "seaman." Cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85 ; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406 ; United Pilots Assn. v. Halecki, 358 U.S. 613 , or as to the status of the vessel itself. Cf. West v. United States, 361 U.S. 118 . The Racer was in active maritime operation, and the petitioner was a member of her crew. 4 </s> [362 U.S. 539, 543] </s> The origin of a seaman's right to recover for injuries caused by an unseaworthy ship is far from clear. The earliest codifications of the law of the sea provided only the equivalent of maintenance and cure - medical treatment and wages to a mariner wounded or falling ill in the service of the ship. Markedly similar provisions granting relief of this nature are to be found in the Laws of Oleron, promulgated about 1150 A. D. by Eleanor, Duchess of Guienne; in the Laws of Wisbuy, published in the following century; in the Laws of the Hanse Towns, which appeared in 1597; and in the Marine Ordinances of Louis XIV, published in 1681. 5 </s> For many years American courts regarded these ancient codes as establishing the limits of a shipowner's liability to a seaman injured in the service of his vessel. Harden v. Gordon, 2 Mason 541; The Brig George, 1 Summer 151; [362 U.S. 539, 544] Reed v. Canfield, 1 Summer 195. 6 During this early period the maritime law was concerned with the concept of unseaworthiness only with reference to two situations quite unrelated to the right of a crew member to recover for personal injuries. The earliest mention of unseaworthiness in American judicial opinions appears in cases in which mariners were suing for their wages. They were required to prove the unseaworthiness of the vessel to excuse their desertion or misconduct which otherwise would result in a forfeiture of their right to wages. See Dixon v. The Cyrus, 7 Fed. Cas. 755, No. 3,930; Rice v. The Polly & Kitty, 20 Fed. Cas. 666, No. 11,754; The Moslem, 17 Fed. Cas. 894, No. 9,875. The other route through which the concept of unseaworthiness found its way into the maritime law was via the rules covering marine insurance and the carriage of goods by sea. The Caledonia, 157 U.S. 124 ; The Silvia, 171 U.S. 462 ; The Southwark, 191 U.S. 1 ; I Parsons on Marine Insurance (1868) 367-400. </s> Not until the late nineteenth century did there develop in American admiralty courts the doctrine that seamen had a right to recover for personal injuries beyond maintenance and cure. During that period it became generally accepted that a shipowner was liable to a mariner injured in the service of a ship as a consequence of the owner's failure to exercise due diligence. The decisions of that era for the most part treated maritime injury cases on the same footing as cases involving the duty of a shoreside employer to exercise ordinary care to provide his employees with a reasonably safe place to work. Brown v. The D. S. Cage, 4 Fed. Cas. 367, No. 2002; [362 U.S. 539, 545] Halverson v. Nisen, 11 Fed. Cas. 310, No. 5970; The Noddleburn, 28 Fed. 855; The Neptuno, 30 Fed. 925; The Lizzie Frank, 31 Fed. 477; The Flowergate, 31 Fed. 762; The A. Heaton, 43 Fed. 592; The Julia Fowler, 49 Fed. 277; The Concord, 58 Fed. 913; The France, 59 Fed. 479; The Robert C. McQuilien, 91 Fed. 685. </s> Although some courts held shipowners liable for injuries caused by "active" negligence. The Edith Godden, 23 Fed. 43; The Frank & Willie, 45 Fed. 494, it was held in The City of Alexandria, 17 Fed. 390, in a thorough opinion by Judge Addison Brown, that the owner was not liable for negligence which did not render the ship or her appliances unseaworthy. A closely related limitation upon the owner's liability was that imposed by the fellow-servant doctrine. The Sachem, 42 Fed. 66. 7 </s> This was the historical background behind Mr. Justice Brown's much quoted second proposition in The Osceola, 189 U.S. 158, 175 : "That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship." In support of this proposition the Court's opinion noted that "[i]t will be observed in these cases that a departure has been made from the Continental codes in allowing an indemnity beyond the expense of maintenance and cure in cases arising from unseaworthiness. This departure originated in England in the Merchants' Shipping Act of 1876 . . . and in this country, in a general consensus of opinion among the Circuit and [362 U.S. 539, 546] District Courts, that an exception should be made from the general principle before obtaining, in favor of seamen suffering injury through the unseaworthiness of the vessel. We are not disposed to disturb so wholesome a doctrine by any contrary decision of our own." 189 U.S., at 175 . </s> It is arguable that the import of the above-quoted second proposition in The Osceola was not to broaden the shipowner's liability, but, rather, to limit liability for negligence to those situations where his negligence resulted in the vessel's unseaworthiness. Support for such a view is to be found not only in the historic context in which The Osceola was decided, but in the discussion in the balance of the opinion, in the decision itself (in favor of the shipowner), and in the equation which the Court drew with the law of England, where the Merchant Shipping Act of 1876 imposed upon the owner only the duty to use "all reasonable means" to "insure the seaworthiness of the ship." This limited view of The Osceola's pronouncement as to liability for unseaworthiness may be the basis for subsequent decisions of federal courts exonerating shipowners from responsibility for the negligence of their agents because that negligence had not rendered the vessel unseaworthy. The Henry B. Fiske, 141 Fed. 188; Tropical Fruit S. S. Co. v. Towle, 222 Fed. 867; John A. Roebling's Sons Co. v. Erickson, 261 Fed. 986. Such a reading of the Osceola opinion also finds arguable support in several subsequent decisions of this Court. Baltimore S. S. Co. v. Phillips, 274 U.S. 316 ; Plamals v. The Pinar Del Rio, 277 U.S. 151 ; Pacific Co. v. Peterson, 278 U.S. 130 . 8 In any event, with the passage of the Jones Act in 1920, 41 Stat. 1007, 46 U.S.C. 688, Congress effectively obliterated all distinctions between [362 U.S. 539, 547] the kinds of negligence for which the shipowner is liable, as well as limitations imposed by the fellow-servant doctrine, by extending to seamen the remedies made available to railroad workers under the Federal Employers' Liability Act. 9 </s> The first reference in this Court to the shipowner's obligation to furnish a seaworthy ship as explicitly unrelated to the standard of ordinary care in a personal injury case appears in Carlisle Packing Co. v. Sandanger, 259 U.S. 255 . There it was said "we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . and that if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages." 259 U.S., at 259 . This characterization of unseaworthiness as unrelated to negligence was probably not necessary to the decision in that case, where the respondent's injuries had clearly in fact been caused by failure to exercise ordinary care (putting gasoline in a can labeled "coal oil" and neglecting to provide the vessel with life preservers). Yet there is no reason to suppose that the Court's language was inadvertent. 10 </s> During the two decades that followed the Carlisle decision there came to be a general acceptance of the view that The Osceola had enunciated a concept of absolute liability for unseaworthiness unrelated to principles of negligence law. Personal injury litigation based upon unseaworthiness was substantial. See, Gilmore and Black, The Law of Admiralty (1957), p. 316. And the standard texts accepted that theory of liability without question. [362 U.S. 539, 548] See Benedict, The Law of American Admiralty (6th ed., 1940), Vol. I, 83; Robinson, Admiralty Law (1939), p. 303 et seq. Perhaps the clearest expression appeared in Judge Augustus Hand's opinion in The H. A. Scandrett, 87 F.2d 708: </s> "In our opinion the libelant had a right of indemnity for injuries arising from an unseaworthy ship even though there was no means of anticipating trouble. </s> "The ship is not freed from liability by mere due diligence to render her seaworthy as may be the case under the Harter Act (46 U.S.C.A. 190-195) where loss results from faults in navigation, but under the maritime law there is an absolute obligation to provide a seaworthy vessel and, in default thereof, liability follows for any injuries caused by breach of the obligation." 87 F.2d, at 711. </s> In 1944 this Court decided Mahnich v. Southern S. S. Co., 321 U.S. 96 . While it is possible to take a narrow view of the precise holding in that case, 11 the fact is that Mahnich stands as a landmark in the development of admiralty law. Chief Justice Stone's opinion in that case gave an unqualified stamp of solid authority to the view that The Osceola was correctly to be understood as holding that the duty to provide a seaworthy ship depends not at all upon the negligence of the shipowner or his agents. Moreover, the dissent in Mahnich accepted this reading of The Osceola and claimed no more than that the injury in Mahnich was not properly attributable to unseaworthiness. See 321 U.S., at 105 -113. </s> In Seas Shipping Co. v. Sieracki, 328 U.S. 85 , the Court effectively scotched any doubts that might have lingered [362 U.S. 539, 549] after Mahnich as to the nature of the shipowner's duty to provide a seaworthy vessel. The character of the duty, said the Court, is "absolute." "It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is 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." 328 U.S., at 94 -95. The dissenting opinion agreed as to the nature of the shipowner's duty. "[D]ue diligence of the owner," it said, "does not relieve him from this obligation." 328 U.S., at 104 . </s> From that day to this, 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. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406 ; Alaska Steamship Co. v. Petterson, 347 U.S. 396 ; Rogers v. United States Lines, 347 U.S. 984 ; Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336 ; Crumady v. The J. H. Fisser, 358 U.S. 423 ; United Pilots Assn. v. Halecki, 358 U.S. 613 . </s> There is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port, or that the duty is any less with respect to an unseaworthy condition which may be only temporary. Of particular relevance here is Alaska Steamship Co. v. Petterson, supra. In that case the Court affirmed a judgment holding the shipowner liable for injuries caused by defective equipment temporarily brought on board by an independent contractor over which the owner had no control. That decision is thus specific authority for the proposition that the shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability. [362 U.S. 539, 550] That decision also effectively disposes of the suggestion that liability for a temporary unseaworthy condition is different from the liability that attaches when the condition is permanent. 12 </s> There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic. But, in view of the decisions in this Court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history. </s> What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336 . </s> The judgment must be reversed, and the case remanded to the District Court for a new trial on the issue of unseaworthiness. </s> Reversed and remanded. </s> Footnotes [Footnote 1 In accordance with tradition, the employment agreement provided that the proceeds from the sale of the fish spawn should be divided among the members of the crew, no part thereof going to the officers or to the owner of the vessel. </s> [Footnote 2 The instructions on this aspect of the case were as follows: "In a case like this we have the argument presented here, which you do not have to believe, that the ship was unseaworthy because at the time of the injury there was on the rail of the ship some kind of slime. Well, if that really was there and had been there any period of time, and it caused the accident, then you would find as [362 U.S. 539, 541] a matter of your conclusion of fact, that unseaworthiness caused the accident. "I haven't told you what unseaworthiness is. You will recognize it is somewhat overlapping and alternative to, indeed quite similar to, negligence because it is one of the obligations of the owner of a ship to see to it through appropriate captains, mates, members of the crew, or someone, that there isn't left upon the rail of a ship, especially a rail which is going to be utilized for leaving the ship, to climb the ladder, any sort of substance such as slime. "It doesn't make any difference who puts it there. As far as the owner-operator of the vessel goes, it is his job to see it does not stay there too long, if he knows it is the kind of place, as he could have known here, which is used by members of the crew in getting off the ship. "So I think it would be fair to tell you the real nub of this case which I hope has not been clouded for you, the real nub of this case is, Was there on the rail some slime; was it there for an unreasonably long period of time; was there a failure on the part of the owner-operator through appropriate agents to remove it; and was that slime the cause of the injury which the plaintiff suffered. . . . . . "Was there something there and was it there for a reasonably long period of time so that a shipowner ought to have seen that it was removed? That is the question." </s> [Footnote 3 "Mr. Katz: May I make a further request? In your charge you specifically said `and was it there for a reasonably long period of time so that the shipowner could have had it removed.' "I submit that would apply to the negligence count only but with respect to unseaworthiness, if there is an unseaworthy condition, there is an absolute situation, there is no time required. It is the only - "The Court: Denied. Refer to the case in the Second Circuit." </s> [Footnote 4 The trial judge instructed the jury as follows: "In this case, on the basis of rulings I made earlier, I have instructed you on the undisputed fact, Mr. Mitchell is to be regarded as being an employee of the defendant and therefore entitled to those rights if any which flow from the maritime law and flows [sic] from the act of Congress." In a memorandum filed almost a month after the trial, the district judge, apparently relying upon the fact that the shipowner had no direct financial interest in the spawn which had been unloaded [362 U.S. 539, 543] (see note 1, supra), stated that, "[T]here should have been a directed verdict for the defendant on the unseaworthiness count. If there were slime on the rail, it was put there by an associate and joint-venturer of the plaintiff and not by a stranger or by anyone acting for the defendant. If Sailor A and his wife go on board, and each of them has a right to be there, but they are engaging in a frolic of their own, not intended for the profit or advantage of the shipowner, say, for example, that they are munching taffy, and the wife drops the taffy on the deck, and the sailor slips on it, the sailor, if he is injured, is not entitled to collect damages from the shipowner. In short, absolute as is the liability for unseaworthiness, it does not subject the shipowner to liability from articles deposited on the ship by a co-adventurer of the plaintiff." But this theory played no part in the issues developed at the trial, where the district judge denied the respondent's motion for a directed verdict and instructed the jury as indicated above. </s> [Footnote 5 All of these early maritime codes are reprinted in 30 Fed. Cas. 1171-1216. The relevant provisions are Articles VI and VII, of the Laws of Oleron, 30 Fed. Cas. 1174-1175; Articles XVIII, XIX, and XXXIII, of the Laws of Wisbuy, 30 Fed. Cas. 1191, 1192; Articles XXXIX and XLV of the Laws of the Hanse Towns, 30 Fed. Cas. 1200; and Title Fourth, Articles XI and XII, of the Marine Ordinances of Louis XIV, 30 Fed. Cas. 1209. </s> [Footnote 6 And, of course, the vitality of a seaman's right to maintenance and cure has not diminished through the years. Calmar S. S. Corp. v. Taylor, 303 U.S. 525 ; Waterman S. S. Corp. v. Jones, 318 U.S. 724 ; Farrell v. United States, 336 U.S. 511 ; Warren v. United States, 340 U.S. 523 . </s> [Footnote 7 For a more thorough discussion of the history here sketched see Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 382-403; Gilmore and Black, The Law of Admiralty (1957), pp. 315-332. See also the illuminating discussion in the opinion of then Circuit Judge Harlan in Dixon v. United States, 219 F.2d 10, 12-15. </s> [Footnote 8 Where it was said "[u]nseaworthiness, as is well understood, embraces certain species of negligence; while the [Jones Act] includes several additional species not embraced in that term." 278 U.S., at 138 . </s> [Footnote 9 An earlier legislative effort to broaden recovery for injured seamen (the La Follette Act of 1915, 38 Stat. 1164, 1185) had been emasculated in Chelentis v. Luckenbach S. S. Co., 247 U.S. 372 . </s> [Footnote 10 As one commentator has chosen to regard it. See Tetreault, op. cit., supra, note 7, at 394. </s> [Footnote 11 I. e., as simply overruling the decision in Plamals v. The Pinar Del Rio, 277 U.S. 151 , that unseaworthiness cannot include "operating negligence." See Gilmore and Black, op. cit., supra, at 317. </s> [Footnote 12 The persuasive authority of Petterson in a case very similar to this one has been recognized by the Court of Appeals for the Second Circuit. Poignant v. United States, 225 F.2d 595. </s> MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE WHITTAKER join, dissenting. </s> No area of federal law is judge-made at its source to such an extent as is the law of admiralty. The evolution of judge-made law is a process of accretion and erosion. We are told by a great master that law is civilized to the [362 U.S. 539, 551] extent that it is purposefully conscious. Conversely, if law just "grow'd" like Topsy, unreflectively and without conscious design, it is irrational. When it appears that a challenged doctrine has been uncritically accepted as a matter of course by the inertia of repetition - has just "grow'd" like Topsy - the Court owes it to the demands of reason, on which judicial law-making power ultimately rests for its authority, to examine its foundations and validity in order appropriately to assess claims for its extension. </s> Our law of the sea has an ancient history. While it has not been static, the needs and interests of the interrelated world-wide seaborne trade which it reflects are very deeply rooted in the past. For the most part it has not undergone the great changes attributable to the emergence and growth of industrialized society on land. In the law of the sea, the continuity and persistence of a doctrine, particularly one with international title-deeds, has special significance. </s> The birth of the current doctrine of unseaworthiness, now impressively challenged by Chief Judge Magruder's opinion under review, can be stated precisely: it occurred on May 29, 1922, in Carlisle Packing Co. v. Sandanger, 259 U.S. 255 . The action was brought in the Washington state courts by Sandanger, an employee of Carlisle, who was injured while working on its motorboat on a six- or eight-hour trip. The injury occurred when he lighted fuel from a can on board marked "coal oil" in order to start a cookstove, and it exploded. It appeared thereafter that the can had mistakenly been filled with gasoline. In a suit based on a claim of negligence, Sandanger won a verdict on a finding of negligence, which was challenged in the Supreme Court of Washington on the ground that the exclusively applicable maritime law did not afford relief by way of compensation for negligent injury of an employee. The Washington court held that an [362 U.S. 539, 552] injury caused by a negligently created unseaworthy condition was compensable, even when, under the rule laid down in The Osceola, 189 U.S. 158 , negligent injury without unseaworthiness would not be. 112 Wash. 480, 192 P. 1005. </s> The matter was dealt with in this Court in the few lines innovating the rule of absolute liability: "we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . and that if . . . one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages." 259 U.S., at 259 . (The full text is quoted in the margin. 1 ) No explication accompanied this dogmatic pronouncement on an issue not presented by an issue of the affirmed judgment. It was strangely deemed sufficient to rely on the unelaborate citation of two cases in this Court (The Silvia, 171 U.S. 462, 464 , and The Southwark, 191 U.S. 1, 8 ) which were concerned not with the rights of seamen but with the shipowner's liability for cargo damage. The abrupt, unreasoned conclusion was reached without benefit of argument: the parties had presented the case solely on the basis on which the action was instituted and in the terms in which it had been decided by the Supreme Court of Washington - liability founded on negligence. Neither our own investigation nor that of the parties here has disclosed a single case in an English or an American court prior to Sandanger in which the absolute duty to [362 U.S. 539, 553] provide a seaworthy vessel for cargo carriage and marine insurance contracts was applied to a seaman's suit for personal injury. Sandanger was an unillumined departure in the law of the sea. Reasoned decision of the case before us, in which extension is sought of a rule so dubiously initiated, 2 requires that its rational, historical and social basis be scrutinized and not merely accepted as unquestionable dogma. </s> We must take it as established that the petitioner, a seaman employed on the Racer, fell from her rail while using it as a customary stepping place in leaving the vessel; that the resulting injury was caused by the presence of fish spawn on the rail rendering it slippery; that it was not negligent for respondent to allow the spawn to get on and remain on the rail. 3 It further appears that the spawn was deposited on the rail shortly before the injury, when bags of it were handed across the rail in the course of the unloading of the vessel. </s> The claim now before the Court rested on the alleged unseaworthiness of the vessel. Petitioner asserts that if the presence of spawn on the rail rendered it not reasonably fit for its function, then, without more - and particularly without regard to the length of time the spawn had remained on the rail - respondent was liable to compensate him for his consequent injuries. He asserts that these conclusions flow from the rule of Sandanger, supra, that the owner's liability to compensate [362 U.S. 539, 554] seamen for injuries caused by the unseaworthiness of his vessel is "absolute." </s> Respondent contends, and the lower courts held, that the fact that spawn on the rail caused petitioner's injury is not, of itself, sufficient to establish respondent's liability. It urges two related propositions in the alternative in support of its judgment. The first of these - the express ground of Judge Magruder's decision and the primary ground urged here in its support - is that since this unseaworthy condition concededly did not arise until after the commencement of the voyage it did not create liability unless it persisted so long before the injury as to have afforded the owner notice of its existence. This view makes liability for an unseaworthy condition created without negligence after the start of the voyage turn on the existence of negligence in permitting the condition to persist. Respondent also urges that, even if negligently caused or allowed to persist, this transitory hazard arising after the start of the voyage in equipment otherwise sound was not an unseaworthy condition. </s> We are thus confronted with two questions of the nature and scope of the duty of a shipowner to seamen to provide a seaworthy ship. The decision in Sandanger, supra, in light of the facts from which its generalization was drawn, certainly did not foreshadow the result urged by petitioner, a result characterized by Judge Magruder as "startlingly opposed to principle." 265 F.2d ___, at 432. There was in that case no such analysis of the reasons upon which the rule announced was rested as to govern or even suggest the present decision. The Court does not deny force to the distinctions urged by respondent, but regards the questions now presented as foreclosed by Alaska S. S. Co. v. Petterson, 347 U.S. 396 . In fact, today's decision rests on an unrevealing per curiam opinion, itself founded on prior decisions affording no justification for the result here. [362 U.S. 539, 555] </s> As the opinion of the Court of Appeals shows, 205 F.2d 478, that case held a shipowner liable for injuries to a longshoreman caused by defective equipment brought on board his vessel by a contract stevedore for use in loading operations. The owner gave the stevedore permission at his option to substitute his own equipment for that of the vessel, and the equipment which caused the injury was a snatch-block, standard ships' equipment, supplied pursuant to that permission. Following Seas Shipping Co. v. Sieracki, 328 U.S. 85 , and Pope & Talbot v. Hawn, 346 U.S. 406 , which had held that the owner's duty to provide a seaworthy ship runs to non-seamen engaged in seamen's work, Petterson at best added to this doctrine the rule that that duty could not be delegated by giving the stevedore control over loading operations and an option to substitute its own equipment for that of the vessel. The parties did not raise or argue either (1) that the vessel was seaworthy at the start of her voyage and no absolute liability attached to subsequently arising conditions, or (2) that because the condition was temporary, in the sense pertinent here, there was no unseaworthiness. There is therefore no foundation, either in what the per curiam revealed or in the history of the case, to warrant the inference that the Court was conscious of the distinctions now squarely pressed upon us, much less that it rejected them. Such a conclusion is the more fanciful because, even had the Court considered and accepted the contentions now urged, it might well have found them insufficient to avoid liability and have held that, by giving permission to have substitution made for warranted ships' equipment, the owner adopted the substitute as his own. </s> In view of the insubstantial foundation in authority of what is today decided, I deem it incumbent upon me to examine the history of the evolution of the doctrine of [362 U.S. 539, 556] absolute liability in injury cases upon which petitioner rests his claim. </s> Although it was reasonably well established by the middle of the nineteenth century that the maritime carrier of goods, in the absence of express provisions to the contrary, warranted their safe delivery against all hazards save acts of God or the public enemy, see, e. g., The Propeller Niagara v. Cordes, 21 How. 7, 23, the origins of such strict liability are not entirely clear. The English admiralty courts apparently confined the shipowner's liability to losses resulting from his fault or that of his servants. See Fletcher, The Carrier's Liability, 51-79. The imposition of stricter liability appears to have begun not in the admiralty at all, but in the common-law courts as the jurisdiction of the admiral gradually declined. See Mears, The History of the Admiralty Jurisdiction, in 2 Select Essays in Anglo-American Legal History, p. 312 et seq. (originally published in Roscoe, Admiralty Jurisdiction and Practice, pp. 1-61). They increasingly regarded the carrier by sea as a common carrier, whether or not he fitted the traditional concept, see Paton, Bailment in the Common Law, 233-236, and it does not appear that they predicated his strict liability to redeliver cargo on any peculiarly maritime aspects of the carriage. </s> In any event, with the sanction of the English - and, to a lesser extent, the American - courts it early became possible for the maritime carrier to use the contract of carriage by way of limiting this extraordinary liability, and the significance of a carrier's liability as such shrank. See Pope v. Nickerson, 3 Story 465. Disclaimers of any duty beyond the exercise of diligence were valid and common, and, in England, disclaimers of liability even for negligent damage were sustained. See I Parsons, Maritime Law, 177-179, n. 1; compare, In re Missouri S. S. Co., 42 Ch. D. 321 (1889), with Liverpool Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 438 -439 (1889). [362 U.S. 539, 557] </s> It was against the background of such limitations of the carrier's strict duty to redeliver cargo, and in derogation of them, that the more limited, though absolute, duty to furnish a seaworthy vessel emerged. Unlike the strict duty imposed on carriers in general to redeliver cargo, it was a concept rooted in the peculiarly maritime hazards of carriage by sea. It expressed, and became the focus of, American judicial resistance to broad disclaimers, and was implied despite relatively specific limitations in the contract of carriage. See, e. g., The Caledonia, 157 U.S. 124, 137 . The reasons for the development are evident. The hazards of the sea were great even in vessels properly maintained and outfitted; in imperfect ships they became intolerable. Since at the start of a voyage the familiar facilities of the home port were ordinarily available to the owner to permit him to reduce the risk, it was not unreasonable to require him at the peril of extensive liability to make the vessel seaworthy - reasonably fit for the intended voyage, see The Silvia, 171 U.S. 462, 464 ; The Southwark, 191 U.S. 1, 9 - and thereby remove a profitable temptation to add to the hazards of the sea. Though the fact that the duty was absolute is in some measure indicative of an unstated determination that the carrier's ability to distribute the risk justified regarding him as an insurer, cf. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 , the dominant reason appears to have been that under the conditions existing before the start of a voyage it was fair to demand the increment of additional safety which could be obtained by barring the defense of due care. The instances of defects in fact undiscoverable under the comparatively ideal pre-voyage circumstances would be predictably low, and the extraordinary character of the risk, coupled with the exclusive knowledge and control of the owner and his ability to contract away the risk in his [362 U.S. 539, 558] dealings with suppliers and service companies, justified imposing the burden on him. </s> This judicial evolution was doubtless influenced as well by the similarly absolute implied warranty in contracts of marine insurance by which the assured, whether shipowner, charterer, or shipper, warranted the seaworthiness of the vessel at the start of its voyage as a condition upon the attaching of the policy. The origin of this rule has been attributed to the customary understanding of the risks actually undertaken by the insurer. See, e. g., Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 395. But whatever role custom may have played, the implied warranty appears to have sprung, at least in part, from considerations of policy unrelated to the insurer's understanding. "I have endeavored, both with a view to the benefit of commerce and the preservation of human life, to enforce that doctrine [of the implied warranty of initial seaworthiness] as far as, in the exercise of a sound discretion, I have been enabled to do so. . . ." Lord Eldon, in Douglas v. Scougall, 4 Dow 269, 276 1816.; cf. The Caledonia, 157 U.S. 124 . </s> Toward the end of the nineteenth century these different considerations, which had given rise to a single duty, became imperceptibly fused. This Court held that the warranty of assured to insurer was identical to that of carrier to shipper, even explaining the carrier's implied promise in terms of the undertaking of the shipper. The Caledonia, 157 U.S. 124 . </s> The divergence of attitude between American and English courts which appeared in the scope of the contractual disclaimers of liability each would recognize, was more sharply exemplified by the scope they respectively attributed to the warranty of seaworthiness in cargo and insurance cases. By 1853 English courts had clearly limited the warranty to the condition of the vessel at the [362 U.S. 539, 559] start of the voyage, while recognizing that American courts had just as clearly held the owner liable and the insurer exonerated for losses occasioned by unseaworthy conditions subsequently arising and allowed to persist through the negligence of responsible servants. See, e. g., Baron Parke in Gibson v. Small, 4 H. L. Cas. 353, 398-399; I Parsons, Marine Insurance, 381-383; Union Ins. Co. v. Smith, 124 U.S. 405, 427 . The English courts were strongly influenced by the inherent limitations of the owner's actual control of a vessel (see, e. g., Gibson v. Small, supra, at 404); while the American so highly esteemed the protection of life and property, presumably to be so gained, as to have held the owner in effect absolutely liable to select master and crew who would in fact diligently see to the continuing seaworthiness of the vessel. In America, the result of the conflicts created by this divergence in the law of two maritime nations was the Harter Act of 1893, 27 Stat. 445. The carrier was thereby permitted to disclaim any duty other than to exercise due diligence in the preparation of the vessel. If he in fact exercised such diligence, he was freed of liability for losses "resulting from faults or errors in navigation or in the management" of the vessel. The purpose and effect of the Act was to strike a compromise between the English and American standards so as to reduce conflicts between them. 4 See Gilmore and Black, The Law of Admiralty, 122. One collateral effect of the Act was largely to remove from concern of the [362 U.S. 539, 560] courts questions of liability for cargo damage caused by unseaworthy conditions arising after the start of the voyage. Cf. The Silvia, 171 U.S. 462 ; May v. Hamburg-Amerikanische, 290 U.S. 333 . After, and probably because of, the Harter Act, the statement frequently appears in cargo-damage cases that the warranty of seaworthiness applies only at the start of the voyage; subsequently arising deficiencies are treated as aspects of "navigation or management." See, e. g., May v. Hamburg-Amerikanische, supra, at 345; The Steel Navigator, 23 F.2d 590, 591 (C. A. 2d Cir. 1928). However, even that Act did not diminish the tendency of the admiralty courts to find that a contractual disclaimer did not apply to the warranty of seaworthiness at the start of the voyage, and the absolute warranty of initial seaworthiness therefore remained. See, e. g., The Carib Prince, 170 U.S. 655 . </s> The most striking differences between English and American courts as to the scope of the warranty of seaworthiness occurred in the area of compensation for seamen's injuries. 5 The law of both nations early recognized unseaworthiness as a condition upon the contract of employment, which, upon the employer's default, operated to exonerate the seaman from forfeiture of wages if he quit the ship. 1 Parsons, Maritime Law, 455; The Arizona v. Anelich, 298 U.S. 110, 121 -122, n. 2. But [362 U.S. 539, 561] though the duty to provide a seaworthy vessel was thus held to run to seamen, the seaman's remedy was for a considerable time restricted to this limited form of self-help. </s> In England the question of a seaman's right to compensatory damages for injuries resulting from the unseaworthiness of the vessel was first presented for decision in Couch v. Steele, 1854. 3 El. & Bl. 402. The plaintiff claimed compensation for damage from illness brought about by the leaky condition of the vessel. The court, apparently assuming that the vessel was unseaworthy, declared that the warranty did not run to seamen, for the reason that it was unknown whether the deficiencies of the vessel were taken into account in the contract for wages. Coleridge, J. (at 408), distinguished the insurance warranty as turning on doctrines which "have no place in any other branch of the law," and confined the duty of owner to seamen to the scope of master-servant law on land. A similar disposition to analogize maritime to non-maritime activity on the part of the English common-law courts was manifested in Readhead v. Midland R. Co., 1869. L. R., 4 Q. B. 379, where the claim was advanced that a railway passenger injured when a wheel broke was, by analogy to the warranty of seaworthiness as to cargo, entitled to compensation for his injuries. The court disposed of the contention by describing the warranty of seaworthiness as solely responsive to the need, early noted in Coggs v. Bernard, 1703. 2 Ld. Raym. 909, to prevent common carriers generally from colluding with thieves. </s> Couch v. Steele, supra, was modified by the Merchant Shipping Act of 1876, 39 & 40 Vict., c. 80, sec. 5, by which a duty was imposed on the owner to exercise due care to provide and maintain a seaworthy vessel. For injuries resulting from breach of the duty, a seaman could recover compensatory damages. But even that Act was narrowly [362 U.S. 539, 562] construed as to conditions arising after the start of the voyage in the course of operation of the vessel. See Hedley v. Pinkney & Sons S. S. Co., 1894. A. C. 222. In the United States, Couch v. Steele, supra, was early disapproved. See, e. g., The Noddleburn, 28 F. 855 (D.C. Ore. 1886); 2 Parsons, Shipping and Admiralty, 78. The liability which lower courts generally found to exist, however, was not founded upon the absolute warranty rejected in Couch, but upon fault. See, e. g., The Noddleburn, supra; The Flowergate, 31 F. 762 (D.C. E. D. N. Y. 1887); The Lizzie Frank, 31 F. 477, 479 (D.C. S. D. Ala. 1887) (which followed Readhead v. Midland R. Co., supra, in explaining the cargo warranty as stemming only from common-carrier status). </s> In 1903 this Court decided The Osceola, 189 U.S. 158 , and laid down its oft-cited four propositions (at 175) governing the liability of vessel and owner to injured seamen. As has frequently been noted, the second proposition, a dictum declaring a right to indemnity for injuries "received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship" (at 175) does not appear to have announced a doctrine of liability without fault. No cargo or insurance cases were relied upon, and none of the cases cited had found such liability. The only reliance on English law was on the Act of 1876, supra, which defined the duty as requiring the exercise of due diligence to render the vessel seaworthy. It appears instead that it was the intention of The Osceola to adopt the analysis of Judge Addison Brown in The City of Alexandria, 17 F. 390 (D.C. S. D. N. Y. 1883), which it cited, under which a seaman could recover only for injuries resulting from that limited species of negligence which resulted in an unseaworthy condition. Such is the tenor of the third and fourth propositions of The Osceola. [362 U.S. 539, 563] </s> After The Osceola a number of decisions denied recovery for negligently caused injury on the ground that unseaworthiness was absent. See, e. g., Tropical Fruit S. S. Co. v. Towle, 222 F. 867 (C. A. 5th Cir. 1915); John A. Roebling's Sons Co. v. Erickson, 261 F. 986 (C. A. 2d Cir. 1919). After an abortive attempt by Congress, see 38 Stat. 1164, 1185; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372 , there followed in 1920 the remedial legislation now familiarly known as the Jones Act, extending relief against the owner for all forms of negligent injury to seamen, free of the so-called fellow-servant rule of admiralty. </s> It was against this background that Carlisle Packing Co. v. Sandanger, 259 U.S. 255 , quite out of the blue, citing cargo cases, declared that the owner's duty to a seaman to provide a seaworthy vessel was as absolute as that established by the implied warranty as to cargo. 6 In so ruling, the Court gave expression to a policy, long discernible in American admiralty decisions, of implying the warranty not merely because of the customary expectations of the parties to an agreement - the English court's basis for rejection of the warranty in Couch v. Steele, supra - but as well in order to increase protection to life and property against the hazards of the sea. They had previously manifested this conception of the source of the warranty in the degree to which they departed from the English common-law courts in confining attempted disclaimers of the warranty, and in their willingness to find a duty to maintain the condition of seaworthiness throughout the voyage. </s> The reasons which justified the implication on grounds of policy as to cargo, justified it as to employed seamen; [362 U.S. 539, 564] and there was no countervailing extensive increase in the nature of the duty to give the Court serious pause in extending to the protection of life a policy designed in significant part for the protection of property. Despite the Harter Act, the absolute warranty of initial seaworthiness as to cargo survived; and under the strict rules of shipboard organization and conduct the safety of the seaman was, in a very real sense, subject to the same hazards. </s> It was predictable that there would be few, if any, matters with which the owner would have to be concerned under the warranty so extended, that he could reasonably have ignored as creating no threat to the safety of cargo. At the start of the voyage, his opportunity would be ample, as in the case of cargo, to undertake that effective diligence which would in fact avoid all but a very few injuries resulting from unseaworthiness; and he would be able to protect himself from the consequences of most deficiencies undetectable by him by agreement with suppliers, or service companies, and from the rest by the purchase of insurance. The additional burden created by extension of the warranty to seamen was thus not unduly heavy; and the interest to be vindicated had for long been a traditional concern of American admiralty. </s> If Sandanger now stood alone, it would be plain that the absolute warranty it announced was no greater in scope than the warranty as to cargo which pre-existed the Harter Act of 1893, and the question now presented - whether the warranty is also absolute as to subsequently arising conditions - would clearly present a novel issue for decision. Subsequent decisions in this Court have not deliberately closed the gap. </s> It was twenty-two years before the question of the existence and scope of absolute liability came before [362 U.S. 539, 565] this Court again, and in the interim the lower courts manifested sharp disagreement whether it existed at all. Compare The Rolph, 299 F. 52 (C. A. 9th Cir. 1924), and The Tawmie, 80 F.2d 792 (C. A. 5th Cir. 1936), with The H. A. Scandrett, 87 F.2d 708 (C. A. 2d Cir. 1937). (In this case Judge Augustus N. Hand followed Sandanger in relying upon cargo cases.) </s> In 1944 this Court decided Mahnich v. Southern S. S. Co., 321 U.S. 96 . The suit was brought by a seaman under the general maritime law (the statute of limitations having run on Jones Act claims) for injuries which he incurred at sea when a rope, with which the staging on which he was working fifteen feet over the deck was rigged, parted and he fell. The mate in charge had taken the rope, which was unused, but at least two years old, from the Lyle Gun (a life-saving device) box. After the accident it appeared that the rope was decayed. </s> The District Court, 45 F. Supp. 839, found that the mate's selection of the rope was negligent but dismissed the libel on the ground that, apart from the Jones Act, negligent injury alone was not compensable and that the vessel, since it had other good rope on board sufficient for the job, was not unseaworthy. The Court of Appeals affirmed. 