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1960_87

MR. JUSTICE CLARK delivered the opinion of the Court.We granted certiorari to review a declaratory judgment holding illegal under § 3 of the Clayton Act [Footnote 1] a requirements contract between the parties providing for the purchase by petitioner of all the coal it would require as boiler fuel at its Gannon Station in Tampa, Florida, over a 20-year period. 363 U.S. 836. Both the District court, 168 F. Supp. 456, and the Court of Appeals, 276 F.2d 766, Judge Weick dissenting, agreed with respondents that the contract fell within the proscription of § 3, and therefore was illegal and unenforceable. We cannot agree that the contract suffers the claimed antitrust illegality [Footnote 2] and therefore do not find it necessary to Page 365 U. S. 322 consider respondents' additional argument that such illegality is a defense to the action and a bar to enforceability.The FactsPetitioner Tampa Electric Company is a public utility located in Tampa, Florida. It produces and sells electric energy to a service area, including the city, extending from Tampa Bay eastward 60 miles to the center of the State, and some 30 miles in width. As of 1954, petitioner operated two electrical generating plants comprising a total of 11 individual generating units, all of which consumed oil in their burners. In 1955, Tampa Electric decided to expand its facilities by the construction of an additional generating plant to be comprised ultimately of six generating units, and to be known as the "Francis J. Gannon Station." Although every electrical generating plant in peninsular Florida burned oil at that time, Tampa Electric decided to try coal as boiler fuel in the first two units constructed at the Gannon Station. Accordingly, it contracted with the respondents [Footnote 3] to furnish the expected coal requirements for the units. The agreement, dated May 23, 1955, embraced Tampa Electric's"total requirements of fuel . . . for the operation of its first two units to be installed at the Gannon Station . . . not less than 225,000 tons of coal per unit per year,"for a period of 20 years. The contract further provided that,"if, during the first 10 years of the term . . . , the Buyer constructs additional units [at Gannon] in which coal is used as the fuel, it shall give the Seller notice thereof two years prior to the completion of such unit or units, and, upon completion of same, the fuel requirements thereof shall be added to this contract."It was understood and agreed, however, that"the Buyer has the option to be exercised two years prior Page 365 U. S. 323 to completion of said unit or units of determining whether coal or some other fuel shall be used in same."Tampa Electric had the further option of reducing, up to 15%, the amount of its coal purchases covered by the contract after giving six months' notice of an intention to use as fuel a by-product of any of its local customers. The minimum price was set at $6.40 per ton delivered, subject to an escalation clause based on labor cost and other factors. Deliveries were originally expected to begin in March, 1957, for the first unit, and for the second unit at the completion of its construction.In April, 1957, soon before the first coal was actually to be delivered and after Tampa Electric, in order to equip its first two Gannon units for the use of coal, had expended some $3,000,000 more than the cost of constructing oil-burning units, and after respondents had expended approximately $7,500,000 readying themselves to perform the contract, the latter advised petitioner that the contract was illegal under the antitrust laws, would therefore not be performed, and no coal would be delivered. This turn of events required Tampa Electric to look elsewhere for its coal requirements. The first unit at Gannon began operating August 1, 1957, using coal purchased on a temporary basis, but, on December 23, 1957, a purchase order contract for the total coal requirements of the Gannon Station was made with Love and Amos Coal Company. It was for an indefinite period cancellable on 12 months' notice by either party, or immediately upon tender of performance by respondents under the contract sued upon here. The maximum price was $8.80 per ton, depending upon the freight rate. In its purchase order to the Love and Amos Company, Tampa estimated that its requirements at the Gannon Station would be 350,000 tons in 1958; 700,000 tons in 1959, and 1960; 1,000,000 tons in 1961; and would increase thereafter, as required, to "about 2,250,000 tons per year." The second unit at Gannon Page 365 U. S. 324 Station commenced operation 14 months after the first, i.e., October, 1958. Construction of a third unit, the coal for which was to have been provided under the original contract, was also begun.The record indicates that the total consumption of coal in peninsular Florida, as of 1958, aside from Gannon Station, was approximately 700,000 tons annually. It further shows that there were some 700 coal suppliers in the producing area where respondents operated, and that Tampa Electric's anticipated maximum requirements at Gannon Station, i.e., 2,250 tons annually, would approximate 1% of the total coal of the same type produced and marketed from respondents' producing area.Petitioner brought this suit in the District Court pursuant to 28 U.S.C. § 2201 for a declaration that its contract with respondents was valid and for enforcement according to its terms. In addition to its Clayton Act defense, respondents contended that the contract violated both §§ 1 and 2 of the Sherman Act, which, it claimed, likewise precluded its enforcement. The District Court, however, granted respondents' motion for summary judgment on the sole ground that the undisputed facts, recited above, showed the contract to be a violation of § 3 of the Clayton Act. The Court of Appeals agreed. Neither court found it necessary to consider the applicability of the Sherman Act.Decisions of District Court and Court of Appeals.Both courts admitted that the contract "does not expressly contain the condition'" that Tampa Electric would not use or deal in the coal of respondents' competitors. Nonetheless, they reasoned, the "total requirements" provision had the same practical effect, for it prevented Tampa Electric, for a period of 20, years from buying coal from any other source for use at that station. Each court cast aside as "irrelevant" arguments citing the Page 365 U. S. 325 use of oil as boiler fuel be Tampa Electric at its other stations, and by other utilities in peninsular Florida, because oil was not, in fact, used at Gannon Station, and the possibility of exercise by Tampa Electric of the option reserved to it to build oil-burning units at Gannon was too remote. Found to be equally remote was the possibility of Tampa's conversion of existing oil-burning units at its other stations to the use of coal which would not be covered by the contract with respondents. It followed, both courts found, that the "line of commerce" on which the restraint was to be tested was coal -- not boiler fuels. Both courts compared the estimated coal tonnage as to which the contract preempted competition for 20 years, namely, 1,000,000 tons a year by 1961, with the previous annual consumption of peninsular Florida, 700,000 tons. Emphasizing that fact, as well as the contract value of the coal covered by the 20-year term, i.e., $128,000,000, they held that such volume was not "insignificant or insubstantial," and that the effect of the contract would "be to substantially lessen competition," in violation of the Act. Both courts were of the opinion that, in view of the executory nature of the contract, judicial enforcement of any portion of it could not be granted without directing a violation of the Act itself, and enforcement was therefore denied. [Footnote 4]Application of § 3 of the Clayton Act.In the almost half century since Congress adopted the Clayton Act, this Court has been called upon 10 times, [Footnote 5] including the present, to pass upon questions arising under § 3. Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346 (1922), the first of the cases, held that Page 365 U. S. 326 the Act"sought to reach the agreements embraced within its sphere in their incipiency, and in the section under consideration to determine their legality by specific tests of its own. . . ."At. p. 258 U. S. 356. In sum, it was declared, § 3 condemned sales or agreements"where the effect of such sale or contract . . . would under the circumstances disclosed probably lessen competition, or create an actual tendency to monopoly."At pp. 258 U. S. 356-357. This was not to say, the Court emphasized, that the Act was intended to reach every "remote lessening" of competition -- only those which were substantial -- but the Court did not draw the line where "remote" ended and "substantial" began. There in evidence, however, was the fact that the activities of two-fifths of the Nation's 52,000 pattern agencies were affected by the challenged device. Then, one week later, followed United Shoe Machinery Corp. v. United States, 258 U. S. 451 (1922), which held that, even though a contract does "not contain specific agreements not to use the [goods] of a competitor," if "the practical effect . . . is to prevent such use," it comes within the condition of the section as to exclusivity. At. p. 258 U. S. 457. The Court also held, as it had in Standard Fashion, supra, that a finding of domination of the relevant market by the lessor or seller was sufficient to support the inference that competition had or would be substantially lessened by the contracts involved there. As of that time, it seemed clear that, if "the practical effect" of the contract was to prevent a lessee or buyer from using the products of a competitor of the lessor or seller and the contract would thereby probably substantially lessen competition in a line of commerce, it was proscribed. A quarter of a century later, in International Salt Co. v. United States, 332 U. S. 392 (1947), the Court held, at least in tying cases, that the necessity of direct proof of the economic impact of such a contract was not necessary where it was established that "the volume of business Page 365 U. S. 327 affected" was not "insignificant or insubstantial," and that the effect was "to foreclose competitors from any substantial market." At p. 332 U. S. 396. It was only two years later, in Standard Oil Co. v. United States, 337 U. S. 293 (1949), that the Court again considered § 3 and its application to exclusive supply, or, as they are commonly known, requirements contracts. It held that such contracts are proscribed by § 3 if their practical effect is to prevent lessees or purchasers from using or dealing in the goods, etc., of a competitor or competitors of the lessor or seller, and thereby "competition has been foreclosed in a substantial share of the line of commerce affected." At p. 337 U. S. 314.In practical application, even though a contract is found to be an exclusive dealing arrangement, it does not violate the section unless the court believes it probable that performance of the contract will foreclose competition in a substantial share of the line of commerce affected. Following the guidelines of earlier decisions, certain considerations must be taken. First, the line of commerce, i.e., the type of goods, wares, or merchandise, etc., involved must be determined, where it is in controversy, on the basis of the facts peculiar to the case. [Footnote 6] Second, the area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. In short, the threatened foreclosure of competition must be in relation to the market affected. As was said in Standard Oil Co. v. United States, supra:"It is clear, of course, that the 'line of commerce' affected need not be nationwide, at least where the purchasers cannot, as a practical matter, turn to suppliers outside their own area. Although the effect on Page 365 U. S. 328 competition will be quantitatively the same if a given volume of the industry's business is assumed to be covered, whether or not the affected sources of supply are those of the industry as a whole or only those of a particular region, a purely quantitative measure of this effect is inadequate, because the narrower the area of competition, the greater the comparative effect on the area's competitors. Since it is the preservation of competition which is at stake, the significant proportion of coverage is that within the area of effective competition."At p. 337 U. S. 299, note 5.In the Standard Oil case, the area of effective competition -- the relevant market -- was found to be where the seller and some 75 of its competitors sold petroleum products. Conveniently identified as the Western Area, it included Arizona, California, Idaho, Nevada, Oregon, Utah and Washington. Similarly, in United States v. Columbia Steel Co., 334 U. S. 495 (1948), a § 1 Sherman Act case, this Court decided the relevant market to be the competitive area in which Consolidated marketed its products, i.e., 11 Western States. The Court found Consolidated's share of the nationwide market for the relevant line of commerce, rolled steel products, to be less than 1/2 of 1%, an "insignificant fraction of the total market," at p. 334 U. S. 508, and its share of the more narrow but only relevant market, 3%, was described as "a small part," at p. 334 U. S. 511, not sufficient to injure any competitor of United States Steel in that area or elsewhere.Third, and last, the competition foreclosed by the contract must be found to constitute a substantial share of the relevant market. That is to say, the opportunities for other traders to enter into or remain in that market must be significantly limited, as was pointed out in Standard Oil Co. v. United States, supra. There, the impact of the requirements contracts was studied in the setting of the large number of gasoline stations -- 5,937, or Page 365 U. S. 329 16% of the retail outlets in the relevant market -- and the large number of contracts, over 8,000, together with the great volume of products involved. This combination dictated a finding that "Standard's use of the contracts [created] just such a potential clog on competition as it was the purpose of § 3 to remove" where, as there, the affected proportion of retail sales was substantial. At p. 337 U. S. 314. As we noted above, in United States v. Columbia Steel Co., supra, substantiality was judged on a comparative basis, i.e., Consolidated's use of rolled steel was "a small part" when weighed against the total volume of that product in the relevant market.To determine substantiality in a given case, it is necessary to weigh the probable effect of the contract on the relevant area of effective competition, taking into account the relative strength of the parties, the proportionate volume of commerce involved in relation to the total volume of commerce in the relevant market area, and the probable immediate and future effects which preemption of that share of the market might have on effective competition therein. It follows that a mere showing that the contract itself involves a substantial number of dollars is ordinarily of little consequence.The Application of § 3 Here.In applying these considerations to the facts of the case before us, it appears clear that both the Court of Appeals and the District Court have not given the required effect to a controlling factor in the case -- the relevant competitive market area. This omission, by itself, requires reversal, for, as we have pointed out, the relevant market is the prime factor in relation to which the ultimate question, whether the contract forecloses competition in a substantial share of the line of commerce involved, must be decided. For the purposes of this case, therefore, we need not decide two threshold questions pressed by Tampa Page 365 U. S. 330 Electric. They are whether the contract in fact satisfies the initial requirement of § 3, i.e., whether it is truly an exclusive dealing one, and, secondly, whether the line of commerce is boiler fuels, including coal, oil and gas, rather than coal alone. [Footnote 7] We therefore, for the purposes of this case, assume, but do not decide, that the contract is an exclusive dealing arrangement within the compass of § 3, and that the line of commerce is bituminous coal.Relevant Market of Effective Competition.Neither the Court of Appeals nor the District Court considered in detail the question of the relevant market. They do seem, however, to have been satisfied with inquiring only as to competition within "Peninsular Florida." It was noted that the total consumption of peninsular Florida was 700,000 tons of coal per year, about equal to the estimated 1959 requirements of Tampa Electric. It was also pointed out that coal accounted for less than 6% of the fuel consumed in the entire State. [Footnote 8] The District Court concluded that, though the respondents were only one of 700 coal producers who could serve the same market, peninsular Florida, the contract for a period of 20 years excluded competitors from a substantial Page 365 U. S. 331 amount of trade. Respondents contend that the coal tonnage covered by the contract must be weighed against either the total consumption of coal in peninsular Florida, or all of Florida, or the Bituminous Coal Act area comprising peninsular Florida and the Georgia "finger," or, at most, all of Florida and Georgia. If the latter area were considered the relevant market, Tampa Electric's proposed requirements would be 18% of the tonnage sold therein. Tampa Electric says that both courts and respondents are in error, because the "700 coal producers who could serve" it, as recognized by the trial court and admitted by respondents, operated in the Appalachian coal area, and that its contract requirements were less than 1% of the total marketed production of these producers; that the relevant effective area of competition was the area in which these producers operated, and in which they were willing to compete for the consumer potential.We are persuaded that, on the record in this case, neither peninsular Florida, nor the entire State of Florida, nor Florida and Georgia combined constituted the relevant market of effective competition. We do not believe that the pie will slice so thinly. By far the bulk of the overwhelming tonnage marketed from the same producing area as serves Tampa is sold outside of Georgia and Florida, and the producers were "eager" to sell more coal in those States. [Footnote 9] While the relevant competitive market is not ordinarily susceptible to a "metes and bounds" definition, cf. Times-Picayune Pub. Co. v. United States, 345 U. S. 594, 345 U. S. 611, it is, of course, the area in which respondents Page 365 U. S. 332 and the other 700 producers effectively compete. Standard Oil Co. v. United States, supra. The record shows that, like the respondents, they sold bituminous coal "suitable for [Tampa's] requirements," mined in parts of Pennsylvania, Virginia, West Virginia, Kentucky, Tennessee, Alabama, Ohio and Illinois. We take notice of the fact that the approximate total bituminous coal (and lignite) product in the year 1954 from the districts in which these 700 producers are located was 359,289,000 tons, of which some 290,567,000 tons were sold on the open market. [Footnote 10] Of the latter amount, some 78,716,000 tons were sold to electric utilities. [Footnote 11] We also note that, in 1954, Florida and Georgia combined consumed at least 2,304,000 tons, 1,100,000 of which were used by electric utilities, and the sources of which were mines located in no less than seven States. [Footnote 12] We take further notice that the production and marketing of bituminous coal (and lignite) from the same districts, and assumedly equally available to Tampa on a commercially feasible basis, is currently on a par with prior years. [Footnote 13] In point of statistical fact, coal consumption in the combined Florida-Georgia area has increased significantly since 1954. In 1959, more than 3,775,000 tons were there consumed, 2,913,000 being used by electric utilities, including, presumably, the coal used by the petitioner. [Footnote 14] Page 365 U. S. 333 The coal continued to come from at least seven States. [Footnote 15] From these statistics, it clearly appears that the proportionate volume of the total relevant coal product as to which the challenged contract preempted competition, less than 1%, is, conservatively speaking, quite insubstantial. A more accurate figure, even assuming preemption to the extent of the maximum anticipated total requirements, 2,250,000 tons a year, would be .77%.Effect on Competition in the Relevant Market.It may well be that, in the context of antitrust legislation, protracted requirements contracts are suspect, but they have not been declared illegal per se. Even though a single contract between single traders may fall within the initial broad proscription of the section, it must also suffer the qualifying disability, tendency to work a substantial -- not remote -- lessening of competition in the relevant competitive market. It is urged that the present contract preempts competition to the extent of purchases worth perhaps $128,000,000, [Footnote 16] and that this Page 365 U. S. 334 "is, of course, not insignificant or insubstantial." While $128,000,000 is a considerable sum of money, even in these days, the dollar volume, by itself, is not the test, as we have already pointed out.The remaining determination, therefore, is whether the preemption of competition to the extent of the tonnage involved tends to substantially foreclose competition in the relevant coal market. We think not. That market sees an annual trade in excess of 250,000,000 tons of coal and over a billion dollars -- multiplied by 20 years, it runs into astronomical figures. There is here neither a seller with a dominant position in the market, as in Standard Fashions, supra, nor myriad outlets with substantial sales volume, coupled with an industry-wide practice of relying upon exclusive contracts, as in Standard Oil, supra, nor a plainly restrictive tying arrangement, as in International Salt, supra. On the contrary, we seem to have only that type of contract which "may well be of economic advantage to buyers, as well as to sellers." Standard Oil Co. v. United States, supra, at p. 337 U. S. 306. In the case of the buyer, it "may assure supply," while, on the part of the seller, it"may make possible the substantial reduction of selling expenses, give protection against price fluctuations, and . . . offer the possibility of a predictable market."Id. at 337 U. S. 306-307. The 20-year period of the contract is singled out as the principal vice, but, at least in the case of public utilities, the assurance of a steady and ample supply of fuel is necessary in the public interest. Otherwise, consumers are left unprotected against service failures owing to shutdowns, and increasingly unjustified costs might result in more burdensome rate structures, eventually to be reflected in the consumer's bill. The compelling validity of such considerations has been recognized fully in the natural gas public utility field. This is not to say that utilities are immunized from Clayton Act proscriptions, but merely that, in judging the term Page 365 U. S. 335 of a requirements contract in relation to the substantiality of the foreclosure of competition, particularized considerations of the parties' operations are not irrelevant. In weighing the various factors, we have decided that, in the competitive bituminous coal marketing area involved here, the contract sued upon does not tend to foreclose a substantial volume of competition.We need not discuss the respondents' further contention that the contract also violates § 1 and § 2 of the Sherman Act, for, if it does not fall within the broader proscription of § 3 of the Clayton Act, it follows that it is not forbidden by those of the former. Times-Picayune Pub. Co. v. United States, supra, at pp. 345 U. S. 608-609.The judgment is reversed, and the case remanded to the District Court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtTampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320 (1961)Tampa Electric Co. v. Nashville Coal Co.No. 87Argued December 15, 1960Decided February 27, 1961365 U.S. 320SyllabusPetitioner produces electric energy and sells it to a 60-mile by 30-mile service area in the vicinity of Tampa, Fla. In 1954, it had two generating plants which consumed only oil in their burners, as did all electric generating plants in peninsular Florida. It decided to construct a new generating plant, and to try burning coal in at least two, and possibly all, units of that plant, and it contracted to purchase from respondents all coal it would require as boiler fuel at the new plant over a 20-year period. Petitioner's estimated maximum requirements exceeded the total consumption of coal in peninsular Florida, but it did not amount to more than 1% of the total amount of coal of the same type produced and marketed by the 700 coal suppliers in respondents' producing area. Respondents repudiated the contract on the ground that it was illegal under the antitrust laws, and petitioner sued for a declaratory judgment that it was valid, and for its enforcement. The District Court declared the contract violative of § 3 of the Clayton Act, and denied enforcement. The Court of Appeals affirmed.Held: the judgment is reversed. Pp. 365 U. S. 321-335.1. The contract here involved did not violate § 3 of the Clayton Act. Pp. 365 U. S. 325-335.(a) Even though a contract is an exclusive dealing arrangement, it does not violate § 3 unless its performance probably would foreclose competition in a substantial share of the line of commerce affected. Pp. 365 U. S. 325-328.(b) In order for a contract to violate § 3, the competition foreclosed by it must constitute a substantial share of the relevant market. Pp. 365 U. S. 328-329.(c) On the record in this case, the relevant market is not peninsular Florida, the entire State of Florida, or Florida and Georgia combined; it is the area in which respondents and the other 700 producers of the kind of coal here involved effectively compete. Pp. 365 U. S. 330-333. Page 365 U. S. 321(d) In the competitive bituminous coal marketing area here involved, the contract sued upon does not tend to foreclose a substantial volume of competition. Pp. 365 U. S. 333-335.2. Since the contract does not fall within the broader proscription of § 3 of the Clayton Act, it is not forbidden by § 1 or § 2 of the Sherman Act. P. 365 U. S. 335.276 F.2d 766, reversed.