135 F.2d 602. It assumed, without deciding, that the rope was negligently selected (a dissenting judge found no negligence, 135 F.2d, at 605), and agreed with the District Court's conclusion that the vessel was not unseaworthy. Though it reversed, this Court, too, found it unnecessary to decide the contested question of negligence. It gave as its primary reason that "the exercise of due diligence does not relieve the owner of his obligation to the seaman to furnish adequate appliances." ( 321 U.S., at 100 .) Although this statement was the critical major premise of an opinion which went on to decide that such absolute liability would not be barred by [362 U.S. 539, 566] the mate's intervening negligence, it was rested primarily on Carlisle Packing Co. v. Sandanger, supra, without further explanation. </s> There is no more disclosure in the opinion or history of this case than there was in Sandanger to warrant attributing to this statement a deliberate or authoritative ruling that liability is absolute for all injuries resulting from unseaworthy conditions. Confined to the facts of the case, the decision that intervening negligence would not constitute a defense to an action for injuries resulting from an unseaworthy condition is consistent with the rule of the cargo and insurance cases, confining the absolute warranty to damage resulting from initial unseaworthiness. The rope, which was new, had decayed from overlong or improper storage, not from use, and was, it is right to assume, defective from the start of the voyage. Cf. The Edwin I. Morrison, 153 U.S. 199, 211 . </s> Moreover, a claim for extending the scope of the absolute warranty was not raised or argued by the parties. They simply assumed that liability would follow unseaworthiness unless intervening negligence was a defense. Their major concern, and the primary focus of the Court's attention, was the earlier case of Plamals v. The Pinar Del Rio, 277 U.S. 151 , where it was held, on substantially identical facts, that the mate's negligence did not create liability for unseaworthiness where there was an adequate supply of sound rope on board. In Mahnich, Plamals was held to have rested on one of two mistaken premises: either (1) that the question of seaworthiness turned solely on the supply of rope and not on the condition of the appliance rigged in the course of the voyage, or (2) that liability for provision of an unseaworthy appliance in the course of a voyage would be barred where the unseaworthiness resulted from the mate's negligence. The Court in Mahnich was not remotely called upon, in rejecting those premises as it did, to consider whether the absolute warranty [362 U.S. 539, 567] of seaworthiness extends to conditions arising after the commencement of the voyage. Finally, there is evidence that if the Court made any assumption about the scope of the warranty it assumed that, as in the case of cargo until the Harter Act, it was absolute, but only as to conditions existing at the commencement of the voyage. It said: </s> "It required the Harter Act to relax the exacting obligation to cargo of the owner's warranty of seaworthiness of ship and tackle. That relaxation has not been extended, either by statute or by decision, to the like obligation of the owner to the seaman" (at 101). </s> Seas Shipping Co. v. Sieracki, 328 U.S. 85 , is no better authority for petitioner's contentions here. The action was instituted by a longshoreman who was injured while loading respondent's vessel, when a forged shackle supporting the vessel's ten-ton boom gave way because of a latent defect in the forging. The defect had existed from the time of the construction of the ship. Both parties conceded that the vessel was unseaworthy, and that if a seaman had been injured in the same way he could have recovered compensatory damages. The District Court gave judgment for the owner on the ground that it was not negligent for it to have failed to discover the defect. 57 F. Supp. 724. The Court of Appeals reversed, on the ground that Sieracki was entitled to recover under the warranty of seaworthiness. 149 F.2d 98. The turning-point of the case in this Court was whether the warranty of seaworthiness, concededly absolute on the facts, covered longshoremen doing seamen's work. </s> The Court's extended discussion of the sources and rationale of the warranty is entirely consistent with the history noted above. 328 U.S., at 90 -96. Nothing that [362 U.S. 539, 568] was said or implied casts any light whatever on the question whether the initial absolute warranty carried over by Sandanger from the cargo cases extends to subsequently arising conditions, unless, as in Mahnich, the Court's equation of the warranty running to seamen with the pre-Harter Act warranty as to cargo bespeaks its assumption that the warranty was absolute only as to the start of the voyage. </s> No other case in this Court is further enlightening on the question of the scope of the absolute warranty. Alaska S. S. Co. v. Petterson, 347 U.S. 396 , has already been discussed. See also Rogers v. United States Lines, 347 U.S. 984 . Pope & Talbot, Inc., v. Hawn, 346 U.S. 406 , is irrelevant here. The injury occurred in port in the course of loading the vessel; the question of unseaworthiness was not an issue in this Court; and the jury had found the defendant guilty of negligence. Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336 , concerned unseaworthiness predicated upon the incompetency of a crew member, which, as the Court found, was a traditional aspect of the initial warranty of seaworthiness. Crumady v. The J. H. Fisser, 358 U.S. 423 , found unseaworthiness as a result of the vessel's failure to use "safe practice," 358 U.S., at 426 , n., in the preparation of a winch for unloading operations, on its face a negligent act, although its negligent character was not the overt basis of the decision. None of the several parties to the case raised the objections now urged upon us, and no more than in Mahnich were they considered or adjudicated. </s> Against this background of prior adjudications it assumes what is required to be established to assert that "[t]here is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port. . . ." In fact, there is no overt suggestion in any of our decisions that the duty is not less onerous, and the origin [362 U.S. 539, 569] of the duty in cargo and marine insurance cases strongly suggests that it is. Even the admiralty courts of the nineteenth century, during the growth of American shipping, found no justification in peculiarly maritime concerns for imposing an absolute duty at all times after the start of the voyage to maintain the vessel in seaworthy condition. Once the vessel was made safe, it was thought sufficient to entrust its safe conduct to an appropriate standard of diligence. This view undoubtedly involved the weighing of a number of factors, all of which remain pertinent today: the unavailability of the familiar facilities of the home port, or of any port, to make inspections or repairs; the unfairness of holding the vessel accountable for losses resulting from damage, detectable or otherwise, caused, without fault of the vessel, by perils of the sea; the likelihood that those whose safety depends on the vessel will in any event use every reasonable precaution to preserve it, and that in the circumstances of operation of the vessel no additional care could be exacted by the imposition of absolute liability; and the determination that to impose absolute liability for injuries caused by defects arising without fault in the complex operation of a vessel would be, in all the circumstances, unduly burdensome. </s> This latter consideration is especially pertinent in cases of so-called "transitory" unseaworthiness such as is before us. For disposition of this case it may be assumed, though with considerable misgiving, that the condition here created wholly without fault after the journey had begun, rendered the vessel unseaworthy. But the unreasonableness of imposing liability on the vessel for injuries occasioned by the unavoidable consequences of its proper operation need not therefore be ignored. No compensating increase in the caution actually to be exercised can be anticipated as a result of the creation of such a duty. Nor can the owner pass along the risk to suppliers or [362 U.S. 539, 570] service companies. The only rational justification for its imposition is that the owner is now to be regarded as an insurer who must bear the cost of the insurance. But the Court offers no reason of history or policy why vessel owners, unlike all other employers, should, in circumstances where the only benefit to be gained is the insurance itself, be regarded by law as the insurers of their employees. If there were a sufficient reason for the judicial imposition of such a duty, it would be arbitrary in the extreme to limit it to cases where by chance the injury occurs through the momentary inadequacy of a prudently run vessel. All accidental injury should fall within such a humanitarian policy provided only that it occurs in the service of the ship. It was such a policy which from the earliest times has justified the imposition of the duty to provide maintenance and cure; but nothing in the nature of modern maritime undertakings justifies extending to compensation a form of relief which for more than five centuries has been found sufficient. </s> I would affirm the judgment below. </s> [Footnote 1 "Considering the custom prevailing in those waters and other clearly established facts, in the present cause, we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock if the can marked `coal oil' contained gasoline; also that she was unseaworthy if no life preservers were then on board; and that if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages." </s> [Footnote 2 Chief Judge Magruder has appropriately noted that no previous decision in this Court has considered whether liability for unseaworthiness existing at the start of the voyage extends to subsequently arising conditions. 265 F.2d, at 432; see also Dixon v. United States, 219 F.2d 10 (C. A. 2d Cir.). </s> [Footnote 3 It was not contended that the failure to provide the vessel with a different mode of access, or other means for unloading, rendered it unseaworthy from the start of the voyage. Cf. Poignant v. United States, 225 F.2d 595 (C. A. 2d Cir.). </s> [Footnote 4 The considerations urging harmony of law for international carriage, especially as between the United States and the United Kingdom, led, in 1936, to the enactment of the Carriage of Goods by Sea Act, 49 Stat. 1207, substantially adopting the recommendations of an international convention on the problem. See Gilmore and Black, The Law of Admiralty, 122-124. Where applicable, the 1936 Act imposes only the duty to use due diligence to provide a seaworthy ship at the start of the voyage. </s> [Footnote 5 From the time of the earliest maritime codes seamen injured in the service of the vessel have, to varying extents, been entitled to maintenance and cure at the expense of the ship. See The Osceola, 189 U.S. 158, 169 -170. But the seaman's right to compensation for injuries is a relatively modern development, probably originating in cases concerning the negligent failure of the vessel to discharge the duty to provide maintenance and cure. See Brown v. Overton, 4 Fed. Cas. 418 (D.C. Mass. 1859); Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 385. However, there appears to have been no connection between the elaboration of the duty to provide maintenance and cure and the emergence of the doctrine of absolute liability for unseaworthiness. </s> [Footnote 6 It is not irrelevant to note that the spokesman for the Court was the Justice under whose lead the most unhappy admiralty doctrines were promulgated: Southern Pacific Co. v. Jensen, 244 U.S. 205 , and Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 . </s> MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITTAKER join, dissenting. </s> In joining my Brother FRANKFURTER'S dissent, I wish to add a few words. I believe the Court's decision not only finds no support in the past cases, but also is unjustified in principle, and is directed at ends not appropriately within our domain. The Second Circuit's decision in Poignant v. United States, 225 F.2d 595, provides a useful point of departure for what I have to say. </s> In Poignant the libellant, a crew member, slipped on a small piece of garbage lying in a passageway of the ship. The vessel lacked garbage chutes, and the garbage was pulled, in cans, through the passageway to a railing, where it was jettisoned. The Court of Appeals first expressed the view that any unseaworthy condition which existed [362 U.S. 539, 571] had in all probability arisen after the voyage had commenced. It said, much as the Court now holds, that Alaska Steamship Co. v. Petterson, 347 U.S. 396 , required it to apply a rule of absolute liability nonetheless. It then put, as the critical issue, the question whether the presence of some garbage in a public passageway constituted an unseaworthy condition, and, finding the matter to turn on an issue of fact, remanded the case for trial. However, it is important to note the manner in which the court dealt with the problem. Although at the outset of the opinion the allegedly unseaworthy condition was assumed to be the presence of garbage in a passageway, 225 F.2d, at 597, the remand was in fact directed to the question whether the absence of garbage chutes rendered the vessel not reasonably fit for the voyage, and therefore unseaworthy. Id., at 598. This, of course, would be a condition going to the proper outfitting of the vessel for sea travel, and a clear case of initial unseaworthiness. In such event, the injury would have been the proximate result of that unseaworthiness, for it was by reason of the lack of chutes that garbage was carried through the passageways at all. </s> For me this approach indicates the rule which should govern the case before us. Had the petitioner contended and proved that a properly outfitted trawler of this type should have had a particular device for unloading fish, or an alternative means of facilitating petitioner's egress from the vessel, so that either the railing would not have been slippery or the petitioner would not have been required to use the railing in debarking, the case would have been governed by the absolute liability rule of Sandanger and its successors, and respondent's opportunity to remove the spawn from the rail would properly be held immaterial. As the case is decided, however, we are told that even though there is no claim that the vessel should have made different provisions for the unloading of its [362 U.S. 539, 572] catch or the debarking of its crew, the shipowner is liable for an injury caused by a temporary unsafe condition arising from the normal operation of the vessel, not the result of fault or mismanagement of anyone on board, and which no one had a reasonable opportunity to remedy. Had there been negligence, either in permitting the spawn to accumulate or in failing to remove it, the admiralty principles developed in the cargo cases, and taken over into personal injury cases, would warrant an imposition of liability, although as to cargo damage the Harter Act and the Carriage of Goods by Sea Act would, of course, bar recovery. The Silvia, 171 U.S. 462 . But where, as here, there is neither a claim that the vessel was initially unseaworthy, nor any showing of negligence, the imposition of liability seems to me, borrowing from Judge Magruder, a "hard doctrine," "startlingly opposed to principle." 265 F.2d, at 432. </s> The Court is not fashioning a rule designed to protect life, cf. Bullard v. Roger Williams Ins. Co., 4 Fed. Cas. 643, No. 2,122, at 646, for there appears no real basis for expectation that today's decision will promote the taking of greater precautions at sea. See, dissenting opinion of FRANKFURTER, J., ante, p. 557. The respondent is held liable, without being told that there was something left undone which should have been done, for petitioner is not asked to show, as was the libellant in Poignant, that the vessel ought to have been outfitted differently, that is, in a fashion which would have prevented the dangerous condition from arising at all. Nor is the respondent permitted to show that such condition was not due to its fault. </s> The sole interest served by the Court's decision is compensation. Such an interest is, of course, equally present in the case of an undoubted accident, where under the Court's ruling no right of recovery is bestowed, as it is in the present case. But, because of the Court's inherent [362 U.S. 539, 573] incapacity to deal with the problem in the comprehensive and integrated manner which would doubtless characterize its legislative treatment, cf. Dixon v. United States, 219 F.2d 10, 15, this arbitrary limitation is preserved. This internal contradiction in the rule which the Court has established only serves to highlight a more central point: it is not for a court, even a court of admiralty, to fashion a tort rule solely in response to considerations which underlie workmen's compensation legislation, weighty as such considerations doubtless are as a legislative matter. Citation is not needed to remind one of the readiness of Congress to deal with felt deficiencies in judicial protection of the interests of those who go to sea. We should heed the limitations on our own capacity and authority. See Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 285 -287. </s> I would affirm. </s> [362 U.S. 539, 574]

United States Supreme Court O'GILVIE et al., MINORS v. UNITED STATES(1996) No. 95-966 Argued: October 9, 1996Decided: October 9, 1996 </s> Petitioners, the husband and two children of a woman who died of toxic shock syndrome, received a jury award of $1,525,000 actual damages and $10 million punitive damages in a tort suit based on Kansas law against the maker of the product that caused decedent's death. They paid federal income tax insofar as the award's proceeds represented punitive damages, but immediately sought a refund. Procedurally speaking, this litigation represents the consolidation of two cases brought in the same Federal District Court: the husband's suit against the Government for a refund, and the Government's suit against the children to recover the refund that the Government had made to the children earlier. The District Court found for petitioners under 26 U. S. C. Section(s) 104(a)(2), which, as it read in 1988, excluded from "gross income," the "amount of any damages received . . . on account of personal injuries or sickness." (Emphasis added.) The court held on the merits that the italicized language includes punitive damages, thereby excluding such damages from gross income. The Tenth Circuit reversed, holding that the exclusionary provision does not cover punitive damages. </s> Held: </s> 1. Petitioners' punitive damages were not received "on account of" personal injuries; hence the gross-income-exclusion provision does not apply and the damages are taxable. Pp. 2-11. </s> (a) Although the phrase "on account of" does not unambiguously define itself, several factors prompt this Court to agree with the Government when it interprets the exclusionary provision to apply to those personal injury lawsuit damages that were awarded by reason of, or because of, the personal injuries, and not to punitive damages that do not compensate injury, but are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. For one thing, the Government's interpretation gives the phrase "on account of" a meaning consistent with the dictionary definition. More important, in Commissioner v. Schleier, 515 U. S. ___, this Court came close to resolving the statute's ambiguity in the Government's favor when it said that the statute covers pain and suffering damages, medical expenses, and lost wages in an ordinary tort case because they are "designed to compensate . . . victims," id., at ___, n. 5, but does not apply to elements of damages that are "punitive in nature," id., at ___. The Government's reading also is more faithful to the statutory provision's history and basic tax-related purpose of excluding compensatory damages that restore a victim's lost, nontaxable "capital." Petitioners suggest no very good reason why Congress might have wanted the exclusion to have covered these punitive damages, which are not a substitute for any normally untaxed personal (or financial) quality, good, or "asset" and do not compensate for any kind of loss. Pp. 2-8. </s> (b) Petitioners' three arguments to the contrary-that certain words or phrases in the original, or current, version of the statute work in their favor; that the exclusion of punitive damages from gross income may be justified by Congress' desire to be generous to tort victims and to avoid such administrative problems as separating punitive from compensatory portions of a global settlement or determining the extent to which a punitive damages award is itself intended to compensate; and that their position is supported by a 1989 statutory amendment that specifically says that the gross income exclusion does not apply to any punitive damages in connection with a case not involving physical injury or sickness-are not sufficiently persuasive to overcome the Government's interpretation. Pp. 8-11. </s> 2. Petitioners' two case-specific procedural arguments-that the Government's lawsuit was untimely and that its original notice of appeal was filed a few days late-are rejected. Pp. 12-14. 66 F. 3d 1550, affirmed. </s> Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dissenting opinion, in which O'Connor and Thomas, JJ., joined. </s> NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. </s> [End of Syllabus] </s> U.S. Supreme Court </s> Nos. 95-966 and 95-977 KEVIN M. O'GILVIE and STEPHANIE L. O'GILVIE, minors, PETITIONERS v. UNITED STATES 95-966 KELLY M. O'GILVIE, PETITIONER v. </s> UNITED STATES </s> 95-977 </s> On Writs of Certiorari to the United States Court of Appeals for the Tenth Circuit </s> [December 10,1996] </s> Justice Breyer delivered the opinion of the Court. </s> Internal Revenue Code Section(s) 104(a)(2), as it read in 1988, excluded from "gross income," the </s> "amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness." 26 U. S. C. Section(s) 104(a)(2) (1988 ed.) (emphasis added). </s> The issue before us is whether this provision applies to (and thereby makes nontaxable) punitive damages received by a plaintiff in a tort suit for personal injuries. We conclude that the punitive damages received here were not received "on account of" personal injuries; hence the provision does not apply and the damages are taxable. </s> I. </s> Petitioners in this litigation are the husband and two children of Betty O'Gilvie, who died in 1983 of toxic shock syndrome. Her husband, Kelly, brought a tort suit (on his own behalf and that of her estate) based on Kansas law against the maker of the product that caused Betty O'Gilvie's death. Eventually, he and the two children received the net proceeds of a jury award of $1,525,000 actual damages and $10 million punitive damages. Insofar as the proceeds represented punitive damages, petitioners paid income tax on the proceeds but immediately sought a refund. </s> The litigation before us concerns petitioners' legal entitlement to that refund. Procedurally speaking, the litigation represents the consolidation of two cases brought in the same Federal District Court: Kelly's suit against the Government for a refund, and the Government's suit against the children to recover the refund that the Government had made to the children earlier. 26 U. S. C. Section(s) 7405(b) (authorizing suits by the United States to recover refunds erroneously made). The Federal District Court held on the merits that the statutory phrase "damages . . . on account of personal injury or sickness," includes punitive damages, thereby excluding punitive damages from gross income and entitling Kelly to obtain, and the children to keep, their refund. The Court of Appeals for the Tenth Circuit, however, reversed the District Court. Along with the Fourth, Ninth and Federal Circuits, it held that the exclusionary provision does not cover punitive damages. Because the Sixth Circuit has held the contrary, the Circuits are divided about the proper interpretation of the provision. We granted certiorari to resolve this conflict. </s> II. </s> Petitioners received the punitive damages at issue here "by suit,"-indeed "by" an ordinary "suit" for "personal injuries." Contrast United States v. Burke, 504 U.S. 229 (1992) (Section(s) 104(a)(2) exclusion not applicable to backpay awarded under Title VII of the Civil Rights Act of 1964 because the claim was not based upon " `tort or tort type rights,' " id., at 233); Commissioner v. Schleier, 515 U. S. ___ (1995) (alternative holding) (Age Discrimination in Employment Act of 1967 (ADEA) claim is similar to Title VII claim in Burke in this respect). These legal circumstances bring those damages within the gross-income-exclusion provision, however, only if the petitioners also "received" those damages "on accountof " the "personal injuries." And the phrase "on account of " does not unambiguously define itself. </s> On one linguistic interpretation of those words, that of petitioners, they require no more than a "but-for" connection between "any" damages and a lawsuit for personal injuries. They would thereby bring virtually all personal injury lawsuit damages within the scope of the provision, since: "but for the personal injury, there would be no lawsuit, and but for the lawsuit, there would be no damages." On the Government's alternative interpretation, however, those words impose a stronger causal connection, making the provision applicable only to those personal injury lawsuit damages that were awarded by reason of, or because of, the personal injuries. To put the matter more specifically, they would make the section inapplicable to punitive damages, where those damages </s> " `are not compensation for injury [but] [i]nstead . . . are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' " Electrical Workers v. Foust, 442 U.S. 42, 48 (1979), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (footnote omitted). </s> The Government says that such damages were not "received . . . on account of" the personal injuries, but rather were awarded "on account of " a defendant's reprehensible conduct and the jury's need to punish and to deter it. Hence, despite some historical uncertainty about the matter, see Rev. Rul. 75-45, 1975-1 Cum. Bull. 47, revoked by Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, the Government now concludes that these punitive damages fall outside the statute's coverage. </s> We agree with the Government's interpretation of the statute. For one thing, its interpretation gives the phrase "on account of " a meaning consistent with the dictionary definition. See, e.g., Webster's Third New International Dictionary 13 (1981) ("for the sake of: by reason of: because of "). </s> More important, in Schleier, supra, we came close to resolving the statute's ambiguity in the Government's favor. That case did not involve damages received in an ordinary tort suit; it involved liquidated damages and backpay received in a settlement of a lawsuit charging a violation of the Age Discrimination in Employment Act. Nonetheless, in deciding one of the issues there presented (whether the provision now before us covered ADEA liquidated damages), we contrasted the elements of an ordinary tort recovery with ADEA liquidated damages. We said that pain and suffering damages, medical expenses, and lost wages in an ordinary tort case are covered by the statute and hence excluded from income </s> "not simply because the taxpayer received a tort settlement, but rather because each element . . . satisfies the requirement . . . that the damages were received `on account of personal injuries or sickness.' " Id., at ___ (slip op., at 6-7). </s> In holding that ADEA liquidated damages are not covered, we said that they are not "designed to compensate ADEA victims," id., at ___, n. 5 (slip op., at 9, n. 5); instead, they are " `punitive in nature,' " id., at ___ (slip op., at 8) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985)). </s> Applying the same reasoning here would lead to the conclusion that the punitive damages are not covered because they are an element of damages not "designed to compensate . . . victims," Schleier, 515 U. S., at ___ (slip op., at 9, n. 5); rather they are " `punitive in nature.' " Ibid. Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an "independent" ground in support of our decision, id., at ___ (slip op., at 11). We cannot accept petitioners' claim that it was simply a dictum. </s> We also find the Government's reading more faithful to the history of the statutory provision as well as the basic tax-related purpose that the history reveals. That history begins in approximately 1918. At that time, this Court had recently decided several cases based on the principle that a restoration of capital was not income; hence it fell outside the definition of "income" upon which the law imposed a tax. E.g., Doyle v. Mitchell Brothers Co., 247 U. S. 179, 187 (1918); Southern Pacific Co. v. Lowe, 247 U. S. 330, 335 (1918). The Attorney General then advised the Secretary of the Treasury that proceeds of an accident insurance policy should be treated as nontaxable because they primarily </s> "substitute . . . capital which is the source of future periodical income . . . merely tak[ing] the place of capital in human ability which was destroyed by the accident. They are therefore [nontaxable] `capital' as distinguished from `income' receipts." 31 Op. Atty. Gen. 304, 308 (1918). </s> The Treasury Department added that </s> "upon similar principles . . . an amount received by an individual as the result of a suit or compromise for personal injuries sustained by him through accident is not income [that is] taxable . . . ." T. D. 2747, 20 Treas. Dec. Int. Rev. 457 (1918). </s> Soon thereafter, Congress enacted the first predecessor of the provision before us. That provision excluded from income </s> "[a]mounts received, through accident or health insurance or under workmen's compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness." Revenue Act of 1918, ch. 18, Section(s) 213(b)(6), 40 Stat. 1066. </s> The provision is similar to the cited materials from the Attorney General and the Secretary of the Treasury in language and structure, all of which suggests that Congress sought, in enacting the statute, to codify the Treasury's basic approach. A contemporaneous House Report, insofar as relevant, confirms this similarity of approach, for it says: </s> "Under the present law it is doubtful whether amounts received through accident or health insurance, or under workmen's compensation acts, as compensation for personal injury or sickness, and damages received on account of such injuries or sickness, are required to be included in gross income. The proposed bill provides that such amounts shall not be included in gross income." H. R. Rep. No. 767, pp. 9-10 (1918). </s> This history and the approach it reflects suggest there is no strong reason for trying to interpret the statute's language to reach beyond those damages that, making up for a loss, seek to make a victim whole, or, speaking very loosely, "return the victim's personal or financial capital." We concede that the original provision's language does go beyond what one might expect a purely tax-policy-related "human capital" rationale to justify. That is because the language excludes from taxation not only those damages that aim to substitute for a victim's physical or personal well-being-personal assets that the Government does not tax and would not have taxed had the victim not lost them. It also excludes from taxation those damages that substitute, say, for lost wages, which would have been taxed had the victim earned them. To that extent, the provision can make the compensated taxpayer better off from a tax perspective than had the personal injury not taken place. </s> But to say this is not to support cutting the statute totally free from its original moorings in victim loss. The statute's failure to separate those compensatory elements of damages (or accident insurance proceeds) one from the other does not change its original focus upon damages that restore a loss, that seek to make a victim whole, with a tax-equality objective providing an important part of, even if not the entirety of, the statute's rationale. All this is to say that the Government's interpretation of the current provision (the wording of which has not changed significantly from the original) is more consistent than is petitioners' with the statute's original focus. </s> Finally, we have asked why Congress might have wanted the exclusion to have covered these punitive damages, and we have found no very good answer. Those damages are not a substitute for any normally untaxed personal (or financial) quality, good, or "asset." They do not compensate for any kind of loss. The statute's language does not require, or strongly suggest, their exclusion from income. And we can find no evidence that congressional generosity or concern for administrative convenience stretched beyond the bounds of an interpretation that would distinguish compensatory from noncompensatory damages. </s> Of course, as we have just said, from the perspective of tax policy one might argue that noncompensatory punitive damages and, for example, compensatory lost wages are much the same thing. That is, in both instances, exclusion from gross income provides the taxpayer with a windfall. This circumstance alone, however, does not argue strongly for an interpretation that covers punitive damages, for coverage of compensatory damages has both language and history in its favor to a degree that coverage of noncompensatory punitive damages does not. Moreover, this policy argument assumes that coverage of lost wages is something of an anomaly; if so, that circumstance would not justify the extension of the anomaly or the creation of another. See Wolfman, Current Issues of Federal Tax Policy, 16 U. Ark. Little Rock L. J. 543, 549-550 (1994) ("[T]o build upon" what is, from a tax policy perspective, the less easily explained portion "of the otherwise rational exemption for personal injury," simply "does not make sense"). </s> Petitioners make three sorts of arguments to the contrary. First, they emphasize certain words or phrases in the original, or current, provision that work in their favor. For example, they stress the word "any" in the phrase "any damages." And they note that in both original and current versions Congress referred to certain amounts of money received (from workmen's compensation, for example) as "amounts received . . . as compensation," while here they refer only to "damages received" without adding the limiting phrase "as compensation." 26 U. S. C. Section(s) 104(a); Revenue Act of 1918, Section(s) 213(b)(6), 40 Stat. 1066. They add that in the original version, the words "on account of personal injuries" might have referred to, and modified, the kind of lawsuit, not the kind of damages. And they find support for this view in the second sentence of the Treasury Regulation first adopted in 1958 which says: </s> "The term `damages received (whether by suit or agreement' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR Section(s) 1.104-1(c) (1996). </s> These arguments, however, show only that one can reasonably read the statute's language in different ways-the very assumption upon which our analysis rests. They do not overcome our interpretation of the provision in Schleier, nor do they change the provision's history. The help that the Treasury Regulation's second sentence gives the petitioners is offset by its first sentence, which says that the exclusion applies to damages received "on account of personal injuries or sickness," and which we have held sets forth an independent requirement. Schleier, 515 U. S., at ___ (slip op., at 14). See Appendix, infra, at 16. </s> Second, petitioners argue that to some extent the purposes that might have led Congress to exclude, say, lost wages from income would also have led Congress to exclude punitive damages, for doing so is both generous to victims and avoids such administrative problems as separating punitive from compensatory portions of a global settlement or determining the extent to which a punitive damages award is itself intended to compensate. </s> Our problem with these arguments is one of degree. Tax generosity presumably has its limits. The administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement (which difficulty might account for the statute's treatment of, say, lost wages). Cf. supra p. 8. And, of course, the problem of identifying the elements of an ostensibly punitive award does not exist where, as here, relevant state law makes clear that the damages at issue are not at all compensatory, but entirely punitive. Brewer v. HomeStake Production Co., 200 Kan. 96, 100, 434 P. 2d 828, 831 (1967) ("[E]xemplary damages are not regarded as compensatory in any degree"); accord, Smith v. Printup, 254 Kan. 315, 866 P. 2d 985 (1993); Folks v. Kansas Power & Light Co., 243 Kan. 57, 755 P. 2d 1319 (1988); Nordstrom v. Miller, 227 Kan. 59, 605 P. 2d 545 (1980). </s> Third, petitioners rely upon a later enacted law. In 1989, Congress amended the law so that it now specifically says the personal injury exclusion from gross income </s> "shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U. S. C. Section(s) 104(a) (1994). </s> Why, petitioners ask, would Congress have enacted this amendment removing punitive damages (in nonphysical injury cases) unless Congress believed that, in the amendment's absence, punitive damages did fall within the provision's coverage? The short answer to this question is that Congress might simply have thought that the then-current law about the provision's treatment of punitive damages-in cases of physical and nonphysical injuries-was unclear, that it wanted to clarify the matter in respect to nonphysical injuries, but it wanted to leave the law where it found it in respect to physical injuries. The fact that the law was indeed uncertain at the time supports this view. Compare Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, with e.g., Roemer v. Commissioner, 716 F. 2d 693 (CA9 1983); Miller v. Commissioner, 93 T. C. 330 (1989), rev'd 914 F. 2d 586 (CA4 1990). </s> The 1989 amendment's legislative history, insofar as relevant, offers further support. The amendment grew out of the Senate's refusal to agree to a House bill that would have made all damages in nonphysical personal injury cases taxable. The Senate was willing to specify only that the Government could tax punitive damages in such cases. Compare H. R. Rep. No. 101-247, p. 1355 (1989), with H. R. Conf. Rep. No. 101-386, pp. 622-623 (1989). Congress' primary focus, in other words, was upon what to do about nonphysical personal injuries, not upon the provision's coverage of punitive damages under pre-existing law. </s> We add that, in any event, the view of a later Congress cannot control the interpretation of an earlier enacted statute. United States v. Price, 361 U.S. 304 (1960); Higgins v. Smith, 308 U.S. 473 (1940). But cf. Burke, 504 U.S., at 235 , n. 6 (including a passing reference to the 1989 amendment, in dicta, as support for a view somewhat like that of petitioners). </s> (Although neither party has argued that it is relevant, we note in passing that Section(s) 1605 of the Small Business Job Protection Act of 1996, Pub. L. 104-188, 110 Stat. 1838, explicitly excepts most punitive damages from the exclusion provided by Section(s) 104(a)(2). Because it is of prospective application, the section does not apply here. The Conference Report on the new law says that "[n]o inference is intended" as to the proper interpretation of section 104(a)(2) prior to amendment. H. R. Conf. Rep. No. 104-737, p. 301 (1996).) </s> The upshot is that we do not find petitioners' arguments sufficiently persuasive. And, for the reasons set out above, supra, at 3-8, we agree with the Government's interpretation of the statute. </s> III. </s> Petitioners have raised two further issues, specific to the procedural posture of this litigation. First, the O'Gilvie children point out that the Government had initially accepted their claim for a refund and wrote those checks on July 6, 1990. The Government later changed its mind and, on July 9, 1992, two years plus three days later, filed suit against them seeking the return of a refund erroneously made. 26 U. S. C. Section(s) 7405(b) (authorizing a "civil action brought in the name of the United States" to recover any "portion of a tax . . . which has been erroneously refunded"). They add that the relevant statute of limitations specifies that recovery of the refund "shall be allowed only if such suit is begun within 2 years after the making of such refund." Section(s) 6532(b). </s> The children concede that they received the refund checks on July 9, 1990, and they agree that if the limitation period runs from the date of receipt-if, as the Government argues, that is the date of the "making of " the refund-the Government's suit was timely. But the children say that the refund was made on, and the limitations period runs from, the date the Government mailed the checks (presumably July 6, 7, or 8) in which case the Government brought this suit one or two or three days too late. </s> In our view, the Government is correct in its claim that its lawsuit was timely. The language of the statute admits of both interpretations. But the law ordinarily provides that an action to recover mistaken payments of money "accrues upon the receipt of payment," New Bedford v. Lloyd Investment Associates, Inc., 363 Mass. 112, 119, 292 N. E. 2d 688, 692 (1973); accord Sizemore v. E. T. Barwick Industries, Inc., 225 Tenn. 226, 233, 465 S. W. 2d 873, 876 (1971) (" `the time of making the . . . payment . . . was the date of actual receipt' "), unless, as in some States and in some cases, it accrues upon the still later date of the mistake's discovery, see Allen & Lamkin, When Statute of Limitations Begins to Run Against Action to Recover Money Paid By Mistake, 79 A. L. R. 3d 754, 766-769 (1977). We are not aware of any good reason why Congress would have intended a different result where the nature of the claim is so similar to a traditional action for money paid by mistake-an action the roots of which can be found in the old common-law claim of "assumpsit" or "money had and received." New Bedford, supra, at 118. The lower courts and commentators have reached a similar conclusion. United States v. Carter, 906 F. 2d 1375 (CA9 1990); Akers v. United States, 541 F. Supp. 65, 67 (M. D. Tenn. 1981); United States v. Woodmansee, 388 F. Supp. 36, 46 (N. D. Cal. 1975), rev'd on other grounds, 578 F. 2d 1302 (CA9 1978); 14 J. Mertens Law of Federal Income Taxation Section(s) 54A.69 (1995); Kafka & Cavanagh, Litigation of Federal Civil Tax Controversies Section(s) 20.03, p. 20-15 (2d ed. 1995). That conclusion is consistent with dicta in an earlier case from this Court, United States v. Wurts, 303 U.S. 414, 417 -418 (1938), as well as with this Court's normal practice of construing ambiguous statutes of limitations in Government action in the Government's favor. E.g., Badaracco v. Commissioner, 464 U.S. 386, 391 (1984). </s> We concede the children's argument that a "date of mailing" interpretation produces marginally greater certainty, for such a rule normally would refer the court to the postmark to establish the date. But there is no indication that a "date of receipt" rule has proved difficult to administer in ordinary state or common-law actions for money paid erroneously. The date the check clears, after all, sets an outer bound. </s> Second, Kelly O'Gilvie says that the Court of Appeals should not have considered the Government's original appeal from the District Court's judgment in his favor because, in his view, the Government filed its notice of appeal a few days too late. The Court of Appeals describes the circumstances underlying this case-specific issue in its opinion. We agree with its determination of the matter for the reasons it has there set forth. </s> The judgment of the Court of Appeals is affirmed. </s> APPENDIX TO OPINION OF THE COURT </s> Section 104(a), in 1988, read as follows: </s> "Compensation for injuries or sickness </s> "(a) In general.-Except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include- </s> "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; </s> "(2) the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness; </s> "(3) amounts received through accident or health insurance for personal injuries or sickness (other than amounts received by an employee, to the extent such amounts (A) are attributable to contributions by the employer which were not includible in the gross income of the employee, or (B) are paid by the employer); </s> "(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of 1980; and </s> "(5) amounts received by an individual as disability income attributable to injuries incurred as a direct result of a violent attack which the Secretary of State determines to be a terrorist attack and which occurred while such individual was an employee of the United States engaged in the performance of his official duties outside the United States." 26 U. S. C. Section(s) 104 (1988 ed.). </s> In 1989, Section(s) 104(a) was amended, adding, among other things, the following language: </s> "Paragraph (2) shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U. S. C. Section(s) 104(a) (1994). </s> Treasury Regulation Section(s) 1.104-1(c) provides: </s> "Section 104(a)(2) excludes from gross income the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness. The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR Section(s) 1.104-1(c) (1996). </s> Justice Scalia, with whom Justice O'Connor and Justice Thomas join, dissenting. </s> Section 104(a)(2), as it stood at the time relevant to these cases, provided an exclusion from income for "any damages received . . . on account of personal injuries or sickness." 26 U. S. C. Section(s) 104(a)(2) (1988 ed.). The Court is of the view that this phrase, in isolation, is just as susceptible of a meaning that includes only compensatory damages as it is of a broader meaning that includes punitive damages as well. Ante, at 3-4. I do not agree. The Court greatly understates the connection between an award of punitive damages and the personal injury complained of, describing it as nothing more than " but-for" causality, ante, at 3. It seems to me that the personal injury is as proximate a cause of the punitive damages as it is of the compensatory damages; in both cases it is the reason the damages are awarded. That is why punitive damages are called damages. To be sure, punitive damages require intentional, blameworthy conduct, which can be said to be a coequal reason they are awarded. But negligent (or intentional) conduct occupies the same role of coequal causality with regard to compensatory damages. Both types of damages are "received on account of" the personal injury. </s> The nub of the matter, it seems to me, is this: If one were to be asked, by a lawyer from another legal system, "What damages can be received on account of personal injuries in the United States?" surely the correct answer would be "Compensatory damages and punitive damages-the former to compensate for the inflicting of the personal injuries, and the latter to punish for the inflicting of them." If, as the Court asserts, the phrase "damages received on account of personal injuries" can be used to refer only to the former category, that is only because people sometimes can be imprecise. The notion that Congress carefully and precisely used the phrase "damages received on account of personal injuries" to segregate out compensatory damages seems to me entirely fanciful. That is neither the exact nor the ordinary meaning of the phrase, and hence not the one that the statute should be understood to intend. </s> What I think to be the fair meaning of the phrase in isolation becomes even clearer when the phrase is considered in its statutory context. The Court proceeds too quickly from its erroneous premise of ambiguity to analysis of the history and policy behind Section(s) 104(a)(2). Ante, at 5-8. Ambiguity in isolation, even if it existed, would not end the textual inquiry. Statutory construction, we have said, is a "holistic endeavor." United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988). "A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." Ibid. </s> Section 104(a)(2) appears immediately after another provision, Section(s) 104(a)(1), which parallels Section(s) 104(a)(2) in several respects but does not use the critical phrase "on account of": </s> "(a) [G]ross income does not include- </s> "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; </s> "(2) the amount of any damages received . . . on account of personal injuries or sickness." (Emphasis added.) </s> Although Section(s) 104(a)(1) excludes amounts received "as compensation for" personal injuries or sickness, while Section(s) 104(a)(2) excludes amounts received "on account of " personal injuries or sickness, the Court reads the two phrases to mean precisely the same thing. That is not sound textual interpretation. "[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended." 2A N. Singer, Sutherland on Statutory Construction Section(s) 46.07 (5th ed. 1992 and Supp. 1996). See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983). This principle of construction has its limits, of course: Use of different terminology in differing contexts might have little significance. But here the contrasting phrases appear in adjoining provisions that address precisely the same subject matter and that even have identical grammatical structure. </s> The contrast between the two usages is even more striking in the original statute that enacted them. The Revenue Act of 1918 combined subsections (a)(1) and (a)(2) of Section(s) 104, together with (a)(3) (which provides an exclusion from income for amounts received through accident or health insurance for personal injuries or sickness), into a single subsection, which provided: </s> " `Gross income' . . . [d]oes not include . . . : </s> "(6) Amounts received, through accident or health insurance or under workmen's compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received . . . on account of such injuries or sickness." Section(s) 213(b)(6) of the Revenue Act of 1918, 40 Stat. 1065-66 (emphasis added). </s> The contrast between the first exclusion and the second could not be more clear. Had Congress intended the latter provision to cover only damages received "as compensation for" personal injuries or sickness, it could have written "amounts received, through accident or health insurance, under workmen's compensation acts, or in damages, as compensation for personal injuries or sickness." Instead, it tacked on an additional phrase "plus the amount of, etc." with no apparent purpose except to make clear that not only compensatory damages were covered by the exclusion. </s> The Court maintains, however, that the Government's reading of Section(s) 104(a)(2) is "more faithful to [its] history." Ante, at 5. The "history" to which the Court refers is not statutory history of the sort just discussed-prior enactments approved by earlier Congresses and revised or amended by later ones to produce the current text. Indeed, it is not "history" from within even a small portion of Congress, since the House Committee Report the Court cites, standing by itself, is uninformative, saying only that "[u]nder the present law it is doubtful whether . . . damages received on account of [personal] injuries or sickness are required to be included in gross income." H. R. Rep. No. 767, 65th Cong., 2d Sess., 9-10 (1918). The Court makes this snippet of legislative history relevant by citing as pertinent an antecedent Treasury Department decision, which concludes on the basis of recent judicial decisions that amounts received from prosecution or compromise of a personal-injury suit are not taxable because they are a return of capital. Ante, at 5-6 (citing T. D. 2747, 20 Treas. Dec. Int. Rev. 457 (1918)). </s> One might expect the Court to conclude from this that the Members of Congress (on the unrealistic assumption that they knew about the Executive-Branch opinion) meant the statutory language to cover only return of capital, the source of the "doubt" to which the Committee Report referred. But of course the Court cannot draw that logical conclusion, since even if it is applied only to compensatory damages the statute obviously and undeniably covers more than mere return of "human capital," namely, reimbursement for lost income, which would be a large proportion (indeed perhaps the majority) of any damages award. The Court concedes this is so, but asserts that this inconsistency is not enough "to support cutting the statute totally free from its original moorings," ante, at 7, by which I assume it means the Treasury Decision, however erroneous it might have been as to the "capital" nature of compensatory damages. But the Treasury Decision was no more explicitly limited to compensatory damages than is the statute before us. It exempted from taxation "an amount received by an individual as the result of a suit or compromise for personal injuries." T. D. 2747, 20 Treas. Dec. Int. Rev. 457 (1918). The Court's entire thesis of taxability rests upon the proposition that this Treasury Decision, which overlooked the obvious fact that "an amount received . . . as the result of a suit or compromise for personal injuries" almost always includes compensation for lost future income, did not overlook the obvious fact that such an amount sometimes includes "smart-money." So, to trace the Court's reasoning: The statute must exclude punitive damages because the Committee Report must have had in mind a 1918 Treasury Decision, whose text no more supports exclusion of punitive damages than does the text of the statute itself, but which must have meant to exclude punitive damages since it was based on the "return-of-capital" theory, though, inconsistently with that theory, it did not exclude the much more common category of compensation for lost income. Congress supposedly knew all of this, and a reasonably diligent lawyer could figure it out by mistrusting the inclusive language of the statute, consulting the Committee Report, surmising that the Treasury Decision of 1918 underlay that Report, mistrusting the inclusive language of the Treasury Decision, and discerning that Treasury could have overlooked lost-income compensatories, but could not have overlooked punitives. I think not. The sure and proper guide, it seems to me, is the language of the statute, inclusive by nature and doubly inclusive by contrast with surrounding provisions. </s> The Court poses the question, ante, at 7, "why Congress might have wanted the exclusion [in Section(s) 104(a)(2)] to have covered . . . punitive damages." If an answer is needed (and the text being as clear as it is, I think it is not), surely it suffices to surmise that Congress was following the Treasury Decision, which had inadvertently embraced punitive damages just as it had inadvertently embraced future-income compensatory damages. Or if some reason free of human error must be found, I see nothing wrong with what the Court itself suggests but rejects out of hand: Excluding punitive as well as compensatory damages from gross income "avoids such administrative problems as separating punitive from compensatory portions of a global settlement." Ante, at 9. How substantial that particular problem is is suggested by the statistics which show that 73 percent of tort cases in state court are disposed of by settlement, and between 92 and 99 percent of tort cases in federal court are disposed of by either settlement or some other means (such as summary judgment) prior to trial. See B. Ostrom & N. Kauder, Examining the Work of State Courts, 1994, p. 34 (1996); Administrative Office of the United States, L. Mecham, Judicial Business of the United States Courts: 1995 Report of the Director 162-164. What is at issue, of course, is not just imposing on the parties the necessity of allocating the settlement between compensatory and punitive damages (with the concomitant suggestion of intentional wrongdoing that any allocation to punitive damages entails), but also imposing on the Internal Revenue Service the necessity of reviewing that allocation, since there would always be strong incentive to inflate the tax-free compensatory portion. The Court's only response to the suggestion that this is an adequate reason (if one is required) for including punitive damages in the exemption is that "[t]he administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement." Ante, at 9-10. Perhaps so; and it may also be more simple than splitting the atom; but that in no way refutes the point that it is complicated enough to explain the inclusion of punitive damages in an exemption that has already abandoned the purity of a "return-of-capital" rationale. </s> The remaining argument offered by the Court is that our decision in Commissioner v. Schleier, 515 U. S. ___ (1995), came "close to resolving"-in the Government's favor-the question whether Section(s) 104(a)(2) permits the exclusion of punitive damages. Ante, at 4. I disagree. In Schleier we were faced with the question whether backpay and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA) were "damages received . . . on account of personal injuries or sickness" for purposes of Section(s) 104(a)(2)'s exclusion. As the dissent accurately observed, 515 U. S., at ___ (slip op., at 6) (opinion of O'Connor, J.), "the key to the Court's analysis" was the determination that an ADEA cause of action did not necessarily entail "personal injury or sickness," so that the damages awarded for that cause of action could hardly be awarded "on account of personal injuries or sickness." See id., at __ (slip op., at 7). In the case at hand, we said, "respondent's unlawful termination may have caused some psychological or `personal' injury comparable to the intangible pain and suffering caused by an automobile accident," but "it is clear that no part of respondent's recovery of back wages is attributable to that injury." Ibid. The respondent countered that at least "the liquidated damages portion of his settlement" could be linked to that psychological injury. Ibid. And it was in response to that argument that we made the statement which the Court seeks to press into service for today's opinion. ADEA liquidated damages, we said, were punitive in nature, rather than compensatory. Id., at ___, and n. 5 (slip op., at 8-9, and n. 5). </s> The Court recites this statement as though the point of it was that punitive damages could not be received "on account of" personal injuries, whereas in fact the point was quite different: Since the damages were punishment for the conduct that gave rise to the (non-personal-injury) cause of action, they could not be "linked to" the incidental psychological injury. In the present cases, of course, there is no question that a personal injury occurred and that this personal injury is what entitled petitioners to compensatory and punitive damages. We neither decided nor intimated in Schleier whether punitive damages that are indisputably "linked to" personal injuries or sickness are received "on account of" such injuries or sickness. Indeed, it would have been odd for us to resolve that question (or even come "close to resolving" it) without any discussion of the numerous considerations of text, history and policy highlighted by today's opinion. If one were to search our opinions for a dictum bearing upon the present issue, much closer is the statement in United States v. Burke, 504 U.S. 229 (1992), that a statute confers "tort or tort type rights" (qualifying a plaintiff's recovery for the Section(s) 104(a)(2) exemption) if it entitles the plaintiff to "a jury trial at which `both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages' may be awarded. " Id., at 240 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975)). </s> But all of this is really by the way. Because the statutory text unambiguously covers punitive damages that are awarded on account of personal injuries, I conclude that petitioners were entitled to deduct the amounts at issue here. This makes it unnecessary for me to reach the question, discussed ante, at 12-13, whether the government's refund action against the O'Gilvie children was commenced within the two-year period specified by 26 U. S. C. Section(s) 6532(b). I note, however, that the Court's resolution of these cases also does not demand that this issue be addressed, except to the extent of rejecting the proposition that the statutory period begins to run with the mailing of a refund check. So long as that is not the trigger, there is no need to decide whether the proper trigger is receipt of the check or some later event, such as the check's clearance. </s> For the reasons stated, I respectfully dissent from the judgment of the Court. </s> Footnotes </s> [Footnote * Together with No. 95-977, O'Gilvie v. United States, also on certiorari to the same court.

United States Supreme Court GISBRECHT et al. v. BARNHART, COMMISSIONER OF SOCIAL SECURITY(2002) No. 01-131 Argued: March 20, 2002Decided: May 28, 2002 </s> An attorney who successfully represents a Social Security benefits claimant in court may be awarded as part of the judgment "a reasonable fee ... not in excess of 25 percent of the ... past-due benefits" awarded to the claimant. 42 U.S.C. §406(b)(1)(A). The fee is payable "out of, and not in addition to, the amount of [the] past-due benefits." Ibid. In many cases, as in the instant case, the Equal Access to Justice Act (EAJA) effectively increases the portion of past-due benefits the successful Social Security claimant may pocket. Under EAJA, a party prevailing against the United States in court may be awarded fees payable by the United States if the Government's position in the litigation was not "substantially justified." 28 U.S.C. §2412(d)(1)(A). Congress harmonized fees payable by the Government under EAJA with fees payable under §406(b) out of the Social Security claimant's past-due benefits: Fee awards may be made under both prescriptions, but the claimant's attorney must refund to the claimant the amount of the smaller fee, up to the point the claimant receives 100 percent of the past-due benefits. </s> Petitioners Gisbrecht, Miller, and Sandine brought separate actions in the District Court seeking Social Security disability benefits under Title II of the Social Security Act. All three were represented by the same attorneys and prevailed on the merits of their claims. Each petitioner then successfully sought attorneys' fees under EAJA. Pursuant to contingent-fee agreements standard for Social Security claimant representation, each petitioner had agreed to pay counsel 25 percent of all past-due benefits recovered. Their attorneys accordingly requested $7,091.50 from Gisbrecht's recovery, $7,514 from Miller's, and $13,988 from Sandine's. Given the EAJA offsets, the amounts in fact payable from each client's past-due benefits recovery would have been $3,752.39 from Gisbrecht's recovery, $2,349.25 from Miller's, and $7,151.90 from Sandine's. Following Ninth Circuit precedent, the District Court in each case declined to give effect to the attorney-client fee agreement, instead employing a "lodestar" method, under which the number of hours reasonably devoted to each case was multiplied by the reasonable hourly fee. This method yielded as §406(b) fees $3,135 from Gisbrecht's recovery, $5,461.50 from Miller's, and $6,550 from Sandine's. Offsetting the EAJA awards against the lodestar determinations, the court determined that no portion of Gisbrecht's or Sandine's past-due benefits was payable to counsel, and that only $296.75 of Miller's recovery was payable to her counsel. The Ninth Circuit consolidated the cases and affirmed. </s> Held:Section 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, §406(b) instructs courts to review for reasonableness fees yielded by those agreements. Pp.9-18. </s> (a)Section 406(b)'s words, read in isolation, could be construed to allow either the Ninth Circuit's lodestar approach or petitioners' position that the attorney-client fee agreement should control, if not "in excess of 25 percent of ... the past-due benefits." Because the statute's text is inconclusive, this Court takes into account, as interpretive guides, the origin and standard application of the proffered approaches. Pp.9-10. </s> (b)The lodestar method, though rooted in accounting practices adopted in the 1940's, did not gain a firm foothold in the federal courts until the mid-1970's. The lodestar method today holds sway in federal-court adjudication of disputes over the amount of fees properly shifted to the loser in the litigation. Fees shifted to the losing party, however, are not at issue here. Pp.10-12. </s> (c)Section 406(b) authorizes fees payable from the successful party's recovery. Characteristically in Social Security benefits cases, attorneys and clients enter into contingent-fee agreements specifying that the attorney's fee will be 25 percent of any past-due benefits to which the claimant becomes entitled. Contingent-fee arrangements, though problematic, particularly when not exposed to court review, are common in the United States in many settings, and Social Security representation operates largely on a contingent-fee basis. Before 1965, the Social Security Act imposed no limits on contingent-fee agreements drawn by counsel and signed by benefits claimants. Arrangements yielding exorbitant fees reserved for lawyers one-third to one-half of the accrued benefits; the longer the litigation persisted, the greater the build-up of past-due benefits and, correspondingly, of legal fees awardable from those benefits if the claimant prevailed. Attending to these realities, Congress provided for a reasonable fee, not in excess of 25 percent of accrued benefits, as part of the court's judgment, and specified that no other fee would be payable. Violation of these limitations was made a criminal offense. In addition to protecting claimants against inordinately large fees, Congress sought to ensure that attorneys successfully representing Social Security claimants would not risk nonpayment by their clients. Congress therefore authorized agency payment of fees directly to counsel from funds withheld from the claimant's past-due benefits. But nothing in §406(b)'s text or history reveals a design to prohibit or discourage attorneys and claimants from entering into contingent-fee agreements. Given the prevalence of such agreements between attorneys and Social Security benefits claimants, it is unlikely that Congress, simply by prescribing "reasonable fees," meant to outlaw, rather than to contain, the fee agreements. Pp.12-15. </s> (d)This conclusion is bolstered by Congress' 1990 authorization of contingent-fee agreements under §406(a), which governs fees for agency-level representation. It would be anomalous if contract-based fees expressly authorized by §406(a)(2) at the administrative level were disallowed for court representation under §406(b). It is also unlikely that Congress, legislating in 1965, intended to install a lodestar method that courts did not develop and employ until years later. Furthermore, the lodestar method was designed to govern imposition of fees on the losing party. In such cases, nothing prevents the attorney for the prevailing party from gaining additional fees, pursuant to contract, from his own client. But §406(b) governs the total fee a successful Social Security claimant's attorney may receive for court representation. Nothing more may be demanded or received from the benefits claimant. Pp.15-17. </s> (e)Most plausibly read, §406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, §406(b) calls for court review of such arrangements to assure that they yield reasonable results in particular cases. Within the 25 percent boundary Congress provided, the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered. Courts have reduced the attorney's recovery based on the character of the representation and the results the representative achieved. If the attorney is responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court. And if the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order. Pp.17-18. </s> 238 F.3d 1196, reversed and remanded. </s> Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, O'Connor, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion. </s> GARY E. GISBRECHT, BARBARA A. MILLER, NANCYSANDINE, and DONALD L. ANDERSON, PETITION-ERS v. JO ANNE B. BARNHART, COMMISSIONEROF SOCIAL SECURITY </s> on writ of certiorari to the united states court of appeals for the ninth circuit </s> [May 28, 2002] </s> Justice Ginsburg delivered the opinion of the Court. </s> This case concerns the fees that may be awarded attorneys who successfully represent Social Security benefits claimants in court. Under 42 U.S.C. §406(b) (1994 ed. and Supp. V),1 a prevailing claimant's fees are payable only out of the benefits recovered; in amount, such fees may not exceed 25 percent of past-due benefits. At issue is a question that has sharply divided the Federal Courts of Appeals: What is the appropriate starting point for judicial determinations of "a reasonable fee for [representation before the court]"? See ibid. Is the contingent-fee agreement between claimant and counsel, if not in excess of 25 percent of past-due benefits, presumptively reasonable? Or should courts begin with a lodestar calculation (hours reasonably spent on the case times reasonable hourly rate) of the kind we have approved under statutes that shift the obligation to pay to the loser in the litigation? See Hensley v. Eckerhart, 461 U.S. 424, 426 (1983) (interpreting Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §1988, which allows a "prevailing party" to recover from his adversary "a reasonable attorney's fee as part of the costs" (internal quotation marks omitted)). </s> Congress, we conclude, designed §406(b) to control, not to displace, fee agreements between Social Security benefits claimants and their counsel. Because the decision before us for review rests on lodestar calculations and rejects the primacy of lawful attorney-client fee agreements, we reverse the judgment below and remand for recalculation of counsel fees payable from the claimants' past-due benefits. </s> I </s> A </s> Fees for representation of individuals claiming Social Security old-age, survivor, or disability benefits, both at the administrative level and in court, are governed by prescriptions Congress originated in 1965. Social Security Amendments of 1965, 79 Stat. 403, as amended, 42 U.S.C. §406.2 The statute deals with the administrative and judicial review stages discretely: §406(a) governs fees for representation in administrative proceedings; §406(b) controls fees for representation in court. See also 20 CFR §404.1728(a) (2001). </s> For representation of a benefits claimant at the administrative level, an attorney may file a fee petition or a fee agreement. 42 U.S.C. §406(a). In response to a petition, the agency may allow fees "for services performed in connection with any claim before" it; if a determination favorable to the benefits claimant has been made, however, the Commissioner of Social Security "shall ... fix ... a reasonable fee" for an attorney's services. §406(a)(1) (1994 ed.) (emphasis added). In setting fees under this method, the agency takes into account, in addition to any benefits award, several other factors. See 20 CFR §404.1725(b) (2001).3 Fees may be authorized, on petition, even if the benefits claimant was unsuccessful. §404.1725(b)(2). </s> As an alternative to fee petitions, the Social Security Act, as amended in 1990, accommodates contingent fee agreements filed with the agency in advance of a ruling on the claim for benefits. Omnibus Budget Reconciliation Act of 1990, 104 Stat. 1388-266 to 1388-267, as amended, 42 U.S.C. §§406(a)(2)-(4) (1994 ed. and Supp.V). If the ruling on the benefits claim is favorable to the claimant, the agency will generally approve the fee agreement, subject to this limitation: Fees may not exceed the lesser of 25 percent of past-due benefits or $4,000 (increased to $5,300 effective February 2002). §§406(a)(2)(A)(ii), (iii) (1994 ed.); 67 Fed. Reg. 2477 (2002); see Social Security Administration, Office of Hearings and Appeals, Litigation Law Manual (HALLEX) I-5-109 III.A (Feb. 5, 1999). </s> For proceedings in court, Congress provided for fees on rendition of "a judgment favorable to a claimant." 42 U.S.C. §406(b)(1)(A) (1994 ed., Supp.V). The Commissioner has interpreted §406(b) to "prohibi[t] a lawyer from charging fees when there is no award of back benefits." Tr. of Oral Arg. 37-38; see Brief in Opposition 12, n.12 (reading §406(b) to "prohibi[t] other [fee] arrangements such as non-contingent hourly fees"). </s> As part of its judgment, a court may allow "a reasonable fee ... not in excess of 25 percent of the ... past-due benefits" awarded to the claimant. §406(b)(1)(A). The fee is payable "out of, and not in addition to, the amount of [the] past-due benefits." Ibid. Because benefits amounts figuring in the fee calculation are limited to those past due, attorneys may not gain additional fees based on a claimant's continuing entitlement to benefits. </s> The prescriptions set out in §§406(a) and (b) establish the exclusive regime for obtaining fees for successful representation of Social Security benefits claimants. Collecting or even demanding from the client anything more than the authorized allocation of past-due benefits is a criminal offense. §§406(a)(5), (b)(2) (1994 ed.); 20 CFR §§404.1740-1799 (2001). </s> In many cases, as in the instant case, the Equal Access to Justice Act (EAJA), enacted in 1980, effectively increases the portion of past-due benefits the successful Social Security claimant may pocket. 94 Stat. 2329, as amended, 28 U.S.C. §2412. Under EAJA, a party prevailing against the United States in court, including a successful Social Security benefits claimant, may be awarded fees payable by the United States if the Government's position in the litigation was not "substantially justified." §2412(d)(1)(A). EAJA fees are determined not by a percent of the amount recovered, but by the "time expended" and the attorney's "[hourly] rate," §2412(d)(1)(B), capped in the mine run of cases at $125 per hour, §2412(d)(2)(A).4 Cf.5 U.S.C. §504 (authorizing payment of attorney's fees by the Government when a party prevails in a federal agency adjudication). </s> Congress harmonized fees payable by the Government under EAJA with fees payable under §406(b) out of the claimant's past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant's attorney must "refun[d] to the claimant the amount of the smaller fee." Act of Aug. 5, 1985, Pub. L. 99-80, §3, 99 Stat. 186. "Thus, an EAJA award offsets an award under Section 406(b), so that the [amount of the total past-due benefits the claimant actually receives] will be increased by the ... EAJA award up to the point the claimant receives 100 percent of the past-due benefits." Brief for United States3. </s> B </s> Petitioners Gary Gisbrecht, Barbara Miller, and Nancy Sandine brought three separate actions in the District Court for the District of Oregon under 42 U.S.C. §405(g) (1994 ed.),5 seeking Social Security disability benefits under TitleII of the Social Security Act. All three petitioners were represented by the same attorneys, and all three prevailed on the merits of their claims. Gisbrecht was awarded $28,366 in past-due benefits; Miller, $30,056; and Sandine, $55,952. Each petitioner then successfully sought attorneys' fees payable by the United States under EAJA: Gisbrecht was awarded $3,339.11, Miller, $5,164.75, and Sandine, $6,836.10. </s> Pursuant to contingent-fee agreements standard for Social Security claimant representation, see 1 B.Samuels, Social Security Disability Claims §21:10 (2ded. 1994), Gisbrecht, Miller, and Sandine had each agreed to pay counsel 25 percent of all past-due benefits recovered, App. to Pet. for Cert. 72-86. Their attorneys accordingly requested §406(b) fees of $7,091.50 from Gisbrecht's recovery, $7,514 from Miller's, and $13,988 from Sandine's. Given the EAJA offsets, the amounts in fact payable from each client's past-due benefits recovery would have been $3,752.39 from Gisbrecht's recovery, $2,349.25 from Miller's, and $7,151.90 from Sandine's. </s> Following Circuit precedent, see Allen v. Shalala, 48 F.3d 456, 458-459 (CA9 1995), the District Court in each case declined to give effect to the attorney-client fee agreement. Gisbrecht v. Apfel, No. CV-98-0437-RE (Ore., Apr. 14, 1999); Miller v. Apfel, No. CV-96-6164-AS (Ore., Mar. 30, 1999); Sandine v. Apfel, No. CV-97-6197-ST (Ore., June 18, 1999). Instead, the court employed for the §406(b) fee calculation a "lodestar" method, under which the number of hours reasonably devoted to each case was multiplied by a reasonable hourly fee. This method yielded as §406(b) fees $3,135 from Gisbrecht's recovery, $5,461.50 from Miller's, and $6,550 from Sandine's. Offsetting the EAJA awards, the court determined that no portion of Gisbrecht's or Sandine's past-due benefits was payable to counsel, and that only $296.75 of Miller's recovery was payable to her counsel as a §406(b) fee. The three claimants appealed.6 </s> Adhering to Circuit precedent applying the lodestar method to calculate fees under §406(b), the Court of Appeals for the Ninth Circuit consolidated the cases7 and affirmed the District Court's fee dispositions. Gisbrecht v. Apfel, 238 F.3d 1196 (2000). The Appeals Court noted that fees determined under the lodestar method could be adjusted by applying 12 further factors, one of them, "whether the fee is fixed or contingent." Id., at 1198 (quoting Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (CA9 1975)).8 While "a district court must consider a plaintiff's request to increase a fee [based on a contingent-fee agreement]," the Ninth Circuit stated, "a court `is not required to articulate its reasons' for accepting or rejecting such a request." 238 F.3d, at 1199 (quoting Widrig v. Apfel, 140 F.3d 1207, 1211 (CA9 1998)) (emphasis in original). </s> We granted certiorari, 534 U.S. 1039 (2001), in view of the division among the Circuits on the appropriate method of calculating fees under §406(b). Compare Coup v. Heckler, 834 F.2d 313 (CA3 1987); Craig v. Secretary, Dept. ofHealth and Human Servs., 864 F.2d 324 (CA4 1989); Brown v. Sullivan, 917 F.2d 189 (CA5 1990); Cotter v. Bowen, 879 F.2d 359 (CA8 1989); Hubbard v. Shalala, 12 F.3d 946 (CA10 1993); and Kay v. Apfel, 176 F.3d 1322 (CA11 1999) (all following, in accord with the Ninth Circuit, a lodestar method), with Wells v. Sullivan, 907 F.2d 367 (CA2 1990); Rodriguez v. Bowen, 865 F.2d 739 (CA6 1989) (enbanc); and McGuire v. Sullivan, 873 F.2d 974 (CA7 1989) (all giving effect to attorney-client contingent-fee agreement, if resulting fee is reasonable).9 We now reverse the Ninth Circuit's judgment. </s> II </s> Beginning with the text, §406(b)'s words, "a reasonable fee ... not in excess of 25 percent of ... the past-due benefits," read in isolation, could be construed to allow either the Ninth Circuit's lodestar approach or petitioners' position that the attorney-client fee agreement ordinarily should control, if not "in excess of 25 percent." The provision instructs "a reasonable fee," which could be measured by a lodestar calculation. But §406(b)'s language does not exclude contingent-fee contracts that produce fees no higher than the 25 percent ceiling. Such contracts are the most common fee arrangement between attorneys and Social Security claimants. See Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Report to Congress: Attorney Fees Under TitleII of the Social Security Act 15, 66, 70 (July 1988) (hereinafter SSA Report); Brief for National Organization of Social Security Claimants' Representatives as Amicus Curiae 1-2. Looking outside the statute's inconclusive text, we next take into account, as interpretive guides, the origin and standard application of the proffered approaches. </s> The lodestar method has its roots in accounting practices adopted in the 1940's to allow attorneys and firms to determine whether fees charged were sufficient to cover overhead and generate suitable profits. W.Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys 16 (1996) (hereinafter Honest Hour). An American Bar Association (ABA) report, published in 1958, observed that attorneys' earnings had failed to keep pace with the rate of inflation; the report urged attorneys to record the hours spent on each case in order to ensure that fees ultimately charged afforded reasonable compensation for counsels' efforts. See Special Committee on Economics of Law Practice, The 1958 Lawyer and His 1938 Dollar 9-10 (reprint 1959). </s> Hourly records initially provided only an internal accounting check. See HonestHour 19. The fees actually charged might be determined under any number of methods: the annual retainer; the fee-for-service method; the "eyeball" method, under which the attorney estimated an annual fee for regular clients; or the contingent-fee method, recognized by this Court in Stanton v. Embrey, 93 U.S. 548, 556 (1877), and formally approved by the ABA in 1908. See Honest Hour 13-19. As it became standard accounting practice to record hours spent on a client's matter, attorneys increasingly realized that billing by hours devoted to a case was administratively convenient; moreover, as an objective measure of a lawyer's labor, hourly billing was readily impartable to the client. Id., at18. By the early 1970's, the practice of hourly billing had become widespread. See id., at 19,21. </s> The federal courts did not swiftly settle on hourly rates as the overriding criterion for attorney's fee awards. In 1974, for example, the Fifth Circuit issued an influential opinion holding that, in setting fees under TitleVII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5(k) (1970 ed.), courts should consider not only the number of hours devoted to a case but also 11 other factors. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (1974).10 The lodestar method did not gain a firm foothold until the mid-1970's, see Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (CA3 1973), appeal after remand, 540 F.2d 102 (1976), and achieved dominance in the federal courts only after this Court's decisions in Hensley v. Eckerhart, 461 U.S. 424 (1983), Blum v. Stenson, 465 U.S. 886 (1984), and Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986). </s> Since that time, "[t]he `lodestar' figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence." Burlington v. Dague, 505 U.S. 557, 562 (1992) (relying on Hensley, Blum, and Delaware Valley to apply lodestar method to fee determination under Solid Waste Disposal Act, §7002(e), 42 U.S.C. §6972(e) (1988 ed.), and Clean Water Act, §505(d), 33 U.S.C. §1365(d) (1988 ed.), and noting prior application of lodestar method to Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §1988 (1988 ed., Supp.III); TitleVII of Civil Rights Act of 1964, 42 U.S.C. §2000e-5(k) (1988 ed., Supp.III); and Clean Air Act, 42 U.S.C. §7604(d) (1988 ed.)). As we recognized in Hensley, "[i]deally, ... litigants will settle the amount of a fee." 461 U.S., at 437.11 But where settlement between the parties is not possible, "[t]he most useful starting point for [court determination of] the amount of a reasonable fee [payable by the loser] is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id., at 433. Thus, the lodestar method today holds sway in federal-court adjudication of disputes over the amount of fees properly shifted to the loser in the litigation. See id., at 440 (Burger, C.J., concurring) (decision addresses statute under which "a lawyer seeks to have his adversary pay the fees of the prevailing party"). </s> Fees shifted to the losing party, however, are not at issue here. Unlike 42 U.S.C. §1988 (1994 ed. and Supp.V) and EAJA, 42 U.S.C. §406(b) (1994 ed., Supp.V) does not authorize the prevailing party to recover fees from the losing party. Section 406(b) is of another genre: It authorizes fees payable from the successful party's recovery. Several statutes governing suits against the United States similarly provide that fees may be paid from the plaintiff's recovery. See, e.g., Federal Tort Claims Act (FTCA), 28 U.S.C. §2678 ("No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any [court] judgment rendered [in an FTCA suit], or in excess of 20 per centum of any award, compromise, or settlement made [by a federal agency to settle an FTCA claim]."); Veterans' Benefits Act, 38 U.S.C. §5904(d)(1) (1994 ed.) ("When a claimant [for veterans' benefits] and an attorney have entered into a [contingent] fee agreement [under which fees are paid by withholding from the claimant's benefits award], the total fee payable to the attorney may not exceed 20 percent of the total amount of any past-due benefits awarded on the basis of the claim.").12 Characteristically in cases of the kind we confront, attorneys and clients enter into contingent-fee agreements "specifying that the fee will be 25 percent of any past-due benefits to which the claimant becomes entitled." Brief for National Organization of Social Security Claimants' Representatives as Amicus Curiae 2; see Brief for Washington Legal Foundation etal. as Amicus Curiae 9, n.6 ("There is no serious dispute among the parties that virtually every attorney representing TitleII disability claimants includes in his/her retainer agreement a provision calling for a fee equal to 25% of the past-due benefits awarded by the courts."). </s> Contingent fees, though problematic, particularly when not exposed to court review, are common in the United States in many settings. Such fees, perhaps most visible in tort litigation, are also used in, e.g., patent litigation, real estate tax appeals, mergers and acquisitions, and public offerings. See ABA Formal Opinion 94-389, ABA/BNA Lawyers' Manual On Professional Conduct 1001:248, 1001:250 (1994). But see id., at 1001:248, n.3 (quoting observation that controls on contingent fees are needed to "reduce financial incentives that encourage lawyers to file unnecessary, unwarranted[,] and unmeritorious suits" (internal quotation marks omitted)). Traditionally and today, "the marketplace for Social Security representation operates largely on a contingency fee basis." SSA Report3; see also id., at 15, 66, 70; App. to Pet. for Cert. 56, 60, 88, 89, 91 (affidavits of practitioners). </s> Before 1965, the Social Security Act imposed no limits on contingent-fee agreements drawn by counsel and signed by benefits claimants. In formulating the 1965 Social Security Act amendments that included §406(b), Congress recognized that "attorneys have upon occasion charged ... inordinately large fees for representing claimants [in court]." S.Rep. No.404, 89th Cong., 1st Sess., pt.1, p.122 (1965). Arrangements yielding exorbitant fees, the Senate Report observed, reserved for the lawyer one-third to one-half of the accrued benefits. Ibid. Congress was mindful, too, that the longer the litigation persisted, the greater the build-up of past-due benefits and, correspondingly, of legal fees awardable from those benefits if the claimant prevailed. Ibid.13 </s> Attending to these realities, Congress provided for "a reasonable fee, not in excess of 25 percent of accrued benefits" as part of the court's judgment, and further specified that "no other fee would be payable." Ibid. Violation of the "reasonable fee" or "25 percent of accrued benefits" limitation was made subject to the same penalties as those applicable for charging a fee larger than the amount approved by the Commissioner for services at the administrative level--a fine of up to $500, one year's imprisonment, or both. Ibid. "[T]o assure the payment of the fee allowed by the court," Congress authorized the agency "to certify the amount of the fee to the attorney out of the amount of the accrued benefits." Ibid.; see supra, at14, n.13. </s> Congress thus sought to protect claimants against "inordinately large fees" and also to ensure that attorneys representing successful claimants would not risk "nonpayment of [appropriate] fees." SSA Report 66 (internal quotation marks omitted). But nothing in the text or history of §406(b) reveals a "desig[n] to prohibit or discourage attorneys and claimants from entering into contingent fee agreements." Ibid. Given the prevalence of contingent-fee agreements between attorneys and Social Security claimants, it is unlikely that Congress, simply by prescribing "reasonable fees," meant to outlaw, rather than to contain, such agreements.14 </s> This conclusion is bolstered by Congress' 1990 authorization of contingent-fee agreements under §406(a), the provision governing fees for agency-level representation. Before enacting this express authorization, Congress instructed the Social Security Administration to prepare a report on attorney's fees under TitleII of the Social Security Act. Pub. L. 100-203, §9021(b), 101 Stat. 1330-295. The report, presented to Congress in 1988, reviewed several methods of determining attorney's fees, including the lodestar method. See SSA Report 10-11. This review led the agency to inform Congress that, although the contingency method was hardly flawless, the agency could "identify nomore effective means of ensuring claimant access to attorney representation." Id., at 25. </s> Congress subsequently altered §406(a) to validate contingent-fee agreements filed with the agency prior to disposition of the claim for benefits. See 42 U.S.C. §406(a)(2) (1994 ed.); supra, at 4. As petitioners observe, Brief for Petitioners 24, it would be anomalous if contract-based fees expressly authorized by §406(a)(2) at the administrative level were disallowed for court representation under §406(b). </s> It is also unlikely that Congress, legislating in 1965, and providing for a contingent fee tied to a 25 percent of past-due benefits boundary, intended to install a lodestar method courts did not develop until some years later. See supra, at 10-11. Furthermore, we again emphasize, the lodestar method was designed to govern imposition of fees on the losing party. See, e.g., Dague, 495 U.S. 82,89-90 (1990) ("[None] of our cases has indicated that [42 U.S.C.] §1988 ... protects plaintiffs from having to pay what they have contracted to pay, even though their contractual liability is greater than the statutory award that they may collect from losing opponents. Indeed, depriving plaintiffs of the option of promising to pay more than the statutory fee if that is necessary to secure counsel of their choice would not further §1988's general purpose of enabling such plaintiffs ... to secure competent counsel."). By contrast, §406(b) governs the total fee a claimant's attorney may receive for court representation; any endeavor by the claimant's attorney to gain more thanthat fee, or to charge the claimant a noncontingent fee, is a criminal offense. 42 U.S.C. §406(b)(2); 20 CFR §404.1740(c)(2) (2001). </s> Most plausibly read, we conclude, §406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, §406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.15 Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits. §406(b)(1)(A) (1994 ed., Supp.V).16 Within the 25 percent boundary, as petitioners in this case acknowledge, the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered. See Brief for Petitioners40.17 </s> Courts that approach fee determinations by looking first to the contingent-fee agreement, then testing it for reasonableness, have appropriately reduced the attorney's recovery based on the character of the representation and the results the representative achieved. See, e.g., McGuire, 873 F.2d, at 983 ("Although the contingency agreement should be given significant weight in fixing a fee, a district judge must independently assess the reasonableness of its terms."); Lewis v. Secretary of Health and Human Servs., 707 F.2d 246, 249-250 (CA6 1983) (instructing reduced fee when representation is substandard). Ifthe attorney is responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court. See Rodriquez, 865 F.2d, at 746-747. If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order. See id., at 747 (reviewing court should disallow "windfalls for lawyers"); Wells, 907 F.2d, at 372 (same). In this regard, the court may require the claimant's attorney to submit, not as a basis for satellite litigation, but as an aid to the court's assessment of the reasonableness of the fee yielded by the fee agreement, a record of the hours spent representing the claimant and a statement of the lawyer's normal hourly billing charge for noncontingent-fee cases. See Rodriquez, 865 F.2d, at 741. Judges of our district courts are accustomed to making reasonableness determinations in a wide variety of contexts, and their assessments in such matters, in theevent of an appeal, ordinarily qualify for highly re-spectful review. </s> * * * </s> The courts below erroneously read §406(b) to override customary attorney-client contingent-fee agreements. We hold that §406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, §406(b) instructs courts to review for reasonableness fees yielded by those agreements. Accordingly, we reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. </s> It is so ordered. </s> GARY E. GISBRECHT, BARBARA A. MILLER, NANCYSANDINE, and DONALD L. ANDERSON, PETITION-ERS v. JO ANNE B. BARNHART, COMMISSIONEROF SOCIAL SECURITY </s> on writ of certiorari to the united states court ofappeals for the ninth circuit </s> [May 28, 2002] </s> Justice Scalia, dissenting. </s> I do not know what the judges of our district courts and courts of appeals are to make of today's opinion. I have no idea what the trial judge is to do if he finds the fee produced by the ("presumptively reasonable," ante, at 1) contingent-fee agreement to be 25% above the lodestar amount; or 40%; or 65%. Or what the appellate court is to do in an appeal from a district judge's reduction of the contingent fee to 300% of the lodestar amount; or 200%; or to the lodestar amount itself. While today's opinion gets this case out of our "in" box, it does nothing whatever to subject these fees to anything approximating a uniform rule of law. That is, I think, the inevitable consequence of trying to combine the incompatible. The Court tells the judge to commence his analysis with the contingent-fee agreement, but then to adjust the figure that agreement produces on the basis of factors (most notably, the actual time spent multiplied by a reasonable hourly rate, ante, at 18) that are, in a sense, the precise antithesis of the contingent-fee agreement, since it was the very purpose of that agreement to eliminate them from the fee calculation. In my view, the only possible way to give uniform meaning to the statute's "reasonable fee" provision is to understand it as referring to the fair value of the work actually performed, which we have held is best reflected by the lodestar.1 See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). </s> I think it obvious that the reasonableness of a contingent-fee arrangement has to be determined by viewing the matter ex ante, before the outcome of the lawsuit and the hours of work expended on the outcome are definitively known. For it is in the nature of a contingent-fee agreement to gamble on outcome and hours of work--assigning the risk of an unsuccessful outcome to the attorney, in exchange for a percentage of the recovery from a successful outcome that will (because of the risk of loss the attorney has borne) be higher, and perhaps much higher, than what the attorney would receive in hourly billing for the same case. That is why, in days when obtaining justice in the law courts was thought to be less of a sporting enterprise, contingent fees were unlawful. See, e.g., Butler v. Legro, 62 N.H. 350, 352 (1882) ("Agreements of this kind are contrary to public justice and professional duty, tend to extortion and fraud, and are champertous and void"). </s> It is one thing to say that a contingent-fee arrangement is, ex ante, unreasonable because it gives the attorney a percentage of the recovery so high that no self-respecting legal system can tolerate it; the statute itself has made this determination for Social-Security-benefit cases, prescribing a maximum contingent fee of 25%. And one can also say that a contingent-fee arrangement is, ex ante, unreasonable because the chances of success in the particular case are so high, and the anticipated legal work so negligible, that the percentage of the recovery assured to the lawyer is exorbitant; but neither I nor the Court thinks that the "reasonable fee" provision of the statute anticipates such a case-by-case ex post assessment of ex ante predictions in the thousands of (mostly small recovery) Social-Security-benefit cases. It is something quite different, however--and something quite irrational--to look at the consequences of a contingent-fee agreement after the contingencies have been resolved, and proclaim those consequences unreasonable because the attorney has received too much money for too little work. That is rather like declaring the purchase of the winning lottery ticket void because of the gross disparity between the $2 ticket price and the million-dollar payout.2 </s> I think, in other words, that the "reasonable fee" provision must require either an assessment of the reasonableness of the contingent-fee agreement when it was concluded, or an assessment of the reasonableness of the fee charged after the outcome and work committed to it are known; it cannot combine the two. And since an expost assessment of the ex ante reasonableness of the contingent-fee agreement (already limited by statute to a maximum 25% of the recovery) is not what the statute could conceivably have contemplated, I conclude that a "reasonable fee" means not the reasonableness of the agreed-upon contingent fee, but a reasonable recompense for the work actually done. We have held that this is best calculated by applying the lodestar, which focuses on the quality and amount of the legal work performed, and "provides an objective basis on which to ... estimate ... the value of a lawyer's services." Hensley, supra, at 433. </s> This is less of a departure than the Court suggests from the normal practice of enforcing privately negotiated fee agreements. The fee agreements in these Social-Security cases are hardly negotiated; they are akin to adherence contracts. It is uncontested that the specialized Social-Security bar charges uniform contingent fees (the statutory maximum of 25%), which are presumably presented to the typically unsophisticated client on a take-it-or-leave-it basis. Nor does the statute's explicit approval of contingency-fee agreements at the agency stage, see 42 U.S.C. §406(a) (1994 ed. and Supp. V), imply that contingency-fee agreements at the judicial-review stage should be regarded as presumptively reasonable. The agreements approved at the agency stage are limited not merely by a 25% maximum percentage of recovery, but also by a firm $5,300 maximum. With the latter limitation, there is no need to impose a reasonableness requirement. Oncea reasonableness requirement is imposed, however, I think it can only refer to the reasonableness of the actual compensation. </s> * * * </s> Because I think there is no middle course between, on the one hand, determining the reasonableness of a contingent-fee agreement and, on the other hand, determining the reasonableness of the actual fee; because I think the statute's reference to a "reasonable fee" must connote the latter; and because I think the Court's hybrid approach establishes no clear criteria and hence will generate needless satellite litigation; I respectfully dissent. </s> FOOTNOTES Footnote 1 </s> 49 Stat. 624, as amended. </s> Footnote 2 </s> Before 1965, Congress did not explicitly authorize attorney's fees for in-court representation of Social Security benefits claimants. At least two Courts of Appeals, however, concluded that 42 U.S.C. §405(g) implicitly authorized such fees. See Bowen v. Galbreath, 485 U.S. 74, 75-76 (1988) (citing Celebrezze v. Sparks, 342 F. 2d 286 (CA5 1965)) ("Under 42 U.S.C. §405(g), a court reviewing [a Social Security benefits decision] has the power to enter `a judgment affirming, modifying, or reversing the decision....' The court in Sparks reasoned that where a statute gives a court jurisdiction, it must be presumed, absent any indication to the contrary, that the court was intended to exercise all the powers of a court, including the power to provide for payment of attorney's fees out of any recovery. 342 F.2d, at 288-289 [citing Folsom v. McDonald, 237 F. 2d 380, 382-383 (CA41956)]."). </s> As to administrative proceedings, the Social Security Act originally made no provision for attorney's fees. 49 Stat. 620 (1935). Four years later, Congress amended the Act to permit the Social Security Board to prescribe maximum fees attorneys could charge for representation of claimants before the agency. Social Security Act Amendments of 1939, 53 Stat. 1360. Congress expected the need for counsel in agency proceedings to be slim. H.R. Rep. No.728, 76th Cong., 1st Sess., pp.44-45 (1939); S.Rep. No.734, 76th Cong., 1st Sess., p.53 (1939). The Board subsequently established a maximum fee of $10, permitting a higher fee only by petition to the agency. 20 CFR §403.713(d) (1949). The agency later prescribed separate fees for representation at the initial and appellate levels of the administrative process. 20 CFR §404.976 (1961). </s> Footnote 3 </s> 20 CFR §404.1725(b) (2001) provides: </s> "Evaluating a request for approval of a fee. </s> "(1) When we evaluate a representative's request for approval of a fee, we consider the purpose of the social security program, which is to provide a measure of economic security for the beneficiaries of the program, together with-- </s> "(i) The extent and type of services the representative performed; </s> "(ii) The complexity of the case; </s> "(iii) The level of skill and competence required of the representative in giving the services; </s> "(iv) The amount of time the representative spent on the case; </s> "(v) The results the representative achieved; </s> "(vi) The level of review to which the claim was taken and the level of the review at which the representative became your representative; and </s> "(vii) The amount of fee the representative requests for his or her services, including any amount authorized or requested before, but not including the amount of any expenses he or she incurred. </s> "(2) Although we consider the amount of benefits, if any, that are payable, we do not base the amount of fee we authorize on the amount of the benefit alone, but on a consideration of all the factors listed in this section. The benefits payable in any claim are determined by specific provisions of law and are unrelated to the efforts of the representative. We may authorize a fee even if no benefits are payable." </s> Footnote 4 </s> A higher fee may be awarded if "the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee." 28 U.S.C. §2412(d)(2)(A)(ii). </s> Footnote 5 </s> Section 405(g) authorizes judicial review of administrative denials of applications for Social Security benefits. </s> Footnote 6 </s> Although the claimants were named as the appellants below, and are named as petitioners here, the real parties in interest are their attorneys, who seek to obtain higher fee awards under §406(b). For convenience, we nonetheless refer to claimants as petitioners. See Hopkins v. Cohen, 390 U.S. 530, 531, n.2 (1968). We also note that the Commissioner of Social Security here, as in the Ninth Circuit, has no direct financial stake in the answer to the §406(b) question; instead, she plays a part in the fee determination resembling that of a trustee for the claimants. See, e.g., Lewis v. Secretary of Health and Human Servs., 707 F.2d 246, 248 (CA61983). </s> Footnote 7 </s> A fourth case, Anderson v. Apfel, No.CV-96-6311-HO (Ore. Sept. 29, 1999), was also consolidated with petitioners' cases; we denied certiorari in Anderson in the order granting certiorari on petitioners' question. See 534 U.S. 1039 (2001). </s> Footnote 8 </s> Kerr directed consideration of "(1)the time and labor required, (2)the novelty and difficulty of the questions involved, (3)the skill requisite to perform the legal service properly, (4)the preclusion of other employment by the attorney due to acceptance of the case, (5)the customary fee, (6)whether the fee is fixed or contingent, (7)time limitations imposed by the client or the circumstances, (8)the amount involved and the results obtained, (9)the experience, reputation, and ability of the attorneys, (10)the `undesirability' of the case, (11)the nature and length of the professional relationship with the client, and (12)awards in similar cases." Kerr v. Screen Extras Guild, 526 F.2d 67, 69-70 (CA9 1975) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (CA5 1974)). </s> Footnote 9 </s> Cf. Ramos Colon v. Secretary of Health and Human Servs., 850 F.2d 24, 26 (CA1 1988) (per curiam) ("a court is not required to give blind deference to ... a contractual fee agreement, and must ultimately be responsible for fixing a reasonable fee for the judicial phase of the proceedings" (internal quotation marks omitted)). </s> Footnote 10 </s> See supra, at 8, n.8. </s> Footnote 11 </s> See also, e.g., 31 U.S.C. §3554(c)(3)(B)(4) (1994 ed.) ("[T]he Federal agency and the interested party shall attempt to reach an agreement on the amount of the costs [including attorneys' fees] to be paid."). </s> Footnote 12 </s> See also Servicemembers' Group Life Insurance Act, 38 U.S.C. §1984(g) (1994 ed.) ("[T]he court ... shall determine and allow reasonable fees for the attorneys of the successful party or parties and apportion same if proper, said fees not to exceed 10 per centum of the amount recovered and to be paid by the Department out of the payments to be made under the judgment or decree."); International Claims Settlement Act of 1949 (ICSA), 22 U.S.C. §1623(f) ("No remuneration on account of services rendered on behalf of any claimant in connection with any claim filed with the Commission under [the ICSA] shall exceed 10 per centum of the total amount paid pursuant to any award certified under the [ICSA] on account of such claim. Any agreement to the contrary shall be unlawful and void."); Trading with the Enemy Act, 50 U.S.C. App. §20 (1994ed.) ("No property or interest or proceeds shall be returned under this Act... unless satisfactory evidence is furnished... that the aggregate of the fees to be paid to all agents, attorneys ..., or representatives, for services rendered in connection with such return or payment or judgment does not exceed 10 per centum of the value of such property or interest or proceeds or of such payment."); War Claims Act, 50 U.S.C. App. §2017m ("No remuneration on account of services rendered on behalf of any claimant in connection with any claim filed with the Commission under this [Act] shall exceed 10 per centum (orsuch lesser per centum as may be fixed by the Commission with respect to any class of claims) of the total amount paid pursuant to any award certified under the provisions of this title... on account of such claim."). </s> Footnote 13 </s> Congress also adopted a proposal recommended by the Social Security Administration that attorneys be paid directly with funds withheld from their clients' benefits awards; the Commissioner testified to the Senate Committee on Finance that "[a]ttorneys have complained that... awards are sometimes made to the claimant without the attorney's knowledge and that some claimants on occasion have not notified the attorney of the receipt of the money, nor have they paid his fee." Hearings on H.R. 6675 before the Senate Committee on Finance, 89th Cong., 1st Sess., pt.1, pp.512-513 (1965). </s> Footnote 14 </s> Cf., e.g., Act of Mar.3, 1891, §9, 26 Stat. 851-854 (regulating fees for claims by Native Americans before the Court of Claims and providing: "all contracts heretofore made for fees and allowances to claimants' attorneys, are hereby declared void ... and the allowances to the claimant's attorneys shall be regulated and fixed by the court"); Alaska Native Claims Settlement Act of 1971, 43 U.S.C. §1621(a) (1994ed.) ("None of the revenues granted by [the Act] shall be subject to any contract which is based on a percentage fee of the value of all or some portion of the settlement granted by this [Act]."). </s> Footnote 15 </s> The dissent observes that "fee agreements in ... Social Security cases are hardly negotiated; they are akin to adherence contracts." Post, at 4. Exposure to court review, plus the statute's 25 percent limitation, however, provide checks absent from arbitration adherence provisions this Court has upheld over objections that they are not "freely negotiated," see Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U.S. 528, 556 (1995) (Stevens, J., dissenting), but are the product of "disparate bargaining power" between the contracting parties, Carnival Cruise Lines, Inc. v. Shute, 499 U. S. 585, 598 (1991) (Stevens, J., dissenting). See also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 138-139, and n. 3 (2001) (Souter, J., dissenting) (observing that many employees "lack the bargaining power to resist an arbitration clause if their prospective employers insist on one"). </s> Footnote 16 </s> Statement of the limitation in terms of a percent of the recovery tellingly contrasts with EAJA, which authorizes fee shifting and, correspondingly, places a specific dollar limit on the hourly rate that ordinarily can be charged to the losing party. 28 U.S.C. §2412(d)(2)(A); see supra, at 5, and n.4. </s> Footnote 17 </s> Specifically, petitioners maintain that "[a]lthough section 406(b) permits an attorney to base a fee application on a contingent fee agreement with the claimant, the statute does not create any presumption in favor of the agreed upon amount. To the contrary, because section 406(b) requires an affirmative judicial finding that the fee allowed is `reasonable,' the attorney bears the burden of persuasion that the statutory requirement has been satisfied." Brief for Petitioners40. </s> FOOTNOTES Footnote 1 </s> The Court finds it "unlikely," ante, at 16, that 42 U.S.C. §406(b) (1994 ed. and Supp. V), enacted in 1965, contemplated application of the lodestar method that the courts had not yet even developed. Of course it did not. But it did contemplate an expost determination of a reasonable fee for an attorney's work--which our post-1965 cases have held is best achieved by using the lodestar. We have not hesitated to apply the lodestar method to other fee statutes enacted before the method was developed. See, e.g., Burlington v. Dague, 505 U.S. 557, 561-562 (1992) (explaining that "our case law construing what is a `reasonable' fee applies uniformly" to fee-shifting statutes that use similar language, including, inter alia, 42 U.S.C. §1988 and 42 U.S.C. §2000e-5(k) (Civil Rights Act of 1964)). </s> Footnote 2 </s> There is one expost element prominent in Social-Security-benefit cases that assuredly should reduce the amount of an otherwise reasonable (that is to say, an ex ante reasonable) contingent-fee award: Since the award is based upon past-due benefits, and since the amount of those benefits increases with the duration of the litigation, a lawyer can increase his contingent-fee award by dragging his feet. It is unreasonable to be rewarded for dilatoriness. But that element need not be made part of an overall expost reasonableness assessment, as the Court would do, see ante, at 18. For it is not only unreasonable; it is a breach of contract. Surely the representation agreement contains as an implicit term that the lawyer will bring the matter to a conclusion as quickly as practicable--or at least will not intentionally delay its conclusion. Any breach of that condition justifies a reduction of the contracted contingent-fee award.

United States Supreme Court GARNER v. LOUISIANA(1961) No. 26 Argued: Decided: December 11, 1961 </s> [Footnote * Together with No. 27, Briscoe et al. v. Louisiana, and No. 28, Hoston et al. v. Louisiana, also on certiorari to the same Court. </s> In Louisiana places of business catering to both white and Negro patrons, petitioners, who are Negroes, took seats at lunch counters where only white persons customarily were served, and they remained quietly in their seats after being told that they could not be served there. They made no speeches, carried no placards and did nothing else to attract attention to themselves, except to sit at the lunch counters. They were not asked to leave by the proprietors or their agents; but they were asked to leave by police officers. Upon failing to do so, they were arrested and charged with "disturbing the peace." They were convicted in a state court under a state statute which defines "disturbing the peace" as the doing of specified violent, boisterous or disruptive acts and "any other act in such a manner as to unreasonably disturb or alarm the public." They were denied relief by the State Supreme Court. The records contained no evidence to support a finding that petitioners had disturbed the peace, either by outwardly boisterous conduct or by passive conduct likely to cause a public disturbance. Held: The convictions were so totally devoid of evidentiary support as to violate the Due Process Clause of the Fourteenth Amendment. Thompson v. City of Louisville, 362 U.S. 199 . Pp. 158-174. </s> (a) There being nothing in the record to indicate that the trial judge took judicial notice of anything, these convictions cannot be sustained on the theory that he took judicial notice of the general situation, including the local custom of racial segregation in eating places, and concluded that petitioners' presence at the lunch counters might cause a disturbance which it was the duty of the police to prevent. P. 173. </s> (b) In the circumstances of these cases, merely sitting peacefully in places where custom decreed that petitioners should not sit was not evidence of any crime, and it cannot be so considered either by the police or by the courts. P. 174. </s> Reversed. [368 U.S. 157, 158] </s> Jack Greenberg argued the cause for petitioners. With him on the briefs were A. P. Tureaud, Thurgood Marshall, William T. Coleman, James A. Nabrit III and Louis H. Pollak. </s> John F. Ward, Jr. argued the cause for respondent. With him on the briefs were Jack P. F. Gremillion, Attorney General of Louisiana, and N. Cleburn Dalton, Assistant Attorney General. </s> Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox, Assistant Attorney General Marshall, Bruce J. Terris, Harold H. Greene and Howard A. Glickstein for the United States, and by John R. Fernbach and Murray A. Gordon for the Committee on the Bill of Rights of the Association of the Bar of the City of New York. </s> MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. </s> These cases come to us from the Supreme Court of Louisiana and draw in question the constitutionality of the petitioners' convictions in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, for the crime of disturbing the peace. The petitioners 1 were brought to trial and convicted on informations charging them with violating Title 14, Article 103 (7), of the Louisiana Criminal Code, 1942, in that "they refused to move from a cafe counter seat . . . after having been ordered to do so by the agent [of the establishment]; said conduct being in such manner as to unreasonably and foreseeably disturb the public . . . ." In accordance with state procedure, petitioners sought post-conviction review in the Supreme Court of Louisiana through writs of certiorari. mandamus and prohibition. They contended that the [368 U.S. 157, 159] State had presented no evidence to support the findings of statutory violation, and that their convictions were invalid on other constitutional grounds, both state and federal. Relief was denied. Federal questions were properly raised and preserved throughout the proceedings, and timely petitions for certiorari filed in this Court were granted. 365 U.S. 840 . The United States Government appeared as amicus curiae urging, on various grounds, that the convictions be reversed. An amicus brief also urging reversal was filed by the Committee on the Bill of Rights of the Association of the Bar of the City of New York. </s> In our view of these cases and for our disposition of them, the slight variance in the facts of the three cases is immaterial. Although the alleged offenses did not occur on the same day or in the same establishment, the petitioners were all arrested by the same officers, charged with commission of the same acts, represented by the same counsel, tried and convicted by the same judge, and given identical sentences. Because of this factual similarity and the identical nature of the problems involved in granting certiorari, we ordered the cases consolidated for argument and now deem it sufficient to file one opinion. In addition, as the facts are simple, we think it sufficient to recite but one of the cases in detail, noting whatever slight variations exist in the others. </s> In No. 28, Hoston et al. v. Louisiana, Jannette Hoston, a student at Southern University, and six of her colleagues took seats at a lunch counter in Kress' Department Store in Baton Rouge, Louisiana, on March 29, 1960. 2 In Kress', as in Sitman's Drug Store in No. 26 [368 U.S. 157, 160] where Negroes are considered "very good customers," a segregation policy is maintained only with regard to the service of food. 3 Hence, although both stores solicit business from white and Negro patrons, and the latter as well as the former may make purchases in the general merchandise sections without discrimination, 4 the stores do not provide integrated service at their lunch counters. </s> The manager at Kress' store, who was also seated at the lunch counter, told the waitress to advise the students that they could be served at the counter across the aisle, which she did. The petitioners made no response and remained quietly in their seats. After the manager had finished his lunch, he telephoned the police and told them that "[some Negroes] were seated at the counter reserved for whites." The police arrived at the store and ordered the students to leave. The arresting officer testified that the petitioners did and said nothing except that one of them stated that she would like a glass of iced tea, but that he believed they were disturbing the peace "by sitting there." When none of the petitioners showed signs of leaving their seats, they were placed under arrest and taken to the police station. They were then charged with violating Title 14, Article 103 (7), of the Louisiana Criminal Code, a section of the Louisiana disturbance of the peace statute. </s> Before trial, the petitioners moved for a bill of particulars as to the details of their allegedly disruptive behavior and to quash the informations for failure to state any unlawful acts of which they could be constitutionally convicted. The motions were denied, and the [368 U.S. 157, 161] petitioners applied to the Supreme Court of Louisiana for writs of certiorari, prohibition and mandamus to review the rulings. The Supreme Court denied the writs on the ground that an adequate remedy was available through resort to its supervisory jurisdiction in the event of a conviction. The petitioners were then tried and convicted, 5 and sentenced to imprisonment for four months, three months of which would be suspended upon the payment of a fine of $100. Subsequent to their convictions, the Supreme Court, in denying relief on appeal, issued the following oral opinion in each case. </s> "Writs refused. </s> "This court is without jurisdiction to review facts in criminal cases. See Art. 7, Sec. 10, La. Constitution of 1921. </s> "The rulings of the district judge on matters of law are not erroneous. See Town of Ponchatoula vs. Bates, 173 La., 824, 138 So., 851." 6 </s> [368 U.S. 157, 162] </s> Before this Court, petitioners and the amici have presented a number of questions claiming deprivation of rights guaranteed to petitioners by the First and Fourteenth Amendments to the United States Constitution. 7 The petitioners contend: </s> (a) The decision below affirms a criminal conviction based upon no evidence of guilt and, therefore, deprives them of due process of law as defined in Thompson v. City of Louisville, 362 U.S. 199 . </s> (b) The petitioners were convicted of a crime under the provisions of a state statute which, as applied to their acts, is so vague, indefinite and uncertain as to offend the Due Process Clause of the Fourteenth Amendment. </s> (c) The decisions below conflict with the Fourteenth Amendment's guarantee of freedom of expression. </s> (d) The decision below conflicts with prior decisions of this Court which condemn racially discriminatory [368 U.S. 157, 163] administration of State criminal laws in contravention of the Equal Protection Clause of the Fourteenth Amendment. </s> With regard to argument (d), the petitioners and the New York Committee on the Bill of Rights contend that the participation of the police and the judiciary to enforce a state custom of segregation resulted in the use of "state action" and was therefore plainly violative of the Fourteenth Amendment. The petitioners also urge that even if these cases contain a relevant component of "private action," that action is substantially infected with state power and thereby remains state action for purposes of the Fourteenth Amendment. 8 </s> In the view we take of the cases we find it unnecessary to reach the broader constitutional questions presented, and in accordance with our practice not to formulate a rule of constitutional law broader than is required by the precise facts presented in the record, for the reasons hereinafter stated, we hold that the convictions in these cases are so totally devoid of evidentiary support as to render them unconstitutional under the Due Process Clause of the Fourteenth Amendment. 9 As in Thompson v. City of Louisville, 362 U.S. 199 , our inquiry does not turn on a question of sufficiency of evidence to support a conviction, but on whether these convictions rest upon any evidence which would support a finding that the petitioners' [368 U.S. 157, 164] acts caused a disturbance of the peace. In addition, we cannot be concerned with whether the evidence proves the commission of some other crime, for it is as much a denial of due process to send an accused to prison following conviction for a charge that was never made as it is to convict him upon a charge for which there is no evidence to support that conviction. 10 </s> The respondent, in both its brief and its argument to this Court, implied that the evidence proves the elements of a criminal trespass. In oral argument it contended that the real question here "is whether or not a private property owner and proprietor of a private establishment has the right to serve only those whom he chooses and to refuse to serve those whom he desires not to serve for whatever reason he may determine." 11 That this is not a question presented by the records in these cases seems too apparent for debate. Even assuming it were the question, however, which it clearly is not, these convictions could not stand for the reason stated in Cole v. Arkansas, 333 U.S. 196 . 12 </s> [368 U.S. 157, 165] </s> Under our view of these cases, our task is to determine whether there is any evidence in the records to show that the petitioners, by their actions at the lunch counters in the business establishments involved, violated Title 14, Article 103 (7), of the Louisiana Criminal Code. At the time of petitioners' acts, Article 103 provided: </s> "Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: </s> "(1) Engaging in a fistic encounter; or </s> "(2) Using of any unnecessarily loud, offensive, or insulting language; or </s> "(3) Appearing in an intoxicated condition; or </s> "(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or </s> "(5) Holding of an unlawful assembly; or </s> "(6) Interruption of any lawful assembly of people; or </s> "(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public." </s> I. </s> Our initial inquiry is necessarily to determine the type of conduct proscribed by this statute and the elements of guilt which the evidence must prove to support a criminal conviction thereunder. First, it is evident from a reading of the statute that the accused must conduct himself in a manner that would "foreseeably disturb or alarm the public." In addition, when a person is charged with a violation of Paragraph 7, an earlier version of which was aptly described by the Supreme Court of Louisiana as "the general portion of the statute which does not define the `conduct or acts' the members of the Legislature had in mind" (State v. Sanford, 203 La. 961, 967, 14 So.2d 778, [368 U.S. 157, 166] 780), 13 it would also seem apparent from the words of the statute that the acts, whatever they might be, must be done "in such a manner as to [actually] unreasonably disturb or alarm the public." However, because we find the records barren of any evidence that would support a finding that the petitioners' conduct would even "foreseeably" have disturbed the public, we need not consider whether the statute also requires the acts to be done in a manner as actually to disturb the peace. </s> We of course are bound by a State's interpretation of its own statute and will not substitute our judgment for that of the State's when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court. Hence, we must look to Louisiana for guidance in the meaning of the phrase "foreseeably disturb or alarm the public" in order to determine the type of conduct proscribed by La. Rev. Stat., 1950, 14:103 (7). </s> The Supreme Court of Louisiana has had occasion in the past, in interpreting the predecessor of Article 103, 14 to give content to these words, and it is evident from the court's prior treatment of them that they were not [368 U.S. 157, 167] intended to embrace peaceful conduct. On the contrary, it is plain that under the court's application of the statute these words encompass only conduct which is violent or boisterous in itself, or which is provocative in the sense that it induces a foreseeable physical disturbance. 15 In State v. Sanford, 203 La. 961, 14 So.2d 778, the evidence showed that thirty Jehovah's Witnesses approached a Louisiana town for the purpose of distributing religious tracts and persuading the public to make contributions to their cause. The Witnesses were warned by the mayor and police officers that "their presence and activities would cause trouble among the population and asked them to stay away from the town . . . ." 