1979_78-1202

MR. JUSTICE POWELL delivered the opinion of the Court.The question in this case is whether a person who learns from the confidential documents of one corporation that it is planning an attempt to secure control of a second corporation violates § 10(b) of the Securities Exchange Act of 1934 if he fails to disclose the impending takeover before trading in the target company's securities.IPetitioner is a printer by trade. In 1975 and 1976, he worked as a "markup man" in the New York composing room of Pandick Press, a financial printer. Among documents that petitioner handled were five announcements of corporate takeover bids. When these documents were delivered to the printer, the identities of the acquiring and target corporations were concealed by blank spaces or false names. The true names were sent to the printer on the night of the final printing.The petitioner, however, was able to deduce the names of the target companies before the final printing from other information contained in the documents. Without disclosing his knowledge, petitioner purchased stock in the target companies and sold the shares immediately after the takeover attempts were made public. [Footnote 1] By this method, petitioner realized a gain of slightly more than $30,000 in the course of 14 months. Subsequently, the Securities and Exchange Commission (Commission or SEC) began an investigation of his trading activities. In May, 1977, petitioner entered into a consent decree with the Commission in which he agreed to return his profits to the sellers of the shares. [Footnote 2] On the same day, he was discharged by Pandick Press. Page 445 U. S. 225In January, 1978, petitioner was indicted on 17 counts of violating § 10(b) of the Securities Exchange Act of 1934 (1934 Act) and SEC Rule 10b-5. [Footnote 3] After petitioner unsuccessfully moved to dismiss the indictment, [Footnote 4] he was brought to trial and convicted on all counts.The Court of Appeals for the Second Circuit affirmed petitioner's conviction. 588 F.2d 1358 (1978). We granted certiorari, 441 U.S. 942 (1979), and we now reverse.IISection 10(b) of the 134 Act, 48 Stat. 891, 15 U.S.C. § 78j, prohibits the use"in connection with the purchase or sale of any security . . . [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe."Pursuant to this section, the SEC promulgated Rule 10b-5, which provides in pertinent part: [Footnote 5]"It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, "Page 445 U. S. 226"(a) To employ any device, scheme, or artifice to defraud, [or]""(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security."17 CFR § 240.10b-5 (1979).This case concerns the legal effect of the petitioner's silence. The District Court's charge permitted the jury to convict the petitioner if it found that he willfully failed to inform sellers of target company securities that he knew of a forthcoming takeover bid that would make their shares more valuable. [Footnote 6] In order to decide whether silence in such circumstances violates § 10(b), it is necessary to review the language and legislative history of that statute as well as its interpretation by the Commission and the federal courts.Although the starting point of our inquiry is the language of the statute, Ernst & Ernst v. Hochfelder, 425 U. S. 185, 425 U. S. 197 (1976), § 10(b) does not state whether silence may constitute a manipulative or deceptive device. Section 10(b) was designed as a catchall clause to prevent fraudulent practices. 425 U.S. at 425 U. S. 202, 425 U. S. 206. But neither the legislative history nor the statute itself affords specific guidance for the resolution of this case. When Rule 10b-5 was promulgated in 1942, the SEC did not discuss the possibility that failure to provide information might run afoul of § 10(b). [Footnote 7]The SEC took an important step in the development of § 10(b) when it held that a broker-dealer and his firm violated that section by selling securities on the basis of undisclosed information obtained from a director of the issuer corporation who was also a registered representative of the brokerage firm. In Cady, Roberts & Co., 40 S.E.C. 907 Page 445 U. S. 227 (1961), the Commission decided that a corporate insider must abstain from trading in the shares of his corporation unless he has first disclosed all material inside information known to him. The obligation to disclose or abstain derives from"[a]n affirmative duty to disclose material information[, which] has been traditionally imposed on corporate 'insiders,' particularly officers, directors, or controlling stockholders. We, and the courts have consistently held that insiders must disclose material facts which are known to them by virtue of their position but which are not known to persons with whom they deal and which, if known, would affect their investment judgment."Id. at 911. The Commission emphasized that the duty arose from (i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure. Id. at 912, and n. 15. [Footnote 8]That the relationship between a corporate insider and the stockholders of his corporation gives rise to a disclosure obligation is not a novel twist of the law. At common law, misrepresentation made for the purpose of inducing reliance Page 445 U. S. 228 upon the false statement is fraudulent. But one who fails to disclose material information prior to the consummation of a transaction commits fraud only when he is under a duty to do so. And the duty to disclose arises when one party has information "that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them." [Footnote 9] In its Cady, Roberts decision, the Commission recognized a relationship of trust and confidence between the shareholders of a corporation and those insiders who have obtained confidential information by reason of their position with that corporation. [Footnote 10] This relationship gives rise to a duty to disclose because of the "necessity of preventing a corporate insider from . . . tak[ing] unfair advantage of the Page 445 U. S. 229 uninformed minority stockholders." Speed v. Transamerica Corp., 99 F. Supp. 808, 829 (Del.1951).The federal courts have found violations of § 10(b) where corporate insiders used undisclosed information for their own benefit. E.g., SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 404 U.S. 1005 (1971). The cases also have emphasized, in accordance with the common law rule, that "[t]he party charged with failing to disclose market information must be under a duty to disclose it." Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275, 282 (CA2 1975). Accordingly, a purchaser of stock who has no duty to a prospective seller because he is neither an insider nor a fiduciary has been held to have no obligation to reveal material facts. See General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 164 (CA2 1968), cert. denied, 393 U.S. 1026 (1969). [Footnote 11]This Court followed the same approach in Affiliated Ute Citizens v. United States, 406 U. S. 128 (1972). A group of American Indians formed a corporation to manage joint assets derived from tribal holdings. The corporation issued stock to its Indian shareholders and designated a local bank as its transfer agent. Because of the speculative nature of the corporate assets and the difficulty of ascertaining the true value of a share, the corporation requested the bank to stress to its stockholders the importance of retaining the stock. Id. at 406 U. S. 146. Two of the bank's assistant managers aided the shareholders in disposing of stock which the managers knew was traded in two separate markets -- a primary market of Page 445 U. S. 230 Indians selling to non-Indians through the bank and a resale market consisting entirely of non-Indians. Indian sellers charged that the assistant managers had violated § 10(b) and Rule 10b-5 by failing to inform them of the higher prices prevailing in the resale market. The Court recognized that no duty of disclosure would exist if the bank merely had acted as a transfer agent. But the bank also had assumed a duty to act on behalf of the shareholders, and the Indian sellers had relied upon its personnel when they sold their stock. 406 U.S. at 406 U. S. 152. Because these officers of the bank were charged with a responsibility to the shareholders, they could not act as market makers inducing the Indians to sell their stock without disclosing the existence of the more favorable non-Indian market. Id. at 406 U. S. 152-153.Thus, administrative and judicial interpretations have established that silence in connection with the purchase or sale of securities may operate as a fraud actionable under § 10(b) despite the absence of statutory language or legislative history specifically addressing the legality of nondisclosure. But such liability is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction. Application of a duty to disclose prior to trading guarantees that corporate insiders, who have an obligation to place the shareholder's welfare before their own, will not benefit personally through fraudulent use of material, nonpublic information. [Footnote 12] Page 445 U. S. 231IIIIn this case, the petitioner was convicted of violating § 10(b) although he was not a corporate insider and he received no confidential information from the target company. Moreover, the "market information" upon which he relied did not concern the earning power or operations of the target company, but only the plans of the acquiring company. [Footnote 13] Petitioner's use of that information was not a fraud under § 10(b) unless he was subject to an affirmative duty to disclose it before trading. In this case, the jury instructions failed to specify any such duty. In effect, the trial court instructed the jury that petitioner owed a duty to everyone; to all sellers, indeed, to the market as a whole. The jury simply was told to decide whether petitioner used material, nonpublic information at a time when "he knew other people trading in the securities market did not have access to the same information." Record 677.The Court of Appeals affirmed the conviction by holding that"[a]nyone -- corporate insider or not -- who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose."588 F.2d at 1365 (emphasis in original). Although the court said that its test would include only persons who regularly receive material, nonpublic information, id. at 1366, its rationale for that limitation is unrelated to the existence of a duty to disclose. [Footnote 14] The Court of Page 445 U. S. 232 Appeals, like the trial court, failed to identify a relationship between petitioner and the sellers that could give rise to a duty. Its decision thus rested solely upon its belief that the federal securities laws have "created a system providing equal access to information necessary for reasoned and intelligent investment decisions." Id. at 1362. The use by anyone of material information not generally available is fraudulent, this theory suggests, because such information gives certain buyers or sellers an unfair advantage over less informed buyers and sellers.This reasoning suffers from two defects. First, not every instance of financial unfairness constitutes fraudulent activity under § 10(b). See Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 430 U. S. 474 477 (1977). Second, the element required to make silence fraudulent -- a duty to disclose -- is absent in this case. No duty could arise from petitioner's relationship with the sellers of the target company's securities, for petitioner had no prior dealings with them. He was not their agent, he was not a fiduciary, he was not a person in whom the sellers had placed their trust and confidence. He was, in fact, a complete Page 445 U. S. 233 stranger who dealt with the sellers only through impersonal market transactions.We cannot affirm petitioner's conviction without recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information. Formulation of such a broad duty, which departs radically from the established doctrine that duty arises from a specific relationship between two parties, see n 9, supra, should not be undertaken absent some explicit evidence of congressional intent.As we have seen, no such evidence emerges from the language or legislative history of § 10(b). Moreover, neither the Congress nor the Commission ever has adopted a parity-of-information rule. Instead, the problems caused by misuse of market information have been addressed by detailed and sophisticated regulation that recognizes when use of market information may not harm operation of the securities markets. For example, the Williams Act [Footnote 15] limits, but does not completely prohibit, a tender offeror's purchases of target corporation stock before public announcement of the offer. Congress' careful action in this and other areas [Footnote 16] contrasts, and Page 445 U. S. 234 is in some tension, with the broad rule of liability we are asked to adopt in this case.Indeed, the theory upon which the petitioner was convicted is at odds with the Commission's view of § 10(b) as applied to activity that has the same effect on sellers as the petitioner's purchases. "Warehousing" takes place when a corporation gives advance notice of its intention to launch a tender offer to institutional investors who then are able to purchase stock in the target company before the tender offer is made public and the price of shares rises. [Footnote 17] In this case, as in warehousing, a buyer of securities purchases stock in a target corporation on the basis of market information which is unknown to the seller. In both of these situations, the seller's behavior presumably would be altered if he had the nonpublic information. Significantly, however, the Commission has acted to bar warehousing under its authority to regulate tender offers [Footnote 18] after recognizing that action under § 10(b) would rest on a "somewhat different theory" than that previously used to regulate insider trading as fraudulent activity. [Footnote 19]We see no basis for applying such a new and different theory of liability in this case. As we have emphasized before, the 1934 Act cannot be read "more broadly than its language and the statutory scheme reasonably permit.'" Touche Ross & Co. v. Redington, 442 U. S. 560, 442 U. S. 578 (1979), quoting SEC v. Sloan, 436 U. S. 103, 436 U. S. 116 (1978). Section 10(b) is aptly Page 445 U. S. 235 described as a catchall provision, but what it catches must be fraud. When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak. We hold that a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information. The contrary result is without support in the legislative history of § 10(b), and would be inconsistent with the careful plan that Congress has enacted for regulation of the securities markets. Cf. Santa Fe Industries, Inc. v. Green, 430 U.S. at 430 U. S. 479. [Footnote 20]IVIn its brief to this Court, the United States offers an alternative theory to support petitioner's conviction. It argues that petitioner breached a duty to the acquiring corporation when he acted upon information that he obtained by virtue of his position as an employee of a printer employed by the corporation. The breach of this duty is said to support a Page 445 U. S. 236 conviction under § 10(b) for fraud perpetrated upon both the acquiring corporation and the sellers.We need not decide whether this theory has merit, for it was not submitted to the jury. The jury was told, in the language of Rule 10b-5, that it could convict the petitioner if it concluded that he either (i) employed a device, scheme, or artifice to defraud or (ii) engaged in an act, practice, or course of business which operated or would operate as a fraud or deceit upon any person. Record 681. The trial judge stated that a "scheme to defraud" is a plan to obtain money by trick or deceit and that "a failure by Chiarella to disclose material, non-public information in connection with his purchase of stock would constitute deceit." Id. at 683. Accordingly, the jury was instructed that the petitioner employed a scheme to defraud if he "did not disclose . . . material nonpublic information in connection with the purchases of the stock." Id. at 685-686.Alternatively, the jury was instructed that it could convict if"Chiarella's alleged conduct of having purchased securities without disclosing material, non-public information would have or did have the effect of operating as a fraud upon a seller."Id. at 686. The judge earlier had stated that fraud"embraces all the means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false misrepresentation, suggestions or by suppression of the truth."Id. at 683.The jury instructions demonstrate that petitioner was convicted merely because of his failure to disclose material, nonpublic information to sellers from whom he bought the stock of target corporations. The jury was not instructed on the nature or elements of a duty owed by petitioner to anyone other than the sellers. Because we cannot affirm a criminal conviction on the basis of a theory not presented to the jury, Rewis v. United States, 401 U. S. 808, 401 U. S. 814 (1971), see Dunn v. United States, 442 U. S. 100, 442 U. S. 106 (1979), we will not speculate upon whether such a duty exists, whether it has been Page 445 U. S. 237 breached, or whether such a breach constitutes a violation of § 10(b). [Footnote 21]The judgment of the Court of Appeals isReversed

U.S. Supreme CourtChiarella v. United States, 445 U.S. 222 (1980)Chiarella v. United StatesNo. 78-1202Argued November 5, 1979Decided March 18, 1980445 U.S. 222SyllabusSection 10(b) of the Securities Exchange Act of 1934 prohibits the use"in connection with the purchase or sale of any security . . . [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe."Rule 10b-5 of the Securities and Exchange Commission (SEC), promulgated under § 10(b), makes it unlawful for any person to "employ any device, scheme, or artifice to defraud," or to"engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security."Petitioner, who was employed by a financial printer that had been engaged by certain corporations to print corporate takeover bids, deduced the names of the target companies from information contained in documents delivered to the printer by the acquiring companies and, without disclosing his knowledge, purchased stock in the target companies and sold the shares immediately after the takeover attempts were made public. After the SEC began an investigation of his trading activities, petitioner entered into a consent decree with the SEC in which he agreed to return his profits to the sellers of the shares. Thereafter, petitioner was indicted and convicted for violating § 10(b) of the Act and SEC Rule 10b-5. The District Court's charge permitted the jury to convict the petitioner if it found that he willfully failed to inform sellers of target company securities that he knew of a forthcoming takeover bid that would make their shares more valuable. Petitioner's conviction was affirmed by the Court of Appeals.Held: Petitioner's conduct did not constitute a violation of § 10(b), and hence his conviction was improper. Pp. 445 U. S. 225-237.(a) Administrative and judicial interpretations have established that silence in connection with the purchase or sale of securities may operate as a fraud actionable under § 10(b) despite the absence of statutory language or legislative history specifically addressing the legality of nondisclosure. However, such liability is premised upon a duty to disclose (such as that of a corporate insider to shareholders of his corporation) Page 445 U. S. 223 arising from a relationship of trust and confidence between parties to a transaction. Pp. 445 U. S. 225-230.(b) Here, petitioner had no affirmative duty to disclose the information as to the plans of the acquiring companies. He was not a corporate insider, and he received no confidential information from the target companies. Nor could any duty arise from petitioner's relationship with the sellers of the target companies' securities, for he had no prior dealings with them, was not their agent, was not a fiduciary, and was not a person in whom the sellers had placed their trust and confidence. A duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information. Pp. 445 U. S. 231-235.(c) This Court need not decide whether petitioner's conviction can be supported on the alternative theory that he breached a duty to the acquiring corporation, since such theory was not submitted to the jury. The jury instructions demonstrate that petitioner was convicted merely because of his failure to disclose material, nonpublic information to sellers from whom he bought the stock of target corporations. The conviction cannot be affirmed on the basis of a theory not presented to the jury. Pp. 445 U. S. 235-237.588 F.2d 1358, reversed.POWELL, J., delivered the opinion of the Court, in which STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 445 U. S. 237. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 445 U. S. 238. BURGER, C.J., filed a dissenting opinion, post, p. 445 U. S. 239. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 445 U. S. 245. Page 445 U. S. 224