203 La., at 964, 14 So.2d, at 779. The Witnesses failed to yield to the warning and proceeded on their mission. The trial court found that the acts of the Witnesses in entering the town and stopping passers-by in the crowded street "might or would tend to incite riotous and disorderly conduct." 203 La., at 965, 14 So.2d, at 779. The Supreme Court of Louisiana set aside convictions for breach of the peace, holding that the defendants did not commit any unlawful act or pursue any disorderly course of conduct which would tend to disturb the peace, thus, in effect, that peaceful conduct, even though conceivably offensive to another class of the public, is not conduct which may be proscribed by Louisiana's disturbance of the peace statute without evidence that the actor conducted himself in some outwardly unruly manner. </s> The conclusion of the highest Louisiana court that the breach of the peace statute does not reach peaceful and orderly conduct is substantiated by the conclusion drawn from reading the statute as a whole. The catch-all provision under which the petitioners were tried and convicted [368 U.S. 157, 168] follows an enumeration of six specific offenses, each of which describes overtly tumultuous or disruptive behavior. It would therefore normally be interpreted in the light of the preceding sections as an effort to cover other forms of violence or loud and boisterous conduct not already listed. 16 We do not mean to imply that an ejusdem generis reading of the statute is constitutionally compelled to the exclusion of other reasonable interpretations, 17 but we do note that here such a reading is consistent with the Louisiana Supreme Court's application in Sanford. 18 </s> Further evidence that Article 103 (7) was not designed to encompass the petitioners' conduct in these cases has been supplied by the Louisiana Legislature. Shortly after the events for which the petitioners were arrested took place, the legislature amended its disturbance of the peace statute in an obvious attempt to reach the type of activity involved in these cases. 19 The contrast between the language of the present statute and the one under which the petitioners were convicted confirms the interpretation [368 U.S. 157, 169] given the general terms of the latter by the Supreme Court in State v. Sanford and the natural meaning of the words used in Article 103. </s> We are aware that the Louisiana courts have the final authority to interpret and, where they see fit, to reinterpret that State's legislation. However, we have seen no indication that the Louisiana Supreme Court has changed its Sanford interpretation of La. Rev. Stat., 1950, 14:103 (7), and we will not infer that an inferior Louisiana court intended to overrule a long-standing and reasonable interpretation of a state statute by that State's highest court. Our reluctance so to infer is supported, moreover, by the fact that State v. Sanford was argued by the petitioners to both the trial court and the Supreme Court, and that neither court mentioned in its opinion that Sanford was no longer to be the law in Louisiana. </s> We think that the above discussion would give ample support to a conclusion that Louisiana law requires a finding of outwardly boisterous or unruly conduct in order to charge a defendant with "foreseeably" disturbing or alarming the public. However, because this case comes to us from a state court and necessitates a delicate involvement in federal-state relations, we are willing to assume with the respondent that the Louisiana courts might construe the statute more broadly to encompass the traditional common-law concept of disturbing the peace. Thus construed, it might permit the police to prevent an imminent public commotion even though caused by peaceful and orderly conduct on the part of the accused. Cf. Cantwell v. Connecticut, 310 U.S. 296, 308 . We therefore treat these cases as though evidence of such imminent danger, as well as evidence of a defendant's active conduct which is outwardly provocative, could support a finding that the acts might "foreseeably disturb or alarm the public" under the Louisiana statute. [368 U.S. 157, 170] </s> II. </s> Having determined what evidence is necessary to support a finding of disturbing the peace under Louisiana law, the ultimate question, as in Thompson v. City of Louisville, supra, is whether the records in these cases contain any such evidence. With appropriate notations to the slight differences in testimony in the other two cases, we again turn to the record in No. 28. 20 The manager of the department store in which the lunch counter was located testified that after the students had taken their seats at the "white lunch counter" where he was also occupying a seat, he advised the waitress on duty to offer the petitioners service at the counter across the aisle which served Negroes. The petitioners, however, after being "advised that they would be served at the other counter," remained in their seats, and the manager continued eating his lunch at the same counter. In No. 26, where there were no facilities to serve colored persons, the petitioners were merely told that they couldn't be served, but were never even asked to move. In No. 27, a waitress testified that the petitioners were merely told that they would have to go "to the other side to be served." The petitioners not only made no speeches, they did not even speak to anyone except to order food; they carried no placards, and did nothing, beyond their mere presence at the lunch counter, to attract attention to themselves or to others. In none of the cases was there any testimony that the petitioners were told that their mere presence was causing, or was likely to cause, a disturbance of the peace, nor that the petitioners were ever asked to leave the counters or the establishments by anyone connected with the stores. [368 U.S. 157, 171] </s> The manager in No. 28 testified that after finishing his meal he went to the telephone and called the police department, advising them that Negroes were in his store sitting at the lunch counter reserved for whites. This is the only case in which "the owner or his agent" notified the police of the petitioners' presence at the lunch counter, and even here the manager gave no indication to the officers that he feared any disturbance or that he had received any complaint concerning the petitioners' presence. In No. 27, a waitress testified that a bus driver sitting in the restaurant notified the police that "there were several colored people sitting at the lunch counter." 21 In No. 26, the arresting officers were not summoned to the drugstore by anyone even remotely connected with Sitman's but, rather, by a call from an officer on his "beat" who had observed the petitioners sitting quietly at the lunch counter. </s> Although the manager of Kress' Department Store testified that the only conduct which he considered disruptive was the petitioners' mere presence at the counter, he did state that he called the police because he "feared that some disturbance might occur." 22 However, his fear is completely unsubstantiated by the record. The manager continued eating his lunch in an apparently leisurely manner at the same counter at which the petitioners were sitting before calling the police. Moreover, not only did he fail to give the petitioners any warning of his alleged [368 U.S. 157, 172] "fear," 23 but he specifically testified to the fact that the petitioners were never asked to move or to leave the store. Nor did the witness elaborate on the basis of his fear except to state that "it isn't customary for the two races to sit together and eat together." 24 In addition, there is no evidence that this alleged fear was ever communicated to the arresting officers, either at the time the manager made the initial call to police headquarters or when the police arrived at the store. Under these circumstances, the manager's general statement gives no support for the convictions within the meaning of Thompson v. City of Louisville, supra. </s> Subsequent to the manager's notification, the police arrived at the store and, without consulting the manager or anyone else on the premises, went directly to confront the petitioners. An officer asked the petitioners to leave the counter because "they were disturbing the peace and violating the law by sitting there." One of the students stated that she wished to get a glass of iced tea, but she and her friends were told, again by the police, that they were disturbing the peace by sitting at a counter reserved for whites and that they would have to leave. When the petitioners continued to occupy the seats, they were arrested, as the officer testified, for disturbing the peace "[b]y sitting there" "because that place was reserved for white people." The same officer testified that the petitioners had done nothing other than take seats at that particular lunch counter which he considered to be a breach of the peace. 25 </s> [368 U.S. 157, 173] </s> The respondent discusses at length the history of race relations and the high degree of racial segregation which exists throughout the South. Although there is no reference to such facts in the records, the respondent argues that the trial court took judicial notice of the general situation, as he may do under Louisiana law, 26 and that it therefore became apparent to the court that the petitioners' presence at the lunch counters might cause a disturbance which it was the duty of the police to prevent. There is nothing in the records to indicate that the trial judge did in fact take judicial notice of anything. To extend the doctrine of judicial notice to the length pressed by the respondent would require us to allow the prosecution to do through argument to this Court what it is required by due process to do at the trial, and would be "to turn the doctrine into a pretext for dispensing with a trial." Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 302 . Furthermore, unless an accused is informed at the trial of the facts of which the court is taking judicial notice, not only does he not know upon what evidence he is being convicted, but, in addition, he is deprived of any opportunity to challenge the deductions drawn from such notice or to dispute the notoriety or truth of the facts allegedly relied upon. Moreover, there is no way by which an appellate court may review the facts and law of a case and intelligently decide whether the findings of the lower court are supported by the evidence where that evidence is unknown. Such an assumption would be a denial of due process. Ohio Bell, supra. </s> Thus, having shown that these records contain no evidence to support a finding that petitioners disturbed the peace, either by outwardly boisterous conduct or by passive [368 U.S. 157, 174] conduct likely to cause a public disturbance, we hold that these convictions violated petitioners' rights to due process of law guaranteed them by the Fourteenth Amendment to the United States Constitution. The undisputed evidence shows that the police who arrested the petitioners were left with nothing to support their actions except their own opinions that it was a breach of the peace for the petitioners to sit peacefully in a place where custom decreed they should not sit. 27 Such activity, in the circumstances of these cases, is not evidence of any crime and cannot be so considered either by the police or by the courts. </s> The judgments are reversed. </s> Footnotes [Footnote 1 Unless otherwise indicated, the term "petitioners" refers to the petitioners in all three cases, Nos. 26, 27 and 28. </s> [Footnote 2 In No. 26, Garner et al. v. Louisiana, the petitioners, two Negro students at Southern University, took seats at the lunch counter of Sitman's Drug Store in Baton Rouge, and in No. 27, Briscoe et al. v. Louisiana, the lunch counter at which the seven Negro students sought service was in the restaurant section of the Greyhound Bus Terminal in Baton Rouge. </s> [Footnote 3 The same is true, of course, with regard to the bus terminal in No. 27. The terminal itself caters to both races, but separate facilities are maintained for the service of food. </s> [Footnote 4 In No. 26, one of the petitioners had purchased an umbrella in the drugstore just prior to taking his seat at the lunch counter, and had encountered no difficulty in making the purchase. </s> [Footnote 5 Although the problem was exactly the same in all three cases, the trial judge appeared to use different formulae for concluding petitioners' guilt in each opinion. In No. 26, the acts of the petitioners were said to be "an act done in a manner calculated to, and actually did, unreasonably disturb and alarm the public." In No. 27, the very same conduct was said to be "an act on their part as would unreasonably disturb and alarm the public." In No. 28, it was declared that the conduct "foreseeably could alarm and disturb the public." (Emphasis added.) </s> [Footnote 6 The opinions of the Supreme Court of Louisiana are not officially reported. </s> Under Art. 7, Sec. 10, of the Louisiana Constitution, the appellate jurisdiction of the Supreme Court over criminal cases extends only to questions of law, and then only where, inter alia, a fine exceeding three hundred dollars or imprisonment exceeding six months has been imposed. See State v. Di Vincenti, 232 La. 13, 93 So.2d 676; State v. Gaspard, 222 La. 222, 62 So.2d 281; State v. Price, 164 La. 376, 113 So. 882. The Louisiana Supreme Court has held that a question of law is presented, and that a case is thus reviewable, where the contention is that there is no evidence to support an element of the [368 U.S. 157, 162] crime charged. State v. Daniels, 236 La. 998, 109 So.2d 896; State v. Brown, 224 La. 480, 70 So.2d 96; State v. Sbisa, 232 La. 961, 95 So.2d 619, and cases cited at n. 6, 232 La., at 969-970, 95 So.2d, at 622. See Comment, 19 La. L. Rev. 843 (1959). Despite the court's purported review of the questions of law in these cases, the degree of punishment inflicted would deprive the court of appellate jurisdiction under Art. 7, Sec. 10. However, the Supreme Court also has a general supervisory jurisdiction, exercised only in the sound discretion of the court (see State v. Morgan, 204 La. 499, 502, 15 So.2d 866, 867), over all inferior courts under Art. 7, Sec. 10; it appears that this is the provision which the petitioners attempted to invoke with their extraordinary writs in these cases. See also Art. 7, Sec. 2, of the Louisiana Constitution. </s> [Footnote 7 In addition to the petitioners' contentions the United States argues that in No. 27 the petitioners' arrests and convictions deprived them of their rights under the Interstate Commerce Act to service on a nondiscriminatory basis in a restaurant of a bus terminal operated as part of interstate commerce. Cf. Boynton v. Virginia, 364 U.S. 454 . </s> [Footnote 8 The Government, as well as petitioners, points out that in addition to state statutes requiring segregation in specific situations in Louisiana, the Louisiana Legislature in 1960 adopted the following preface to a joint resolution concerning the possible integration of any tax-supported facility in the State: </s> "WHEREAS, Louisiana has always maintained a policy of segregation of the races, and </s> "WHEREAS, it is the intention of the citizens of this sovereign state that such a policy be continued. . . ." Act No. 630 of 1960, to amend Article X of the Louisiana Constitution. </s> [Footnote 9 See Thompson v. City of Louisville, 362 U.S. 199 . </s> [Footnote 10 Cf. Cole v. Arkansas, 333 U.S. 196, 201 . See Thompson v. City of Louisville, 362 U.S. 199, 206 , and the cases cited at footnote 13. </s> [Footnote 11 Counsel for the respondent admitted on oral argument that the Louisiana trespass statute in force at the time of the petitioners' arrests would probably not have applied to these facts. Apparently, the Louisiana Legislature agreed, for, in 1960, subsequent to petitioners' acts, the legislature passed a new criminal trespass statute (La. Rev. Stat., 1950, 14:63.3 (1960 Supp.)), which reads: </s> "No person shall without authority of laws go into or upon . . . any structure . . . which belongs to another . . . after having been forbidden to do so . . . by any owner, lessee, or custodian of the property or by any other authorized person. . . ." </s> We express no opinion whether, on the facts of these cases, the petitioners' conduct would have been unlawful under this statute. </s> [Footnote 12 The Supreme Court of Louisiana has also held that an accused may not be convicted on pleadings which fail to state the specific crime with which he is charged. State v. Morgan, 204 La. 499, 15 So.2d 866 (1943). </s> [Footnote 13 We express no view as to the constitutionality of the petitioners' convictions as attacked by their argument that the statute ( 103 (7)) is so vague and uncertain, with its resulting lack of notice of what conduct the legislature intended to make criminal, as to violate due process. Cf. Lanzetta v. New Jersey, 306 U.S. 451 ; Musser v. Utah. 333 U.S. 95 ; Winters v. New York, 333 U.S. 507 . </s> [Footnote 14 The predecessor of Title 14, Section 103, was Act No. 227 of 1934, which provided, inter alia, "That any person who shall go into any public place, [or] into or near any private house . . . and who shall [shout, swear, expose himself, discharge a firearm] . . . or who shall do any other act, in a manner calculated to disturb or alarm the inhabitants thereof, or persons present . . ." should be adjudged guilty of breaching the peace. In State v. Sanford, 203 La. 961, 14 So.2d 778, discussed immediately following in the text, the defendants were charged, as were the petitioners in the cases at bar, under the general, catch-all provision. </s> [Footnote 15 See Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851 (dictum). </s> [Footnote 16 See 2 Sutherland, Statutes and Statutory Construction, 4909-4910 (Horack ed. 1943). </s> [Footnote 17 Such an interpretation has not been made where there was evidence of a contrary legislative intent or judicial reading. United States v. Alpers, 338 U.S. 680, 682 -683; Gooch v. United States, 297 U.S. 124, 128 ; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 88 -89. </s> [Footnote 18 See also Town of Ponchatoula v. Bates, supra, note 15. </s> [Footnote 19 La. Rev. Stat., 1950, 14:103.1 (1960 Supp.), now reads, in pertinent part, as follows: </s> "A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: </s> . . . . . </s> "(4) refuses to leave the premises of another when requested so to do by any owner, lessee, or any employee thereof, shall be guilty of disturbing the peace." </s> [Footnote 20 In all three cases the prosecution called as witnesses only the arresting officer and an employee from the restaurant in question. In none of the cases did the petitioners themselves testify or introduce any witnesses in their defense. </s> [Footnote 21 There is some inconsistency in the record, not material to our disposition of the case (see No. 28), as to who called the police; a police officer made a statement based on hearsay that the desk sergeant was called by "some woman." </s> [Footnote 22 As noted previously, this is the only case in which a representative of the restaurant called the police. In addition, this is the only case in which there is anything in the record concerning the possibility of a disturbance, and even here it is limited to the manager's single statement noted above. </s> [Footnote 23 Of course, even such a warning was not sufficient evidence to support a finding of breach of the peace in State v. Sanford. </s> [Footnote 24 Compare the basis for the state action in Buchanan v. Warley, 245 U.S. 60 , and Cooper v. Aaron, 358 U.S. 1 . </s> [Footnote 25 The evidence in the records in Nos. 26 and 27 is similar. Each witness called by the State testified that the petitioners were arrested solely because they were Negroes sitting at a white lunch counter. </s> [Footnote 26 La. Rev. Stat., 1950, 15:422 provides that Louisiana courts may take judicial notice of "social and racial conditions prevailing in [the] state." See State v. Bessa et al., 115 La. 259, 38 So. 985. </s> [Footnote 27 Compare the evidence contained in the records in Terminiello v. Chicago, 337 U.S. 1 ; and in Feiner v. New York, 340 U.S. 315 . </s> MR. JUSTICE FRANKFURTER, concurring in the judgment. </s> Whether state statutes are to be construed one way or another is a question of state law, final decision of which rests, of course, with the courts of the State. When as here those courts have not spelled out the meaning of a statute, this Court must extrapolate its allowable meaning and attribute that to the highest court of the State. We must do so in a manner that affords the widest latitude to state legislative power consistent with the United States Constitution. </s> Since La. Rev. Stat., 1950, 14:103 is concededly a statute aimed at "disturbing the peace," we begin with the breadth of meaning derived from that phrase in Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851 (1931). To be sure, that amounted to an abstract discussion and in the limited circumstances considered by the Louisiana Supreme Court in State v. Sanford, 203 La. 961, 14 So.2d 778 (1943), the allowable scope of the statutory prohibition was not fully explored. But construction of the statute to prohibit non-violent, non-religious behavior in a private shop when that behavior has a tendency to disturb [368 U.S. 157, 175] or alarm the public is fairly derivable from a reading of the Sanford opinion. </s> The action of the Louisiana Legislature in amending its statutes after the events now under review took place is not a safe or even relevant guide to the scope of the prior statute. Legislatures not uncommonly seek to make prior law more explicit or reiterate a prohibition by more emphatic concreteness. The rule of evidence that excludes proof of post-injury repairs offers a useful analogy here. See II Wigmore, Evidence, 283 (Third ed. 1940). It is not our province to limit the meaning of a state statute beyond its confinement by reasonably read state-court rulings. </s> Assuming for present purposes the constitutionality of a statute prohibiting non-violent activity that tends to provoke public alarm or disturbance, such a tendency, as a crucial element of a criminal offense, must be established by evidence disclosed in the record to sustain a conviction. A judge's private knowledge, or even "knowledge by notoriety," to use Dean Wigmore's phrase, IX Evidence, 2569 (Third ed. 1940), not presented as part of the prosecution's case capable of being met by a defendant, is not an adequate basis, as a matter of due process, to establish an essential element of what is punished as crime. Thompson v. City of Louisville, 362 U.S. 199 . </s> It may be unnecessary to require formal proof, even as to an issue crucial in determining guilt in a criminal prosecution, of what is incontestably obvious. But some showing cannot be dispensed with when an inference is at all doubtful. And it begs the whole question on the answer to which the validity of these convictions turns to assume that the "public" tended to be alarmed by the conduct of the petitioners here disclosed. See Devlin, L. J., in Dingle v. Associated Newspapers, 1961. 2 Q. B. 162, 198. Conviction under this Louisiana statute cannot be sustained by reliance merely upon likely consequences in the generality of cases. Since particular persons [368 U.S. 157, 176] are being sent to jail for conduct allegedly having a particular effect on a particular occasion under particular circumstances, it becomes necessary to appraise that conduct and effect by the particularity of evidence adduced. </s> The records in these cases, whatever variance in unimportant details they may show, contain no evidence of disturbance or alarm in the behavior of the cafe employees or customers or even passers-by, the relevant "public" fairly in contemplation of these charges. What they do show was aptly summarized both in the testimony of the arresting police and in the recitation of the trial judge as the "mere presence" of the petitioners. </s> Silent persistence in sitting after service is refused could no doubt conceivably exacerbate feelings to the boiling point. It is not fanciful speculation, however, that a proprietor who invites trade in most parts of his establishment and restricts it in another may change his policy when non-violently challenged. * With records as barren as these of evidence from which a tendency to disturb or alarm the public immediately involved can be drawn, there is nothing before us on which to sustain such an inference from what may be hypothetically lodged in the unopened bosom of the local court. </s> Since the "mere presence" that these records prove has, in any event, not been made a crime by the Louisiana statute under which these petitioners were charged, their convictions must be reversed. </s> [Footnote * If it were clear from these records that the proprietors involved had changed their policies and consented to the petitioners' remaining, we would, of course, have an entirely different case. </s> MR. JUSTICE DOUGLAS, concurring. </s> If these cases had arisen in the Pacific Northwest - the area I know best - I could agree with the opinion of the Court. For while many communities north and south, east and west, at times have racial problems, those areas which have never known segregation would not be [368 U.S. 157, 177] inflamed or aroused by the presence of a member of a minority race in a restaurant. But in Louisiana racial problems have agitated the people since the days of slavery. The landmark case of Plessy v. Ferguson, 163 U.S. 537 - the decision that announced in 1896 the now-repudiated doctrine of "separate but equal" facilities for whites and blacks - came from Louisiana which had enacted in 1890 a statute requiring segregation of the races on railroad trains. In the environment of a segregated community I can understand how the mere presence of a Negro at a white lunch counter might inflame some people as much as fisticuffs would in other places. For the reasons stated by MR. JUSTICE HARLAN in these cases, I read the Louisiana opinions as meaning that this law includes "peaceful conduct of a kind that foreseeably may lead to public disturbance" - a kind of "generally known condition" that may be "judicially noticed" even in a criminal case. </s> This does not mean that the police were justified in making these arrests. For the police are supposed to be on the side of the Constitution, not on the side of discrimination. Yet if all constitutional questions are to be put aside and the problem treated merely in terms of disturbing the peace, I would have difficulty in reversing these judgments. I think, however, the constitutional questions must be reached and that they make reversal necessary. </s> Restaurants, whether in a drugstore, department store, or bus terminal, are a part of the public life of most of our communities. Though they are private enterprises, they are public facilities in which the States may not enforce a policy of racial segregation. </s> I. </s> It is, of course, state action that is prohibited by the Fourteenth Amendment, not the actions of individuals. So far as the Fourteenth Amendment is concerned, individuals [368 U.S. 157, 178] can be as prejudiced and intolerant as they like. They may as a consequence subject themselves to suits for assault, battery, or trespass. But those actions have no footing in the Federal Constitution. The line of forbidden conduct marked by the Equal Protection Clause of the Fourteenth Amendment is crossed only when a State makes prejudice or intolerance its policy and enforces it, as held in the Civil Rights Cases, 109 U.S. 3 . Mr. Justice Bradley, speaking for the Court, said: ". . . civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings." Id., at 17. (Italics added.) </s> State policy violative of the Fourteenth Amendment may be expressed in legislative enactments that permit or require segregation of the races in public places or public facilities (Brown v. Board of Education, 347 U.S. 483 ) or in residential areas. Buchanan v. Warley, 245 U.S. 60 . </s> It may be expressed through executive action, as where the police or other law enforcement officials act pursuant to, or under color of, state law. See, e. g., Screws v. United States, 325 U.S. 91 ; Monroe v. Pape, 365 U.S. 167 . </s> It may be expressed through the administrative action of state agencies in leasing public facilities. Burton v. Wilmington Parking Authority, 365 U.S. 715 . </s> It may result from judicial action, as where members of a race are systematically excluded from juries (Hernandez v. Texas, 347 U.S. 475 ), or where restrictive covenants based on race are enforced by the judiciary (Barrows v. Jackson, 346 U.S. 249 ), or where a state court fines or imprisons a person for asserting his federal right to use the facilities of an interstate bus terminal, Boynton v. Virginia, 364 U.S. 454 . </s> As noted, Mr. Justice Bradley suggested in the Civil Rights Cases, supra, that state policy may be as effectively [368 U.S. 157, 179] expressed in customs as in formal legislative, executive, or judicial action. </s> It was indeed held in Baldwin v. Morgan, 287 F.2d 750, 756, that the "custom, practice and usage" of a city and its police in arresting four Negroes for using "white" waiting rooms was state action in violation of the Fourteenth Amendment, even though no ordinance was promulgated and no order issued. In the instant cases such an inference can be drawn from the totality of circumstances permeating the environment where the arrests were made - not an isolated arrest but three arrests; not arrests on account of fisticuffs but arrests because the defendants were Negroes seeking restaurant service at counters and tables reserved for "whites." </s> There is a deep-seated pattern of segregation of the races in Louisiana, 1 going back at least to Plessy v. Ferguson, supra. It was restated in 1960 - the year in which petitioners were arrested and charged for sitting in white restaurants - by Act No. 630, which in its preamble states: </s> "WHEREAS, Louisiana has always maintained a policy of segregation of the races, and [368 U.S. 157, 180] </s> "WHEREAS, it is the intention of the citizens of this sovereign state that such a policy be continued." La. Acts 1960, p. 1200. </s> Louisiana requires that all circuses, shows, and tent exhibitions to which the public is invited have one entrance for whites and one for Negroes. La. Rev. Stat., 1950, 4:5. No dancing, social functions, entertainment, athletic training, games, sports, contests "and other such activities involving personal and social contacts" may be open to both races. 4:451 (1960 Supp.). Any public entertainment or athletic contest must provide separate seating arrangements and separate sanitary drinking water and "any other facilities" for the two races. 4:452 (1960 Supp.). Marriage between members of the two races is banned. 14:79. Segregation by race is required in prisons. 15:752. The blind must be segregated. 17:10. Teachers in public schools are barred from advocating desegregation of the races in the public school system. 17:443, 17:462. So are other state employees. 17:523. Segregation on trains is required. 45:528-45:532. Common carriers of passengers must provide separate waiting rooms and reception room facilities for the two races ( 45:1301 (1960 Supp.)) and separate toilets and separate facilities for drinking water as well. 45:1303 (1960 Supp.). Employers must provide separate sanitary facilities for the two races. 23:971 (1960 Supp.). Employers must also provide separate eating places in separate rooms and separate eating and drinking utensils for members of the two races. 23:972 (1960 Supp.). Persons of one race may not establish their residence in a community of another race without approval of the majority of the other race. 33:5066. Court dockets must reveal the race of the parties in divorce actions. 13:917. And all public parks, recreation centers, playgrounds, community centers and "other such facilities at which swimming, dancing, golfing, skating or other recreational activities are [368 U.S. 157, 181] conducted" must be segregated. 33:4558.1 (1960 Supp.). </s> Though there may have been no state law or municipal ordinance that in terms required segregation of the races in restaurants, it is plain that the proprietors in the instant cases were segregating blacks from whites pursuant to Louisiana's custom. Segregation is basic to the structure of Louisiana as a community; the custom that maintains it is at least as powerful as any law. If these proprietors also choose segregation, their preference does not make the action "private," rather than "state," action. If it did, a miniscule of private prejudice would convert state into private action. Moreover, where the segregation policy is the policy of a State, it matters not that the agency to enforce it is a private enterprise. Baldwin v. Morgan, supra; Boman v. Birmingham Transit Co., 280 F.2d 531. </s> II. </s> It is my view that a State may not constitutionally enforce a policy of segregation in restaurant facilities. Some of the argument assumed that restaurants are "private" property in the sense that one's home is "private" property. They are, of course, "private" property for many purposes of the Constitution. Yet so are street railways, power plants, warehouses, and other types of enterprises which have long been held to be affected with a public interest. Where constitutional rights are involved, the proprietary interests of individuals must give way. Towns, though wholly owned by private interests, perform municipal functions and are held to the same constitutional requirements as ordinary municipalities. Marsh v. Alabama, 326 U.S. 501 . State regulation of private enterprise falls when it discriminates against interstate commerce. Port Richmond Ferry v. Hudson County, 234 U.S. 317 . State regulation of private enterprise that results in impairment of other constitutional [368 U.S. 157, 182] rights should stand on no firmer footing, at least in the area where facilities of a public nature are involved. </s> Long before Chief Justice Waite wrote the opinion in Munn v. Illinois, 94 U.S. 113 , holding that the prices charged by grain warehouses could be regulated by the State, a long list of businesses had been held to be "affected with a public interest." Among these were ferries, common carriers, hackmen, bakers, millers, wharfingers, and innkeepers. Id., at 125. The test used in Munn v. Illinois was stated as follows: "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large." Id., at 126. In reply to the charge that price regulation deprived the warehousemen of property, Chief Justice Waite stated, "There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner." Id., at 133. </s> There was a long span between Munn v. Illinois and Nebbia v. New York, 291 U.S. 502 , which upheld the power of a State to fix the price of milk. A business may have a "public interest" even though it is not a "public utility" in the accepted sense, even though it enjoys no franchise from the State, and even though it enjoys no monopoly. Id., at 534. The examples cover a wide range from price control to prohibition of certain types of business. Id., at 525-529. Various systems or devices designed by States or municipalities to protect the wholesomeness of food in the interests of health are deep-seated as any exercise of the police power. Adams v. Milwaukee, 228 U.S. 572 . </s> Years ago Lord Chief Justice Hale stated in De Portibus Maris, 1 Harg. Law Tracts 78, ". . . if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected with a public interest." Those who run a retail establishment under permit [368 U.S. 157, 183] from a municipality operate, in my view, a public facility in which there can be no more discrimination based on race than is constitutionally permissible in the more customary types of public facility. </s> Under Louisiana law, restaurants are a form of private property affected with a public interest. Local boards of health are given broad powers. La. Rev. Stat., 1950, 40:35, 33:621. The City of Baton Rouge in its City Code requires all restaurants to have a permit. Tit. 6, c. 7, 601. The Director of Public Health is given broad powers of inspection and permits issued can be suspended. Id. 603. Permits are not transferable. Id. 606. One who operates without a permit commits a separate offense each day a violation occurs. Id. 604. Moreover, detailed provisions are made concerning the equipment that restaurants must have, the protection of ready-to-eat foods and drink, and the storage of food. Id. 609. </s> Restaurants, though a species of private property, are in the public domain. Or to paraphrase the opinion in Nebbia v. New York, supra, restaurants in Louisiana have a "public consequence" and "affect the community at large." 291 U.S. 502, 533 . </s> While the concept of a business "affected with a public interest" normally is used as a measure of a State's police power over it, it also has other consequences. A State may not require segregation of the races in conventional public utilities any more than it can segregate them in ordinary public facilities. 2 As stated by the court in [368 U.S. 157, 184] Boman v. Birmingham Transit Co., 280 F.2d 531, 535, a public utility "is doing something the state deems useful for the public necessity or convenience." It was this idea that the first Mr. Justice Harlan, dissenting in Plessy v. Ferguson, supra, advanced. Though a common carrier is private enterprise, "its work," he maintained, is public. Id., at 554. And there can be no difference, in my view, between one kind of business that is regulated in the public interest and another kind so far as the problem of racial segregation is concerned. I do not believe that a State that licenses a business can license it to serve only whites or only blacks or only yellows or only browns. Race is an impermissible classification when it comes to parks or other municipal facilities by reason of the Equal Protection Clause of the Fourteenth Amendment. By the same token, I do not see how a State can constitutionally exercise its licensing power over business either in terms or in effect to segregate the races in the licensed premises. The authority to license a business for public use is derived from the public. Negroes are as much a part of that public as are whites. A municipality granting a license to operate a business for the public represents Negroes as well as all other races who live there. A license to establish a restaurant is a license to establish a public facility and necessarily imports, in law, equality of use for all members of the public. I see no way whereby licenses issued by a State to serve the public can be distinguished from leases of public facilities (Burton v. Wilmington Parking Authority, supra) for that end. </s> One can close the doors of his home to anyone he desires. But one who operates an enterprise under a [368 U.S. 157, 185] license from the government enjoys a privilege that derives from the people. Whether retail stores, not licensed by the municipality, stand on a different footing is not presented here. But the necessity of a license shows that the public has rights in respect to those premises. The business is not a matter of mere private concern. Those who license enterprises for public use should not have under our Constitution the power to license it for the use of only one race. For there is the overriding constitutional requirement that all state power be exercised so as not to deny equal protection to any group. As the first Mr. Justice Harlan stated in dissent in Plessy v. Ferguson, supra, at 559, ". . . in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind . . . ." </s> [Footnote 1 Article 135 of Louisiana's 1868 Constitution forbade segregation of the races in public schools. But that prohibition was dropped from Louisiana's 1879 Constitution. The latter by Article 231 authorized the establishment of a university for Negroes. </s> Woodward, Strange Career of Jim Crow (1955), pp. 7-8: </s> ". . . In bulk and detail as well as in effectiveness of enforcement the segregation codes were comparable with the black codes of the old regime, though the laxity that mitigated the harshness of the black codes was replaced by a rigidity that was more typical of the segregation code. That code lent the sanction of law to a racial ostracism that extended to churches and schools, to housing and jobs, to eating and drinking. Whether by law or by custom, that ostracism eventually extended to virtually all forms of public transportation, to sports and recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to funeral homes, morgues, and cemeteries." </s> [Footnote 2 We have held on numerous occasions that the States may not use their powers to enforce racial segregation in public facilities. Mayor and City Council of Baltimore City v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses); Gayle v. Browder, 352 U.S. 903 (1956) (buses operated on city streets); New Orleans City Park Improvement Association v. Detiege, 358 U.S. 54 (1958) (golf course and city parks). For decisions of the lower federal courts holding racial segregation unconstitutional as applied to facilities open [368 U.S. 157, 184] to public enjoyment and patronage, see Department of Conservation & Development, Division of Parks, of Virginia, v. Tate, 231 F.2d 615 (state park); City of St. Petersburg v. Alsup, 238 F.2d 830 (municipal beach and swimming pool); Morrison v. Davis, 252 F.2d 102 (public transportation facilities). </s> MR. JUSTICE HARLAN, concurring in the judgment. </s> I agree that these convictions are unconstitutional, but not for the reasons given by the Court. Relying on Thompson v. City of Louisville, 362 U.S. 199 , the Court strikes down the convictions on the ground that there is no evidence whatever to support them. In my opinion the Thompson doctrine does not fit these cases. However, I believe the convictions are vulnerable under the Fourteenth Amendment on other grounds: (1) the kind of conduct revealed in Garner, No. 26, and in Hoston, No. 28, could not be punished under a generalized breach of the peace provision, such as Art. 103 (7), La. Crim. Code; 1 (2) Art. 103 (7) as applied in Briscoe, No. 27 (as [368 U.S. 157, 186] well as in the Garner and Hoston cases) is unconstitutionally vague and uncertain. </s> The Court's reversal for lack of evidence rests on two different views of Art. 103 (7). First, it is said that the statute, as construed by the Louisiana courts, reaches at most only "violent," "boisterous," or "outwardly provocative" conduct that may foreseeably induce a public disturbance. On this view, these cases are found evidentially wanting because the petitioners' conduct, being entirely peaceful, was not of the character proscribed by the statute so construed. Alternatively, it is recognized that the statute is susceptible of a construction that would embrace as well other kinds of conduct having the above effect. On that view, the convictions are also found evidentially deficient, in that petitioners' conduct, so it is said, could not properly be taken as having any tendency to cause a public disturbance. In my opinion, the first of these holdings cannot withstand analysis with appropriate regard for the limitations upon our powers of review over state criminal cases; the second holding rests on untenable postulates as to the law of evidence. </s> I. </s> Turning to the first holding, it goes without saying that we are not at liberty to determine for ourselves the scope [368 U.S. 157, 187] of this Louisiana statute. That was a function belonging exclusively to the state courts, and their interpretation is binding on us. E. g., Appleyard v. Massachusetts, 203 U.S. 222, 227 ; Hebert v. Louisiana, 272 U.S. 312, 316 ; Williams v. Oklahoma, 358 U.S. 576, 583 . For me, the Court's view that the statute covers only nonpeaceful conduct is unacceptable, since I believe that the Louisiana Supreme Court decided the opposite in these very cases. I think the State Supreme Court's refusal to review these convictions, taken in light of its assertion that the "rulings of the district judge on matters of law are not erroneous," must be accepted as an authoritative and binding state determination that the petitioners' activities, as revealed in these records, did violate the statute; in other words that, contrary to what this Court now says in Part I of its opinion, the enactment does cover peaceful conduct of a kind that foreseeably may lead to public disturbance. 2 </s> This Court's view of the statute rests primarily, if not entirely, on an earlier Louisiana case, State v. Sanford, 203 La. 961, 14 So.2d 778, involving a different, but comparable, breach of the peace statute. That case is regarded as establishing that breaches of the peace under Louisiana law are confined to nonpeaceful conduct. While I do not find the Sanford case as "plain" as the Court does (infra, pp. 191-192), that earlier holding cannot in any event be deemed controlling on the significance to be attributed to the action of the State Supreme Court in [368 U.S. 157, 188] these cases. There can be no doubt that Louisiana had to follow the principles of Sanford only to the extent that it felt bound by stare decisis. A departure from precedent may have been wrong, unwise, or even unjust, but it was not unconstitutional. Patterson v. Colorado, 205 U.S. 454, 461 . 3 See also Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673, 680 , and cases there cited; cf. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 . </s> More basically, established principles of constitutional adjudication require us to consider that the Louisiana Supreme Court's refusal to review these cases signifies a holding that the breach of the peace statute which controls these cases does embrace the conduct of the petitioners, peaceful though it was. </s> These state judgments come to us armored with a presumption that they are not founded "otherwise than is required by the fundamental law of the land," Ex parte Royall, 117 U.S. 241, 252 (see also Darr v. Burford, 339 U.S. 200, 205 ), comparable to the presumption which has always attached to state legislative enactments. See, e. g., Butler v. Pennsylvania, 10 How. 402, 415. That presumption should render impermissible an interpretation of these judgments as resting on the view that the relevant breach of the peace statute reaches only unruly [368 U.S. 157, 189] behavior. For, on the Court's premise that there is no evidence of that kind of behavior, such an interpretation in effect attributes to the Louisiana Supreme Court a deliberately unconstitutional decision, under principles established by Thompson v. City of Louisville, supra, which had already been decided at the time these cases came before the Louisiana courts. </s> Moreover, the kind of speculation in which the Court has indulged as to the meaning of the Louisiana statute is surely out of keeping with the principle that federal courts should abstain from constitutional decision involving doubtful state law questions until a clarifying adjudication on them has first been obtained from the state courts. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500 ; Harrison v. N. A. A. C. P., 360 U.S. 167 . Cf. Glenn v. Field Packing Co., 290 U.S. 177 ; Leiter Minerals, Inc., v. United States, 352 U.S. 220, 228 -229; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 . If there be doubt as to how the statute was construed in this respect, the cases should be returned to the Louisiana Supreme Court for clarification of its judgments. See Herb v. Pitcairn, 324 U.S. 117 . </s> Our recent decision in Thompson v. City of Louisville, 362 U.S. 199 , cannot well be taken as justification for considering the judgments under review as other than a holding by Louisiana's highest court that breach of the peace under then existing state law may include conduct that in itself is peaceful. In Thompson, the petitioner was convicted of two offenses defined by ordinances of the City of Louisville. One of these ordinances, prohibiting loitering, expressly enumerated three elements of the offense. The prosecution introduced no evidence to establish any of these definitely prescribed components, which were not suggested to have, by virtue of state judicial interpretation, any other than their plain meaning. We held that "Under the words of the ordinance itself," there was no evidence to support the conviction. [368 U.S. 157, 190] </s> The other offense of which the petitioner in Thompson was convicted was "disorderly conduct," not at all defined in the ordinance. The only evidence in the record relating to conduct which might conceivably have come within the prohibited scope indicated was that the petitioner was "argumentative" with the arresting officers. We said of this conviction ( 362 U.S., at 206 ): "We assume, for we are justified in assuming, that merely `arguing' with a policeman is not, because it could not be, `disorderly conduct' as a matter of the substantive law of Kentucky. See Lanzetta v. New Jersey, 306 U.S. 451 ." In other words, we held that the ordinance could not, for want of adequate notice, constitutionally be construed by the Kentucky courts to cover the activity for which the city sought to punish the petitioner. </s> Where, as was true of the disorderly conduct charge in Thompson, application of a generally drawn state statute or municipal ordinance to the conduct of a defendant would require a constitutionally impermissible construction of the enactment, we are not bound by the state court's finding that the conduct was criminal. In the cases now before us, however, the Court does not suggest that Louisiana's disturbance of the peace statute was too vague to be constitutionally applied to the conduct of the petitioners. I think we are obliged, because of the state courts' dispositions of these cases, to hold that there was presented at petitioners' trials evidence of criminal conduct under Louisiana law. Herndon v. Lowry, 301 U.S. 242, 255 . </s> Thompson v. Louisville should be recognized for what it is, a case involving a situation which, I think it fair to say, was unique in the annals of the Court. The case is bound to lead us into treacherous territory, unless we apply its teaching with the utmost circumspection, and with due sense of the limitations upon our reviewing authority. [368 U.S. 157, 191] </s> The Court's holding on this phase of the matter also suffers from additional infirmities. I do not think that State v. Sanford, the cornerstone of this branch of the Court's opinion, is as revealing upon the meaning of breach of the peace under Louisiana law as the Court would make it seem. In that case the Louisiana Supreme Court reversed the convictions, under the then breach of the peace statute, of four Jehovah's Witnesses who had solicited contributions and distributed pamphlets in a Louisiana town, with an opinion which cited, inter alia, Cantwell v. Connecticut, 310 U.S. 296 , and Martin v. Struthers, 319 U.S. 141 . Reference was made to "the provisions of the Constitution of the United States guaranteeing freedom of religion, of the press and of speech." 203 La., at 968, 14 So.2d, at 780. The court said, most clearly, "The application of the statute by the trial judge to the facts of this case and his construction thereof would render it unconstitutional under the above Federal authorities." 203 La., at 970, 14 So.2d, at 780-781. In addition, the opinion noted, conviction under the statute might violate the Louisiana Constitution "because it is well-settled that no act or conduct, however reprehensible, is a crime in Louisiana, unless it is defined and made a crime clearly and unmistakably by statute." 203 La., at 970, 14 So.2d, at 781. In the concluding part of its opinion the Louisiana Supreme Court also said what this Court now considers to be the sole ground of its decision: "It is our opinion that the statute is inapplicable to this case because it appears that the defendants did not commit any unlawful act or pursue an unlawful or disorderly course of conduct which would tend to disturb the peace." 203 La., at 970, 14 So.2d, at 781. </s> Thus, a full reading of Sanford will disclose that there were at least three considerations which led to the result: (1) the likelihood that a contrary holding would violate provisions of the Federal Constitution relating to religion, [368 U.S. 157, 192] speech, and press under the principles declared in then-recent decisions of this Court; (2) the possibility that the statute was too vague and unclear under the Louisiana Constitution adequately to define the bounds of the conduct being declared criminal; (3) the unfairness of convicting under a general breach of the peace statute persons engaged in such peaceable religious activity. </s> The Court now isolates this last factor from this multifaceted opinion, and, using it as an immutable measure of what Louisiana law requires, declares that the present convictions must fall because the standard so unclearly set out in Sanford has not been met. Apart from other considerations already discussed, I am not prepared to rest a constitutional decision on so insecure a foundation. </s> It is further significant that the State Supreme Court's order refusing to review the present cases does not cite State v. Sanford, but rather relies on another earlier case, Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851. The Bates decision, upholding the constitutionality of an ordinance making it a crime "to engage in a fight or in any manner disturb the Peace," defined disturbance of the peace as "any act or conduct of a person which molests the inhabitants in the enjoyment of that peace and quiet to which they are entitled, or which throws into confusion things settled, or which causes excitement, unrest, disquietude, or fear among persons of ordinary, normal temperament." 173 La., at 828, 138 So., at 852. Such a definition would of course bring within the compass of the statute even peaceful activity, so long as it threw "into confusion things settled," or caused disquietude among ordinary members of the community. I think it was that construction which the Louisiana Supreme Court placed upon the breach of the peace statute involved in the cases now before us. [368 U.S. 157, 193] </s> II. </s> The alternative holding of the Court in Part II of its opinion also stands on unsolid foundations. Conceding that this breach of the peace statute "might" be construed to cover peaceful conduct carried on "in such a manner as would foreseeably disturb or alarm the public," the Court holds that there was no evidence that petitioners' conduct tended to disturb or alarm those who witnessed their activity. </s> There is, however, more to these cases than what physically appears in the record. It is an undisputed fact that the "sit-in" program, of which petitioners' demonstrations were a part, had caused considerable racial tension in various States, including Louisiana. Under Louisiana law, La. Rev. Stat., 1950, 15:422, Louisiana courts may take judicial notice of "the political, social and racial conditions prevailing in this state." State v. Bessa, 115 La. 259, 38 So. 985. This Court holds, nonetheless, that the Louisiana courts could not, consistently with the procedural guarantees of the Fourteenth Amendment, judicially notice the undisputed fact that there was racial tension in and around Baton Rouge on March 28 and 29, 1960 (the dates of these "sit-ins"), without informing the parties that such notice was being taken, and without spreading the source of the information on the record. </s> Support for this constitutional proposition is found in Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 302 -303. The Court there held that it was repugnant to the Fourteenth Amendment for a state agency to deprive the telephone company of property on the basis of rates set by a precise mathematical computation derived from undisclosed statistics. This was because the procedure afforded no opportunity for rebuttal with respect to the underlying data, and for possible demonstration [368 U.S. 157, 194] that the figures should not be judicially noticed, since their source was unknown and the statistics were not disclosed to any reviewing court. See Morgan, Some Problems of Proof (1956), 56. </s> The situation we have here is quite different. The existence of racial tensions, of which the Louisiana courts must have taken judicial notice in order to find that petitioners' conduct alarmed or disturbed the public, was notorious throughout the community and, indeed, throughout that part of the United States. The truth of that proposition is not challenged, nor is any particular authority required to confirm it. This kind of generally known condition may be judicially noticed by trial and appellate courts without prior warning to the parties, since it does not require any foundation establishing the accuracy of a specific source of information. See Uniform Rules of Evidence, 9 (2) (c); ALI, Model Code of Evidence, Rule 802 (c); 1 Morgan, Basic Problems of Evidence (1954), 9-10. Cf. Mills v. Denver Tramway Corp., 155 F.2d 808 (C. A. 10th Cir.). I perceive no reason why that principle should be considered as applying only in civil cases, and I am not aware of any American authority which so holds. </s> Indeed, the fact of which I think we must consider judicial notice was taken in this instance was so notorious throughout the country that far from its being unconstitutional for a court to take it into consideration, it would be quite amiss for us not to deem that the Louisiana courts did so on their own initiative. See, e. g., Uniform Rules of Evidence, 9 (1); cf. Note, 12 Va. L. Rev. 154 (1925), and cases there cited. It might have been procedurally preferable had the trial judge announced to the parties that he was taking judicial notice, as is suggested in Model Code of Evidence, Rule 804. But we would be exalting the sheerest of technicalities were we to hold that a conviction is constitutionally [368 U.S. 157, 195] void because of a judge's failure to declare that he has noticed a common proposition when, at no stage in the proceeding, is it suggested that the proposition may be untrue. Whether a trial judge need notify the parties of his intention to take judicial notice of "routine matters of common knowledge which . . . [he] would notice as a matter of course" is best left to his "reasonable discretion." McCormick, Evidence (1954), 708. Appellate courts have always reserved the authority to notice such commonly known propositions as are needed to support the judgment of a lower court, even if no express reference has been made below. See Comment, 42 Mich. L. Rev. 509, 512-513 (1943). </s> Moreover, in this instance, the fact that the trial court had taken judicial notice of the impact of petitioners' conduct, which indeed had obviously been engaged in for the very purpose of producing an impact on others in this field of racial relations, albeit, I shall assume, with the best of motives, could hardly have failed to cross the minds of petitioners' counsel before the trial had ended. They however neither sought to introduce countervailing evidence on that issue, nor have they undertaken at any stage of these proceedings, including that in this Court, to question the availability of judicial notice on this aspect of the State's case. </s> Were we to follow the reasoning of the majority opinion where it would logically lead, this Court would be violating due process every time it noticed a generally known fact without first calling in the parties to apprise them of its intention. Yet without any such notification this Court has many times taken judicial notice of well-known economic and social facts, e. g., Atchison, Topeka & S. F. R. Co. v. United States, 284 U.S. 248, 260 ; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398 -400; Hoyt v. Florida, ante, p. 57, at p. 62, and even of the tendency of [368 U.S. 157, 196] particular epithets to cause a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 574 . </s> It is no answer to say in these cases that while it was permissible for the Louisiana courts to take judicial notice of racial conditions generally, they could not take notice of the particular conditions on the premises involved in these prosecutions. In the absence of contrary evidence, it was certainly not constitutionally impermissible for the Louisiana courts to consider that the racial conditions in Baton Rouge and in the establishments where petitioners sat were not dissimilar to those existing throughout the State. Judicial notice of racial conditions in a State has sufficient probative value in determining what were the racial conditions at a particular location within the State to withstand constitutional attack. Reversing these convictions for want of evidence of racial tension would in effect be putting this Court into the realm of reviewing the sufficiency of the evidence to support these convictions, something which both Thompson v. City of Louisville, supra, at 199, and the Court's opinion in the present cases, ante, p. 163, recognize is not properly within our purview. </s> In my opinion, skimpy though these records are, the convictions do not fall for want of evidence, in the constitutional sense. </s> III. </s> Were there no more to these cases, I should have to vote to affirm. But in light of principles established by Cantwell v. Connecticut, 310 U.S. 296 , and consistently since recognized, I think the convictions are subject to other constitutional infirmities. </s> At the outset it is important to focus on the precise factual situation in each of these cases. Common to all three are the circumstances that petitioners were given the invitation extended to the public at large to patronize [368 U.S. 157, 197] these establishments; that they were told that they could be served food only at the Negro lunch counters; that their conduct was not unruly or offensive; and that none of them was ever asked by the owners or their agents to leave the establishments. While in Briscoe, No. 27, there was some very slight, but in my view constitutionally adequate, evidence that those petitioners were expressly asked "to move" from the "white" lunch counter, 4 and undisputed evidence that they did not do so, in Garner, No. 26, and Hoston, No. 28, there was no evidence whatever of any express request to the petitioners in those cases that they move from the "white" lunch counters where they were sitting. </s> Nor do I think that any such request is fairly to be implied from the fact that petitioners were told by the management that they could not be served food at such counters. The premises in both instances housed merchandising establishments, a drugstore in Garner, a department store in Hoston, which solicited business from all comers to the stores. I think the reasonable inference is that the management did not want to risk losing Negro patronage in the stores by requesting these petitioners to leave the "white" lunch counters, preferring to rely on the hope that the irritations of white customers or the [368 U.S. 157, 198] force of custom would drive them away from the counters. 5 This view seems the more probable in circumstances when, as here, the "sitters' " behavior was entirely quiet and courteous, and, for all we know, the counters may have been only sparsely, if to any extent, occupied by white persons. 6 </s> In short, I believe that in the Garner and Hoston cases the records should be taken as indicating that the petitioners remained at the "white" lunch counters with the [368 U.S. 157, 199] implied consent of the management, 7 even though a similar conclusion may not be warranted in the Briscoe case. Under these circumstances, applying principles announced in Cantwell, I would hold all these convictions offensive to the Fourteenth Amendment, in that: (1) in Garner and Hoston petitioners' conduct, occurring with the managements' implied consent, was a form of expression within the range of protections afforded by the Fourteenth Amendment which could in no event be punished by the State under a general breach of the peace statute; and (2) in Briscoe, while petitioners' "sitting," over the management's objection, cannot be deemed to be within the reach of such protections, their convictions must nonetheless fall because the Louisiana statute, as there applied (and a fortiori as applied in the other two cases), was unconstitutionally vague and uncertain. </s> In the Cantwell was a Jehovah's Witness had been convicted for breach of the peace under a Connecticut statute embracing what was considered to be the common-law concept of that offense. 8 "The facts which were held [368 U.S. 157, 200] to support the conviction . . . were that he stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record `Enemies,' which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cantwell [the defendant] unless he went away. On being told to be on his way he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed." 310 U.S., at 302 -303. </s> Accepting the determination of the state courts that although the defendant himself had not been disorderly or provocative, his conduct under Connecticut law nonetheless constituted a breach of the peace because of its tendency to inflame others, this Court reversed. Starting from the premise that the "fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment," the Court found that the defendant's activities fell within the protection granted to the "free exercise" of religion. Then recognizing the danger to such liberties of "leaving to the executive and judicial branches too wide a discretion" in the application of a statute "sweeping in a great variety of conduct under a general and indefinite characterization," the Court held that the defendant's activities could not constitutionally be reached under a general breach of the peace statute, but only under one specifically and narrowly aimed at such conduct. 310 U.S., at 307 -308. The Court stated: </s> "Although the contents of the [phonograph] record not unnaturally aroused animosity, we think that, in [368 U.S. 157, 201] the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question." [Citing to such cases as Schenck v. United States, 249 U.S. 47 .] 310 U.S., at 311 . </s> I think these principles control the Garner and Hoston cases. There was more to the conduct of those petitioners than a bare desire to remain at the "white" lunch counter and their refusal of a police request to move from the counter. We would surely have to be blind not to recognize that petitioners were sitting at these counters, where they knew they would not be served, in order to demonstrate that their race was being segregated in dining facilities in this part of the country. </s> Such a demonstration, in the circumstances of these two cases, is as much a part of the "free trade in ideas," Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting), as is verbal expression, more commonly thought of as "speech." It, like speech, appeals to good sense and to "the power of reason as applied through public discussion," Whitney v. California, 274 U.S. 357, 375 (Brandeis, J., concurring), just as much as, if not more than, a public oration delivered from a soapbox at a street corner. This Court has never limited the right to speak, a protected "liberty" under the Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 666 , to mere verbal expression. Stromberg v. California, 283 U.S. 359 ; Thornhill v. Alabama, 310 U.S. 88 ; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633 -634. See also N. A. A. C. P. v. Alabama, 357 U.S. 449, 460 . [368 U.S. 157, 202] If the act of displaying a red flag as a symbol of opposition to organized government is a liberty encompassed within free speech as protected by the Fourteenth Amendment, Stromberg v. California, supra, the act of sitting at a privately owned lunch counter with the consent of the owner, as a demonstration of opposition to enforced segregation, is surely within the same range of protections. This is not to say, of course, that the Fourteenth Amendment reaches to demonstrations conducted on private property over the objection of the owner (as in Briscoe), just as it would surely not encompass verbal expression in a private home if the owner has not consented. </s> No one can deny the interest that a State has in preserving peace and harmony within its borders. Pursuant to this interest, a state legislature may enact a trespass statute, or a disturbance of the peace statute which either lists in detail the acts condemned by legitimate state policy or proscribes breaches of the peace generally, thus relating the offense to the already developed body of common law defining that crime. Or it may, as Louisiana has done, append to a specific enumeration in a breach of the peace statute a "catch-all" clause to provide for unforeseen but obviously disruptive and offensive behavior which cannot be justified, and which is not within the range of constitutional protection. </s> But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment, it cannot do so by means of a general and all-inclusive breach of the peace prohibition. It must bring the activity sought to be proscribed within the ambit of a statute or clause "narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State." Cantwell v. Connecticut, supra, at 311; Thornhill v. Alabama, [368 U.S. 157, 203] 310 U.S. 88, 105 . 9 And of course that interest must be a legitimate one. A State may not "suppress free communication of views, religious or other, under the guise of conserving desirable conditions." Cantwell, supra, at 308. </s> These limitations exist not because control of such activity is beyond the power of the State, but because sound constitutional principles demand of the state legislature that it focus on the nature of the otherwise "protected" conduct it is prohibiting, and that it then make a legislative judgment as to whether that conduct presents so clear and present a danger to the welfare of the community that it may legitimately be criminally proscribed. 10 </s> [368 U.S. 157, 204] </s> The Louisiana Legislature made no such judgment before the petitioners in Garner and Hoston engaged in their "sit-in" activity. In light of the Cantwell case, whose reasoning of course cannot be deemed limited to "expression" taking place on the public streets, cf. Terminiello v. Chicago, 337 U.S. 1 , Niemotko v. Maryland, 340 U.S. 268, 281 (concurring opinion), Louisiana could not, in my opinion, constitutionally reach those petitioners' conduct under subsection (7) - the "catch-all clause" - of its then existing disturbance of the peace statute. 11 In so concluding, I intimate no view as to whether Louisiana could by a specifically drawn statute constitutionally proscribe conduct of the kind evinced in these two cases, or upon the constitutionality of the statute which the State has recently passed. 12 I deal here only with these two cases, and the statute that is before us now. [368 U.S. 157, 205] </s> IV. </s> Finally, I believe that the principles of Cantwell lead to the conclusion that this general breach of the peace provision must also be deemed unconstitutional for vagueness and uncertainty, as applied in the circumstances of all these cases. As to Garner and Hoston this affords an alternative ground for reversal. As to Briscoe, where the evidence falls short of establishing that those petitioners remained at the "white" lunch counter with the express or implied consent of the owner (notes 4, 5, supra), I would rest reversal solely on this ground. 13 </s> While Cantwell was not explicitly founded on that premise, it seems to me implicit in the opinion that a statute which leaves the courts in uncertainty as to whether it was intended to reach otherwise constitutionally protected conduct must by the same token be deemed inadequate warning to a defendant that his conduct has [368 U.S. 157, 206] been condemned by the State. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573 -574. Cf. Winters v. New York, 333 U.S. 507, 509 -510; Smith v. California, 361 U.S. 147, 151 ; Thompson v. City of Louisville, 362 U.S. 199, 206 . Such warning is, of course, a requirement of the Fourteenth Amendment. Lanzetta v. New Jersey, 306 U.S. 451, 453 . </s> This conclusion finds added support in the cases requiring of state legislatures more specificity in statutes impinging on freedom of expression than might suffice for other criminal enactments. See Winters v. New York, supra, at 509-510; Smith v. California, supra, at 151; cf. Herndon v. Lowry, 301 U.S. 242, 261 -264. To the extent that this Louisiana statute is explicit on the subject of expression it prohibits only that which is "unnecessarily loud, offensive, or insulting" or activity carried on "in a violent or tumultuous manner by any three or more persons" (note 1, supra). No charge was made or proved that petitioners' conduct met any of those criteria. Nor has the statute been elucidated in this respect before, or since, petitioners' conviction, by any decision of the Louisiana courts of which we have been advised. Cf. Winters v. New York, supra, at 514; Terminiello v. Chicago, 337 U.S. 1, 4 . Lastly, it is worth observing that in State v. Sanford the Louisiana Supreme Court seriously questioned on the score of vagueness the validity of that earlier breach of the peace statute under the State Constitution, as there applied to conduct within the same range of constitutional protection. 14 </s> In the absence of any Louisiana statute purporting to express the State's overriding interest in prohibiting petitioners' [368 U.S. 157, 207] conduct as a clear and present danger to the welfare of the community, peaceful demonstration on public streets, and on private property with the consent of the owner, was constitutionally protected as a form of expression. Louisiana's breach of the peace statute drew no distinct line between presumably constitutionally protected activity and the conduct of the petitioners in Briscoe, as a criminal trespass statute might have done. 15 The fact that in Briscoe, unlike Garner and Hoston, the management did not consent to the petitioners' remaining at the "white" lunch counter does not serve to permit the application of this general breach of the peace statute to the conduct shown in that case. For the statute by its terms appears to be as applicable to "incidents fairly within the protection of the guarantee of free speech," Winters v. New York, supra, at 509, as to that which is not within the range of such protection. Hence such a law gives no warning as to what may fairly be deemed to be within its compass. See Note, 109 U. of Pa. L. Rev. 67, 75-76, 99-104 (1960). </s> For the foregoing reasons I dissent from the opinion of the Court, but join in the judgment. </s> [Footnote 1 The Louisiana statute, La. Rev. Stat., 1950, 14:103, then provided: </s> "Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: [368 U.S. 157, 186] "(1) Engaging in a fistic encounter; or </s> "(2) Using of any unnecessarily loud, offensive, or insulting language; or </s> "(3) Appearing in an intoxicated condition; or </s> "(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or </s> "(5) Holding of an unlawful assembly; or </s> "(6) Interruption of any lawful assembly of people; or </s> "(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public. </s> "Whoever commits the crime of disturbing the peace shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both." </s> [Footnote 2 As Mr. Justice Jackson put it in Gryger v. Burke, 334 U.S. 728, 731 : </s> "We are not at liberty to conjecture that the trial court acted under an interpretation of the state law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied. We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question." </s> [Footnote 3 There Mr. Justice Holmes said of a claim that a state court was constitutionally obliged to follow its own precedents: "Even if it be true, as the plaintiff in error says, that the Supreme Court of Colorado departed from earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But in general the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the Fourteenth Amendment merely because it is wrong or because earlier decisions are reversed." </s> [Footnote 4 In Briscoe, the waitress who had spoken to the defendants testified at the trial that she told them "they would have to go to the other side to be served." It was only when she responded affirmatively to a leading question, "And you told them you couldn't serve them and asked them to move, is that correct?" that she provided any evidence at all to support a finding that the defendants were even asked by the management to move from the "white" lunch counter. Contrary to what the trial court in Briscoe may have meant when it said that the defendants "were requested to leave and they refused to leave" before the police appeared, the waitress' laconic reply furnished no evidence whatever that the defendants were requested to leave the establishments. </s> [Footnote 5 The owner of the drugstore in Garner testified that his store provided eating "facilities for only one race, the white race," and that when petitioners sat down at the lunch counter he "advise[d] them that we couldn't serve them." He admitted that "negroes are very good customers" in the drugstore section of the establishment. In Hoston, the manager of the department store repeatedly insisted at the trial that the petitioners had not been "requested to move over to the counter reserved for colored people." When asked, "They weren't asked to go over there?" he replied, "They were advised that we would serve them over there." He denied that the petitioners had been "refused" service: "We did not refuse to serve them. I merely did not serve them and told them that they would be served on the other side of the store. . . . As I stated before, we did not refuse to serve them. We merely advised them they would be served on the other side of the store." </s> In contrast to what appears in Garner and Hoston, the circumstances in Briscoe seem to me quite different. There is little reason to believe that the management of a restaurant in a Greyhound Bus Terminal would be nearly as concerned with offending Negro patrons because of their refusal to sit at the Negro counter as would the management of a merchandising establishment dependent on other trade than that available at its eating facilities. It may well have been assumed that pique at being asked to leave a "white" lunch counter would readily yield to the need of having to use the buses to get to one's destination. Further, for all that appears, the restaurant and bus companies, in this instance, may have been entirely separate enterprises, or these "sitters" may only have been "eaters" and not "travelers" as well. </s> [Footnote 6 In Garner there was evidence that "a number of customers [were] seated at the counter." In Hoston there was no evidence even of that kind. </s> [Footnote 7 The manager of the department store in Hoston seemed particularly complacent. Although two Negro girls sat "adjoining" him while he was eating lunch at the counter, he finished his meal before calling the police. He instructed a waitress "to offer service at the counter across the aisle," but never approached the petitioners himself. He testified that his purpose in calling the police was that he "feared that some disturbance might occur." </s> [Footnote 8 The Connecticut statute, Conn. Gen. Stat., 6194 (1930), provided: </s> "Any person who shall disturb or break the peace by tumultuous and offensive carriage, noise or behavior, or by threatening, traducing, quarreling with, challenging, assaulting or striking another or shall disturb or break the peace, or provoke contention, by following or mocking any person, with abusive or indecent language, gestures or noise, or shall, by any writing, with intent to intimidate any person, threaten to commit any crime against him or his property or shall write or print and publicly exhibit or distribute, or shall publicly exhibit, post up or advertise, any offensive, indecent or abusive matter [368 U.S. 157, 200] concerning any person, shall be fined not more than five hundred dollars or imprisoned in jail not more than one year or both." (Emphasis added.) </s> [Footnote 9 Compare, for example, the statutes upheld in Beauharnais v. Illinois, 343 U.S. 250 ; Breard v. Alexandria, 341 U.S. 622 ; Kovacs v. Cooper, 336 U.S. 77 ; Valentine v. Chrestensen, 316 U.S. 52 ; Chaplinsky v. New Hampshire, 315 U.S. 568 ; Cox v. New Hampshire, 312 U.S. 569 . </s> [Footnote 10 Mr. Justice Roberts, speaking for a unanimous Court in Cantwell, stated ( 310 U.S., at 307 -308): </s> "Conviction on the fifth count [disorderly conduct] was not pursuant to a statute evincing a legislative judgment that street discussion of religious affairs, because of its tendency to provoke disorder, should be regulated, or a judgment that the playing of a phonograph on the streets should in the interest of comfort or privacy be limited or prevented. Violation of an Act exhibiting such a legislative judgment and narrowly drawn to prevent the supposed evil, would pose a question differing from that we must here answer. Such a declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitutional limitations. Here, however, the judgment is based on a common law concept of the most general and undefined nature. The court below has held that the petitioner's conduct constituted the commission of an offense under the state law, and we accept its decision as binding upon us to that extent. </s> "The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical [368 U.S. 157, 204] attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application." </s> [Footnote 11 It follows, of course, that petitioners' refusal to accede to the request to leave made by police officers could also not constitutionally be punished under this general statute. Were it otherwise, the determination whether certain conduct constitutes a clear and present danger would be delegated to a police officer. Simply by ordering a defendant to cease his "protected" activity, the officer could turn a continuation of that activity into a breach of the peace. </s> [Footnote 12 After the incidents which gave rise to these cases, the Louisiana Legislature passed a bill adding to the disturbance of the peace statute a second clause, La. Rev. Stat., 1950, 14:103B (1960 Supp.), which provides: </s> "B. Any person or persons . . . while in or on the premises of another . . . on which property any store, restaurant, drug store . . . or [368 U.S. 157, 205] any other lawful business is operated which engages in selling articles of merchandise or services or accommodation to members of the public, or engages generally in business transactions with members of the public, who shall: </s> "(1) prevent or seek to prevent, or interfere or seek to interfere with the owner or operator of such place of business, or his agents or employees, serving or selling food and drink . . . or </s> "(2) prevent or seek to prevent, or interfere or seek to interfere with other persons who are expressly or impliedly invited upon said premises, or with prospective customers coming into or frequenting such premises in the normal course of the operation of the business conducted and carried on upon said premises, shall be guilty of disorderly conduct and disturbing the peace . . . ." 1 La. Acts, 1960, 235-236. </s> [Footnote 13 Because of the absence of any evidence in the Briscoe record regarding the legal relationship between the restaurant and the Greyhound Bus Terminal in Baton Rouge, on whose premises it was located, I would not pass in this case on the Solicitor General's suggestion, made as amicus curiae, that segregated facilities were prohibited by 216 (d) of Part II of the Interstate Commerce Act, 49 U.S.C. 316 (d). See Boynton v. Virginia, 364 U.S. 454 . </s> [Footnote 14 I do not intend to suggest that the present Louisiana statute, either on its face or as it might be applied with respect to conduct not within the "liberty" assured by the Fourteenth Amendment, is or would be unconstitutional for vagueness. Cf. Winters v. New York, supra, at 524-526 (dissenting opinion). </s> [Footnote 15 The criminal trespass statute in force in Louisiana at the time of petitioners' acts prohibited only "unauthorized and intentional taking [of] possession" and "unauthorized and intentional entry" on another's property. La. Rev. Stat., 1950, 14:63. No attempt was made to prosecute the petitioners under this law. The statute has since been amended to cover "remaining in places after being forbidden," 1 La. Acts, 1960, 245-248, and an anti-trespass provision is now included in the disturbance of the peace statute, 1 La. Acts, 1960, 234. </s> [368 U.S. 157, 208]