2001_00-1751

Ohio provides Cleveland schoolchildren, only one of which is to obtain a scholarship and then choose a religious school. Cleveland's preponderance of religiously affiliated schools did not result from the program, but is a phenomenon common to many American cities. Eighty-two percent of Cleveland's private schools are religious, as are 81% of Ohio's private schools. To attribute constitutional significance to the 82% figure would lead to the absurd result that a neutral school-choice program might be permissible in parts of Ohio where the percentage is lower, but not in Cleveland, where Ohio has deemed such programs most sorely needed. Likewise, an identical private choice program might be constitutional only in States with a lower percentage of religious private schools. Respondents' additional argument that constitutional significance should be attached to the fact that 96% of the scholarship recipients have enrolled in religious schools was flatly rejected in Mueller. The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school. Finally, contrary to respondents' argument, Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756-a case that expressly reserved judgment on the sort of program challenged here-does not govern neutral educational assistance programs that offer aid directly to a broad class of individuals defined without regard to religion. pp. 653-663.234 F.3d 945, reversed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., post, p. 663, and THOMAS, J., post, p. 676, filed concurring opinions. STEVENS, J., filed a dissenting opinion, post, p. 684. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 686. BREYER, J., filed a dissenting opinion, in which STEVENS and SouTER, JJ., joined, post, p. 717.Judith L. French, Assistant Attorney General of Ohio, argued the cause for petitioners in No. 00-1751. With her on the briefs were Betty D. Montgomery, Attorney General, David M. Gormley, State Solicitor, Karen L. Lazorishak, James G. Tassie, and Robert L. Strayer, Assistant Attorneys General, Kenneth W Starr, and Robert R. Gasaway. David J. Young argued the cause for petitioners in No. 00-1777. With him on the briefs were Michael R. Reed and David642CounselJ. Hessler. Clint Bolick, William H. Mellor, Richard D. Komer, Robert Freedman, David Tryon, and Charles Fried filed briefs for petitioners in No. 00-1779.Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Gregory G. Garre, Robert M. Loeb, and Lowell v: Sturgill, Jr.Robert H. Chanin argued the cause for respondents Simmons- Harris et al. in all cases. With him on the brief were Andrew D. Roth, Laurence Gold, Steven R. Shapiro, Raymond Vasvari, Elliot M. Mincberg, and Judith E. Schaeffer. Marvin E. Frankel argued the cause for respondents Gatton et al. in all cases. With him on the brief were David J. Strom, Donald J. Mooney, Jr., and Marc D. Stern.ttBriefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Thomas E. Warner, Solicitor General, and Matthew J. Conigliaro, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, M. Jane Brady of Delaware, Don Stenberg of Nebraska, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, and Randolph A. Beales of Virginia; for the State of Wisconsin by Stephen P. Hurley, Gordon P. Giampietro, and Donald A. Daugherty, Jr.; for Gary E. Johnson, Governor of New Mexico, by Jeffrey S. Bucholtz; for Mayor Rudolph W. Giuliani et al. by Michael D. Hess, Corporation Counsel of the City of New York, Leonard J. Koerner, and Edward F. X. Hart; for Councilwoman Fannie Lewis by Steffen N Johnson, Stephen M. Shapiro, Robert M. Dow, Jr., and Richard P. Hutchison; for the American Education Reform Council by Louis R. Cohen, C. Boyden Gray, and Todd Zubler; for the American Civil Rights Union by Peter J. Ferrara; for the American Center for Law and Justice, Inc., et al. by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Vincent McCarthy, and Walter M. Weber; for the Association of Christian Schools International et al. by Edward McGlynn Gaffney, Jr., and Richard A. Epstein; for the Becket Fund for Religious Liberty by Kevin J. Hasson, Eric W Treene, Roman P. Storzer, Anthony R. Picarello, Jr., and Richard Garnett; for the Black Alliance for Educational Options by Samuel Estreicher; for the Catholic League for Religious and Civil Rights by Robert P. George; for the Center for Education Reform et al. by Robert A. Destro643CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The State of Ohio has established a pilot program designed to provide educational choices to families with children whoand Joseph E. Schmitz; for the Center for Individual Freedom et al. by Erik S. Jaffe; for Children First America et al. by Harold J. (Tex) Lezar, Jr., and Stephen G. Gilles; for the Christian Legal Society et al. by Stuart J. Lark and Gregory S. Baylor; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Coalition for Local Sovereignty by Kenneth B. Clark; for the National Association of Independent Schools by Allen G. Siegel; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Dennis Rapps, Nathan Diament, and David Zwiebel; for the REACH Alliance by Philip J. Murren; for the Rutherford Institute by John W Whitehead, Steven H. Aden, Robert R. Melnick, and James J. Knicely; for the Solidarity Center for Law and Justice, P. C., by James P. Kelly III; for the United States Conference of Catholic Bishops by Mark E. Chopko, John Liekweg, and Jeffrey Hunter Moon; and for Hugh Calkins, pro se.Briefs of amici curiae urging affirmance were filed for the American Jewish Committee et al. by Howard G. Kristol, Erwin Chemerinsky, Jeffrey P. Sinensky, Kara H. Stein, Arthur H. Bryant, and Victoria W Ni; for the Anti-Defamation League by Martin E. Karlinsky, Daniel J. Beller, Steven M. Freeman, and Frederick M. Lawrence; for the Council on Religious Freedom et al. by Lee Boothby and Alan J. Reinach; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Norman J. Chachkin, Elaine R. Jones, Theodore M. Shaw, James L. Cott, Dennis D. Parker, and Dennis Courtland Hayes; for the National Committee for Public Education and Religious Liberty by Geoffrey F. Aronow and Stanley Geller; for the National School Boards Association et al. by Julie K. Underwood, Scott Bales, and James Martin; for the Ohio Association for Public Education and Religious Liberty by Patrick Farrell Timmins, Jr.; and for the Ohio School Boards Association et al. by Kimball H. Carey and SusanBriefs of amici curiae were filed for the California Alliance for Public Schools by Robin B. Johansen and Joseph Remcho; for Vermonters for Better Education by Michael D. Dean; for John E. Coons et al. by Mr. Coons, pro se, and Stephen D. Sugarman, pro se; for Jesse H. Choper et al. by Mr. Choper, pro se, William Bassett, Teresa Collett, David Forte, Richard Garnett, Lino Graglia, Michael Heise, Gail Heriot, Roderick Hills, Grant Nelson, Michael Perry, David Post, Charles Rice, Rosemary Salomone, Gregory Sisk, Steve Smith, and Harry Tepker; and for Ira J. Paul et al. by Sharon L. Browne.644reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not.There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland's public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a "crisis of magnitude" and placed the entire Cleveland school district under state control. See Reed v. Rhodes, No. 1:73 CV 1300 (ND Ohio, Mar. 3, 1995). Shortly thereafter, the state auditor found that Cleveland's public schools were in the midst of a "crisis that is perhaps unprecedented in the history of American education." Cleveland City School District Performance Audit 2-1 (Mar. 1996). The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation. Of those students who managed to reach their senior year, one of every four still failed to graduate. Of those students who did graduate, few could read, write, or compute at levels comparable to their counterparts in other cities.It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program, Ohio Rev. Code Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp. 2000) (program). The program provides financial assistance to families in any Ohio school district that is or has been "under federal court order requiring supervision and opera-645tional management of the district by the state superintendent." § 3313.975(A). Cleveland is the only Ohio school district to fall within that category.The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent's choosing. §§ 3313.975(B) and (C)(l). Second, the program provides tutorial aid for students who choose to remain enrolled in public school. § 3313.975(A).The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. § 313.976(A)(3). Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." § 3313.976(A)(6). Any public school located in a school district adjacent to the covered district may also participate in the program. § 3313.976(C). Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student. §§ 3313.976(C), 3317.03(1)(1).1 All participating schools,1 Although the parties dispute the precise amount of state funding received by suburban school districts adjacent to the Cleveland City School District, there is no dispute that any suburban district agreeing to participate in the program would receive a $2,250 tuition grant plus the ordinary allotment of per-pupil state funding for each program student enrolled in a suburban public school. See Brief for Respondents Simmons-Harris646whether public or private, are required to accept students in accordance with rules and procedures established by the state superintendent. §§ 3313.977(A)(1)(a)-(c).Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. §§ 3313.978(A) and (C)(l). For these lowest income families, participating private schools may not charge a parental copayment greater than $250. § 3313.976(A)(8). For all other families, the program pays 75% of tuition costs, up to $1,875, with no copayment cap. §§ 3313.976(A)(8), 3313.978(A). These families receive tuition aid only if the number of available scholarships exceeds the number of low-income children who choose to participate.2 Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school. § 3313.979.The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. §§ 3313.976(D), 3313.979(C). Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. § 3313.978(B). The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to stu-et al. 30, n. 11 (suburban schools would receive "on average, approximately, $4,750" per program student); Brief for Petitioners in No. 00-1779, p. 39 (suburban schools would receive "about $6,544" per program student).2 The number of available scholarships per covered district is determined annually by the Ohio Superintendent for Public Instruction. §§ 3313.978(A)-(B).647dents enrolled at participating private or adjacent public schools. § 3313.975(A).The program has been in operation within the Cleveland City School District since the 1996-1997 school year. In the 1999-2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998-1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the 1999-2000 school year.The program is part of a broader undertaking by the State to enhance the educational options of Cleveland's schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. §§ 3314.01(B), 3314.04. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery. During the 1999-2000 school year, there were 10 startup community schools in the Cleveland City School District with more than 1,900 students enrolled. For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive.Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students. For each student enrolled in a magnet school, the school district receives $7,746, including state funding of $4,167, the same amount received648per student enrolled at a traditional public school. As of 1999, parents in Cleveland were able to choose from among 23 magnet schools, which together enrolled more than 13,000 students in kindergarten through eighth grade. These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts.In 1996, respondents, a group of Ohio taxpayers, challenged the Ohio program in state court on state and federal grounds. The Ohio Supreme Court rejected respondents' federal claims, but held that the enactment of the program violated certain procedural requirements of the Ohio Constitution. Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 8-9, 711 N. E. 2d 203, 211 (1999). The state legislature immediately cured this defect, leaving the basic provisions discussed above intact.In July 1999, respondents filed this action in United States District Court, seeking to enjoin the reenacted program on the ground that it violated the Establishment Clause of the United States Constitution. In August 1999, the District Court issued a preliminary injunction barring further implementation of the program, 54 F. Supp. 2d 725 (ND Ohio), which we stayed pending review by the Court of Appeals, 528 U. S. 983 (1999). In December 1999, the District Court granted summary judgment for respondents. 72 F. Supp. 2d 834. In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the "primary effect" of advancing religion in violation of the Establishment Clause. 234 F.3d 945 (CA6). The Court of Appeals stayed its mandate pending disposition in this Court. App. to Pet. for Cert. in No. 00-1779, p. 151. We granted certiorari, 533 U. S. 976 (2001), and now reverse the Court of Appeals.The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the "purpose"649or "effect" of advancing or inhibiting religion. Agostini v. Felton, 521 U. S. 203, 222-223 (1997) ("[WJe continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the 'effect' of advancing or inhibiting religion" (citations omitted)). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion.To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, Mitchell v. Helms, 530 U. S. 793, 810-814 (2000) (plurality opinion); id., at 841-844 (O'CONNOR, J., concurring in judgment); Agostini, supra, at 225-227; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 842 (1995) (collecting cases), and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, Mueller v. Allen, 463 U. S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993). While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, Agostini, supra, at 236, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.In Mueller, we rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tu-650ition costs, even though the great majority of the program's beneficiaries (96%) were parents of children in religious schools. We began by focusing on the class of beneficiaries, finding that because the class included "all parents," including parents with "children [who] attend nonsectarian private schools or sectarian private schools," 463 U. S., at 397 (emphasis in original), the program was "not readily subject to challenge under the Establishment Clause," id., at 399 (citing Widmar v. Vincent, 454 U. S. 263, 274 (1981) ("The provision of benefits to so broad a spectrum of groups is an important index of secular effect")). Then, viewing the program as a whole, we emphasized the principle of private choice, noting that public funds were made available to religious schools "only as a result of numerous, private choices of individual parents of school-age children." 463 U. S., at 399-400. This, we said, ensured that "no 'imprimatur of state approval' can be deemed to have been conferred on any particular religion, or on religion generally." Id., at 399 (quoting Widmar, supra, at 274)). We thus found it irrelevant to the constitutional inquiry that the vast majority of beneficiaries were parents of children in religious schools, saying:"We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." 463 U. S., at 401.That the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause.In Witters, we used identical reasoning to reject an Establishment Clause challenge to a vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor. Looking at the program as a whole, we observed that "[a]ny aid ... that ulti-651mately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." 474 U. S., at 487. We further remarked that, as in Mueller, "[the] program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." 474 U. S., at 487 (internal quotation marks omitted). In light of these factors, we held that the program was not inconsistent with the Establishment Clause. Id., at 488-489.Five Members of the Court, in separate opinions, emphasized the general rule from Mueller that the amount of government aid channeled to religious institutions by individual aid recipients was not relevant to the constitutional inquiry. 474 U. S., at 490-491 (Powell, J., joined by Burger, C. J., and REHNQUIST, J., concurring) (citing Mueller, supra, at 398399); 474 U. S., at 493 (O'CONNOR, J., concurring in part and concurring in judgment); id., at 490 (White, J., concurring). Our holding thus rested not on whether few or many recipients chose to expend government aid at a religious school but, rather, on whether recipients generally were empowered to direct the aid to schools or institutions of their own choosing.Finally, in Zobrest, we applied Mueller and Witters to reject an Establishment Clause challenge to a federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools. Reviewing our earlier decisions, we stated that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge." 509 U. S., at 8. Looking once again to the challenged program as a whole, we observed that the program "distributes benefits neutrally to any child qualifying as 'disabled.'" Id., at 10. Its "primary beneficiaries," we said, were "disabled children, not sectarian schools." Id., at 12.652We further observed that "[b]y according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents." Id., at 10. Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools. Id., at 10-11. See, e. g., Agostini, 521 U. S., at 229 ("Zobrest did not turn on the fact that James Zobrest had, at the time of litigation, been the only child using a publicly funded sign-language interpreter to attend a parochial school"). Because the program ensured that parents were the ones to select a religious school as the best learning environment for their handicapped child, the circuit between government and religion was broken, and the Establishment Clause was not implicated.Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. As a plurality of this Court recentlyobserved:"[I]f numerous private choices, rather than the single choice of a government, determine the distribution of aid, pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special653favors that might lead to a religious establishment." Mitchell, 530 U. S., at 810.See also id., at 843 (O'CONNOR, J., concurring in judgment) ("[W]hen government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, 'no reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief'" (quoting Witters, 474 U. S., at 493 (O'CONNOR, J., concurring in part and concurring in judgment))). It is precisely for these reasons that we have never found a program of true private choice to offend the Establishment Clause.We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i. e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools.There are no "financial incentive[s]" that "ske[w]" the program toward religious schools. Witters, supra, at 487-488. Such incentives "[are] not present ... where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both reli-654gious and secular beneficiaries on a nondiscriminatory basis." Agostini, supra, at 231. The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school's tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. Although such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program "creates ... financial incentive[s] for parents to choose a sectarian school." Zobrest, 509 U. S., at 10.3Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a "public perception that the State is endorsing religious practices and beliefs." Brief for Respondents Simmons-Harris et al. 37-38. But we have repeatedly rec-3 JUSTICE SOUTER suggests the program is not "neutral" because program students cannot spend scholarship vouchers at traditional public schools. Post, at 697-698 (dissenting opinion). This objection is mistaken: Public schools in Cleveland already receive $7,097 in public funding per pupil-$4,167 of which is attributable to the State. App. 56a. Program students who receive tutoring aid and remain enrolled in traditional public schools therefore direct almost twice as much state funding to their chosen school as do program students who receive a scholarship and attend a private school. Ibid. JUSTICE SOUTER does not seriously claim that the program differentiates based on the religious status of beneficiaries or providers of services, the touchstone of neutrality under the Establishment Clause. Mitchell v. Helms, 530 U. S. 793, 809 (2000) (plurality opinion); id., at 838 (O'CONNOR, J., concurring in judgment).655ognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. Mueller, 463 U. S., at 399; Witters, supra, at 488-489; Zobrest, supra, at 10-11; e. g., Mitchell, supra, at 842-843 (O'CONNOR, J., concurring in judgment) ("In terms of public perception, a government program of direct aid to religious schools ... differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools"). The argument is particularly misplaced here since "the reasonable observer in the endorsement inquiry must be deemed aware" of the "history and context" underlying a challenged program. Good News Club v. Milford Central School, 533 U. S. 98, 119 (2001) (internal quotation marks omitted). See also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 780 (1995) (O'CONNOR, J., concurring in part and concurring in judgment). Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general.There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coerc-656ing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.JUSTICE SOUTER speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. Post, at 703-705 (dissenting opinion).4 But Cleveland's preponderance of religiously af-4JUSTICE SOUTER appears to base this claim on the unfounded assumption that capping the amount of tuition charged to low-income students (at $2,500) favors participation by religious schools. Post, at 704-705 (dissenting opinion). But elsewhere he claims that the program spends too much money on private schools and chides the state legislature for even proposing to raise the scholarship amount for low-income recipients. Post, at 697-698, 710-711, 714-715. His assumption also finds no support in the record, which shows that nonreligious private schools operating in Cleveland also seek and receive substantial third-party contributions. App. 194a-195a; App. to Pet. for Cert. in No. 00-1777, p. 119a. Indeed, the actual operation of the program refutes JUSTICE SOUTER'S argument that few but religious schools can afford to participate: Ten secular private schools operated within the Cleveland City School District when the program was adopted. Reply Brieffor Petitioners in No. 00-1777, p. 4 (citing Ohio Educational Directory, 1999-2000 School Year, Alphabetic List of Nonpublic Schools, Ohio Dept. of Ed.). All 10 chose to participate in the program and have continued to participate to this day. App. 281a- 286a. And while no religious schools have been created in response to the program, several nonreligious schools have been created, id., at 144a-148a, 224a-225a, in spite of the fact that a principal barrier to entry of new private schools is the uncertainty caused by protracted litigation which has plagued the program since its inception, post, at 672 (O'CONNOR, J., concurring) (citing App. 225a, 227a). See also 234 F.3d 945, 970 (CA6 2000) (Ryan, J., concurring in part and dissenting in part) ("There is not a scintilla of evidence in this case that any school, public or private, has been discouraged from participating in the school voucher program because it cannot 'afford' to do so"). Similarly mistaken is JUSTICE SOUTER'S reliance on the low enrollment of scholarship students in nonreligious schools657filiated private schools certainly did not arise as a result of the program; it is a phenomenon common to many American cities. See U. S. Dept. of Ed., National Center for Education Statistics, Private School Universe Survey: 1999-2000, pp. 2-4 (NCES 2001-330, 2001) (hereinafter Private School Universe Survey) (cited in Brief for United States as Amicus Curiae 24). Indeed, by all accounts the program has captured a remarkable cross-section of private schools, religious and nonreligious. It is true that 82% of Cleveland's participating private schools are religious schools, but it is also true that 81% of private schools in Ohio are religious schools. See Brief for State of Florida et al. as Amici Curiae 16 (citing Private School Universe Survey). To attribute constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school-choice program might be permissible in some parts of Ohio, such as Columbus, where a lower percentage of private schools are religious schools, see Ohio Educational Directory (Lodging of Respondents Gatton et al., available in Clerk of Court's case file), and Reply Brief for Petitioners in No. 00-1751, p. 12, n. 1, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens to be greater. Cf. Brief for State of Florida et al. as Amici Curiae 17 ("[T]he percentages of sectarian to nonsectarian private schools within Florida's 67 school districts ... vary from zero to 100 percent"). Likewise, an identical private choice program might be constitutional in some States, such as Maine or Utah, where lessduring the 1999-2000 school year. Post, at 704 (citing Brief for California Alliance for Public Schools as Amicus Curiae 15). These figures ignore the fact that the number of program students enrolled in nonreligious schools has widely varied from year to year, infra, at 659; e. g., n. 5, infra, underscoring why the constitutionality of a neutral choice program does not turn on annual tallies of private decisions made in any given year by thousands of individual aid recipients, infra, at 659 (citing Mueller v. Allen, 463 U. S. 388, 401 (1983)).658than 45% of private schools are religious schools, but not in other States, such as Nebraska or Kansas, where over 90% of private schools are religious schools. Id., at 15-16 (citing Private School Universe Survey).Respondents and JUSTICE SOUTER claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. See Agostini, 521 U. S., at 229 ("Nor are we willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid" (citing Mueller, 463 U. S., at 401)); see also Mitchell, 530 U. S., at 812, n. 6 (plurality opinion) ("[Agostini] held that the proportion of aid benefiting students at religious schools pursuant to a neutral program involving private choices was irrelevant to the constitutional inquiry"); id., at 848 (O'CONNOR, J., concurring in judgment) (same) (quoting Agostini, supra, at 229). The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in Mueller, "[s]uch an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated." 463 U. S., at 401.659This point is aptly illustrated here. The 96% figure upon which respondents and JUSTICE SOUTER rely discounts entirely (1) the more than 1,900 Cleveland children enrolled in alternative community schools, (2) the more than 13,000 children enrolled in alternative magnet schools, and (3) the more than 1,400 children enrolled in traditional public schools with tutorial assistance. See supra, at 647-648. Including some or all of these children in the denominator of children enrolled in nontraditional schools during the 19992000 school year drops the percentage enrolled in religious schools from 96% to under 20%. See also J. Greene, The Racial, Economic, and Religious Context of Parental Choice in Cleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting that only 16.5% of nontraditional schoolchildren in Cleveland choose religious schools). The 96% figure also represents but a snapshot of one particular school year. In the 19971998 school year, by contrast, only 78% of scholarship recipients attended religious schools. See App. to Pet. for Cert. in No. 00-1751, p. 5a. The difference was attributable to two private nonreligious schools that had accepted 15% of all scholarship students electing instead to register as community schools, in light of larger per-pupil funding for community schools and the uncertain future of the scholarship program generated by this litigation. See App. 59a-62a, 209a, 223a-227a.5 Many of the students enrolled in these schools5 The fluctuations seen in the Cleveland program are hardly atypical.Experience in Milwaukee, which since 1991 has operated an educational choice program similar to the Ohio program, demonstrates that the mix of participating schools fluctuates significantly from year to year based on a number of factors, one of which is the uncertainty caused by persistent litigation. See App. 218a, 229a-236a; Brieffor State of Wisconsin as Amicus Curiae 10-13 (hereinafter Brieffor Wisconsin) (citing Wisconsin Dept. of Public Instruction, Milwaukee Parental Choice Program Facts and Figures for 2001-2002). Since the Wisconsin Supreme Court declared the Milwaukee program constitutional in 1998, Jackson v. Benson, 218 Wis. 2d 835, 578 N. W. 2d 602, several nonreligious private schools have entered the Milwaukee market, and now represent 32% of all participating660as scholarship students remained enrolled as community school students, id., at 145a-146a, thus demonstrating the arbitrariness of counting one type of school but not the other to assess primary effect, e. g., Ohio Rev. Code Ann. § 3314.11 (Anderson 1999) (establishing a single "office of school options" to "provide services that facilitate the management of the community schools program and the pilot project scholarship program"). In spite of repeated questioning from the Court at oral argument, respondents offered no convincing justification for their approach, which relies entirely on such arbitrary classifications. Tr. of Oral Arg. 52-60.6schools. Brief for Wisconsin 11-12. Similarly, the number of program students attending nonreligious private schools increased from 2,048 to 3,582; these students now represent 33% of all program students. Id., at 12-13. There are currently 34 nonreligious private schools participating in the Milwaukee program, a nearly five-fold increase from the 7 nonreligious schools that participated when the program began in 1990. See App. 218a; Brief for Wisconsin 12. And the total number of students enrolled in nonreligious schools has grown from 337 when the program began to 3,582 in the most recent school year. See App. 218a, 234a-236a; Brief for Wisconsin 12-13. These numbers further demonstrate the wisdom of our refusal in Mueller v. Allen, 463 U. S., at 401, to make the constitutionality of such a program depend on "annual reports reciting the extent to which various classes of private citizens claimed benefits under the law."6 JUSTICE SOUTER and JUSTICE STEVENS claim that community schools and magnet schools are separate and distinct from program schools, simply because the program itself does not include community and magnet school options. Post, at 698-701 (SOUTER, J., dissenting); post, at 685 (STEVENS, J., dissenting). But none of the dissenting opinions explain how there is any perceptible difference between scholarship schools, community schools, or magnet schools from the perspective of Cleveland parents looking to choose the best educational option for their school-age children. Parents who choose a program school in fact receive from the State precisely what parents who choose a community or magnet school receivethe opportunity to send their children largely at state expense to schools they prefer to their local public school. See, e. g., App. 147a, 168a-169a; App. in Nos. 00-3055, etc. (CA6), pp. 1635-1645 and 1657-1673 (Cleveland parents who enroll their children in schools other than local public schools typically explore all state-funded options before choosing an alternative school).661Respondents finally claim that we should look to Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (1973), to decide these cases. We disagree for two reasons. First, the program in Nyquist was quite different from the program challenged here. Nyquist involved a New York program that gave a package of benefits exclusively to private schools and the parents of private school enrollees. Although the program was enacted for ostensibly secular purposes, id., at 773-774, we found that its "function" was "unmistakably to provide desired financial support for nonpublic, sectarian institutions," id., at 783 (emphasis added). Its genesis, we said, was that private religious schools faced "increasingly grave fiscal problems." Id., at 795. The program thus provided direct money grants to religious schools. Id., at 762-764. It provided tax benefits "unrelated to the amount of money actually expended by any parent on tuition," ensuring a windfall to parents of children in religious schools. Id., at 790. It similarly provided tuition reimbursements designed explicitly to "offe[r] ... an incentive to parents to send their children to sectarian schools." Id., at 786. Indeed, the program flatly prohibited the participation of any public school, or parent of any public school enrollee. Id., at 763-765. Ohio's program shares none of these features.Second, were there any doubt that the program challenged in Nyquist is far removed from the program challenged here, we expressly reserved judgment with respect to "a case involving some form of public assistance (e. g., scholarships) made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited." Id., at 782-783, n. 38. That, of course, is the very question now before us, and it has since been answered, first in Mueller, 463 U. S., at 398-399 ("[A] program ... that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause" (citing Nyquist, supra, at 782-783, n. 38)),662then in Witters, 474 U. S., at 487 ("Washington's program is 'made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited'" (quoting Nyquist, supra, at 782-783, n. 38)), and again in Zobrest, 509 U. S., at 12-13 ("[T]he function of the [program] is hardly 'to provide desired financial support for nonpublic, sectarian institutions'" (quoting Nyquist, supra, at 782-783, n. 38)). To the extent the scope of Nyquist has remained an open question in light of these later decisions, we now hold that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.7In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of7 JUSTICE BREYER would raise the invisible specters of "divisiveness" and "religious strife" to find the program unconstitutional. Post, at 719, 725-728 (dissenting opinion). It is unclear exactly what sort of principle JUSTICE BREYER has in mind, considering that the program has ignited no "divisiveness" or "strife" other than this litigation. Nor is it clear where JUSTICE BREYER would locate this presumed authority to deprive Cleveland residents of a program that they have chosen but that we subjectively find "divisive." We quite rightly have rejected the claim that some speculative potential for divisiveness bears on the constitutionality of educational aid programs. Mitchell v. Helms, 530 U. S., at 825 (plurality opinion) ("The dissent resurrects the concern for political divisiveness that once occupied the Court but that post-Aguilar cases have rightly disregarded") (citing cases); id., at 825-826 (" 'It is curious indeed to base our interpretation of the Constitution on speculation as to the likelihood of a phenomenon which the parties may create merely by prosecuting a lawsuit'" (quoting Aguilar v. Felton, 473 U. S. 402, 429 (1985) (O'CONNOR, J., dissenting))).663decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.The judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 2001SyllabusZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL. v.SIMMONS-HARRIS ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo.00-1751. Argued February 20, 2002-Decided June 27, 2002*Ohio's Pilot Project Scholarship Program gives educational choices to families in any Ohio school district that is under state control pursuant to a federal-court order. The program provides tuition aid for certain students in the Cleveland City School District, the only covered district, to attend participating public or private schools of their parent's choosing and tutorial aid for students who choose to remain enrolled in public school. Both religious and nonreligious schools in the district may participate, as may public schools in adjacent school districts. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. The number of tutorial assistance grants provided to students remaining in public school must equal the number of tuition aid scholarships. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation, none of the adjacent public schools participated, and 96% of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. Cleveland schoolchildren also have the option of enrolling in community schools, which are funded under state law but run by their own school boards and receive twice the per-student funding as participating private schools, or magnet schools, which are public schools emphasizing a particular subject area, teaching method, or service, and for which the school district receives the same amount per student as it does for a student enrolled at a traditional public school. Respondents, Ohio taxpayers, sought to enjoin the program on the ground that it violated the Establishment Clause. The Federal District Court granted them summary judgment, and the Sixth Circuit affirmed.Held: The program does not offend the Establishment Clause.Pp. 648-663.*Together with No. 00-1777, Hanna Perkins School et al. v. SimmonsHarris et al., and No. 00-1779, Taylor et al. v. Simmons-Harris et al., also on certiorari to the same court.640Syllabus(a) Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U. S. 203, 222-223. This Court's jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e. g., Mueller v. Allen, 463 U. S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients, not the government, whose role ends with the disbursement of benefits. Pp. 648-653.(b) The instant program is one of true private choice, consistent with the Mueller line of cases, and thus constitutional. It is neutral in all respects toward religion, and is part of Ohio's general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools-religious or nonreligious-and adjacent public schools. The only preference in the program is for lowincome families, who receive greater assistance and have priority for admission. Rather than creating financial incentives that skew it toward religious schools, the program creates financial disincentives: Private schools receive only half the government assistance given to community schools and one-third that given to magnet schools, and adjacent public schools would receive two to three times that given to private schools. Families too have a financial disincentive, for they have to copay a portion of private school tuition, but pay nothing at a community, magnet, or traditional public school. No reasonable observer would think that such a neutral private choice program carries with it the imprimatur of government endorsement. Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school. The Establishment Clause question whether Ohio is coercing parents into sending their children to religious schools must be answered by evaluating all options641Full Text of Opinion

1974_73-1541

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners Robert and Nadia Reid, husband and wife, are citizens of British Honduras. Robert Reid entered the United States at Chula Vista, California, in November, 1968, falsely representing himself to be a citizen of the United States. Nadia Reid, employing the same technique, entered at the Chula Vista port of entry two months later. Petitioners have two children who were born in the United States since their entry.In November, 1971, the Immigration and Naturalization Service (INS) began deportation proceedings against petitioners, which were resolved adversely to them first by a special inquiry officer and then by the Board of Immigration Appeals. On petition for review, the United States Court of Appeals for the Second Circuit, by a divided vote, affirmed the finding of deportability. 492 F.2d 251 (1974). We granted certiorari to resolve the conflict between this holding and the contrary conclusion of the Court of Appeals for the Ninth Circuit in Lee Page 420 U. S. 621 Fook Chuey v. INS, 439 F.2d 244 (1970). [Footnote 1] 419 U.S. 823 (1974).Because of the complexity of congressional enactments relating to immigration, some understanding of the structure of these laws is required before evaluating the legal contentions of petitioners. The McCarran-Walter Act, enacted by Congress in 1952, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., although frequently amended since that date, remains the basic format of the immigration laws."Although the McCarran-Walter Act has been repeatedly amended, it still is the basic statute dealing with immigration and nationality. The amendments have been fitted into the structure of the parent statute, and most of the original enactment remains undisturbed."1 C. Gordon & H. Rosenfield, Immigration Law and Procedure 1-13 to 1-14 (rev. ed.1975).Section 212 of the Act as amended, 8 U.S.C. § 1182, specifies various grounds for exclusion of aliens seeking admission to this country. Section 241 of the Act, 8 U.S.C. § 1251, specifies grounds for deportation of aliens already in this country. Section 241(a) specifies 18 different bases for deportation, among which only the first two need directly concern us:"Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who -- ""(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry;""(2) entered the United States without inspection or at any time or place other than as designated by Page 420 U. S. 622 the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States. . . ."The INS seeks to deport petitioners under the provisions of § 241(a)(2), asserting that they entered the United States without inspection. [Footnote 2] Petitioners dispute none of the factual predicates upon which the INS bases its claim, but instead argue that their case is saved by the provisions of § 241(f), which provides in pertinent part as follows:"The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence."75 Stat. 655, 8 U.S.C. § 1251(f). (Emphasis supplied.)Petitioners contend that they are entitled to the benefits of § 241(f) "by virtue of its explicit language." This contention is plainly wrong, and for more than one reason.The language of § 241(f) tracks the provisions of § 212(a)(19), 8 U.S.C. § 1182(a)(19), dealing with aliens who are excludable, and providing in pertinent part as follows:"Except as otherwise provided in this chapter, the Page 420 U. S. 623 following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:""* * * *" "(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact. . . ."(Emphasis supplied.)Thus, the "explicit language" of § 241(f), upon which petitioners rely, waives deportation for aliens who are "excludable at the time of entry" by reason of the fraud specified in § 212(a)(19), and for that reason deportable under the provisions of § 241(a)(1). If the INS were seeking to deport petitioners on this ground, they would be entitled to have applied to them the provisions of § 241(f) because of the birth of their children after entry.But the INS in this case does not rely on § 212(a)(19), nor indeed on any of the other grounds for excludability under § 212, which are, in turn, made grounds for deportation by the language of § 241(a)(1). It is instead relying on the separate provision of § 241(a)(2), which does not depend in any way upon the fact that an alien was excludable at the time of his entry on one of the grounds specified in § 212(a). Section 241(a)(2) establishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the failure of an alien to present himself for inspection at the time he made his entry. If this ground is established by the admitted facts, nothing in the waiver provision of § 241(f), which, by its terms, grants relief against deportation of aliens "on the ground that they were excludable at the time of entry," has any bearing on the case. Cf. Costanzo v. Tillinghast, 287 U. S. 341, 287 U. S. 343 (1932). Page 420 U. S. 624The issue before us, then, turns upon whether petitioners, who accomplished their entry into the United States by falsely asserting that they were citizens of this country, can be held to have "entered the United States without inspection." Obviously not every misrepresentation on the part of an alien making an entry into the United States can be said to amount to an entry without inspection. But the Courts of Appeals have held that an alien who accomplishes entry into this country by making a willfully false representation that he is a United States citizen may be charged with entry without inspection. Ex parte Saadi, 26 F.2d 458 (CA9), cert. denied, 278 U.S. 616 (1928); United States ex rel. Volpe v. Smith, 62 F.2d 808 (CA7), aff'd on other grounds, 289 U. S. 422, 289 U. S. 424 (1933); Ben Huie v. INS, 349 F.2d 1014 (CA9 1965). We agree with these holdings, and conclude that an alien making an entry into this country who falsely represents himself to be a citizen would not only be excludable under § 212(a)(19) if he were detected at the time of his entry, but has also so significantly frustrated the process for inspecting incoming aliens that he is also deportable as one who has "entered the United States without inspection." In reaching this conclusion, we subscribe to the reasoning of Chief Judge Aldrich, writing for the Court of Appeals for the First Circuit in Goon Mee Heung v. INS, 380 F.2d 236, 237, cert. denied, 389 U.S. 975 (1967):"Whatever the effect other misrepresentations may arguably have on an alien's being legally considered to have been inspected upon entering the country we do not now consider; we are here concerned solely with an entry under a fraudulent claim of citizenship. Aliens who enter as citizens, rather than as aliens, are treated substantially differently by immigration authorities. The examination to which citizens are Page 420 U. S. 625 subjected is likely to be considerably more perfunctory than that accorded aliens. Gordon & Rosenfield, Immigration Law and Procedure § 316d (1966). Also, aliens are required to fill out alien registration forms, copies of which are retained by the immigration authorities. 8 C.F.R. §§ 235.4, 264.1; 8 U.S.C. §§ 1201(b), 1301-1306. Fingerprinting is required for most aliens. 8 U.S.C. §§ 1201(b), 1301-1302. The net effect, therefore, of a person's entering the country as an admitted alien is that the immigration authorities, in addition to making a closer examination of his right to enter in the first place, require and obtain information and a variety of records that enable them to keep track of the alien after his entry. Since none of these requirements is applicable to citizens, an alien who enters by claiming to be a citizen has effectively put himself in a quite different position from other admitted aliens, one more comparable to that of a person who slips over the border and who has, therefore, clearly not been inspected."Petitioners rely upon this Court's decision in INS v. Errico, 385 U. S. 214 (1966). There, the Court decided two companion cases involving fraudulent representations by aliens in connection with quota requirements which existed at the time Errico was decided, but which were prospectively repealed in 1965. Errico, a native of Italy, falsely represented to the authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that representation, he was granted first-preference-quota status under the statutory preference scheme then in effect, entered the United States with his wife, and later fathered a child by her. Page 420 U. S. 626Scott, a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for her entry into the country. She never lived with her husband, and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who thereby became an American citizen at birth.When the INS discovered the fraud in each of these cases, it sought to deport both Errico and Scott on the grounds that they were "within one or more of the classes of aliens excludable by the law existing at the time" of their entry, and therefore deportable under § 241(a)(1). The INS did not rely on the provisions of § 212(a)(19), making excludable an alien who has procured a visa or other documentation or entry by fraud, nor indeed did it rely on any other of the subsections of § 212 dealing with excludable aliens. Instead it relied on an entirely separate portion of the statute, § 211, 8 U.S.C. § 1181(a) (1964 ed.), prospectively amended in 1965, [Footnote 3] but reading, as applicable to Errico and Scott, as follows:"No immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such immigrant visa of the accompanying parent, (2) is properly chargeable to the quota specified in the immigrant visa, (3) is a nonquota immigrant if specified as Page 420 U. S. 627 such in the immigrant visa, (4) is of the proper status under the quota specified in the immigrant visa, and (5) is otherwise admissible under this chapter."The INS contended that Errico fell within the proscription of § 211(a)(4), and that Scott fell within the proscription of § 211(a)(3), and that, therefore, § 211(a) prohibited their admission into the United States as of the time of their entry. It apparently reasoned from these admitted facts that both Errico and Scott were therefore "excludable" at the time of their entry within the meaning of § 241(a)(1).Section 211 of the Act of 1952, 66 Stat. 181-182, is entitled Documentary Requirements. Section 212 of the same Act, 66 Stat. 182-188, is entitled General Classes of Aliens Ineligible to Receive Visas and Excluded from Admission. INS could clearly have proceeded against either Scott or Errico under § 212(a)(19), on the basis of their procuring a visa or other documentation by fraud or misrepresentation. Just as clearly, Scott and Errico could have then asserted their claim to the benefit of § 241(f), waiving deportation based upon fraud for aliens who had given birth to children after their entry and who were otherwise admissible. Instead, the INS relied on the provisions of § 211(a) which deal with the general subject of the necessary documentation for admission of immigrants, rather than with the general subject of excludable aliens. Rather than questioning whether a failure to comply with § 211(a)(3) or (4), by itself, rendered an alien "excludable" as that term is used in § 241(a)(1), the Court in Errico implicitly treated it as doing so, and went on to hold that § 241(f)"saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions if he has the necessary familial relationship to a United States citizen or Page 420 U. S. 628 lawful permanent resident."INS v. Errico, 385 U.S. at 385 U. S. 215.Errico was decided by a divided Court over a strong dissenting opinion. Even the most expansive view of its holding could not avail these petitioners, since § 241(f) which it construed, applies, by its terms, only to "the deportation of aliens within the United States on the ground that they were excludable at the time of entry." Here, as we have noted, INS seeks to deport petitioners not under the provisions of § 241(a)(1) relating to aliens excludable at the time of entry, but instead under the provisions of § 241(a)(2) relating to aliens who do not present themselves for inspection. Yet there is no doubt that the broad language used in some portions of the Court's opinion in Errico has led one Court of Appeals to apply the provisions of § 241(f) to a case indistinguishable from petitioners', Lee Fook Chuey v. INS, 439 F.2d 244 (CA9 1970), and to decisions of other Courts of Appeals in related areas which may be summarized in the language of Macduff: "Confusion now hath made his masterpiece."Aliens entering the United States under temporary visitor permits who acquire one of the specified familial relationships described in § 241(f) after entry have argued with varying results that their fraudulent intent upon entry to remain in this country permanently cloaks them with immunity from deportation even though they overstayed their visitor permits. [Footnote 4] Acceptance of this Page 420 U. S. 629 theory leads to the conclusion that § 241(f) waives a substantive ground for deportation based on overstay if the alien can affirmatively prove his fraudulent intent at the time of entry, but grants no relief to aliens with exactly the same familial relationship who are unable to satisfactorily establish their dishonesty. See Cabuco-Flores v. INS, 477 F.2d 108 (CA), cert. denied sub nom. Mangabat v. INS, 414 U.S. 841 (1973); cf. Jolley v. INS, 441 F.2d 1245 (CA5 1971). Balking at such an irrational result, one court has gone so far as to declare that § 241(f) waives deportability under § 241(a)(1) even though no fraud is involved if the alien is able merely to establish the requisite familial tie. In re Yuen Lan Hom, 289 F. Supp. 204 (SDNY 1968).Nor has there been agreement among those courts which have construed § 241(f) to waive substantive grounds for deportation under § 212 other than for fraud delineated in § 212(a)(19) as to which other grounds are waived. While some courts have found that § 241(f) waives any deportation charge to which fraud is "germane," [Footnote 5] others have found it waives "quantitative," but not "qualitative," grounds where its requirements are met. [Footnote 6] Still others have required that "but for" the misrepresentation, the alien meet the substantive requirements of the Act, [Footnote 7] while at least one court has discerned Page 420 U. S. 630 in Errico a test requiring that the aliens' fraudulent statement be taken as true, with determination on such hypothetical facts whether the alien would be deportable. Cabuco-Flores v. INS, supra, at 110.We do not believe that § 241(f) as interpreted by Errico requires such results. We adhere to the holding of that case, which we take to be that, where the INS chooses not to seek deportation under the obviously available provisions of § 212(a)(19) relating to the fraudulent procurement of visas, documentation, or entry, but instead asserts a failure to comply with those separate requirements of § 211(a), dealing with compliance with quota requirements, as a ground for deportation under § 241(a)(1), § 241(f) waives the fraud on the part of the alien in showing compliance with the provisions of § 211(a). In view of the language of § 241(f) and the cognate provisions of § 212(a)(19), we do not believe Errico's holding may properly be read to extend the waiver provisions of § 241(f) to any of the grounds of excludability specified in § 212(a) other than subsection (19). This conclusion, by extending the waiver provision of § 241(f) not only to deportation based on excludability under § 212(a)(19), but to a claim of deportability based on fraudulent misrepresentation in order to satisfy the requirements of § 211(a), gives due weight to the concern expressed in Errico that the provisions of § 241(f) were intended to apply to some misrepresentations that were material to the admissions procedure. It likewise gives weight to our belief that Congress, in enacting § 241(f), was intent upon granting relief to limited classes of aliens whose fraud was of such a nature that it was more than counterbalanced by after-acquired family ties; [Footnote 8] it did not intend to arm the dishonest alien Page 420 U. S. 631 seeking admission to our country with a sword by which he could avoid the numerous substantive grounds for exclusion unrelated to fraud, which are set forth in § 212(a) of the Immigration and Nationality Act.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtReid v. INS, 420 U.S. 619 (1975)Reid v. Immigration and Naturalization ServiceNo. 73-1541Argued January 20, 1975Decided March 18, 1975420 U.S. 619SyllabusThe Immigration and Naturalization Service, relying on § 241(a)(2) of the Immigration and Nationality Act, instituted deportation proceedings against petitioners, a husband and wife who had entered this country after falsely representing themselves to be United States citizens, and thereafter had two children who were born in this country. Section 241(a), inter alia, specifies that an alien shall be deported who (1) at the time of entry was within a class of aliens excludable by the law existing at the time of such entry, or (2) entered the United States without inspection. Section 241(f) states:"The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence."Petitioners were found deportable, and, on petition for review, the Court of Appeals affirmed, rejecting petitioners' contention that they were saved by § 241(f).Held: Petitioners were deportable under § 241(a)(2) of the Act, which establishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the failure of an alien to present himself for inspection at the time he made his entry. Aliens, like petitioners, who accomplish entry into this country by making a willfully false representation of United States citizenship are not only excludable under § 212(a)(19), but have also so significantly frustrated the process for inspecting incoming aliens that they are also deportable as persons who have "entered the United States without inspection." INS v. Errico, 385 U. S. 214, distinguished. Pp. 420 U. S. 622-631.492 F.2d 251, affirmed. Page 420 U. S. 620REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., STEWART WHITE, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 420 U. S. 631. DOUGLAS, J., took no part in the consideration or decision of the case.