United States Supreme Court JAGO v. VAN CUREN(1981) No. 80-1942 Argued: Decided: November 9, 1981 </s> Held: </s> The Due Process Clause of the Fourteenth Amendment was not violated by the Ohio Adult Parole Authority's rescission, without a hearing, of its decision to grant respondent early parole. The rescission, which occurred before respondent was released, resulted from the Authority's having learned that respondent had made false statements in an interview conducted before the decision to grant parole and in his proposed parole plan. After conceding that Ohio law created no protected "liberty" interest in early parole, the Court of Appeals erred in concluding that a liberty interest arose from the "mutually explicit understandings" of the parties and that the rescission without a hearing thus violated due process. The "mutually explicit understandings" language of Perry v. Sindermann, 408 U.S. 593 , relied on by the Court of Appeals, relates to the Fourteenth Amendment's protection of "property" interests, rather than "liberty" interests such as that asserted by respondent. Cf. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 . </s> Certiorari granted; 641 F.2d 411, reversed. </s> PER CURIAM. </s> After pleading guilty to embezzlement and related crimes, respondent was sentenced by an Ohio court to not less than 6 nor more than 100 years in prison. Under existing law respondent would have become eligible for parole in March 1976. On January 1, 1974, however, Ohio enacted a "shock parole" statute which provided for the early parole of first offenders who had served more than six months in prison for nonviolent crimes. Ohio Rev. Code Ann. 2967.31 (1975). </s> Pursuant to this statute, respondent was interviewed on April 17, 1974, by a panel representing the Ohio Adult Parole Authority (OAPA). The panel recommended that respondent be paroled "on or after April 23, 1974," and OAPA subsequently [454 U.S. 14, 15] approved the panel's recommendation. Respondent was notified of the decision by a parole agreement which stated: </s> "The Members of the Parole Board have agreed that you have earned the opportunity of parole and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case." Brief in Opposition 1. </s> Respondent attended and completed prison prerelease classes and was measured for civilian clothes. </s> At a meeting six days after the panel's interview with respondent, OAPA was informed that respondent had not been entirely truthful in the interview or in the parole plan that he had submitted to his parole officers. Specifically, respondent had told the panel that he had embezzled $1 million when in fact he had embezzled $6 million, and had reported in his parole plan that he would live with his half brother if paroled when in fact he intended to live with his homosexual lover. 1 As a result of these revelations, OAPA rescinded its earlier decision to grant respondent "shock parole" and continued his case to a June 1974 meeting at which parole was formally denied. Neither at this meeting nor at any other time was respondent granted a hearing to explain the false statements he had made during the April interview and in the parole plan which he had submitted. </s> After denial of his parole, respondent brought a mandamus action against OAPA. The Supreme Court of Ohio held that OAPA was not required to grant respondent a hearing and that it could not be commanded to recall its decision rescinding [454 U.S. 14, 16] parole. State ex rel. Van Curen v. Ohio Adult Parole Authority, 45 Ohio St. 2d 298, 345 N. E. 2d 75 (1976). We denied respondent's petition for certiorari to review the decision of the Supreme Court of Ohio. 429 U.S. 959 (1976). </s> Respondent then filed a petition for a writ of habeas corpus in the Federal District Court for the Southern District of Ohio, claiming that the rescission without hearing violated his right to due process of law under the United States Constitution. The District Court denied the writ and the United States Court of Appeals for the Sixth Circuit summarily affirmed the denial. Van Curen v. Jago, 578 F.2d 1382 (1978). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of our decision in Greenholtz v. Nebraska Penal and Inmates, 442 U.S. 1 (1979). Jago v. Van Curen, 442 U.S. 926 (1979). </s> On remand the Court of Appeals in turn remanded to the District Court for further consideration. Applying Greenholtz, the District Court determined that "early release in Ohio is a matter of grace" and that Ohio law "is fairly unambiguous that no protectable interest in early release arises until actual release." App. to Pet. for Cert. 24A-25A. Accordingly, the District Court held that the rescission of respondent's parole without a hearing did not violate due process. </s> On appeal, the Court of Appeals acknowledged that "[p]arole for Ohio prisoners lies wholly within the discretion of the OAPA," and that "[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d 411, 414 (1981). Nonetheless, the Court of Appeals reversed the decision of the District Court. Relying upon language from our decision in Perry v. Sindermann, 408 U.S. 593 (1972), the Court of Appeals concluded that a liberty interest such as that asserted by respondent can arise from "mutually explicit understandings." See id., at 601. Thus, it held: [454 U.S. 14, 17] </s> "Having been notified that he `ha[d] been paroled' and that `the Board is ordering a Parole Release in your case,' [respondent] had a legitimate expectation that his early release would be effected. This expectation was a liberty interest, the deprivation of which would indeed constitute a grievous loss. It was an interest which could not be taken from him without according [him] procedural due process." 641 F.2d, at 416. </s> We do not doubt that respondent suffered "grievous loss" upon OAPA's rescission of his parole. But we have previously "reject[ed] . . . the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." Meachum v. Fano, 427 U.S. 215, 224 (1976). In this case, as in our previous cases, "[t]he question is not merely the `weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the `liberty or property language of the Fourteenth Amendment.'" Morrissey v. Brewer, 408 U.S. 471, 481 (1972). We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon the "mutually explicit understandings" language of Perry v. Sindermann, supra. </s> Our decision in Sindermann was concerned only with the Fourteenth Amendment's protection of "property" interests, and its language, relied upon by the Court of Appeals, was expressly so limited: </s> "We have made clear in [Board of Regents v. Roth, 408 U.S. 564, 571 -572 (1972)], that `property' interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, `property' denotes a broad range of interests that are secured by `existing rules or understandings.' Id., at 577. A person's interest in a benefit is a `property' interest for due process purposes if there are such rules or mutually explicit [454 U.S. 14, 18] understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." 408 U.S., at 601 . </s> To illustrate the way in which "mutually explicit understandings" operate to create "property" interests, we relied in Sindermann upon two analogous doctrines. First, we compared such understandings to implied contracts: </s> "[The] absence of . . . an explicit contractual provision may not always foreclose the possibility that a teacher has a `property' interest in re-employment. . . . [T]he law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be `implied.'" Id., at 601-602. </s> That the implied-contract aspect of Sindermann "understandings" has been limited to the creation of property interests is illustrated by Bishop v. Wood, 426 U.S. 341 (1976), another property interest case in which we relied upon the "understandings" language of Sindermann to conclude that "[a] property interest in employment can, of course, be created by ordinance, or by an implied contract." 426 U.S., at 344 (footnote omitted). </s> Principles of contract law naturally serve as useful guides in determining whether or not a constitutionally protected property interest exists. Such principles do not, however, so readily lend themselves to determining the existence of constitutionally protected liberty interests in the setting of prisoner parole. In Meachum v. Fano, supra, we recognized that the administrators of our penal systems need considerable latitude in operating those systems, and that the protected interests of prisoners are necessarily limited: </s> "Our cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of [454 U.S. 14, 19] important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U.S., at 556 , and cases there cited. But none of these cases reaches this one; and to hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." 427 U.S., at 225 . </s> We would severely restrict the necessary flexibility of prison administrators and parole authorities were we to hold that any one of their myriad decisions with respect to individual inmates may, as under the general law of contracts, give rise to protected "liberty" interests which could not thereafter be impaired without a constitutionally mandated hearing under the Due Process Clause. </s> The second analogy relied upon in Sindermann to give content to the notion of "mutually explicit understandings" was the labor law principle that the tradition and history of an industry or plant may add substance to collective-bargaining agreements. See 408 U.S., at 602 . Just last Term, however, we rejected an argument that a sort of "industrial common law" could give rise to a liberty interest in the prisoner parole setting. The prisoners in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981), 2 relying upon the [454 U.S. 14, 20] frequency with which the Connecticut Board of Pardons had in the past commuted and paroled life sentences, argued that the consistency of the Board's actions "`ha[d] created an unwritten common law of sentence commutation and parole acceleration,'" and had given rise to "`an unspoken understanding between the State Board [of Pardons] and inmates.'" Id., at 465 (emphasis added) (quoting Brief for Respondents, O. T. 1980, No. 79-1997, pp. 17-18). We responded: </s> "No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency." 452 U.S., at 465 . </s> Thus, this Court has recognized that the "mutually explicit understandings" of Sindermann have a far more useful place in determining protected property interests than in determining those liberty interests protected by the Due Process Clause of the Fourteenth Amendment. </s> As the majority opinion in the Court of Appeals for the Sixth Circuit observed: "Parole for Ohio prisoners lies wholly within the discretion of the OAPA. The statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d, at 414. In dissent, Judge Phillips explained: </s> "In State ex rel. Newman v. Lowery, 157 Ohio St. 463, 464, 105 N. E. 2d 643 (1952), cert. denied, 344 U.S. 881 . . . (1952), the Supreme Court of Ohio said: `The question [454 U.S. 14, 21] of parole of prisoners being in the discretion of the Pardon and Parole Commission, that commission had authority to rescind its order of March 9, 1950, granting a parole effective on or after a future date.'" Id., at 418. </s> Notwithstanding its conclusion that the granting of parole was a purely discretionary matter, the majority of the Court of Appeals in this case concluded that, once the recommendation for "shock parole" had been made, respondent was entitled to a hearing for the purpose of explaining his false statements and representations because the initial recommendation for "shock parole" gave rise to a "mutually explicit understanding." As we have previously stated, however, we deal here not with "property" interests but with "liberty" interests protected by the Fourteenth Amendment. We think that the reasoning of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979), Dumschat, supra, and the Court of Appeals' own concession that Ohio law creates no protected "liberty" interest, require reversal of the holding of the Court of Appeals that respondent was entitled to a hearing prior to denial of his parole in June. 3 </s> [454 U.S. 14, 22] </s> The petition for certiorari is granted, the respondent's motion to proceed in forma pauperis is granted, and the judgment of the Court of Appeals for the Sixth Circuit is </s> Reversed. </s> Footnotes [Footnote 1 In his brief in opposition to the petition for certiorari, respondent does not contest OAPA's conclusion that he misrepresented the amount of his embezzlement to the interviewing panel, and admits "that the total loss was over a million dollars." Brief in Opposition 2. Moreover, respondent admits that his parole plan misrepresented his relationship to the person with whom he planned to live upon release. Id., at 2-3. </s> [Footnote 2 JUSTICE STEVENS' dissenting opinion appears to follow from his dissenting view in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 22 (1979) (MARSHALL, J., joined by BRENNAN and STEVENS, JJ., dissenting in part), and Connecticut Board of Pardons v. Dumschat, 452 U.S., at 468 (STEVENS, J., dissenting). It is understandable that the distinction between Morrissey v. Brewer, 408 U.S. 471 (1972), which involved return to custody after parole release, and Greenholtz v. Nebraska Penal Inmates, supra, and Connecticut Board of Pardons v. Dumschat, supra, which involved prerelease expectations of parole or probation, would be thought [454 U.S. 14, 20] "dubious" by one who dissented in the two latter cases. Nonetheless, that view was expressed in dissents from the Court's opinions in those cases and cannot be regarded as controlling here. </s> [Footnote 3 Petitioners contend that this case is moot under Weinstein v. Bradford, 423 U.S. 147 (1975), because respondent has now been paroled. We disagree. Although it is true that respondent was released from prison in 1980, the release was conditioned upon respondent's compliance with terms that significantly restrict his freedom. For example, respondent must receive written permission before changing his residence, changing his job, or traveling out of state, must report to local law enforcement authorities at any out-of-state destination to which he travels, must not maintain a checking account, must report monthly to his parole officer, and may be imprisoned upon violation of the conditions of his parole. Affidavit in Support of Respondent's Motion to Proceed In Forma Pauperis. In Weinstein, by contrast, we noted that "respondent was temporarily paroled on December 18, 1974, and that this status ripened into a complete release from supervision on March 25, 1975. From that date forward it [was] plain that respondent [could] have no interest whatever in the procedures followed by petitioners in granting parole." 423 U.S., at 148 (emphasis added). Similarly, in Jones v. Cunningham, 371 U.S. 236 (1963), [454 U.S. 14, 22] where a state prisoner received conditional parole virtually identical to respondent's parole in this case, we held that the prisoner was "in custody" for purposes of federal habeas and that the Court of Appeals had erred in dismissing the appeal as moot. Id., at 241-243. </s> The conditions of respondent's parole will last for a period of two years; thereafter he will be free from OAPA's supervision. Had OAPA not rescinded respondent's parole in 1974 it is likely that he would no longer be subject to parole restrictions on his freedom. Therefore, were we to affirm the lower court's conclusion that OAPA should not have rescinded respondent's parole without a hearing, we could remand the case with instructions that the District Court determine whether a hearing would have resulted in respondent's release in 1974. If so, the flexible nature of habeas relief would permit the District Court to order that respondent be released from the conditions under which he is now living. Indeed, in his response to the petition for certiorari, respondent affirmatively states that if the lower court's decision is affirmed he will "immediately seek release from parole." Brief in Opposition 7. </s> In Vitek v. Jones, 436 U.S. 407 (1978), and Scott v. Kentucky Parole Board, 429 U.S. 60 (1976), the cases cited by the dissent, we remanded so that the Courts of Appeals might consider mootness before we decided the question. In this case the Court of Appeals did consider mootness and, as the above discussion indicates, correctly concluded that a live controversy remains. </s> JUSTICE BLACKMUN, concurring in the result. </s> I agree with the Court that the judgment of the Court of Appeals is to be reversed, but I am troubled by the rationale of the Court's per curiam opinion, and therefore I do not join it. </s> I would rest the reversal on the ground stated by Judge Phillips in his dissent from the judgment of the Court of Appeals, that is, on the fact that, under Ohio law, state parole authorities have the clear right to rescind a parole order before [454 U.S. 14, 23] it becomes effective. 641 F.2d 411, 417-418. It therefore seems to me that the Court of Appeals erred in holding that there was a mutual understanding here. Respondent's expectation of release was no more than a unilateral one and no due process rights attached. I also could hold that no mutual expectation existed under the circumstances inasmuch as the Parole Board's order was based on respondent's untruths; respondent could not reasonably believe that there was a legitimate mutual understanding that he would be released. </s> That, I feel, is as far as this Court needs to go. I see no reason to go further and to suggest, as the Court does, that a mutual understanding may give rise to a property interest, but not to a liberty interest. That distinction may be an appropriate one, but I am not yet prepared to say so, and I certainly am not prepared to say so on a summary reversal. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981), does not stand for so broad a proposition, and Morrissey v. Brewer, 408 U.S. 471, 482 (1972), suggests for me that a protected liberty interest may indeed be based on a mutual understanding. </s> JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. </s> Because the facts of this case are so unusual, it is surprising that the Court considers it appropriate to grant certiorari and address the merits. It is even more surprising that the Court has decided the mootness question by adopting the reasoning that persuaded JUSTICE BRENNAN, JUSTICE POWELL, and me to dissent in Scott v. Kentucky Parole Board, 429 U.S. 60 ; see also Vitek v. Jones, 436 U.S. 407, 410 (STEVENS, J., dissenting). See ante, at 21-22, n. 3. Nevertheless, I am unable to join the Court's disposition on the merits. </s> The Court has fashioned a constitutional distinction between the decision to revoke parole and the decision to grant or to deny parole. Arbitrary revocation is prohibited by [454 U.S. 14, 24] Morrissey v. Brewer, 408 U.S. 471 , whereas arbitrary denial is permitted by Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9 -11. 1 Even if one accepts the validity of that dubious distinction, 2 I believe the Court misapplies it in this case. </s> In the Court's view, the grant of parole creates a constitutionally protected interest in liberty that previously did not exist. Under that view, a profound change in the status of an individual occurs when he is paroled; he has greater legal rights after parole than before. The question is what event triggers this change in legal status, the act of walking through the exit gates or the State's formal decision, conveyed to the prisoner, to grant him his conditional freedom. </s> For the ordinary litigant, the entry of judgment by the decisionmaker - not the execution of that judgment by the sheriff - determines his legal rights. In my opinion, the interests in orderly decisionmaking that are protected by the Due Process Clause of the Fourteenth Amendment dictate a similar answer in the context of this case. As the Court has pointed out: </s> "The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Society thus has an interest in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of parole conditions. And society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will [454 U.S. 14, 25] enhance the chance of rehabilitation by avoiding reactions to arbitrariness." Morrissey v. Brewer, supra, at 484 (citation and footnote omitted). </s> It seems quite clear to me that precisely those interests are implicated by this case. </s> When the Ohio Adult Parole Authority revoked its decision to grant respondent parole, it acted on the basis of ex parte information which respondent had no opportunity to deny or to explain. Even if that information was entirely accurate in this case, and even if it was sufficiently important to justify the changed decision, the effect of the Court's holding today is to allow such decisions to stand even if wrong and wholly arbitrary. I am persuaded that such a holding is erroneous. 3 </s> [454 U.S. 14, 26] If the Court had allowed the parties to argue the merits of the issue - instead of acting summarily on the basis of an incomplete presentation - the error might have been avoided. In all events, I respectfully dissent. </s> [Footnote 1 Cf. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (arbitrary denial of an application for commutation of a life sentence is permissible). </s> [Footnote 2 See Greenholtz v. Nebraska Penal Inmates, 442 U.S., at 19 -20 (POWELL, J., concurring in part and dissenting in part); id., at 25-29 (MARSHALL, J., dissenting in part). See also Connecticut Board of Pardons v. Dumschat, supra, at 470 (STEVENS, J., dissenting). </s> [Footnote 3 It is a federal constitutional question whether, under all the circumstances, including the existence of rights conferred by state statutes and other rules, an individual has such a legitimate claim of entitlement to freedom that due process protections attach. In its answer to that federal question, the Court of Appeals recognized that "[p]arole for Ohio prisoners lies wholly within the discretion of the OAPA. The statutes which provide for parole do not create a protected liberty interest for due process purposes." 641 F.2d 411, 414 (CA6 1981). But the Court of Appeals' holding was based on circumstances other than the state statutes and other rules: </s> "We do not reach this conclusion on the basis of cases from jurisdictions which have rules or guidelines that establish entitlement to parole or permit rescission under narrowly defined circumstances. There is no evidence that Ohio has such rules or guidelines. Nor do we base our decision on the evidence that less than one percent of Ohio's parole grants are rescinded. Cf. Dumschat v. Board of Pardons, 618 F.2d 216 (2d Cir.), cert. granted, [449 U.S. 898 (1980). This evidence related to paroles generally and there was no proof directed specifically to shock parole, the comparatively new Ohio method of release involved in the present case. Rather, the decision is based on the facts of this case which lead ineluctably to the conclusion that acts of the OAPA created a protected liberty interest in Van Curen." Id., at 416-417 (citations omitted). </s> Even if the Court correctly states that "the `mutually explicit understandings' of Sindermann have a far more useful place in determining protected property interests than in determining those liberty interests protected [454 U.S. 14, 26] by the Due Process Clause of the Fourteenth Amendment," ante, at 20, the question remains whether the act of the State in notifying the respondent that he had been granted parole as of a specific date created such a legitimate expectation of freedom as to trigger due process protections. The Court does not address that question, relying instead on the "concession [of the Court of Appeals] that Ohio law creates no protected `liberty' interest." Ante, at 21. But even this Court's narrowest decisions do not limit the due process analysis to an examination of written state laws; nor do they exclude consideration of the decisions and acts of the State directed at a particular individual. </s> [454 U.S. 14, 27]

United States Supreme Court WARDEN v. MARRERO(1974) No. 73-831 Argued: April 29, 1974Decided: June 19, 1974 </s> The Comprehensive Drug Abuse Prevention and Control Act of 1970, which became effective May 1, 1971, makes parole under the general parole statute, 18 U.S.C. 4202, available for almost all narcotics offenders. Respondent, who had been sentenced before May 1, 1971, and was ineligible for parole under 26 U.S.C. 7237 (d), which was repealed by the 1970 Act, sought habeas corpus in the District Court, claiming parole eligibility when one-third of his sentence had been served. The District Court denied relief on the ground that the prohibition on parole eligibility under 26 U.S.C. 7237 (d) had been preserved by 1103 (a) of the 1970 statute (which provides that "[p]rosecutions" for violations before May 1, 1971, shall not be affected by repeals of statutory provisions) and by the general saving clause, 1 U.S.C. 109 (which provides that "[t]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute . . ."). The Court of Appeals reversed. Held: </s> 1. Section 1103 (a) of the 1970 statute bars the Board of Parole from considering respondent for parole under 18 U.S.C. 4202, since parole eligibility, as a practical matter, is determined at the time of sentencing, and sentencing is a part of the concept of "prosecution," saved by 1103 (a), Bradley v. United States, 410 U.S. 605 . Pp. 657-659. </s> 2. The Board of Parole is also barred by the general saving clause from considering respondent for parole, since it is clear that Congress intended ineligibility for parole in 7237 (d) to be treated as part of the offender's "punishment," and therefore the prohibition against the offender's eligibility for parole under 18 U.S.C. 4202 is a "penalty, forfeiture, or liability" under the saving clause. Pp. 659-664. </s> 483 F.2d 656, reversed. [417 U.S. 653, 654] </s> BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 664. </s> Deputy Solicitor General Lafontant argued the cause for petitioner. With her on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Harriet S. Shapiro, and Jerome M. Feit. </s> John J. Witmeyer III, by appointment of the Court, 416 U.S. 979 , argued the cause for respondent pro hac vice. With him on the brief were Stewart Dalzell and Harry C. Batchelder, Jr. * </s> [Footnote * Joseph Onek and Ann K. Macrory filed a brief for the Washington Lawyers' Committee for Civil Rights Under Law as amicus curiae urging affirmance. </s> MR. JUSTICE BRENNAN delivered the opinion of the Court. </s> A now-repealed statute, 26 U.S.C. 7237 (d), 1 provided, inter alia, that certain narcotics offenders sentenced to mandatory minimum prison terms should be ineligible for parole under the general parole statute, 18 U.S.C. 4202. 2 </s> [417 U.S. 653, 655] Section 7237 (d) was repealed, effective May 1, 1971, 84 Stat. 1292, by the Comprehensive Drug Abuse Prevention and Control Act of 1970, which makes parole under 4202 available for almost all narcotics offenders. The question for decision in this case is whether the parole ineligibility provision of 26 U.S.C. 7237 (d) survives the repealer, so that a narcotics offender who has served more than one-third of a sentence imposed before May 1, 1971, remains ineligible for parole consideration under 18 U.S.C. 4202. </s> Respondent was convicted of narcotics offenses and, as a second offender, was sentenced before May 1, 1971, to concurrent terms of 10 years' imprisonment on each of two counts. 450 F.2d 373, 374-375 (CA2 1971). 3 On February 24, 1972, respondent sought habeas corpus in the United States District Court for the Middle District of Pennsylvania, claiming that, since 26 U.S.C. 7237 (d) had been repealed, he should be eligible for consideration for parole under 18 U.S.C. 4202 when one-third of his sentence had been served. The District Court denied relief on the ground that the prohibition on parole eligibility of 26 U.S.C. 7237 (d) [417 U.S. 653, 656] had been preserved by 1103 (a) of the 1970 statute 4 and by 1 U.S.C. 109. 5 347 F. Supp. 99. The Court of Appeals for the Third Circuit reversed, holding that neither 1103 (a) of the 1970 statute nor 1 U.S.C. 109 continued the prohibition on eligibility for parole consideration in 26 U.S.C. 7237 (d). 483 F.2d 656 (1973). 6 We granted certiorari to resolve a conflict among the Courts of Appeals. 7 </s> 414 U.S. 1128 (1974). We agree with the District Court and reverse the judgment of the Court of Appeals. </s> Bradley v. United States, 410 U.S. 605, 611 (1973), expressly reserved decision of the question now before us. [417 U.S. 653, 657] Bradley involved the conviction and sentencing after May 1, 1971, of offenders who committed narcotics offenses before that date. We held that sentencing is a part of the concept of "prosecution" and therefore that the provision of 1103 (a) of the 1970 Act that "[p]rosecutions for any violation of law occurring [before May 1, 1971] shall not be affected" by the repeal of 26 U.S.C. 7237 (d), barred the sentencing judge from suspending the sentences of, or granting probation to, the Bradley petitioners and also barred him from making them eligible for early parole, before they had served one-third of their sentences, under 18 U.S.C. 4208 (a). 8 Although stating in a footnote that "[t]he decision to grant parole under [18 U.S.C.] 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated," we concluded that "[w]hether 1103 (a) or the general saving statute, 1 U.S.C. 109, limits that decision is a question we cannot consider in this case." 410 U.S., at 611 n. 6. </s> I </s> We hold that 1103 (a) bars the Board of Parole from considering respondent for parole under 18 U.S.C. 4202. [417 U.S. 653, 658] In concluding in Bradley that ineligibility for early parole under 18 U.S.C. 4208 (a) was part of the "prosecution," we reasoned that, since a District Judge's decision to make an offender eligible for early parole is made at the time of entering a judgment of conviction, the decision was part of the sentence and therefore also part of the "prosecution." 410 U.S., at 611 . </s> Similarly, a pragmatic view of sentencing requires the conclusion that parole eligibility under 18 U.S.C. 4202 is also determined at the time of sentence. Since, under 4202, an offender becomes eligible for parole after serving one-third of his sentence, see n. 2, supra, parole eligibility is a function of the length of the sentence fixed by the district judge. Although, of course, the precise time at which the offender becomes eligible for parole is not part of the sentence, as it is in the case of 4208 (a), it is implicit in the terms of the sentence. And because it could not be seriously argued that sentencing decisions are made without regard to the period of time a defendant must spend in prison before becoming eligible for parole, or that such decisions would not be drastically affected by a substantial change in the proportion of the sentence required to be served before becoming eligible, parole eligibility can be properly viewed as being determined - and deliberately so - by the sentence of the district judge. Eligibility for parole under 4202 is thus determined at the time of sentencing and, under the teaching of Bradley, is part of the "prosecution" saved by 1103 (a). </s> We therefore reject respondent's argument that our Bradley footnote should be read as holding that, because the decision to grant parole under 4202 is for the Board of Parole, not the trial judge, and is arrived at after the sentence has been entered and the prosecution has come to an end, the parole eligibility decision is not part of the "prosecution" for purposes of 1103 (a). Apart from [417 U.S. 653, 659] the obvious answer that the Court could not reasonably be thought to have decided in a footnote a question "on which" we said in the text, "we express no opinion," 410 U.S., at 611 , respondent's reliance upon the footnote both proves too little and too much. It proves too little, because the fact that the Board of Parole, not the sentencing judge, finally determines whether and when an offender should be released on parole does not undercut our conclusion that the district judge, at the time of sentencing, determines when the offender will become eligible for consideration for parole and the Board's action simply implements that determination. 9 It proves too much, because, if - as the respondent would have it - the proper focus is upon the time at which release on parole is actually granted or denied, the parole decision, whether made under 18 U.S.C. 4208 (a) or 18 U.S.C. 4202, is made long after the "prosecution" terminates; for under both provisions, the Board of Parole ultimately decides whether and when the offender is to be released. But, as previously mentioned, we held in Bradley that the district judge's decision to deny early parole under 4208 (a) was part of the sentence, and therefore part of the "prosecution." </s> II </s> We hold further that the general saving clause, 1 U.S.C. 109, also bars the Board of Parole from considering respondent for parole. 10 </s> [417 U.S. 653, 660] </s> Congress enacted its first general saving provision, c. 71, 16 Stat. 432 (1871), to abolish the common-law presumption that the repeal of a criminal statute resulted in the abatement of "all prosecutions which had not reached final disposition in the highest court authorized to review them." Bradley v. United States, 410 U.S., at 607 ; see Bell v. Maryland, 378 U.S. 226, 230 (1964). Common-law abatements resulted not only from unequivocal statutory repeals, but also from repeals and re-enactments with different penalties, whether the re-enacted legislation increased or decreased the penalties. See Bradley v. United States, supra, at 607-608; Lindzey v. State, 65 Miss. 542, 5 So. 99 (1888); Hartung v. People, 22 N. Y. 95 (1860); Comment, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. Pa. L. Rev. 120, 121-126 (1972). To avoid such abatements - often the product of legislative inadvertence - Congress enacted 1 U.S.C. 109, the general saving clause, which provides in pertinent part that "[t]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute." See n. 5, supra. The determinative question is thus whether the prohibition of 26 U.S.C. 7237 (d) against the offender's eligibility for parole under 18 U.S.C. 4202 is a "penalty, forfeiture, or liability" saved from release or extinguishment by 1 U.S.C. 109. 11 </s> [417 U.S. 653, 661] </s> United States v. Reisinger, 128 U.S. 398 (1888), held that the saving clause's use of the words "penalty," "liability," and "forfeiture" required the conclusion that the clause covered criminal statutes. Those words, the Court found, were "used by the great masters of crown law and the elementary writers as synonymous with the word `punishment,' in connection with crimes of the highest grade." Id., at 402. Thus, the Court agreed with the construction of the clause by Mr. Justice Miller, as Circuit Justice, in United States v. Ulrici, 28 F. Cas. 328, 329 (No. 16,594) (CCED Mo. 1875), that those terms "were used by Congress to include all forms of punishment for crime." See 128 U.S., at 402 -403. In consequence, the saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense. See, e. g., Jones v. United States, 117 U.S. App. D.C. 169, 327 F.2d 867 (1963); United States v. Kirby, 176 F.2d 101 (CA2 1949); Lovely v. United States, 175 F.2d 312 (CA4 1949). </s> Although the general saving clause does not ordinarily preserve discarded remedies or procedures, see Hertz v. Woodman, 218 U.S. 205, 218 (1910); United States v. Obermeier, 186 F.2d 243, 253 (CA2 1950), the legislative [417 U.S. 653, 662] history of 7237 (d) reveals that Congress meant ineligibility for parole to be treated as part of the "punishment" for the narcotics offenses for which respondent was convicted. Section 7237 (d) was enacted as part of the Narcotic Control Act of 1956. The statute embodied congressional acceptance of the approach that effective combat against the contagion of drug addiction required the imposition of severe penalties for certain narcotics offenses. Congress therefore enacted lengthy mandatory minimum sentences as a means of decreasing both drug addiction and trafficking. See, e. g., S. Rep. No. 1997, 84th Cong., 2d Sess., 5 (1956); H. R. Rep. No. 2388, 84th Cong., 2d Sess., 10 (1956). But Congress believed that longer sentences would not achieve the desired results unless the offender remained imprisoned for his full term. </s> "In evaluating the effectiveness of the presently prescribed penalties, it must be recognized that special incentives in our penal system serve to decrease the actual time spent in a penal institution under a sentence imposed by a court. The violator is eligible for parole after serving one-third of his sentence. . . . Available data from the Bureau of Prisons, indicates that a narcotics violator actually serves an average of less than two-thirds of the sentence imposed by the court. This mitigation of sentence tends to defeat the purposes of [existing legislation] . . . ." Id., at 10-11. </s> Accordingly, Congress expressly provided in 7237 (d) that parole under 18 U.S.C. 4202 would be unavailable for narcotics offenders. </s> There are additional reasons for believing that the no-parole provision is an element of respondent's "punishment." First, only an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole. See United States v. Ross, [417 U.S. 653, 663] 464 F.2d 376, 379 (CA2 1972); United States v. De Simone, 468 F.2d 1196, 1199 (CA2 1972). For the confined prisoner, parole - even with its legal constraints - is a long step toward regaining lost freedom. 12 An observation made in somewhat different context is apt: </s> "It may be `legislative grace' for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offences, . . . this is in the nature of an additional penalty." Durant v. United States, 410 F.2d 689, 691 (CA5 1969). </s> Second, a repealer of parole eligibility previously available to imprisoned offenders would clearly present the serious question under the ex post facto clause of Art. I, 9, cl. 3, of the Constitution, of whether it imposed a "greater or more severe punishment than was prescribed by law at the time of the . . . offense," Rooney v. North Dakota, 196 U.S. 319, 325 (1905) (emphasis added). See Love v. Fitzharris, 460 F.2d 382 (CA9 1972); cf. Lindsey v. Washington, 301 U.S. 397 (1937); Holden v. Minnesota, 137 U.S. 483, 491 -492 (1890); Calder v. Bull, 3 Dall. 386, 390 (1798); United States ex rel. Umbenhowar v. McDonnell, 11 F. Supp. 1014 (ND Ill. 1934). </s> Thus, at least where, as in the case of respondent's narcotics offenses, Congress has barred parole eligibility [417 U.S. 653, 664] as a punitive measure, we hold that the no-parole provision of 7237 (d) is a "penalty, forfeiture, or liability" saved by 109. </s> III </s> Respondent emphasizes that Congress completely changed its approach to regulation of narcotics offenses in the 1970 Act, jettisoning the retributive approach of the 1956 law in favor of emphasis in the 1970 Act upon rehabilitation of the narcotics offender. He argues that, in light of this basic change, little purpose is served by denying respondent eligibility for parole, indeed that such denial frustrates the current congressional goal of rehabilitating narcotics offenders. </s> Undeniably this argument has force, but it is addressed to the wrong governmental branch. Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds. See Gore v. United States, 357 U.S. 386, 393 (1958); Bell v. United States, 349 U.S. 81, 82 (1955). Section 1103 (a) of the 1970 Act and 1 U.S.C. 109 saved from repeal the bar of parole eligibility under 7237 (d), and, however severe the consequences for respondent, Congress trespassed no constitutional limits. </s> The judgment of the Court of Appeals is </s> Reversed. </s> Footnotes [Footnote 1 Title 26 U.S.C. 7237 (d) (1964 ed. and Supp. V) provided: </s> "Upon conviction - </s> "(1) of any offense the penalty for which is provided in subsection (b) of this section, subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended, or such Act of July 11, 1941, as amended, or </s> "(2) of any offense the penalty for which is provided in subsection (a) of this section, if it is the offender's second or subsequent offense, </s> "the imposition or execution of sentence shall not be suspended, probation shall not be granted, section 4202 of title 18 of the United States Code shall not apply, and the Act of July 15, 1932 (47 Stat. 696; D.C. Code 24-201 and following), as amended, shall not apply." </s> [Footnote 2 Title 18 U.S.C. 4202 provides: </s> "A Federal prisoner, other than a juvenile delinquent or a committed youth offender, wherever confined and serving a definite term or terms of over one hundred and eighty days, whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years." </s> [Footnote 3 Respondent was convicted of violating 21 U.S.C. 173 (1964 ed.) and 26 U.S.C. 4701, 4703, 4704 (a), and 4771 (a) (1964 ed.). His sentences were imposed under 21 U.S.C. 174 and 26 U.S.C. 7237 (a). Section 174 explicitly incorporated the provisions' of 26 U.S.C. 7237 (d), which was directly applicable to the sentence imposed under 7237 (a). </s> [Footnote 4 Section 1103 (a) provides: </s> "Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] . . . or abated by reason thereof." </s> [Footnote 5 Title 1 U.S.C. 109 provides in relevant part: </s> "The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." </s> [Footnote 6 The mandate was issued before the Circuit Justice signed a stay. The stay was treated, however, as staying all proceedings under the mandate. Respondent's motion to dismiss the writ of certiorari as moot is therefore denied. </s> [Footnote 7 The Courts of Appeals for the Second and Tenth Circuits have held that narcotics offenders are ineligible for parole. United States v. De Simone, 468 F.2d 1196 (CA2 1972) (but see United States v. Huguet, 481 F.2d 888 (CA2 1973)); Perea v. United States Board of Parole, 480 F.2d 608 (CA10 1973). In addition to the Court of Appeals for the Third Circuit, in this case, the Courts of Appeals for the Fourth, Fifth, Seventh, and District of Columbia Circuits have held that narcotics offenders are eligible for parole. See Alvarado v. McLaughlin, 486 F.2d 541 (CA4 1973); Amaya v. United States Board of Parole, 486 F.2d 940 (CA5 1973); United States v. McGarr, 461 F.2d 1 (CA7 1972); United States v. Marshall, 158 U.S. App. D.C. 283, 485 F.2d 1062 (1973). </s> [Footnote 8 Title 18 U.S.C. 4208 (a) provides: </s> "(a) Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine." </s> [Footnote 9 The statement in Morrissey v. Brewer, 408 U.S. 471, 480 (1972), that "[p]arole arises after the end of the criminal prosecution, including imposition of sentence" was addressed to the decision determining the time of release on parole as distinguished from the decision determining eligibility. </s> [Footnote 10 Respondent argues that, since the 1970 Act contains its own saving clause, 1103 (a), that specific directive should be read to supersede the general clause 109. But only if 1103 (a) can be said [417 U.S. 653, 660] by fair implication or expressly to conflict with 109 would there be reason to hold that 1103 (a) superseded 109. See Great Northern R. Co. v. United States, 208 U.S. 452, 465 -466 (1908). We find no conflict. </s> [Footnote 11 The Court of Appeals, relying on statements in opinions of this Court that 109 is intended to obviate "mere technical abatement[s]," see Hamm v. Rock Hill, 379 U.S. 306, 314 (1964), held that, since respondent's conviction and sentence would remain intact even if he were released on parole, the purposes of 1 U.S.C. 109 would [417 U.S. 653, 661] not be served by applying it to save the no-parole provision of 26 U.S.C. 7237 (d). 