1972_72-147

MR. JUSTICE WHITE delivered the opinion of the Court.This case raises two questions concerning the validity of the reapportionment plan for the Texas House of Representatives adopted in 1970 by the State Legislative Redistricting Board: First, whether there were unconstitutionally large variations in population among the districts defined by the plan; second, whether the multi-member districts provided for Bexar and Dallas Counties were properly found to have been invidiously discriminatory against cognizable racial or ethnic groups in those counties. Page 412 U. S. 757The Texas Constitution requires the state legislature to reapportion the House and Senate at its first regular session following the decennial census. Tex.Const., Art. III, § 28. [Footnote 1] In 1970, the legislature proceeded to reapportion the House of Representatives, but failed to agree on a redistricting plan for the Senate. Litigation Page 412 U. S. 758 was immediately commenced in state court challenging the constitutionality of the House reapportionment. The Texas Supreme Court held that the legislature's plan for the House violated the Texas Constitution. [Footnote 2] Smith v. Craddick, 471 S.W.2d 375 (1971). Meanwhile, pursuant to the requirements of the Texas Constitution, a Legislative Redistricting Board had been formed to begin the task of redistricting the Texas Senate. Although the Board initially confined its work to the reapportionment of the Senate, it was eventually ordered, in light of the judicial invalidation of the House plan, to also reapportion the House. Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570 (1971).On October 15, 1971, the Redistricting Board's plan for the reapportionment of the Senate was released, and, on October 22, 1971, the House plan was promulgated. Only the House plan remains at issue in this case. That plan divided the 150-member body among 79 single-member and 11 multi-member districts. Four lawsuits, eventually consolidated, were filed challenging the Page 412 U. S. 759 Board's Senate and House plans and asserting with respect to the House plan that it contained impermissible deviations from population equality and that its multi-member districts for Bexar County and Dallas County operated to dilute the voting strength of racial and ethnic minorities.A three-judge District Court sustained the Senate plan, but found the House plan unconstitutional. Graves v. Barnes, 343 F. Supp. 704 (WD Tex.1972). The House plan was held to contain constitutionally impermissible deviations from population equality, and the multi-member districts in Bexar and Dallas Counties were deemed constitutionally invalid. The District Court gave the Texas Legislature until July l, 1973, to reapportion the House, but the District Court permitted the Board's plan to be used for purposes of the 1972 election, except for requiring that the Dallas County and Bexar County multi-member districts be reconstituted into single member districts for the 1972 election.Appellants appealed the state-wide invalidation of the House plan and the substitution of single member for multi-member districts in Dallas County and Bexar County. [Footnote 3] MR. JUSTICE POWELL denied a stay of the judgment of the District Court, 406 U.S. 1201, and we noted probable jurisdiction sub nom. Bullock v. Regester, 409 U.S. 840.IWe deal at the outset with the challenge to our jurisdiction over this appeal under 28 U.S.C. § 1253, which permits injunctions in suits required to be heard and determined by a three-judge district court to be appealed Page 412 U. S. 760 directly to this Court. [Footnote 4] It is first suggested that the case was not one required to be heard by a three-judge court. The contention is frivolous. A state-wide reapportionment statute was challenged and injunctions were asked against its enforcement. The constitutional questions raised were not insubstantial on their face, and the complaint clearly called for the convening of a three-judge court. That the court declared the entire apportionment plan invalid, but entered an injunction only with respect to its implementation for the 1972 elections in Dallas and Bexar Counties, in no way indicates that the case required only a single judge. Appellants are therefore properly here on direct appeal with respect to the injunction dealing with Bexar and Dallas Counties, for the order of the court directed at those counties was literally an order "granting . . . an . . . injunction in any civil action . . . required . . . to be heard and determined by a district court of three judges" within the meaning of § 1253.We also hold that appellants, because they appealed from the entry of an injunction, are entitled to review of the District Court's accompanying declaration that the proposed plan for the Texas House of Representatives, including those portions providing for multi-member districts in Dallas and Bexar Counties, was invalid state-wide. This declaration was the predicate for the court's order requiring Dallas and Bexar Counties to be reapportioned into single districts; for its order that,"unless the Legislature of the State of Texas on or before July 1, 1973, has adopted a plan to reapportion the legislative districts Page 412 U. S. 761 within the State in accordance with the constitutional guidelines set out in this opinion this Court will so reapportion the State of Texas;"and for its order that the Secretary of State "adopt and implement any and all procedures necessary to properly effectuate the orders of this Court in conformance with this Opinion. . . ." 343 F. Supp. at 737. In these circumstances, although appellants could not have directly appealed to this Court the entry of a declaratory judgment unaccompanied by any injunctive relief, Gunn v. University Committee, 399 U. S. 383 (1970); Mitchell v. Donovan, 398 U. S. 427 (1970), we conclude that we have jurisdiction of the entire appeal. Roe v. Wade, 410 U. S. 113 (1973); Florida Lime & Avocado Growers v. Jacobsen, 362 U. S. 73 (1960). With the Texas reapportionment plan before it, it was in the interest of judicial economy and the avoidance of piecemeal litigation that the three-judge District Court have jurisdiction over all claims raised against the statute when a substantial constitutional claim was alleged, and an appeal to us, once properly here, has the same reach. Roe v. Wade, supra, at 410 U. S. 123; Carter v. Jury Comm'n, 396 U. S. 320 (1970); Florida Lime Avocado Growers v. Jacobsen, supra, at 362 U. S. 80.IIThe reapportionment plan for the Texas House of Representatives provides for 150 representatives to be selected from 79 single member and 11 multi-member districts. The ideal district is 74,645 persons. The districts range from 71,597 to 78,943 in population per representative, or from 5.8% overrepresentation to 4.1% underrepresentation. The total variation between the largest and smallest district is thus 9.9%. [Footnote 5]The District Court read our prior cases to require any deviations from equal population among districts to be Page 412 U. S. 762 justified by "acceptable reasons" grounded in state policy; relied on Kirkpatrick v. Preisler, 394 U. S. 526 (1969), to conclude that the permissible tolerances suggested by Reynolds v. Sims, 377 U. S. 533 (1964), had been substantially eroded; suggested that Abate v. Mundt, 403 U. S. 182 (1971), in accepting total deviations of 11.9% in a county reapportionment was sui generis; and considered the "critical issue" before it to be whether "the State [has] justified any and all variances, however small, on the basis of a consistent, rational State policy." 343 F. Supp. at 713. Noting the single fact that the total deviation from the ideal between District 3 and District 85 was 9.9%, the District Court concluded that justification by appellants was called for, and could discover no acceptable state policy to support the deviations. The District Court was also critical of the actions and procedures of the Legislative Reapportionment Board, and doubted "that [the] board did the sort of deliberative job . . . worthy of judicial abstinence." Id. at 717. It also considered the combination of single-member and multi-member districts in the House plan "haphazard," particularly in providing single member districts in Houston and multi-member districts in other metropolitan areas, and that this "irrationality, without reasoned justification, may be a separate and distinct ground for declaring the plan unconstitutional." [Footnote 6] Ibid. Page 412 U. S. 763 Finally, the court specifically invalidated the use of multi-member districts in Dallas and Bexar Counties as unconstitutionally discriminatory against a racial or ethnic group.The District Court's ultimate conclusion was that"the apportionment plan for the State of Texas is unconstitutional as unjustifiably remote from the ideal of 'one man, one vote,' and that the multi-member districting schemes for the House of Representatives as they relate specifically to Dallas and to Bexar Counties are unconstitutional in that they dilute the votes of racial minorities."Id. at 735. [Footnote 7]Insofar as the District Court's judgment rested on the conclusion that the population differential of 9.9% from the ideal district between District 3 and District 85 made out a prima facie equal protection violation under the Fourteenth Amendment, absent special justification, the court was in error. It is plain from Mahan v. Howell, 410 U. S. 315 (1973), and Gaffney v. Cummings, ante, p. 412 U. S. 735, that state reapportionment statutes are not subject to the same strict standards applicable to reapportionment of congressional seats. Kirkpatrick v. Preisler did not dilute the tolerances contemplated by Reynolds v. Sims with respect to state districting, and we did not hold in Swann v. Adams, 385 U. S. 440 (1967), or Kilgarlin v. Hill, 386 U. S. 120 (1967), or Page 412 U. S. 764 later in Mahan v. Howell, supra, that any deviations from absolute equality, however small, must be justified to the satisfaction of the judiciary to avoid invalidation under the Equal Protection Clause. For the reasons set out in Gaffney v. Cummings, supra, we do not consider relatively minor population deviations among state legislative districts to substantially dilute the weight of individual votes in the larger districts so as to deprive individuals in these districts of fair and effective representation. Those reasons are as applicable to Texas as they are to Connecticut, and we cannot glean an equal protection violation from the single fact that two legislative districts in Texas differ from one another by as much as 9.9% when compared to the ideal district. Very likely, larger differences between districts would not be tolerable without justification "based on legitimate considerations incident to the effectuation of a rational state policy," Reynolds v. Sims, 377 U.S. at 377 U.S. 579; Mahan v. Howell, supra, at 410 U. S. 325, but here we are confident that appellees failed to carry their burden of proof insofar as they sought to establish a violation of the Equal Protection Clause from population variations alone. The total variation between two districts was 9.9%, but the average deviation of all House districts from the ideal was 1.82%. Only 23 districts, all single member, were overrepresented or underrepresented by more than 3%, and only three of those districts by more than 5%. We are unable to conclude from these deviations alone that appellees satisfied the threshold requirement of proving a prima facie case of invidious discrimination under the Equal Protection Clause. Because the District Court had a contrary view, its judgment must be reversed in this respect. [Footnote 8] Page 412 U. S. 765IIIWe affirm the District Court's judgment, however, insofar as it invalidated the multi-member districts in Dallas and Bexar Counties, and ordered those districts to be redrawn into single member districts. Plainly, under our cases, multi-member districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single member districts in other parts of the State. Whitcomb v. Chavis, 403 U. S. 124 (1971); Mahan v. Howell, supra; see Burns v. Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 (1965); Lucas v. Colorado General Assembly, 377 U. S. 713 (1964); Reynolds v. Sims, supra. [Footnote 9] But we have entertained claims that multi-member districts are being used invidiously to cancel out or minimize the voting strength of racial groups. See Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To sustain such claims, it is not enough that the racial group allegedly Page 412 U. S. 766 discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question -- that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, at 403 U. S. 149-150.With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F. Supp. at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called "place" rule limiting candidacy for legislative office from a multi-member district to a specified "place" on the ticket, with the result being the election of representatives from the Dallas multi-member district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought. [Footnote 10] More fundamentally, it found that, since Reconstruction days, there have been only two Negroes in the Dallas County delegation to the Texas House of Representatives, and that these two were the only two Negroes ever slated by the Dallas Committee for Responsible Government (DCRG), a white-dominated organization that is in effective control of Democratic Party Page 412 U. S. 767 candidate slating in Dallas County. [Footnote 11] That organization, the District Court found, did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good faith concern for the political and other needs and aspirations of the Negro community. The court found that, as recently as 1970, the DCRG was relying upon "racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community." Id. at 727. Based on the evidence before it, the District Court concluded that "the black community has been effectively excluded from participation in the Democratic primary selection process," id. at 726, and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner. These findings and conclusions are sufficient to sustain the District Court's judgment with respect to the Dallas multi-member district, and, on this record, we have no reason to disturb them.IVThe same is true of the order requiring disestablishment of the multi-member district in Bexar County. Consistently with Hernandez v. Texas, 347 U. S. 475 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identifiable class for Fourteenth Amendment purposes, and proceeded to inquire whether the impact of the multi-member district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County Mexican-American community, which is concentrated Page 412 U. S. 768 for the most part on the west side of the city of San Antonio, the court observed, based upon prior cases and the record before it, that the Bexar community, along with other Mexican-Americans in Texas, [Footnote 12] had long"suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others."343 F. Supp. at 728. The bulk of the Mexican-American community in Bexar County occupied the Barrio, an area consisting of about 28 contiguous census tracts in the city of San Antonio. Over 78% of Barrio residents were Mexican-Americans, making up 29% of the county's total population. The Barrio is an area of poor housing; its residents have low income and a high rate of unemployment. The typical Mexican-American suffers a cultural and language barrier [Footnote 13] that makes his participation in community processes extremely difficult, particularly, the court thought, with respect to the political life of Bexar County."[A] cultural incompatibility . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation, have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary."343 F. Supp. at 731. The residual impact of this history reflected itself in the fact that Mexican-American voting registration remained very poor in the county, and that only five Mexican-Americans since 1880 have served in the Texas Legislature from Page 412 U. S. 769 Bexar County. Of these, only two were from the Barrio area. [Footnote 14] The District Court also concluded from the evidence that the Bexar County legislative delegation in the House was insufficiently responsive to Mexican-American interests.Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multi-member district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. Its judgment was that Bexar County Mexican-Americans"are effectively removed from the political processes of Bexar [County] in violation of all the Whitcomb standards, whatever their absolute numbers may total in that County."Id. at 733. Single-member districts were thought required to remedy "the effects of past and present discrimination against Mexican-Americans," ibid., and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities.The District Court apparently paid due heed to Whitcomb v. Chavis, supra, did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did, from its own special vantage point, conclude that the multi-member district, as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of Page 412 U. S. 770 the Bexar County multi-member district in the light of past and present reality, political and otherwise.Affirmed

U.S. Supreme CourtWhite v. Regester, 412 U.S. 755 (1973)White v. RegesterNo. 72-147Argued February 26, 1973Decided June 18, 1973412 U.S. 755SyllabusIn this litigation challenging the Texas 1970 legislative reapportionment scheme, a three-judge District Court held that the House plan, state-wide, contained constitutionally impermissible deviations from population equality, and that the multi-member districts provided for Bexar and Dallas Counties invidiously discriminated against cognizable racial or ethnic groups. Though the entire plan was declared invalid, the court permitted its use for the 1972 election except for its injunction order requiring those two county multi-member districts to be reconstituted into single member districts.Held:1. This Court has jurisdiction under 28 U.S.C. § 1253 to consider the appeal from the injunction order applicable to the Bexar County and Dallas County districting, since the three-judge court had been properly convened, and this Court can review the declaratory part of the judgment below. Roe v. Wade, 410 U. S. 113. Pp. 412 U. S. 759-761.2. State reapportionment statutes are not subject to the stricter standards applicable to congressional reapportionment under Art. I, § 2, and the District Court erred in concluding that this case, where the total maximum variation between House districts was 9.9%, but the average deviation from the ideal was 1.82%, involved invidious discrimination in violation of the Equal Protection Clause. Cf. Gaffney v. Cummings, ante, p. 412 U. S. 735. Pp. 412 U. S. 761-764.3. The District Court's order requiring disestablishment of the multi-member districts in Dallas and Bexar Counties was warranted in the light of the history of political discrimination against Negroes and Mexican-Americans residing, respectively, in those counties and the residual effects of such discrimination upon those groups. Pp. 412 U. S. 765-770.343 F. Supp. 704, affirmed in part, reversed in part, and remanded.WHITE, J., delivered the opinion of the Court, in Parts I, III, and IV of which all Members joined, and in Part II of which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, Page 412 U. S. 756 JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 412 U. S. 772.

1980_80-608

JUSTICE REHNQUIST delivered the opinion of the Court.We noted probable jurisdiction to decide whether the United States District Court for the Southern District of Page 453 U. S. 116 New York correctly determined that 18 U.S.C. § 1725, which prohibits the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service, unconstitutionally abridges the First Amendment rights of certain civic associations in Westchester County, N.Y. 449 U.S. 1076 (1981). Jurisdiction of this Court rests on 28 U.S.C.§ 1252.IAppellee Council of Greenburgh Civic Associations (Council) is an umbrella organization for a number of civic groups in Westchester County, N.Y. Appellee Saw Mill Valley Civic Association is one of the Council's member groups. In June, 1976, the Postmaster in White Plains, N.Y. notified the Chairman of the Saw Mill Valley Civic Association that the association's practice of delivering messages to local residents by placing unstamped notices and pamphlets in the letterboxes of private homes was in violation of 18 U.S.C. § 1725, which provides:"Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300."Saw Mill Valley Civic Association and other Council members were advised that, if they continued their practice of placing unstamped notices in the letterboxes of private homes, it could result in a fine not to exceed $300.In February, 1977, appellees filed this suit in the District Court for declaratory and injunctive relief from the Postal Service's threatened enforcement of § 1725. Appellees contended that the enforcement of § 1725 would inhibit their Page 453 U. S. 117 communication with residents of the town of Greenburgh and would thereby deny them the freedom of speech and freedom of the press secured by the First Amendment.The District Court initially dismissed the complaint for failure to state a claim on which relief could be granted. 448 F. Supp. 159 (SDNY 1978). On appeal, however, the Court of Appeals for the Second Circuit reversed and remanded the case to the District Court to give the parties"an opportunity to submit proof as to the extent of the handicap to communication caused by enforcement of the statute in the area involved, on the one hand, and the need for the restriction for protection of the mails, on the other."586 F.2d 935, 936 (1978). In light of this language, it was not unreasonable for the District Court to conclude that it had been instructed to "try" the statute, much as more traditional issues of fact are tried by a court, and that is what the District Court proceeded to do.In the proceedings on remand, the Postal Service offered three general justifications for § 1725: (1) that § 1725 protects mail revenues; (2) that it facilitates the efficient and secure delivery of the mails; and (3) that it promotes the privacy of mail patrons. More specifically, the Postal Service argued that elimination of § 1725 could cause the overcrowding of mailboxes due to the deposit of civic association notices. Such overcrowding would, in turn, constitute an impediment to the delivery of the mails. Testimony was offered that § 1725 aided the investigation of mail theft by restricting access to letterboxes, thereby enabling postal investigators to assume that anyone other than a postal carrier or a householder who opens a mailbox may be engaged in the violation of the law. On this point, a postal inspector testified that 10 of the arrests made under the external mail theft statute, 18 U.S.C. § 1708, resulted from surveillance-type operations which benefit from enforcement of § 1725. Testimony was also introduced that § 1725 has been Page 453 U. S. 118 particularly helpful in the investigation of thefts of government benefit checks from letterboxes. [Footnote 1]The Postal Service introduced testimony that it would incur additional expense if § 1725 were either eliminated or held to be inapplicable to civic association materials. If delivery in mailboxes were expanded to permit civic association circulars -- but not other types of nonmailable matter such as commercial materials -- mail carriers would be obliged to remove and examine individual unstamped items found in letterboxes to determine if their deposit there was lawful. Carriers would also be confronted with a larger amount of unstamped mailable matter which they would be obliged to separate from outgoing mail. The extra time resulting from these additional activities, when computed on a nationwide basis, would add substantially to the daily cost of mail delivery.The final justification offered by the Postal Service for § 1725 was that the statute provided significant protection for the privacy interests of postal customers. Section 1725 provides postal customers the means to send and receive mails without fear of their correspondence becoming known to members of the community. Page 453 U. S. 119The Postal Service also argued at trial that the enforcement of § 1725 left appellees with ample alternative means of delivering their message. The appellees can deliver their messages either by paying postage, by hanging their notices on doorknobs, by placing their notices under doors or under a doormat, by using newspaper or nonpostal boxes affixed to houses or mailbox posts, by telephoning their constituents, by engaging in person-to-person delivery in public areas, by tacking or taping their notices on a door post or letterbox post, or by placing advertisements in local newspapers. A survey was introduced comparing the effectiveness of certain of these alternatives which arguably demonstrated that between 70-75% of the materials placed under doors or doormats or hung from doorknobs were found by the homeowner, whereas approximately 82% of the items placed in letterboxes were found. This incidental difference, it was argued, cannot be of constitutional significance.The District Court found the above arguments of the Postal Service insufficient to sustain the constitutionality of § 1725, at least as applied to these appellees. 490 F. Supp. 157 (1980). Relying on the earlier opinion of the Court of Appeals, the District Court noted that the legal standard it was to apply would give the appellees relief if the curtailment of their interest in free expression resulting from enforcement of § 1725 substantially outweighed the Government's interests in the effective delivery and protection of the mails. The District Court concluded that the appellees had satisfied this standard.The District Court based its decision on several findings. The court initially concluded that, because civic associations generally have small cash reserves and cannot afford the applicable postage rates, mailing of the appellees' message would be financially burdensome. Similarly, because of the relatively slow pace of the mail, use of the mails at certain times would impede the appellees' ability to communicate quickly with their constituents. Given the widespread awareness Page 453 U. S. 120 of the high cost and limited celerity of the mails, the court probably could have taken judicial notice of both of these findings.The court also found that none of the alternative means of delivery suggested by the Postal Service were"nearly as effective as placing civic association flyers in approved mailboxes; so that restriction on the [appellees'] delivery methods to such alternatives also constitutes a serious burden on [appellees'] ability to communicate with their constituents."490 F. Supp. at 160. [Footnote 2] Accordingly, the District Court declared § 1725 unconstitutional as applied to appellees and the Council's member associations, and enjoined the Postal Service from enforcing it as to them.IIThe present case is a good example of Justice Holmes' aphorism that "a page of history is worth a volume of logic." Page 453 U. S. 121 New York Trust Co. v. Eisner, 256 U. S. 345, 256 U. S. 349 (1921). For only by review of the history of the postal system and its present statutory and regulatory scheme can the constitutional challenge to 1725 be placed in its proper context.By the early 18th century, the posts were made a sovereign function in almost all nations because they were considered a sovereign necessity. Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. Kappel Commission, Toward Postal Excellence, Report of the President's Commission on Postal Organization 47 (Comm.Print 1968). Little progress was made in developing a postal system in Colonial America until the appointment of Benjamin Franklin, formerly Postmaster at Philadelphia, as Deputy Postmaster General for the American Colonies in 1753. In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army. D. Adie, An Evaluation of Postal Service Wage Rates 2 (American Enterprise Institute, 1977).Given the importance of the post to our early Nation, it is not surprising that, when the United States Constitution was ratified in 1789, Art. I, § 8, provided Congress the power "To establish Post Offices and post Roads" and "To make all Laws which shall be necessary and proper" for executing this task. The Post Office played a vital yet largely unappreciated role in the development of our new Nation. Stagecoach trails which were improved by the Government to become post roads quickly became arteries of commerce. Mail contracts were of great assistance to the early development of new means of transportation such as canals, railroads, and eventually airlines. Kappel Commission, Toward Page 453 U. S. 122 Postal Excellence, supra, at 46. During this developing stage, the Post Office was to many citizens situated across the country the most visible symbol of national unity. Ibid.The growth of postal service over the past 200 years has been remarkable. Annual revenues increased from less than $40 million in 1790 to close to $200 million in 1829, when the Postmaster General first became a member of the Cabinet. However, expenditures began exceeding revenues as early as the 1820's, as the postal structure struggled to keep pace with the rapid growth of the country westward. Because of this expansion, delivery costs to the South and West raised average postal costs nationally. To prevent competition from private express services, Congress passed the Postal Act of 1845, which prohibited competition in letter mail and established what is today referred to as the "postal monopoly."More recently, to deal with the problems of increasing deficits and shortcomings in the overall management and efficiency of the Post Office, Congress passed the Postal Reorganization Act of 1970. This Act transformed the Post Office Department into a Government-owned corporation called the United States Postal Service. The Postal Service today is among the largest employers in the world. with a workforce nearing 700,000 processing 106.3 billion pieces of mail each year. Ann. Rep. of the Postmaster General 2, 11 (1980). The Postal Service is the Nation's largest user of floor space, and the Nation's largest nonmilitary purchaser of transport, operating more than 200,000 vehicles. Its rural carriers alone travel over 21 million miles each day, and its city carriers walk or drive another million miles a day. D. Adie, An Evaluation of Postal Service Wage Rates, supra, at 1. Its operating budget in fiscal 1980 exceeded $17 billion. Ann. Rep. of the Postmaster General, supra, at 2.Not surprisingly, Congress has established a detailed statutory and regulatory scheme to govern this country's vast postal system. See 39 U.S.C. § 401 et seq. and the Domestic Mail Manual (DMM), which has been incorporated by Page 453 U. S. 123 reference in the Code of Federal Regulations, 39 CFR pt. 3 (1980). Under 39 U.S.C. 403(a), the Postal Service is directed to "plan, develop, promote and provide adequate and efficient postal services at fair and reasonable rates and fees." Section 403(b)(1) similarly directs the Postal Service "to maintain an efficient system of collection, sorting. and delivery of the mail nationwide," and under 39 U.S.C. § 401, the Postal Service is broadly empowered to adopt rules and regulations designed to accomplish the above directives.Acting under this authority, the Postal Service has provided by regulation that both urban and rural postal customers must provide appropriate mail receptacles meeting detailed specifications concerning size, shape, and dimensions. DMM 155.41, 155.43, 156.311, 156.1, and 156.54. By regulation, the Postal Service has also provided that"[e]very letter box or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route, highway contract route, or other mail route is designated an authorized depository for mail within the meaning of 18 U.S.C. [§] 1725."DMM 151.1. A letterbox provided by a postal customer which meets the Postal Service's specifications not only becomes part of the Postal Service's nationwide system for the receipt and delivery of mail, but is also afforded the protection of the federal statutes prohibiting the damaging or destruction of mail deposited therein. See 18 U.S.C. §§ 1702, 1705, and 1708.It is not without irony that this elaborate system of regulation, coupled with the historic dependence of the Nation on the Postal Service, has been the causal factor which led to this litigation. For it is because of the very fact that virtually every householder wishes to have a mailing address and a receptacle in which mail sent to that address will be deposited by the Postal Service that the letterbox or other mail receptacle is attractive to those who wish to convey messages within a locality, but do not wish to purchase the stamp or pay such other fee as would permit them to be transmitted Page 453 U. S. 124 by the Postal Service. To the extent that the "alternative means" eschewed by the appellees and found to be inadequate alternatives by the District Court are in fact so, it is in no small part attributable to the fact that the typical mail patron first looks for written communications from the "outside world" not under his doormat, or inside the screen of his front door, but in his letterbox. Notwithstanding the increasing frequency of complaints about the rising cost of using the Postal Service, and the uncertainty of the time which passes between mailing and delivery, written communication making use of the Postal Service is so much a fact of our daily lives that the mail patron watching for the mailtruck, or the jobholder returning from work looking in his letterbox before he enters his house, are commonplaces of our society. Indeed, according to the appellees, the receptacles for mailable matter are so superior to alternative efforts to communicate printed matter that all other alternatives for deposit of such matter are inadequate substitutes for postal letterboxes.Postal Service regulations, however, provide that letterboxes and other receptacles designated for the delivery of mail "shall be used exclusively for matter which bears postage." DMM 151.2. [Footnote 3] Section 1725 merely reinforces this Page 453 U. S. 125 regulation by prohibiting, under pain of criminal sanctions, the deposit into a letterbox of any mailable matter on which postage has not been paid. The specific prohibition contained in § 1725 is also repeated in the Postal Service regulations at DMM 146.21.Section 1725 was enacted in 1934"to curb the practice of depositing statements of account, circulars, sale bills, etc., in letter boxes established and approved by the Postmaster General for the receipt or delivery of mail matter without payment of postage thereon by making this a criminal offense."H.R.Rep. No. 709, 73d Cong., 2d Sess., 1 (1934). Both the Senate and House Committees on Post Offices and Post Roads explained the principal motivation for § 1725 as follows:"Business concerns, particularly utility companies, have within the last few years adopted the practice of having their circulars, statements of account, etc., delivered by private messenger, and have used as receptacles the letter boxes erected for the purpose of holding mail matter and approved by the Post Office Department for such purpose. This practice is depriving the Post Office Department of considerable revenue on matter which would otherwise go through the mails, and at the same time is resulting in the stuffing of letter boxes with extraneous matter."Ibid.; S.Rep. No. 742, 73d Cong., 2d Sess., 1 (1934).Nothing in any of the legislation or regulations recited above requires any person to become a postal customer. Anyone is free to live in any part of the country without having letters or packages delivered or received by the Postal Service by simply failing to provide the receptacle for those letters and packages which the statutes and regulations require. Indeed, the provision for "General Delivery" in most post offices enables a person to take advantage of the facilities Page 453 U. S. 126 of the Postal Service without ever having provided a receptacle at or near his premises conforming to the regulations of the Postal Service. What the legislation and regulations do require is that those persons who do wish to receive and deposit their mail at their home or business do so under the direction and control of the Postal Service.IIIAs early as the last century, this Court recognized the broad power of Congress to act in matters concerning the posts:"The power vested in Congress 'to establish post-offices and post-roads' has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents. The validity of legislation describing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned. . . . The power possessed by Congress embraces the regulation of the entire Postal System of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded."Ex parte Jackson, 96 U. S. 727, 96 U. S. 732 (1878).However broad the postal power conferred by Art. I may be, it may not, of course, be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution. In this case, we are confronted with the appellees' assertion that the First Amendment guarantees them the right to deposit, without payment of postage, their notices, circulars, and flyers in Page 453 U. S. 127 letterboxes which have been accepted as authorized depositories of mail by the Postal Service. [Footnote 4]In addressing appellees' claim, we note that we are not here confronted with a regulation which in any way prohibits individuals from going door-to-door to distribute their message or which vests unbridled discretion in a governmental official to decide whether or not to permit the distribution to occur. We are likewise not confronted with a regulation which in any way restricts the appellees' right to use the mails. The appellees may mail their civic notices in the ordinary fashion. and the Postal Service will treat such notices identically with all other mail without regard to content. There is no claim that the Postal Service treats civic notices, because of their content, any differently from the way it treats any of the other mail it processes. Admittedly, if appellees do choose to mail their notices, they will be required to pay postage in a manner identical to other Postal Service patrons, but appellees do not challenge the imposition of a fee for the services provided by the Postal Service. [Footnote 5] Page 453 U. S. 128What is at issue in this case is solely the constitutionality of an Act of Congress which makes it unlawful for persons to use, without payment of a fee, a letterbox which has been designated an "authorized depository" of the mail by the Postal Service. As has been previously explained, when a letterbox is so designated, it becomes an essential part of the Postal Service's nationwide system for the delivery and receipt of mail. In effect, the postal customer, although he pays for the physical components of the "authorized depository," agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail.Appellees' claim is undermined by the fact that a letterbox, once designated an "authorized depository," does not at the same time undergo a transformation into a "public forum" of some limited nature to which the First Amendment guarantees access to all comers. There is neither historical nor constitutional support for the characterization of a letterbox as a public forum. Letterboxes are an essential part of the nationwide system for the delivery and receipt of Page 453 U. S. 129 mail, and, since 1934, access to them has been unlawful except under the terms and conditions specified by Congress and the Postal Service. As such, it is difficult to accept appellees' assertion that, because it may be somewhat more efficient to place their messages in letterboxes, there is a First Amendment right to do so. The underlying rationale of appellees' argument would seem to foreclose Congress or the Postal Service from requiring in the future that all letterboxes contain locks with keys being available only to the homeowner and the mail carrier. Such letterboxes are presently found in many apartment buildings, and we do not think their presence offends the First Amendment to the United States Constitution. Letterboxes which lock, however, have the same effect on civic associations that wish access to them as does the enforcement of § 1725. Such letterboxes also accomplish the same purpose -- that is, they protect mail revenues while at the same time facilitating the secure and efficient delivery of the mails. We do not think the First Amendment prohibits Congress from choosing to accomplish these purposes through legislation, as opposed to lock and key.Indeed, it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U. S. 828 (1976), the jail or prison in Adderley v. Florida, 385 U. S. 39 (1966), and Jones v. North Carolina Prisoners' Union, 433 U. S. 119 (1977), or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974). In all these cases, this Court recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In Greer v. Spock, supra, the Court cited approvingly from its earlier opinion in Adderley v. Florida, supra, wherein it explained that"'[t]he State, no less than a private owner of Page 453 U. S. 130 property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'"424 U.S. at 424 U. S. 836. [Footnote 6] This Court has not hesitated in the past to hold invalid Page 453 U. S. 131 laws which it concluded granted too much discretion to public officials as to who might and who might not solicit individual homeowners, or which too broadly limited the access of persons to traditional First Amendment forums such as the public streets and parks. See, e.g., Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Martin v. City of Struthers, 319 U. S. 141 (1943); Lovell v. City of Griffin, 303 U. S. 444 (1938); and Police Department of Chicago v. Mosley, 408 U. S. 92 (1972). But it is a giant leap from the traditional "soapbox" to the letterbox designated as an authorized depository of the United States mails, and we do not believe the First Amendment requires us to make that leap. [Footnote 7] Page 453 U. S. 132IVIt is thus unnecessary for us to examine § 1725 in the context of a "time, place, and manner" restriction on the use of the traditional "public forums" referred to above. This Court has long recognized the validity of reasonable time, place, and manner regulations on such a forum, so long as the regulation is content-neutral, serves a significant governmental interest, and leaves open adequate alternative channels for communication. See, e.g., Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530, 447 U. S. 535-536 (1980); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 431 U. S. 93 (1977); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771 (1976); Grayned v. City of Rockford, 408 U. S. 104 (1972); Cox v. New Hampshire, 312 U. S. 569 (1941). But since a letterbox is not traditionally such a "public forum," the elaborate analysis engaged in by the District Court was, we think, unnecessary. To be sure, if a governmental regulation is based on the content of the speech or the message, that action must be scrutinized more carefully to ensure that communication has not been prohibited "merely because public officials disapprove the speaker's view.'" Consolidated Edison Co. v. Public Service Comm'n, supra, at 446 U. S. 536, quoting Niemotko v. Maryland, 340 U. S. 268, 340 U. S. 282 (1951) (Frankfurter, J., concurring in result). But in this case, there simply is no question that § 1725 does not regulate speech on the basis of content. While the analytical line between a regulation of the "time, place, and manner" in which First Amendment rights may be exercised in a traditional public forum, and the question of whether a particular piece of personal or real property owned or controlled by the government is in fact a "public forum" may blur at the edges, we think the line is nonetheless a workable one. We likewise think that Congress may, in exercising its authority to develop and operate a national postal system, properly legislate with the generality of cases in mind, and Page 453 U. S. 133 should not be put to the test of defending in one township after another the constitutionality of a statute under the traditional "time place, and manner" analysis. This Court has previously acknowledged that the"guarantees of the First Amendment have never meant 'that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.'"Greer v. Spock, 424 U.S. at 424 U. S. 836, quoting Adderley v. Florida, 385 U.S. at 385 U. S. 48. If Congress and the Postal Service are to operate as efficiently as possible a system for the delivery of mail which serves a Nation extending from the Atlantic Ocean to the Pacific Ocean, from the Canadian boundary on the north to the Mexican boundary on the south, it must obviously adopt regulations of general character having uniform applicability throughout the more than three million square miles which the United States embraces. In so doing, the Postal Service's authority to impose regulations cannot be made to depend on all of the variations of climate, population, density, and other factors that may vary significantly within a distance of less than 100 miles.VFrom the time of the issuance of the first postage stamp in this country at Brattleboro, Vt., in the fifth decade of the last century, through the days of the governmentally subsidized "Pony Express" immediately before the Civil War, and through the less admirable era of the Star Route Mail Frauds in the latter part of that century, Congress has actively exercised the authority conferred upon it by the Constitution "to establish Post Offices and Post Roads" and "to make all laws which shall be necessary and proper" for executing this task. While Congress, no more than a suburban township, may not by its own ipse dixit destroy the "public forum" status of streets and parks which have historically been public forums, we think that, for the reasons stated, a letterbox may not properly be analogized to streets and parks. Page 453 U. S. 134 It is enough for our purposes that neither the enactment nor the enforcement of § 1725 was geared in any way to the content of the message sought to be placed in the letterbox. The judgment of the District Court is accordinglyReversed

U.S. Supreme CourtUSPS v. Council of Greenburgh Civic Assns., 453 U.S. 114 (1981)United States Postal Service v. Council ofGreenburgh Civic AssociationsNo. 80-608Argued April 21, 1981Decided June 25, 1981453 U.S. 114SyllabusTitle 18 U.S.C. § 1725 prohibits the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service, and violations are subject to a fine. The local Postmaster notified appellee civic association that its practice of delivering messages to residents by placing unstamped notices in the letterboxes of private homes violated § 1725, and advised it that, if it and other members of appellee council of civic associations continued such practice, it could result in a fine. Appellees then brought suit in Federal District Court against the Postal Service for declaratory and injunctive relief, contending that the enforcement of § 1725 would inhibit their communications with local residents and would thereby deny them the freedom of speech and press secured by the First Amendment. The District Court ultimately declared § 1725 unconstitutional as applied to appellees and the council's member associations and enjoined the Postal Service from enforcing it as to them.Held: Section 1725 does not unconstitutionally abridge appellees' First Amendment rights, inasmuch as neither the enactment nor the enforcement of § 1725 is geared in any way to the content of the message sought to be placed in the letterbox. Pp. 453 U. S. 120-134.(a) When a letterbox is designated an "authorized depository" of the mail by the Postal Service, it becomes an essential part of the nationwide system for the delivery and receipt of mail. In effect, the postal customer, although he pays for the physical components of the "authorized depository," agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail. A letterbox, once designated an "authorized depository," does not at the same time transform itself into a "public forum" of some limited nature to which the First Amendment guarantees access to all comers. Just because it may be somewhat more efficient for appellees to place their messages in letterboxes does not mean that there is a First Amendment right to do so. The First Amendment does not guarantee access to property simply because it is owned or controlled by the Government. Pp. 453 U. S. 126-131. Page 453 U. S. 115(b) Congress, in exercising its constitutional authority to develop and operate a national postal system, may properly legislate with the generality of cases in mind, and should not be put to the test of defending in one township after another the constitutionality of a statute under the traditional "time, place, and manner" analysis. If Congress and the Postal Service are to operate as efficiently as possible an extensive system for the delivery of mail, they must adopt regulations of a general character having uniform applicability throughout the Nation. In this case, Congress was legislating to promote what it considered to be the efficiency of the Postal Service, and was not laying down a generalized prohibition against the distribution of leaflets or the discussion of issues in traditional public forums. Pp. 453 U. S. 133-133.(c) While Congress may not, by its own ipse dixit, destroy the "public forum" status of streets and parks, a letterbox may not properly be analogized to streets and parks. Pp. 453 U. S. 133-134.490 F. Supp. 157, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., post, p. 453 U. S. 134, and WHITE, J., post, p. 453 U. S. 141, filed opinions concurring in the judgment. MARSHALL, J., post, p. 453 U. S. 142, and STEVENS, J., post, p. 453 U. S. 152, filed dissenting opinions.