483 F.2d 656, 663; see United States v. Stephens, 449 F.2d 103, 105-106 (CA9 1971). This analysis, it seems to us, begs the relevant question. The no-parole provision of 26 U.S.C. 7237 (d) was directly incorporated into the sentencing provisions of 21 U.S.C. 174 and 26 U.S.C. 7237 (a), see n. 3, supra, and if the repeal of 26 U.S.C. 7237 (d) can be viewed as mitigating respondent's punishment under those sections, his conviction and sentence would not be left intact by the repealer and his prosecution would "technically" abate under the common-law rule. Thus, the appropriate inquiry is whether parole ineligibility is a "penalty, forfeiture, or liability" for his offense that survives the repealer. </s> [Footnote 12 In Morrissey v. Brewer, 408 U.S., at 482 , in determining that parole may not be revoked without affording the parolee procedural due process, we observed: </s> "The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. . . . Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison." (Footnote omitted.) </s> MR. JUSTICE BLACKMUN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting. </s> The Court holds that the no-parole provision of the repealed statute, 26 U.S.C. 7237 (d) (1964 ed. and Supp. V), is saved by both the general saving clause, 1 U.S.C. 109, and the specific saving clause, 1103 (a), of the 1970 Act. I believe that neither provision can be read to cover postsentencing parole eligibility and I therefore respectfully dissent. [417 U.S. 653, 665] </s> I </s> Section 109. Parole eligibility, in my view, is not a "penalty" envisioned by, and within the meaning of, the general saving statute, 1 U.S.C. 109. The purpose and thrust of 109, the pertinent portion of which was enacted originally in 1871, c. 71, 16 Stat. 432, is to preclude the technical abatement of a prosecution for an offense that was committed before the criminal statute was repealed. Hamm v. Rock Hill, 379 U.S. 306, 314 (1964). Quite appropriately, this recognizes that, apart from exceptional circumstances, 1 one who violates the criminal law should not escape sanction if, subsequent to the commission of his criminal act, the law happens to be repealed. </s> This saving statute, however, is not in line with the traditional common-law rule favoring application of existing law. United States v. Chambers, 291 U.S. 217 (1934); United States v. Tynen, 11 Wall. 88 (1871). See United States v. Schooner Peggy, 1 Cranch 103 (1801); Bradley v. Richmond School Board, 416 U.S. 696 (1974). The statute has never been applied by this Court other than to prevent technical abatement of a prosecution. 2 Those federal courts that have interpreted the statute's reference to "penalty" to include the terms of the sentence have dealt only with the length of the sentence actually imposed. United States v. Kirby, 176 F.2d 101 (CA2 1949); Lovely v. United [417 U.S. 653, 666] States, 175 F.2d 312 (CA4), cert. denied, 338 U.S. 834 (1949); Duffel v. United States, 95 U.S. App. D.C. 242, 221 F.2d 523 (1954); Maceo v. United States, 46 F.2d 788 (CA5 1931). 3 </s> In this case, however, we are faced with a decidedly different situation. Respondent Marrero in no way is seeking to avoid punishment for his criminal act, and he is still fully subject to the service of his sentence. What Marrero seeks is merely the opportunity to be considered for parole. Eligibility for parole will not free him from his imposed sentence. The decision whether he should be accorded parole lies within the discretion of the Board of Parole. If for any reason the Board feels that parole would not be appropriate for the respondent, it can be denied, and Marrero will remain incarcerated for the term to which he is subject. Moreover, even if parole is deemed appropriate and is granted, respondent still would be subject to the conditions the parole authorities choose to place on his conditional freedom. </s> As the Fourth Circuit aptly has observed, parole "is not a release of the prisoner from all disciplinary restraint but is rather merely `an extension of the prison walls'; and the prisoner while on parole remains `in the legal custody and under the control of' the Parole Board," United States ex rel. Rowe v. Nicholson, 78 F.2d 468, 469-470, cert. denied, 296 U.S. 573 (1935); Alvarado v. McLaughlin, 486 F.2d 541, 544 (1973). See also [417 U.S. 653, 667] United States v. Marshall, 158 U.S. App. D.C. 283, 286, 485 F.2d 1062, 1065 (1973). The "sentence" to be served by respondent is still 10 years, whether or not he is granted parole. Cf. Anderson v. Corall, 263 U.S. 193 (1923). In short, it is by no means clear to me that respondent Marrero is seeking to be relieved of the obligations of the "sentence" imposed upon him. </s> By expanding the term "penalty" to include parole ineligibility, rather than restricting it to the sentence imposed, the Court, in my view, misconceives the nature of parole ineligibility and extends 109 well beyond its prior limits. To say that Congress intended parole ineligibility to be a "penalty" under the repealed statute is merely to state the conclusion. The appropriate question is whether Congress intended parole ineligibility to be the type of "penalty" preserved by the general saving statute. Until today, 109 has not been read so broadly, and I believe this extension goes beyond the intended narrow anti-abatement reach of 109. To repeat: 109 "was meant to obviate mere technical abatement." Hamm v. Rock Hill, 379 U.S., at 314 . </s> This unprecedented extension of 109 might be justified, and perhaps made acceptable, if it were possible in any way to conclude that the Court's reading serves to effectuate congressional intent or to promote some valid policy. But the result reached clearly does a disservice in both respects. </s> As is demonstrated in Part II, infra, Congress did not affirmatively intend to save the no-parole provision. And on pure policy grounds, the result reached by the Court is wholly illogical. Presumably, the purposes behind parole ineligibility are to effect a deterrence to the commission of narcotics offenses, and to keep serious drug offenders behind bars for longer periods. By repealing the parole ineligibility provision, Congress rejected any deterrence [417 U.S. 653, 668] rationale that had existed. A person who, on or subsequent to May 1, 1971, might anticipate the commission of a drug offense and who is cognizant of the law, knows that he is eligible for parole under 18 U.S.C. 4202 after service of one-third of his more-than-180-day sentence. The anomalous effect of the Court's action is that it keeps an inmate who is convicted of an offense committed on April 30, 1971, incarcerated for the full length of his term, while his fellow inmate who committed the identical crime on May 2 and who behaved identically in prison, is eligible for release after one-third the time. Surely, disparate treatment of this kind serves only to frustrate the inmate's sense of justice and to undermine whatever rehabilitative attempts currently are being made. 4 </s> II </s> Section 1103 (a). In passing the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, with its specific repealer provisions in 1101 (b) (3) (A) and (b) (4) (A), Congress unequivocally withdrew and rejected the concept of parole ineligibility. It concluded that the criminal process is ill served by a law that removes the incentives and the rehabilitative potential of a parole system. The only reference in the 1970 Act to pre-Act offenders is in the saving provision of 1103 (a), 84 [417 U.S. 653, 669] Stat. 1294, and it precludes abatement only of "prosecutions." Although we pretermitted this precise question in Bradley v. United States, 410 U.S. 605, 611 n. 6 (1973), the Court clearly distinguished postsentence parole eligibility from the specific terms of the sentence already handed down. I believe this distinction is crucial and that it requires a different result in the instant situation. </s> In determining whether 1103 (a) bars parole eligibility for pre-Act offenders, the Court should ascertain what Congress intended. While there is no precise legislative history on this question, I think the wording of 1103 (a) and the overall purposes of the 1970 Act preclude the result reached by the Court. Section 1103 (a) applies only to "prosecutions." We reached the outer limit of this term in Bradley. Certainly the legislative and judicial history of the even broader language of the general saving provision, 109, hardly supports the extravagant interpretation of 1103 (a) reached today. In light of the clear history and law under 109, had Congress wanted to save more than the prosecution itself, it could well have done so in specific terms. Instead, it chose the narrowest possible saving clause. Particularly in light of the fact that the text of the 1970 Act specifically rejects the concept of paroleless sentencing, it is illogical and unwarranted to assume that Congress intended the term "prosecutions" to be read so broadly. </s> For me there is no ambiguity in 1103 (a). I would take the limited saving clause at its word. Assuming, arguendo, that there is some doubt as to the congressional intent, it is harsh, to say the least, to resolve the doubt in the manner chosen by the Court. In light of the general rule favoring application of existing law, United States v. Chambers, 291 U.S. 217 (1934), and the general rule favoring construction of ambiguous statutes in favor of criminal defendants, United States v. Bass, 404 U.S. 336 </s> [417 U.S. 653, 670] (1971), I see no other choice than to resolve any doubts in favor of eligibility. </s> The Court would justify its broad reading of the word "prosecution" by stating that "a pragmatic view of sentencing requires [this] conclusion." Ante, at 658. Needless to say, no authority, legal or otherwise, is cited for this proposition other than the majority's own intuition, and I venture to say that none could be cited. Parole eligibility is determined by a parole board at its discretion, and the existence of parole eligibility is either guaranteed by statute or, as in the case of the repealed Act, is denied by statute. One thing is clear: the sentencing judge has no explicit control over the determination. Congress has never instructed district courts to assess sentences according to parole eligibility dates and if in fact some judges do this, it hardly justifies this Court's flat conclusion that parole eligibility is "implicit in the terms of the sentence" and is "thus determined at the time of sentencing." Ibid. </s> Whatever else Bradley held, it clearly stated that the parole eligibility determination under 18 U.S.C. 4202 (as opposed to preclusion of early parole in the terms of the sentence, as in Bradley) does not lie with the district judge, and the determination is "made long after sentence has been entered and the prosecution terminated." 410 U.S., at 611 n. 6 (emphasis added). 5 Even assuming footnote 6 in Bradley did not conclusively decide the instant issue, the Court's opinion renders the words of [417 U.S. 653, 671] the footnote a nullity. The majority states that we "could not reasonably be thought to have decided in a footnote a question `on which' we said in the text, `we express no opinion,'" ante, at 659. It then goes on to decide that very issue, relying almost entirely on Bradley and concluding that "under the teaching of Bradley" ineligibility for parole "is part of the `prosecution.'" Ante, at 658. At the least, Bradley precludes the approach taken by the majority. To my mind, it precludes the result reached. </s> III </s> Respondent Marrero does not seek release. He seeks only to be treated in the manner Congress now has recognized as appropriate for all criminal offenders, including those convicted of narcotics violations. If a professional Board of Parole determines that parole is in the best interests of an inmate and of society, Congress has determined that the inmate should be paroled. The Court, in my view, makes a serious mistake in expanding 109 so drastically, and in interpreting 1103 (a) contrary to its intent and language, in order to preclude this result. With only one exception, 6 the federal courts of appeals that have considered this issue currently reject the Government's argument. 7 Inasmuch as I believe the Government's [417 U.S. 653, 672] position here is incorrect, in terms both of the laws and of policy, I would affirm the judgment of the Court of Appeals. </s> [Footnote 1 See, e. g., Hamm v. Rock Hill, 379 U.S. 306 (1964). </s> [Footnote 2 The issue certified and decided in United States v. Reisinger, 128 U.S. 398 (1888), was only whether a prosecution under a repealed criminal statute survived the repeal. "Penalty" appears to have been used there interchangeably with the concept of criminal liability. See also United States v. Smith, 433 F.2d 341 (CA4 1970), cert. denied, 401 U.S. 942 (1971); United States v. Brown, 429 F.2d 566 (CA5 1970); Faubion v. United States, 424 F.2d 437 (CA10 1970). </s> [Footnote 3 In Kirby and Lovely the Courts of Appeals construed the general saving clause in connection with repealing statutes' saving clauses that provided for the nonabatement of any "rights and liabilities" under the repealed acts. It is interesting to note that all the cases cited by the Court, ante, at 661, and petitioner, Brief for Petitioner 16-17, for the proposition that sentence as well as prosecution survives under the general saving clause, were decided in circuits that subsequently rejected the extension sought by petitioner in the present case. </s> [Footnote 4 Petitioner concedes that granting parole eligibility presents no institutional problems. </s> "Neither the Bureau of Prisons nor the Board of Parole believes that it would impede the proper performance of their functions if they were required to consider narcotics offenders convicted under the prior statute eligible for parole under 18 U.S.C. 4202. Such a requirement would not demand the granting of parole to any individual prisoner unless the Board determines that his supervised release from confinement is in the interests of both the prisoner and society." Brief for Petitioner 8. </s> [Footnote 5 As the Court notes, ante, at 659 n. 9, in Morrissey v. Brewer, 408 U.S. 471, 480 (1972), we stated that "[p]arole arises after the end of the criminal prosecution, including imposition of the sentence." The fact that the decision might have dealt with release rather than the determination of eligibility does not eliminate the conceptual proposition that parole eligibility is an event separate from sentencing, and I feel that the majority's attempted distinction is not persuasive. </s> [Footnote 6 Perea v. United States Board of Parole, 480 F.2d 608 (CA10 1973). </s> [Footnote 7 United States ex rel. Marrero v. Warden, 483 F.2d 656 (CA3 1973) (the instant case); Alvarado v. McLaughlin, 486 F.2d 541 (CA4 1973), pet. for cert. pending sub nom. McLaughlin v. Prieto; Amaya v. United States Board of Parole, 486 F.2d 940 (CA5 1973), pet. for cert. pending; United States v. Marshall, 158 U.S. App. D.C. 283, 286, 485 F.2d 1062, 1065 (1973). See United States v. Huguet, 481 F.2d 888 (CA2 1973) (question pretermitted). See also United States v. McGarr, 461 F.2d 1, 4 (CA7 1972); United States v. Stephens, 449 F.2d 103 (CA9 1971). The Second Circuit's earlier decision in United States v. De Simone, 468 F.2d 1196 [417 U.S. 653, 672] (1972), cert. denied, 410 U.S. 989 (1973), cited by the Court, ante, at 656 n. 7, was referred to in Huguet, supra, and "cannot be regarded as controlling." 481 F.2d, at 891. </s> [417 U.S. 653, 673]

United States Supreme Court PEREIRA v. UNITED STATES(1954) No. 50 Argued: October 20, 1953Decided: February 1, 1954 </s> Petitioners were convicted in a federal court of (1) violating the mail fraud statute, 18 U.S.C. 1341, by causing a letter to be mailed by a bank pursuant to a scheme to defraud, (2) violating the National Stolen Property Act, 18 U.S.C. 2314, by causing a check obtained by fraud to be transported by a bank in Texas to a bank in California for collection, and (3) a conspiracy to commit the two substantive offenses in violation of 18 U.S.C. 371. The charges arose out of a scheme to defraud a wealthy widow of her property. Petitioner Pereira married her and absconded shortly thereafter. She divorced him before the trial and was permitted to testify against both petitioners over their objections. Held: The convictions are affirmed. Pp. 3-13. </s> 1. There was no error in the admission of the victim's testimony over the objection that it violated the privilege for confidential marital communications; because it related primarily to statements made before the marriage or in the presence of third persons or acts which did not amount to confidential marital communications, and any residuum which may have been intended to be confidential was so slight as to be immaterial. Pp. 6-7. </s> 2. Evidence that, pursuant to a scheme to defraud, Pereira delivered to a bank in one city for collection a check drawn on a bank in another city and that it was mailed to the drawee bank in the ordinary course of business was sufficient to sustain his [347 U.S. 1, 2] conviction of the substantive offense of using the mails to defraud, in violation of 18 U.S.C. 1341. Pp. 7-9. </s> (a) In view of 18 U.S.C. 2 (b), it was not necessary to show that petitioner actually mailed or transported anything himself; it was sufficient to show that he caused it to be done. P. 8. </s> (b) Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. Pp. 8-9. </s> 3. Evidence that Pereira delivered to a Texas bank for collection a check obtained by fraud and drawn on a bank in California and that it was sent to the drawee bank was sufficient to sustain his conviction of the substantive offense of causing property obtained by fraud to be transported in interstate commerce in violation of 18 U.S.C. 2314. P. 9. </s> 4. Sections 1341 and 2314 constitute two separate offenses, and a defendant may be convicted of both, even though the charges arise from a single act or series of acts, since each requires proof of a fact not essential to the other. P. 9. </s> 5. In view of 18 U.S.C. 2 (a) and the trial court's charge to the jury, the evidence presented by the Government that petitioner Brading was a participant in the fraud from beginning to end and actively aided and abetted Pereira in its perpetration was sufficient to sustain Brading's conviction of the substantive offenses. Pp. 9-11. </s> 6. Petitioners' convictions on both the substantive counts and of a conspiracy to commit the crimes charged in the substantive counts did not constitute double jeopardy. Pp. 11-12. </s> 7. The evidence was sufficient to sustain petitioners' convictions on the charge of conspiracy. Pp. 12-13. </s> 202 F.2d 830, affirmed. </s> Charles L. Sylvester argued the cause for petitioners. With him on the brief was William H. Fryer. </s> John R. Wilkins argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Olney and Beatrice Rosenberg. [347 U.S. 1, 3] </s> MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. </s> The petitioners, Pereira and Brading, were convicted in the District Court for the Western District of Texas under three counts of an indictment charging violation of the mail fraud statute, 18 U.S.C. (Supp. V) 1341, violation of the National Stolen Property Act, 18 U.S.C. (Supp. V) 2314, and a conspiracy to commit the aforesaid substantive offenses, 18 U.S.C. (Supp. V) 371. The Court of Appeals for the Fifth Circuit affirmed. 202 F.2d 830. This Court granted certiorari to consider questions which are important to the proper administration of criminal justice in the federal courts. 345 U.S. 990 . </s> On April 19, 1951, Mrs. Gertrude Joyce, a wealthy widow, fifty-six years old, and her younger half-sister, Miss Katherine Joyner, were accosted by the petitioner Brading as they were about to enter a hotel in El Paso, Texas. Mrs. Joyce and her sister had just arrived from their home in Roswell, New Mexico, and were preparing to register at the hotel. Brading identified himself, assisted them in parking their car, and invited them into the hotel bar to meet a friend of his. They accepted. The friend was petitioner Pereira, thirty-three years of age. After a few drinks, the men suggested that they all go to Juarez for dinner. The women accepted, and after dinner visited some night clubs with the petitioners. Pereira devoted himself to Mrs. Joyce, telling her that their meeting was an "epoch" in his life. He mentioned that he was getting a divorce. This same performance was repeated the following night. When Pereira said that he would like to return to Roswell with the women, Mrs. Joyce invited the two men to be her house guests, and they accepted. Pereira commenced to make love to Mrs. Joyce, and she responded to his attentions. On May 3, Pereira exhibited a telegram to Mrs. Joyce, in the presence [347 U.S. 1, 4] of Brading and Miss Joyner, stating that his divorce would be granted on May 27, but that he would not receive his share of the property settlement, some $48,000, for a month. </s> Brading represented himself as a prosperous oil man, dealing in leases, and Pereira as the owner and operator of several profitable hotels. Brading then told Mrs. Joyce that Pereira was about to lose an opportunity to share in the profits of some excellent oil leases because of the delay in the divorce property settlement, and persuaded her to lend Pereira $5,000. </s> Pereira suggested that he and Mrs. Joyce take a trip together to "become better acquainted." He borrowed $1,000 from her to finance the trip. Brading joined them at Wichita Falls, and the three of them continued the trip together as far as Dallas. Pereira discussed his purported hotel business in Denver during this part of the trip. He stated that he was giving two hotels to his divorced wife, but intended to re-enter the hotel business in the fall. In the meantime, he was going to "play a little oil" with Brading. In Hot Springs, Arkansas, Pereira proposed marriage and was accepted. Brading reappeared on the scene, expressing great joy at the impending marriage. Pereira then told Brading, in the presence of Mrs. Joyce, that he would have to withdraw from further oil deals and get a hotel to assure himself of a steady income. </s> Pereira and Mrs. Joyce were married May 25, 1951, in Kansas City, Missouri. While there, Pereira persuaded Mrs. Joyce to procure funds to enable him to complete an arrangement to purchase a Cadillac through a friend. She secured a check for $6,956.55 from her Los Angeles broker, and drawn on a California bank, which she endorsed over to Pereira. The price of the car was $4,750, and she instructed Pereira to return the balance of the proceeds of the check to her. He kept the change. [347 U.S. 1, 5] </s> From that time on, Pereira and Brading, in the presence of Mrs. Joyce, discussed a hotel which by words and conduct they represented that Pereira was to buy in Greenville, Texas. They took Mrs. Joyce - by this time Mrs. Pereira - to see it, and exhibited an option for its purchase for $78,000 through a supposed broker, "E. J. Wilson." Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los Angeles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los Angeles from her brokers in Los Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier's check for $35,000 was drawn in favor of Pereira. </s> At five o'clock in the morning of June 19, Pereira and Brading, after telling their victim that they were driving the Cadillac to a neighboring town to sign some oil leases, left her at home in Roswell, New Mexico, promising to return by noon. Instead Pereira picked up the check for $35,000 at the El Paso Bank, cashed it there, and with Brading left with the money and the Cadillac. </s> That was the last Mrs. Joyce saw of either petitioner, or of her money, until the trial some seven months later. She divorced Pereira on November 16, 1951. </s> The record clearly shows that Brading was not an oil man; that Pereira was not a hotel owner; that there was no divorce or property settlement pending in Denver; that Pereira arranged to have the telegram concerning the divorce sent to him by a friend in Denver; that there were no oil leases; that the hotel deal was wholly fictitious; and that "E. J. Wilson" was the petitioner Brading. The only true statements which the petitioners [347 U.S. 1, 6] made concerned the purchase of the Cadillac, and they took that with them. Pereira and Brading contrived all of the papers used to lend an air of authenticity to their deals. In short, their activities followed the familiar pattern of the "confidence game." </s> The petitioners challenge the admissibility of Mrs. Joyce's testimony as being based on confidential communications between Mrs. Joyce and Pereira during the marriage. Petitioners do not now contend that Mrs. Joyce was not a competent witness against her ex-husband. They concede that the divorce removed any bar of incompetency. That is the generally accepted rule. Wigmore, Evidence, 2237; 58 Am. Jur., Witnesses, 204. Petitioners rely on the proposition that while divorce removes the bar of incompetency, it does not terminate the privilege for confidential marital communications. Wigmore, Evidence, 2341 (2); 58 Am. Jur., Witnesses, 379. This is a correct statement of the rule, but it is inapplicable to bar the communications involved in this case, since under the facts of the case, it cannot be said that these communications were confidential. Although marital communications are presumed to be confidential, that presumption may be overcome by proof of facts showing that they were not intended to be private. Blau v. United States, 340 U.S. 332 ; Wolfle v. United States, 291 U.S. 7 . The presence of a third party negatives the presumption of privacy. Wigmore, Evidence, 2336. So too, the intention that the information conveyed be transmitted to a third person. Id., 2336. The privilege, generally, extends only to utterances, and not to acts. Id., 2337. A review of Mrs. Joyce's testimony reveals that it involved primarily statements made in the presence of Brading or Miss Joyner, or both, acts of Pereira which did not amount to communications, trips taken with third parties, and her own acts. Much of her [347 U.S. 1, 7] testimony related to matters occurring prior to the marriage. Any residuum which may have been intended to be confidential was so slight as to be immaterial. Cf. United States v. Mitchell, 137 F.2d 1006, 1009. </s> The court below was not in error in admitting Mrs. Joyce's testimony. </s> The petitioners challenge their conviction on the substantive counts on the ground that there was no evidence of any mailing or of transporting stolen property interstate, the gist of the respective offenses. These contentions are without merit. </s> The mail fraud statute provides: </s> " 1341. Frauds and swindles. </s> "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both." 18 U.S.C. (Supp. V) 1341. [347 U.S. 1, 8] </s> The National Stolen Property Act provides: </s> " 2314. Transportation of stolen goods, securities, monies, or articles used in counterfeiting. </s> "Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud . . . . </s> "Shall be fined not more than $10,000 or imprisoned not more than ten years, or both. . . ." 18 U.S.C. (Supp. V) 2314. </s> To constitute a violation of these provisions, it is not necessary to show that petitioners actually mailed or transported anything themselves; it is sufficient if they caused it to be done. 18 U.S.C. (Supp. V) 2 (b). </s> Petitioners do not deny that the proof offered establishes that they planned to defraud Mrs. Joyce. Collecting the proceeds of the check was an essential part of that scheme. For this purpose, Pereira delivered the check drawn on a Los Angeles bank to the El Paso bank. There was substantial evidence to show that the check was mailed from Texas to California, in the ordinary course of business. </s> The elements of the offense of mail fraud under 18 U.S.C. (Supp. V) 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme. It is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155 . Here, the scheme to defraud is established, and the mailing of the check by the bank, incident to an essential part of the scheme, is established. There remains only the question whether Pereira "caused" the mailing. That question is easily answered. Where one does an act with [347 U.S. 1, 9] knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he "causes" the mails to be used. United States v. Kenofskey, 243 U.S. 440 . The conclusion that Pereira's conviction under this count was proper follows naturally from these factors. </s> As to the charge of causing stolen property to be transported in interstate commerce, the validity of Pereira's conviction is even more apparent. Sections 1341 and 2314 of Title 18 constitute two separate offenses, and a defendant may be convicted of both even though the charges arise from a single act or series of acts, so long as each requires the proof of a fact not essential to the other. Gavieres v. United States, 220 U.S. 338 ; Blockburger v. United States, 284 U.S. 299 . 18 U.S.C. (Supp. V) 2314 requires (1) knowledge that certain property has been stolen or obtained by fraud, and (2) transporting it, or causing it to be transported, in interstate commerce. It is obvious that the mail fraud offense requires different proof. The transporting charge does not require proof that any specific means of transporting were used, or that the acts were done pursuant to a scheme to defraud, as is required for the mail fraud charge. United States v. Sheridan, 329 U.S. 379 . When Pereira delivered the check, drawn on an out-of-state bank, to the El Paso bank for collection, he "caused" it to be transported in interstate commerce. It is common knowledge that such checks must be sent to the drawee bank for collection, and it follows that Pereira intended the El Paso bank to send this check across state lines. United States v. Sheridan, supra, at 391. The trial court charged the jury that one who "aids, abets, counsels, commands, induces or procures" the commission of an act is as responsible for that act as if he had directly committed the act himself. [347 U.S. 1, 10] See 18 U.S.C. (Supp. V) 2 (a). Nye & Nissen v. United States, 336 U.S. 613 . The jury found Brading guilty in the light of this instruction. The Court of Appeals affirmed on the ground that the evidence supported conviction under this charge. * </s> The evidence is clear and convincing that Brading was a participant in the fraud from beginning to end. Brading made the initial contact with the victim. He persuaded her to part with $5,000, as a loan to Pereira for investment in some nonexistent oil leases. He was present and participated in conversations about buying the hotel lease. He engaged a telephone-answering service under the name of "E. J. Wilson," the name of Pereira's purported broker. The evidence established that he sent a telegram to Pereira authorizing an extension of the supposed option to purchase the hotel, signing it "E. J. Wilson." He supplied the false excuse for Pereira's departure from the victim, and went with Pereira to collect the proceeds of the check. He and Pereira fled together with the money. </s> The "aiding and abetting" instruction entitled the jury to draw inferences supplying any lack of evidence directly connecting the petitioner Brading with the specific acts charged in the indictment from the abundant circumstantial evidence offered. The jury was properly charged on this theory. There is ample evidence of the petitioners' collaboration and close cooperation in the fraud from [347 U.S. 1, 11] which the jury could conclude that Brading aided, abetted, or counseled Pereira in the commission of the specific acts charged. See Nye & Nissen v. United States, supra, at 619. The Court of Appeals has passed on the sufficiency of the evidence to sustain Brading's conviction on this theory. We see no reason to upset the findings of the courts below. </s> The petitioners allege that their conviction on both the substantive counts and a conspiracy to commit the crimes charged in the substantive counts constitutes double jeopardy. It is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction for both. See Pinkerton v. United States, 328 U.S. 640, 643 -644, and cases cited therein. Only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy. Cf. Gavieres v. United States, 220 U.S. 338 . The substantive offenses with which petitioners were charged do not require more than one person for their commission; either could be accomplished by a single individual. The essence of the conspiracy charge is an agreement to use the mails to defraud and/or to transport in interstate commerce property known to have been obtained by fraud. Pereira's conviction on the substantive counts does not depend on any agreement, he being the principal actor. Similarly, Brading's conviction does not turn on the agreement. Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy. Nye & Nissen v. United States, supra, at 620. Thus, the charge of conspiracy requires proof not essential to the convictions on [347 U.S. 1, 12] the substantive offenses - proof of an agreement to commit an offense against the United States - and it cannot be said that the substantive offenses and the conspiracy are identical, any more than that the two substantive offenses are identical. </s> Petitioners further contend that there was no evidence that they agreed to use the mails in furtherance of the scheme to defraud Mrs. Joyce or that they agreed to transport stolen property in interstate commerce. It is not necessary that an agreement to use the mails or transport stolen property exist from the inception of the scheme to defraud. If there was such an agreement at any time, it is sufficient. The existence of a conspiracy to defraud Mrs. Joyce is not denied. Pereira obtained a check from the victim for the purchase of an automobile. That check was drawn on a Los Angeles bank by Mrs. Joyce's brokers. When the subject of purchasing the hotel was broached, Mrs. Joyce told Pereira that she would have to have her California broker sell some stocks to obtain the funds for the purchase. When there was a delay in contacting the broker, Brading, as "E. J. Wilson," sent a telegram extending the spurious option for the purchase of the hotel. There is no doubt about Pereira's knowledge that a check on an out-of-state bank would be involved. From what we have said with regard to the substantive offenses, it is also clear that an intent to collect on the check would include an intent to use the mails or to transport the check in interstate commerce. It was certainly not improper to allow the jury to determine from the circumstances whether Brading shared Pereira's knowledge and agreed with him as to the use of the only appropriate means of collecting the money. It would be unreasonable to suppose that Brading would be so closely associated with Pereira in the scheme to defraud without knowing the details related to the realization of their common [347 U.S. 1, 13] goal. There is no reason for this Court to upset the jury's finding of conspiracy. </s> For the foregoing reasons, the judgment below is </s> Affirmed. </s> [Footnote * The Government argues that Brading's conviction on the substantive offenses can be affirmed on the basis of Pinkerton v. United States, 328 U.S. 640 , since the record demonstrates that he conspired to defraud Mrs. Joyce and the acts charged in the substantive offenses were acts in furtherance of that design. The Pinkerton case, however, is inapplicable here since the jury was not instructed in terms of that theory. Nye & Nissen v. United States, 336 U.S. 613 . </s> MR. JUSTICE REED took no part in the consideration or decision of this case. </s> MR. JUSTICE MINTON, with whom MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join, concurring in part and dissenting in part. </s> That a monumental fraud was perpetrated by the petitioners on Mrs. Joyce in the true fashion of a confidence game cannot be disputed. Such fraud could be punished by the States. For the United States to take cognizance of the offenses, the mails had to be used to carry out the fraud or the check fraudulently obtained must have been carried across state lines. That is what the Government charged. Count one charged that they caused a letter to be mailed from El Paso, Texas, to Los Angeles, California, on June 15, 1951. Count ten charged that on or about the same date they caused the check, in the amount of $35,286.78, to be transported in interstate commerce from El Paso to Los Angeles, knowing it was obtained by fraud. Count 11 charged a conspiracy to commit the substantive offenses. </s> I would affirm the convictions except as to Brading on the substantive counts. To convict on the substantive counts, the petitioners must have actually used the mails to transport the check from El Paso to Los Angeles. The use may be proved by direct or circumstantial evidence, but it must be proved. Brading must have used, or must have known or from the facts and circumstances be reasonably expected to have known, that Pereira actually [347 U.S. 1, 14] would use the mails. United States v. Peoni, 100 F.2d 401, 402. To be guilty of the conspiracy, Brading had only to reasonably anticipate that Pereira might use the mails, and if he did subsequently use them, then Brading is bound. </s> The elements of the offense under the Mail Fraud statute are (1) a scheme to defraud which (2) reasonably contemplates the use of the mails, and (3) use of the mails in furtherance of the plan. The National Stolen Property Act is violated if (1) one transports securities or money of the value of $5,000 or more in interstate commerce and (2) does so knowing they have been taken by fraud. </s> Concededly, Brading did not participate directly in the use of the mails to transport the thirty-five thousand dollar check from El Paso to Los Angeles. He can be convicted, if at all, only as an aider and abettor. Nye & Nissen v. United States, 336 U.S. 613, 618 . There is no evidence to establish that he could reasonably have expected that the mails would be used in carrying out the scheme. </s> Three financial transactions are mentioned by the Court in its opinion. First, the $5,000 transaction. That all took place in Roswell, New Mexico, where Mrs. Joyce cashed a check on a Roswell bank and gave the proceeds to Pereira. No federal offense there. The Cadillac transaction was liquidated by a check received from Los Angeles by Mrs. Joyce and turned over to Pereira, who cashed it in Kansas City, Missouri. Brading was not shown to have known where this money came from, and, more important, it was not proved that that check was mailed, as was done in the case of the third check, for $35,286.78. </s> Mrs. Joyce arranged for this check, the only transaction upon which the convictions are based, by selling securities in Los Angeles. She received the check and [347 U.S. 1, 15] turned it over to Pereira in Roswell, New Mexico, from whence he took it to El Paso, and there, on June 15, 1951, after securing Mrs. Joyce's endorsement, caused it to be sent through the mails for collection. The evidence does not show where Brading was at the time these events occurred. He next appeared at Mrs. Joyce's home in Roswell after the completion of the acts constituting the federal crimes, and on June 19, 1951, left with Pereira, ostensibly to see about some oil leases in Texas. The same day Pereira collected the money at the El Paso bank. There is no direct evidence that Brading actually knew or had reason to believe that a check would be received or that the check would be drawn on an out-of-town bank, necessitating its being placed in the mails for collection. </s> Lacking such proof, an important element of each crime charged, namely, that Brading had reason to foresee the use of the mails or interstate commerce, has not been established. It is true that the use of the mails need not have been originally intended as a part of the plan, but its use must have been a natural, reasonably foreseeable means of executing the plan. Brading might well have assumed that cash would be given to Pereira, or, if a check, one drawn on a local bank. </s> It may well be reasonable to infer that one receiving a check drawn on an out-of-town bank would know that it would be mailed in the process of collection, but to that inference must be added the inference that Brading had reason to know that a check would be received and also that the check would be on an out-of-town bank. This is piling inference upon inference, in the absence of direct proof. In short, this is simply guessing Brading into the federal penitentiary. It may be good guessing, but it is not proof. </s> Brading is clearly an aider and abettor of the scheme to defraud, which a State may punish, but is he an aider [347 U.S. 1, 16] and abettor of the federal offenses of using the mails to defraud and causing the fraudulent check to be carried across state lines? I think not, unless we are willing to say that aiding and abetting the scheme to defraud is aiding and abetting any means used for the consummation of the fraud. Brading must aid and abet the federal crimes, not just the fraudulent scheme. There is not a scintilla of evidence that Brading aided and abetted anything more than the scheme to get the money from Mrs. Joyce. </s> In Bollenbach v. United States, 326 U.S. 607 , the defendant was charged with transporting securities in interstate commerce knowing them to have been stolen, and with conspiracy to commit the offense. He was convicted of conspiracy. The court had instructed the jury that possession of the securities by the defendant in New York soon after their theft in Minnesota was sufficient to warrant the jury in finding that the defendant knew the securities had been stolen, and this would support the further "presumption" that the defendant was the thief and transported the securities in interstate commerce. This Court set the conviction aside. The latter inference was said to be untenable. </s> In this case, I think it untenable to infer that Brading had reason to know that Pereira would get a foreign check that must be sent through the mails and in its handling must be carried across state lines, thereby making out the federal crimes. It is untenable because it is unreasonable to infer one or more facts from the inference of another fact. Looney v. Metropolitan R. Co., 200 U.S. 480, 488 ; United States v. Ross, 92 U.S. 281 . </s> [347 U.S. 1, 17]