1957_67

MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioner, alleging that it had been injured by respondent's sales at unreasonably low prices in violation of § 3 of the Robinson-Patman Act, [Footnote 1] 49 Stat. 1526, 15 U.S.C. § 13a, sued the respondent for treble damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 730, as amended, 15 U.S.C. §§ 15, 26. The District Court dismissed the complaint on the ground that the private remedies afforded by §§ 4 and 16 of the Clayton Act cannot be based on a violation of § 3 of the Robinson-Patman Act. The Court of Appeals affirmed. Page 355 U. S. 375 238 F.2d 86. We brought the case here, 352 U.S. 1023, to resolve a conflict between the ruling below and a decision of the Court of Appeals for the Tenth Circuit holding that such a private action does lie. Vance v. Safeway Stores, Inc., 239 F.2d 144.Sections 4 and 16 of the Clayton Act permit private actions of this kind [Footnote 2] only for injuries resulting from practices forbidden by the "antitrust laws" as defined in § 1 of the Clayton Act, [Footnote 3] namely: (1) the Sherman Act (Act of July 2, 1890); (2) parts of the Wilson Tariff Act (Act of August 27, 1894); (3) the Act amending the Wilson Tariff Act (Act of February 12, 1913); and (4) the Clayton Act ("this Act"). In light of the much other so-called antitrust legislation enacted prior and subsequent Page 355 U. S. 376 to the Clayton Act, [Footnote 4] it seems plain that the rule expressio unius exclusio alterius is applicable, and that the definition contained in § 1 of the Clayton Act is exclusive. Therefore it is of no moment here that the Robinson-Patman Act may be colloquially described as an "antitrust" statute. And since no one claims that § 3 of the Robinson-Patman Act can be regarded as an amendment to the Sherman Act or the Wilson Tariff Act, the precise issue before us is whether Congress made that section of the Robinson-Patman Act a part of the Clayton Act, thus making it one of the "antitrust laws" whose violation can lead to the private causes of action authorized by §§ 4 and 16. For the reasons stated below we hold that this is not the case. [Footnote 5]IThe Robinson-Patman Act, consisting of our sections, convincingly shows on its face that § 3 does not amend the Clayton Act, but stands on its own footing and carries its own sanctions.The first section of the Act does expressly amend § 2 of the Clayton Act, which prohibits certain kinds of price discriminations, and allied activities, on the part of those engaged in domestic or territorial commerce. The first paragraph of this section reads:"That section 2 of the [Clayton Act] . . . is amended to read as follows: . . .""* * * * Page 355 U. S. 377" The section then sets forth in haec verba, and within quotation marks, all the provisions of § 2, as modified by the amending language. 49 Stat. 1526, 15 U.S.C. § 13(a).Two other sections of the Act are not in point here. Section 2 simply applies the amending provisions of § 1 to litigation commenced under the former provisions of § 2 of the Clayton Act, 15 U.S.C. § 21a; and § 4 deals with certain practices of cooperative associations. 15 U.S.C. § 13b.The only other section of the Act is § 3, with which we are concerned here. It prohibits three kinds of trade practices, (a) general price discriminations, (b) geographical price discriminations, and (c) selling "at unreasonably low prices for the purpose of destroying competition or eliminating a competitor." The important thing to note is that this section, in contrast to § 1 of the Robinson-Patman Act, does not on its face amend the Clayton Act. Further, § 3 contains only penal sanctions for violation of it provisions; in the absence of a clear expression of congressional intent to the contrary, these sanctions should under familiar principles be considered exclusive, rather than supplemented by civil sanctions of a distinct statute. See D. R. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U. S. 165, 236 U. S. 174-175.The conclusion that only § 1 of the Robinson-Patman Act can be regarded as amendatory of the Clayton Act is further borne out by the title of the whole Robinson-Patman Act, which reads (49 Stat. 1526):"An Act" "To amend section 2 of [the Clayton Act] . . . and for other purposes."(Italics added.) The "other purposes" can only refer to the sections of the Act other than the first section. Page 355 U. S. 378Because there is a partial overlap between the price discrimination clauses of § 3 of the Robinson-Patman Act (see note 1 supra) and those of § 2 of the Clayton Act, as amended by the first section of the Robinson-Patman Act, [Footnote 6] it is argued that it would be anomalous to allow a private cause of action for price discrimination in violation of § 2 of the Clayton Act but to deny a private cause of action based on a violation of § 3 of the Robinson-Patman Act. This argument, however, overlooks the fact that § 3 of the Robinson-Patman Act includes a provision which is not found in § 2 of the Clayton Act, namely, selling "at unreasonably low prices for the purpose of destroying competition or eliminating a competitor." It is not an idle conjecture that the possibility of abuse inherent in a private cause of action based upon this vague provision [Footnote 7] was among the factors which led Congress to leave the enforcement of the provisions of § 3 solely in the hands Page 355 U. S. 379 of the public authorities, except to the extent that violation of any of its provisions also constituted a violation of § 2 of the Clayton Act, and as such was subject to private redress under §§ 4 and 16 of that Act. In any event, in the absence of a much clearer indication of congressional intent than is present in these statutory provisions and their legislative history (infra, p. 355 U. S. 380), we should not read the Robinson-Patman Act as subjecting violations of the "unreasonably low prices" provision of § 3 to the private remedies given by the Clayton Act.Respondent calls our attention to the fact that the 1940 U.S. Code codifies § 3 of the Robinson-Patman Act as being among the "antitrust laws" embraced in § 1 of the Clayton Act. However, reference to the 1926 and 1934 Codes shows that the 1940 codification was a palpable error. [Footnote 8] Moreover, this codification seems to us, for the Page 355 U. S. 380 reasons set forth in this opinion, to be manifestly inconsistent with the Robinson-Patman Act, and, in such circumstances, Congress has specifically provided that the underlying statute must prevail. Act of June 30, 1926, 32(a), vol. 1 U.S.C. (1952 ed.), p. LXIII; see Stephan v. United States, 319 U. S. 423, 319 U. S. 426.IIWhat appears from the face of the Robinson-Patman Act finds full support in its legislative history. The fair conclusions to be drawn from that history are (a) that § 3 of the Robinson-Patman Act was not intended to become part of the Clayton Act, and (b) that the section was intended to carry only criminal sanctions, except that price discriminations, to the extent that they were common to both that section and § 2 of the Clayton Act, were also understood to carry, under the independent force of the Clayton, Act, the private remedies provided in §§ 4 and 16 of the Clayton Act. In other words, although price discriminations are both criminally punishable (under § 3 of the Robinson-Patman Act) and subject to civil redress (under § 2 of the Clayton Act), selling "at unreasonably low prices" is subject only to the criminal penalties provided in § 3 of the Robinson-Patman Act. [Footnote 9] This is evident from the Conference Report on the bill, which states:"SECTION 2" "The provisions of section 2 of the House bill [Footnote 10] were agreed to without amendment by the Senate. . . . [I]t appears in the conference report as Page 355 U. S. 381 section 2 of the bill itself, rather that as part of the amendment to section 2 of the Clayton Act which is provided for in section 1 to the present bill.""SECTION 3" "Subsection (h) of the Senate amendment . . . appears in the conference report as section 3 of the bill itself. It contains the operative and penal provisions of what was originally the Borah-Van Nuys bill (S. 4171). [Footnote 11] While they overlap in some respects, they are in no way inconsistent with the provisions of the Clayton Act amendment provided for in section 1. Section 3 authorizes nothing which that amendment prohibits, and takes nothing from it. On the contrary, where only civil remedies and liabilities attach to violations of the amendment provided in section 1, section 3 sets up special prohibitions as to the particular offenses therein described and attaches to them also the criminal penalties therein provided."H.R.Rep. No. 2951, 74th Cong., 2d Sess., p. 8. (Italics added.) Further excerpts from the legislative history, set forth in the margin, [Footnote 12] also bear out the conclusions stated at the outset of this part of our opinion. Page 355 U. S. 382Finally, it is noteworthy, by way of epitomizing the conclusions to be drawn from the legislative history, that, in 1950, Representative Patman (a coauthor of the Robinson-Patman Act) stated in testimony before a Subcommittee of the House Committee on the Judiciary (Hearing on H.R. 7905, 81st Cong., 2d Sess., Serial No. 14, Part 5, p. 48):". . . it happens that section 3, the criminal section of the Robinson-Patman Act, was not, under the terms of that act, made an amendment to the Clayton Act. Moreover, section 3 of the Robinson-Patman Act has never been added to the list of laws designated as 'antitrust laws' in section 1 of the Clayton Act."For the foregoing reasons, we hold that a private cause of action does not lie for practices forbidden only by § 3 of the Robinson-Patman Act. To the extent that such practices also constitute a violation of § 2 of the Clayton Act, as amended, they are actionable by one injured thereby solely under that Act. Since no such infringement of § 2 is alleged here, the complaint in this case was properly dismissed.Affirmed

U.S. Supreme CourtNashville Milk Co. v. Carnation Co., 355 U.S. 373 (1958)Nashville Milk Co. v. Carnation Co.No. 67Argued November 21, 1957Decided January 20, 1958355 U.S. 373SyllabusA private cause of action under §§ 4 and 16 of the Clayton Act, as amended, does not lie for sales at unreasonably low prices for the purpose of destroying competition or eliminating a competitor, which are forbidden only by § 3 of the Robinson-Patman Act. Pp. 355 U. S. 374-382.(a) Sections 4 and 16 of the Clayton Act permit private actions only for injuries resulting from practices forbidden by the "antitrust laws," as defined in § 1 of that Act, and that definition, specifying certain Acts not including the Robinson-Patman Act, is exclusive. Pp. 355 U. S. 375-376.(b) The Robinson-Patman Act shows on its face that § 3 does not amend the Clayton Act, but stands on its own footing and carries its own sanctions, which are penal in nature. Pp. 355 U. S. 376-380.(c) Section 3 of the Robinson-Patman Act contains only penal sanctions for violation of its provisions, and, in the absence of a clear expression of congressional intent to the contrary, these sanctions should be considered exclusive, rather than supplemented by civil sanctions of a distinct statute. P. 355 U. S. 377.(d) A different result is not required by the fact that there is a partial overlap between the price discrimination clauses of § 3 of the Robinson-Patman Act and those of § 2 of the Clayton Act, as amended by §1 of the Robinson-Patman Act. Pp. 355 U. S. 378-379.(e) A different result is not required by the fact that the United States Code codifies § 3 of the Robinson-Patman Act as being among the "antitrust laws" embraced in § 1 of the Clayton Act, since there was a palpable error in the codification, and the underlying statutes must prevail. Pp. 355 U. S. 379-380.(f) The conclusion here reached is supported by the legislative history of the Robinson-Patman Act. Pp. 355 U. S. 380-382.238 F.2d 86, affirmed. Page 355 U. S. 374

1993_92-8556

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In this case, we return to the issue that splintered the Court in Baldasar v. Illinois, 446 U. S. 222 (1980): Whether the Constitution prohibits a sentencing court from considering a defendant's previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense.In 1990, petitioner Nichols pleaded guilty to conspiracy to possess cocaine with intent to distribute, in violation of 21 U. S. C. § 846. Pursuant to the United States Sentencing Commission's Guidelines (Sentencing Guidelines), petitioner was assessed three criminal history points for a 1983 federal felony drug conviction. An additional criminal history point was assessed for petitioner's 1983 state misdemeanor conviction for driving under the influence (DUI), for which petitioner was fined $250 but was not incarcerated.1 This additional criminal history point increased petitioner's Criminal History Category from Category II to Category lIP As a result, petitioner's sentencing range under the Sentencing Guidelines increased from 168-210 months (under Criminal History Category II) to 188-235 months (under Category III).31 At the time of his conviction, petitioner faced a maximum punishment of one year imprisonment and a $1,000 fine. Georgia law provided that a person convicted of driving under the influence of alcohol "shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than ten days nor more than one year, or by a fine of not less than $100.00 nor more than $1,000.00, or by both such fine and imprisonment." Ga. Code Ann. § 40.6-391(c) (1982).2 There are six criminal history categories under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (USSG) ch. 5, pt. A (Nov. 1993) (Sentencing Table). A defendant's criminal history category is determined by the number of his criminal history points, which in turn is based on his prior criminal record. Id., ch. 4, p. A.3 The Sentencing Table provides a matrix of sentencing ranges. On the vertical axis of the matrix is the defendant's offense level representing the seriousness of the crime; on the horizontal axis is the defendant's criminal history category. The sentencing range is determined by identifying the741Petitioner objected to the inclusion of his DUI misdemeanor conviction in his criminal history score because he was not represented by counsel at that proceeding. He maintained that consideration of that uncounseled misdemeanor conviction in establishing his sentence would violate the Sixth Amendment as construed in Baldasar, supra. The United States District Court for the Eastern District of Tennessee found that petitioner's misdemeanor conviction was uncounseled and that, based on the record before it, petitioner had not waived his right to counse1.4 763 F. Supp. 277 (1991). But the District Court rejected petitioner's Baldasar argument, explaining that in the absence of a majority opinion, Baldasar "stands only for the proposition that a prior uncounseled misdemeanor conviction may not be used to create a felony with a prison term." 763 F. Supp., at 279. Because petitioner's offense was already defined as a felony, the District Court ruled that Baldasar was inapplicable to the facts of this case; thus, petitioner's constitutional rights were not violated by using his 1983 DUI conviction to enhance his sentence.5 It sentenced petitioner to the maximum term allowed by the Sentencing Guidelines under its interpretation of Baldasar, a term 25 months longer than if the misdemeanor conviction had not been considered in calculating petitioner's criminal history score.intersection of the defendant's offense level and his criminal history category. Id., ch. 5, pt. A (Sentencing Table).4 The Government contends that, even if Baldasar v. Illinois, 446 U. S. 222 (1980), prohibits using the prior uncounseled misdemeanor conviction to enhance petitioner's sentence, the District Court applied the wrong legal standard in finding no valid waiver of the right to counsel. Based on Johnson v. Zerbst, 304 U. S. 458, 467-469 (1938), and Parke v. Raley, 506 U. S. 20, 28-29 (1992), the Government argues that petitioner failed to carry his burden to establish the absence of a valid waiver of counsel. We need not address this contention due to our resolution of the Baldasar issue.5 Petitioner's instant felony conviction was punishable under statute by not less than 10 years' imprisonment and not more than life imprisonment. See 21 U. S. C. §841(b)(1)(B); 979 F.2d 402, 413-414, 417-418 (CA6 1992).742A divided panel of the Court of Appeals for the Sixth Circuit affirmed. 979 F.2d 402 (1992). After reviewing the fractured decision in Baldasar and the opinions from other Courts of Appeals that had considered the issue, the court held that Baldasar limits the collateral use at sentencing of a prior uncounseled misdemeanor conviction only when the effect of such consideration is to convert a misdemeanor into a felony.6 The dissent, while recognizing that "numerous courts have questioned whether [Baldasar] expresses any single holding, and, accordingly, have largely limited Baldasar to its facts," nevertheless concluded that Baldasar proscribed the use of petitioner's prior uncounseled DUI conviction to enhance his sentence under the Sentencing Guidelines. 979 F. 2d, at 407-408 (citations omitted).We granted certiorari, 509 U. S. 953 (1993), to address this important question of Sixth Amendment law, and to thereby resolve a conflict among state courts 7 as well as Federal Courts of Appeals.8 We now affirm.6 The court also stated that its decision was "logically compelled" by Charles v. Foltz, 741 F.2d 834, 837 (CA6 1984), cert. denied, 469 U. S. 1193 (1985), 979 F. 2d, at 415-416, 418 (" '[E]vidence of prior uncounselled misdemeanor convictions for which imprisonment was not imposed ... may be used for impeachment purposes' ").7 Cf. Lovell v. State, 283 Ark. 425, 428, 678 S. W. 2d 318, 320 (1984) (Baldasar bars any prior uncounseled misdemeanor conviction from enhancing a term of imprisonment following a second conviction); State v. Vares, 71 Haw. 617, 620, 801 P. 2d 555, 557 (1990) (same); State v. Laurick, 120 N. J. 1, 16, 575 A. 2d 1340, 1347 (Baldasar bars an enhanced penalty only when it is greater than that authorized in the absence of the prior offense or converts a misdemeanor into a felony), cert. denied, 498 U. S. 967 (1990); Hlad v. State, 565 So. 2d 762, 764-766 (Fla. App. 1990) (following the approach of JUSTICE BLACKMUN, thereby limiting enhancement to situations where the prior uncounseled misdemeanor was punishable by six months' imprisonment or less), aff'd, 585 So. 2d 928, 930 (Fla. 1991); Sheffield v. Pass Christian, 556 So. 2d 1052, 1053 (Miss. 1990) (Baldasar establishes no barrier to the collateral use of valid, uncounseled misdemeanor convictions).8The Sixth Circuit expressly joined the Fifth and Second Circuits in essentially limiting Baldasar to its facts. See Wilson v. Estelle, 625 F.2d 1158, 1159, and n. 1 (CA5 1980) (a prior uncounseled misdemeanor convic-743In Scott v. Illinois, 440 U. S. 367 (1979), we held that where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor had no constitutional right to counseI.9 Our decision in Scott was dictated by Argersinger v. Hamlin, 407 U. S. 25 (1972), but we stated that "[e]ven were the matter res nova, we believe that the central premise of Argersinger-that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment-is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." Scott, supra, at 373.One year later, in Baldasar v. Illinois, 446 U. S. 222 (1980), a majority of the Court held that a prior uncounseled misdemeanor conviction, constitutional under Scott, could nevertheless not be collaterally used to convert a second misdemeanor conviction into a felony under the applicable Illinois sentencing enhancement statute. The per curiam opinion in Baldasar provided no rationale for the result; instead, it referred to the "reasons stated in the concurring opinions."tion cannot be used under a sentence enhancement statute to convert a subsequent misdemeanor into a felony with a prison term), cert. denied, 451 U. S. 912 (1981); United States v. Castro-Vega, 945 F.2d 496, 500 (CA2 1991) (Baldasar does not apply where "the court used an uncounseled misdemeanor conviction to determine the appropriate criminal history category for a crime that was already a felony"), cert. denied sub nom. Cintron-Rodriguez v. United States, 507 U. S. 908 (1992). But see, e. g., United States v. Brady, 928 F.2d 844, 854 (CA9 1991) (Baldasar and the Sixth Amendment bar any imprisonment in a subsequent case imposed because of an uncounseled conviction in which the right to counsel was not waived).9 In felony cases, in contrast to misdemeanor charges, the Constitution requires that an indigent defendant be offered appointed counsel unless that right is intelligently and competently waived. Gideon v. Wainwright, 372 U. S. 335 (1963). We have held that convictions gained in violation of Gideon cannot be used "either to support guilt or enhance punishment for another offense," Burgett v. Texas, 389 U. S. 109, 115 (1967), and that a subsequent sentence that was based in part on a prior invalid conviction must be set aside, United States v. Tucker, 404 U. S. 443, 447-449 (1972).744446 U. S., at 224. There were three different opinions supporting the result. Justice Stewart, who was joined by JusTICES Brennan and STEVENS, stated simply that the defendant "was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense," and that "this prison sentence violated the constitutional rule of Scott .... " Ibid. Justice Marshall, who was also joined by JUSTICES Brennan and STEVENS, rested his opinion on the proposition that an uncounseled misdemeanor conviction is "not sufficiently reliable" to support imprisonment under Argersinger, and that it "does not become more reliable merely because the accused has been validly convicted of a subsequent offense." 446 U. S., at 227-228. JUSTICE BLACKMUN, who provided the fifth vote, advanced the same rationale expressed in his dissent in Scott-that the Constitution requires appointment of counsel for an indigent defendant whenever he is charged with a "nonpetty" offense (an offense punishable by more than six months' imprisonment) or when the defendant is actually sentenced to imprisonment. 446 U. S., at 229-230. Under this rationale, Baldasar's prior misdemeanor conviction was invalid and could not be used for enhancement purposes because the initial misdemeanor was punishable by a prison term of more than six months.Justice Powell authored the dissent, in which the remaining three Members of the Court joined. The dissent criticized the majority's holding as one that "undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place." Id., at 231. The dissent opined that the majority's result misapprehended the nature of enhancement statutes that "do not alter or enlarge a prior sentence," ignored the significance of the constitutional validity of the first conviction under Scott, and created a "hybrid" conviction, good for the punishment actually imposed but not available for sentence enhancement in a later prosecution.745446 U. S., at 232-233. Finally-and quite presciently-the dissent predicted that the Court's decision would create confusion in the lower courts. Id., at 234.In Marks v. United States, 430 U. S. 188 (1977), we stated that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds .... '" Id., at 193, quoting Gregg v. Georgia, 428 U. S. 153, 169, n. 15 (1976). This test is more easily stated than applied to the various opinions supporting the result in Baldasar. A number of Courts of Appeals have decided that there is no lowest common denominator or "narrowest grounds" that represents the Court's holding. See, e. g., United States v. Castro-Vega, 945 F.2d 496, 499-500 (CA2 1991); United States v. Eckford, 910 F.2d 216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (CA7 1983), cert. denied, 465 U. S. 1068 (1984). Another Court of Appeals has concluded that the holding in Baldasar is JUSTICE BLACKMUN'S rationale, Santillanes v. United States Parole Comm'n, 754 F.2d 887, 889 (CAlO 1985); yet another has concluded that the "consensus" of the Baldasar concurrences is roughly that expressed by Justice Marshall's concurring opinion. United States v. Williams, 891 F.2d 212, 214 (CA9 1989). State courts have similarly divided.10 The Sentencing Guidelines have also reflected uncertainty over BaldasarY We think it not useful10 See n. 7, supra.11 The 1989 version of the Sentencing Guidelines stated that, in determining a defendant's criminal history score, an uncounseled misdemeanor conviction should be excluded only if it "would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution." USSG § 4A1.2, Application Note 6 (Nov. 1989). Effective November 1, 1990, the Sentencing Commission amended § 4A1.2 by deleting the above quoted phrase and adding the following statement as background commentary: "Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncoun-746to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it. This degree of confusion following a splintered decision such as Baldasar is itself a reason for reexamining that decision. Payne v. Tennessee, 501 U. S. 808, 829-830 (1991); Miller v. California, 413 U. S. 15, 2425 (1973).Five Members of the Court in Baldasar-the four dissenters and Justice Stewart-expressed continued adherence to Scott v. Illinois, 440 U. S. 367 (1979). There the defendant was convicted of shoplifting under a criminal statute which provided that the penalty for the offense should be a fine of not more than $500, a term of not more than one year in jail, or both. The defendant was in fact fined $50, but he contended that since imprisonment for the offense was authorized by statute, the Sixth and Fourteenth Amendments to the United States Constitution required Illinois to provide trial counsel. We rejected that contention, holding that so long as no imprisonment was actually imposed, the Sixth Amendment right to counsel did not obtain. Id., at 373-374. We reasoned that the Court, in a number of decisions, had already expanded the language of the Sixth Amendment well beyond its obvious meaning, and that the line should be drawn between criminal proceedings that resulted in imprisonment, and those that did not. Id., at 372.We adhere to that holding today, but agree with the dissent in Baldasar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be re-seled misdemeanor sentences where imprisonment was not imposed." USSG App. C, amdt. 353 (Nov. 1993). When the Sentencing Commission initially published the amendment for notice and comment, it included the following explanation: "The Commission does not believe the inclusion of sentences resulting from constitutionally valid, uncounseled misdemeanor convictions in the criminal history score is foreclosed by Baldasar v. Illinois, 446 U. S. 222 (1980)." 55 Fed. Reg. 5741 (1990).747lied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, "[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E. g., Moore v. Missouri, 159 U. S. 673, 677 (1895); Oyler v. Boles, 368 U. S. 448, 451 (1962)." 446 U. S., at 232.Reliance on such a conviction is also consistent with the traditional understanding of the sentencing process, which we have often recognized as less exacting than the process of establishing guilt. As a general proposition, a sentencing judge "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U. S. 443, 446 (1972). "Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant." Wisconsin v. Mitchell, 508 U. S. 476, 485 (1993). One such important factor, as recognized by state recidivism statutes and the criminal history component of the Sentencing Guidelines, is a defendant's prior convictions. Sentencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior. We have upheld the constitutionality of considering such previous conduct in Williams v. New York, 337 U. S. 241 (1949). We have also upheld the consideration of such conduct, in connection with the offense presently charged, in McMillan v. Pennsylvania, 477 U. S. 79 (1986). There we held that748the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which defendant was found guilty.Thus, consistently with due process, petitioner in the present case could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise to the previous DUI offense. And the state need prove such conduct only by a preponderance of the evidence. Id., at 91. Surely, then, it must be constitutionally permissible to consider a prior uncounseled misdemeanor conviction based on the same conduct where that conduct must be proved beyond a reasonable doubt.Petitioner contends that, at a minimum, due process requires a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime. No such requirement was suggested in Scott, and we believe with good reason. In the first place, a large number of misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic change in the procedures of these courts, there would be no way to memorialize any such warning. Nor is it at all clear exactly how expansive the warning would have to be; would a Georgia court have to warn the defendant about permutations and commutations of recidivist statutes in 49 other States, as well as the criminal history provision of the Sentencing Guidelines applicable in federal courts? And a warning at the completely general level-that if he is brought back into court on another criminal charge, a defendant such as Nichols will be treated more harshly-would merely tell him what he must surely already know.Today we adhere to Scott v. Illinois, supra, and overrule Baldasar.12 Accordingly we hold, consistent with the Sixth12 Of course States may decide, based on their own constitutions or public policy, that counsel should be available for all indigent defendants charged with misdemeanors. Indeed, many, if not a majority, of States749and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.The judgment of the Court of Appeals is thereforeAffirmed

OCTOBER TERM, 1993SyllabusNICHOLS v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 92-8556. Argued January 10, 1994-Decided June 6, 1994After petitioner Nichols pleaded guilty to federal felony drug charges, he was assessed criminal history points under the United States Sentencing Guidelines, including one point for a state misdemeanor conviction for driving while under the influence (DUI), for which he was fined but not incarcerated. That point increased the maximum sentence of imprisonment from 210 to 235 months. Petitioner objected to the inclusion of his DUI conviction, arguing that because he had not been represented by counsel in that proceeding, considering it in establishing his sentence would violate the Sixth Amendment as construed in Baldasar v. Illinois, 446 U. S. 222. However, the District Court reasoned that Baldasar lacked a majority opinion and thus stood only for the proposition that a prior uncounseled misdemeanor conviction may not be used to create a felony with a prison term. Since petitioner's offense was already defined as a felony, the court ruled that Baldasar was inapplicable and sentenced petitioner to a term of imprisonment 25 months longer than it could have been had the DUI conviction not been considered. The Court of Appeals affirmed.Held: Consistent with the Sixth and Fourteenth Amendments, a sentencing court may consider a defendant's previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense so long as the previous uncounseled misdemeanor conviction did not result in a sentence of imprisonment. Pp. 743-749.(a) A year after this Court decided that a defendant charged with a misdemeanor has no constitutional right to counsel where no sentence of imprisonment is imposed, Scott v. Illinois, 440 U. S. 367, a majority of the Court held in Baldasar that a prior uncounseled misdemeanor conviction, constitutional under Scott, could not be collaterally used to convert a second misdemeanor conviction into a felony under the applicable Illinois sentencing enhancement statute. However, that per curiam opinion provided no rationale for its result, referring instead to three different concurring opinions to support the judgment. This splintered decision has created great confusion in the lower courts. pp. 743-746.(b) Five Members of the Baldasar Court expressed continued adherence to Scott. This Court adheres to that holding today, but agrees739with the dissent in Baldasar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes do not change the penalty imposed for the earlier conviction. Reliance on the earlier conviction is also consistent with the traditional understanding of the sentencing process, which is less exacting than the process of establishing guilt. It is constitutional to consider a defendant's past criminal conduct when sentencing, even if no conviction resulted from that behavior, and the state need prove such conduct only by a preponderance of the evidence. McMillan v. Pennsylvania, 477 U. S. 79, 91. Thus, it must be constitutionally permissible to consider a prior misdemeanor conviction based on the same conduct where that conduct is subject to proof beyond a reasonable doubt. Petitioner's due process contention that a misdemeanor defendant must be warned that his conviction might be used in the future for enhancement purposes is rejected. Such convictions often take place in police or justice courts, which are not courts of record, and thus there may be no way to memorialize any such warning; and it is unclear how expansive the warning would have to be. Pp. 746-749.979 F.2d 402, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. SOUTER, J., filed an opinion concurring in the judgment, post, p. 749. BLACKMUN, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined, post, p. 754. GINSBURG, J., filed a dissenting opinion, post, p. 765.William B. Mitchell Carter, by appointment of the Court, 510 U. S. 942, argued the cause for petitioner. With him on the briefs was Mary Julia Foreman.Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Michael R. Dreeben, and Thomas E. Booth. ** Susan N. Herman and Steven R. Shapiro filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.740Full Text of Opinion

1962_78

MR. JUSTICE BLACK delivered the opinion of the Court.This is a dispute between the trustee in bankruptcy of a government contractor and the contractor's payment bond surety over which has the superior right and title to a fund withheld by the Government out of earnings due the contractor.The petitioner, Pearlman is trustee of the bankrupt estate of the Dutcher Construction Corporation, which, in April, 1955, entered into a contract with the United States to do work on the Government's St. Lawrence Seaway project. At the same time, the respondent, Reliance Insurance Company, [Footnote 1] executed two surety bonds required of the contractor by the Miller Act, one to guarantee performance of the contract, the other to guarantee payment to all persons supplying labor and material for the project. [Footnote 2] Under the terms of the contract, which was attached to and made a part of the payment bond, the United States Page 371 U. S. 134 was authorized to retain and hold a percentage of estimated amounts due monthly until final completion and acceptance of all work covered by the contract. Before completion, Dutcher had financial trouble, and the United States terminated its contract by agreement. Another contractor completed the job, which was finally accepted by the Government. At this time, there was left in the Government's withheld fund $87,737.35, which would have been due to be paid to Dutcher had it carried out its obligation to pay its laborers and materialmen. Since it had not met this obligation, its surety had been compelled to pay about $350,000 to discharge debts of the contractor for labor and materials. In this situation, the Government was holding over $87,000 which plainly belonged to someone else, and the fund was turned over to the bankrupt's trustee, who held it on the assumption that it had been property of the bankrupt at the time of adjudication, and therefore had vested in the trustee "by operation of law" under § 70 of the Bankruptcy Act. [Footnote 3] The surety then filed a petition in the District Court denying that the fund had vested in the trustee, alleging that it, the surety, was "the owner of said sum" of $87,737.35 "free and clear of the claims of the Trustee in Bankruptcy or any other person, firm or corporation," and seeking an order directing the trustee to pay over the fund to the surety forthwith. [Footnote 4] The referee in bankruptcy, relying chiefly on this Court's opinion in United States v. Munsey Trust Co., 332 U. S. 234 (1947), held that the surety had no superior rights in the fund, refused to direct payment to the surety, and Page 371 U. S. 135 accordingly ordered the surety's claim to be allowed as that of a general creditor only to share on an equality with the general run of unsecured creditors. [Footnote 5] The District Court vacated the referee's order and held that cases decided prior to Munsey had established the right of a surety under circumstances like this to be accorded priority over general creditors, and that Munsey had not changed that rule. [Footnote 6] The Second Circuit affirmed. [Footnote 7] Other federal courts have reached a contrary result, [Footnote 8] and, as the question is an important and recurring one, we granted certiorari to decide it. [Footnote 9]One argument against the surety's claim is that this controversy is governed entirely by the Bankruptcy Act, and that § 64, 11 U.S.C. § 104, which prescribes priorities for different classes of creditors, gives no priority to a surety's claim for reimbursement. But the present dispute -- who has the property interests in the fund, and how much -- is not so simply solved. Ownership of property rights before bankruptcy is one thing; priority of distribution in bankruptcy of property that has passed unencumbered into a bankrupt's estate is quite another. Property interests in a fund not owned by a bankrupt at the time of adjudication, whether complete or partial, legal or equitable, mortgages, liens, or simple priority of rights, are, of course, not a part of the bankrupt's property, and do not vest in the trustee. The Bankruptcy Act simply does not authorize a trustee to distribute other Page 371 U. S. 136 people's property among a bankrupt's creditors. [Footnote 10] So here, if the surety at the time of adjudication was, as it claimed, either the outright legal or equitable owner of this fund, or had an equitable lien or prior right to it, this property interest of the surety never became a part of the bankruptcy estate to be administered, liquidated, and distributed to general creditors of the bankrupt. This Court has recently reaffirmed that such property rights existing before bankruptcy in persons other than the bankrupt must be recognized and respected in bankruptcy. [Footnote 11] Consequently, our question is not who was entitled to priority in distributions under § 64, but whether the surety had, as it claimed, ownership of, an equitable lien on, or a prior right to this fund before bankruptcy adjudication.Since there is no statute which expressly declares that a surety does acquire a property interest in a fund like this under the circumstances here, we must seek an answer in prior judicial decisions. Some of the relevant factors in determining the question are beyond dispute. Traditionally, sureties compelled to pay debts for their principal have been deemed entitled to reimbursement, even without a contractual promise such as the surety here had. [Footnote 12] And probably there are few doctrines better established Page 371 U. S. 137 than that a surety who pays the debt of another is entitled to all the rights of the person he paid to enforce his right to be reimbursed. [Footnote 13] This rule, widely applied in this country [Footnote 14] and generally known as the right of subrogation, was relied on by the Court of Appeals in this case. It seems rather plain that at least two prior decisions of this Court have held that there is a security interest in a withheld fund like this to which the surety is subrogated, unless, as is argued, the rule laid down in those cases has been changed by passage of the Miller Act or by our holding in the Munsey case. Those two cases are Prairie State Bank v. United States, 164 U. S. 227 (1896), and Henningsen v. United States Fid. & Guar. Co., 208 U. S. 404 (1908).In the Prairie Bank case, a surety who had been compelled to complete a government contract upon the contractor's default in performance claimed that he was entitled to be reimbursed for his expenditure out of a fund that arose from the Government's retention of 10% of the estimated value of the work done under the terms of the contract between the original contractor and the Government. That contract contained almost the same provisions for retention of the fund as the contract presently before us. The Prairie Bank, contesting the surety's claim, asserted that it had a superior equitable lien arising from moneys advanced by the bank to the contractor before the surety began to complete the work. The Court, in a well reasoned opinion by Mr. Justice White, held that this fund materially tended to protect the surety, Page 371 U. S. 138 that its creation raised an equity in the surety's favor, that the United States was entitled to protect itself out of the fund, and that the surety, by asserting the right of subrogation, could protect itself by resort to the same securities and same remedies which had been available to the United States for its protection against the contractor. The Court then went on to quote with obvious approval this statement from a state case:"The law upon this subject seems to be, the reserved per cent. to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. And there is great justness in the rule adopted. Equitably, therefore, the sureties in such cases are entitled to have the sum agreed upon held as a fund out of which they may be indemnified, and, if the principal releases it without their consent, it discharges them from their undertaking."164 U.S. at 164 U. S. 239, quoting from Finney v. Condon, 86 Ill. 78, 81 (1877).The Prairie Bank case thus followed an already established doctrine that a surety who completes a contract has an "equitable right" to indemnification out of a retained fund such as the one claimed by the surety in the present case. The only difference in the two cases is that here, the surety incurred his losses by paying debts for the contractor, rather than by finishing the contract.The Henningsen case, decided 12 years later, in 1908, carried the Prairie Bank case still closer to ours. Henningsen had contracts with the United States to construct public buildings. His surety stipulated not only that the contractor would perform and construct the buildings, but also, as stated by the Court, that he would "pay promptly Page 371 U. S. 139 and in full all persons supplying labor and material in the prosecution of the work contracted for." [Footnote 15] Henningsen completed the buildings according to contract, but failed to pay his laborers and materialmen. The surety paid. This Court applied the equitable principles declared in the Prairie Bank case so as to entitle the surety to the same equitable claim to the retained fund that the surety in the Prairie Bank case was held to have. Thus the same equitable rules as to subrogation and property interests in a retained fund were held to exist whether a surety completes a contract or whether, though not called upon to complete the contract, it pays the laborers and materialmen. These two cases therefore, together with other cases that have followed them, [Footnote 16] establish the surety's right to subrogation in such a fund whether its bond be for performance or payment. Unless this rule has been changed, the surety here has a right to this retained fund.It is argued that the Miller Act [Footnote 17] changed the law as declared in the Prairie Bank and Henningsen cases. We think not. Certainly no language of the Act does, and we have been pointed to no legislative history that indicates such a purpose. The suggestion is, however, that a congressional purpose to repudiate the equitable doctrine of the two cases should be implied from the fact that the Miller Act required a public contract surety to execute two bonds, instead of the one formerly required. It is true that the Miller Act did require both a performance Page 371 U. S. 140 bond and an additional payment bond, that is, one to assure completion of the contract and one to assure payments by the contractor for materials and labor. But the prior Acts on this subject, while requiring only one bond, made it cover both performance and payment. [Footnote 18] Neither this slight difference in the new and the old Acts nor any other argument presented persuades us that Congress, in passing the Miller Act, intended to repudiate equitable principles so deeply imbedded in our commercial practices, our economy, and our law as those spelled out in the Prairie Bank and Henningsen cases. [Footnote 19]The final argument is that the Prairie Bank and Henningsen cases were, in effect, overruled by our holding and opinion in United States v. Munsey Trust Co., supra. The point at issue in that case was whether the United States, while holding a fund like the one in this case, could offset against the contractor a claim bearing no relationship to the contractor's claim there at issue. We held that the Government could exercise the well established common law right of debtors to offset claims of their own against their creditors. This was all we held. The opinion contained statements which some have interpreted [Footnote 20] as meaning that we were abandoning the established legal and equitable principles of the Prairie Bank and Henningsen cases under which sureties can indemnify themselves against losses. But the equitable rights of a surety declared in the Prairie Bank case as to sureties who complete Page 371 U. S. 141 the performance of a contract were expressly recognized and approved in Munsey, [Footnote 21] and the Henningsen rule as to sureties who had not completed the contract, but had paid laborers, was not mentioned. Henningsen was not even cited in the Munsey opinion. We hold that Munsey left the rule in Prairie Bank and Henningsen undisturbed. We cannot say that such a firmly established rule was so casually overruled. [Footnote 22]We therefore hold, in accord with the established legal principles stated above, that the Government had a right to use the retained fund to pay laborers and materialmen; that the laborers and materialmen had a right to be paid out of the fund; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it. [Footnote 23] Consequently, since the surety in this case has paid Page 371 U. S. 142 out more than the amount of the existing fund, it has a right to all of it. On this basis, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtPealman v. Reliance Ins. Co., 371 U.S. 132 (1962)Pealman v. Reliance Insurance Co.No. 78Argued October 9-10, 1962Decided December 3, 1962371 U.S. 132SyllabusWhen, by reason of the contractor's default, a surety on a payment bond given by a contractor under the Miller Act, 49 Stat. 793, has been compelled to pay debts of the contractor for labor and materials, the surety is entitled by subrogation to reimbursement from a fund otherwise due to the contractor but withheld by the Government pursuant to the terms of the contract -- even though the contractor has become bankrupt and the Government has turned the withheld fund over to the contractor's trustee in bankruptcy. Pp. 371 U. S. 133-142.(a) This fund never became a part of the bankruptcy estate, and its disposition is not controlled by the Bankruptcy Act. Pp. 371 U. S. 135-136.(b) Prairie State Bank v. United States, 164 U. S. 227, and Henningsen v. United States Fid. & Guar. Co., 208 U. S. 404, followed. Pp. 371 U. S. 137-139.(c) The Miller Act, which requires separate performance and payment bonds on Government contracts, did not change the law as declared in the Prairie State Bank and Henningsen cases. Pp. 371 U. S. 139-140.(d) The Prairie State Bank and Henningsen cases were not overruled by United States v. Munsey Trust Co., 332 U. S. 234. Pp. 371 U. S. 140-142.298 F.2d 655 affirmed. Page 371 U. S. 133

1958_63

MR. JUSTICE BRENNAN delivered the opinion of the Court.Petitioner brought this habeas corpus proceeding in the District Court for the Northern District of Indiana under 28 U.S.C. § 2241, [Footnote 1] claiming that his conviction for murder in the Circuit Court of Gibson County, Indiana, was obtained in violation of the Fourteenth Amendment. Page 359 U. S. 396 The District Court dismissed the writ, 153 F. Supp. 531, under the provision of 28 U.S.C. § 2254, that habeas corpus "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State. . . ." [Footnote 2] The Court of Appeals for the Seventh Circuit affirmed. 251 F.2d 548. We granted certiorari, 356 U.S. 948. [Footnote 3]The constitutional claim arises in this way. Six murders were committed in the vicinity of Evansville, Indiana, two in December, 1954, and four in March, 1955. The crimes, extensively covered by news media in the locality, aroused great excitement and indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County, a rural county of approximately 30,000 inhabitants. The petitioner was arrested on April 8, 1955. Shortly thereafter, the Prosecutor of Vanderburgh County and Evansville police Page 359 U. S. 397 officials issued press releases, which were intensively publicized, stating that the petitioner had confessed to the six murders. The Vanderburgh County Grand Jury soon indicted the petitioner for the murder which resulted in his conviction. This was the murder of Whitney Wesley Kerr allegedly committed in Vanderburgh County on December 23, 1954. Counsel appointed to defend petitioner immediately sought a change of venue from Vanderburgh County, which was granted, but to adjoining Gibson County. Alleging that the widespread and inflammatory publicity had also highly prejudiced the inhabitants of Gibson County against the petitioner, counsel, on October 29, 1955, sought another change of venue, from Gibson County to a county sufficiently removed from the Evansville locality that a fair trial would not be prejudiced. The motion was denied, apparently because the pertinent Indiana statute allows only a single change of venue. [Footnote 4]The voir dire examinations of prospective jurors began in Gibson County on November 14, 1955. The averments as to the prejudice by which the trial was allegedly environed find corroboration in the fact that, from the first day of the voir dire, considerable difficulty was experienced in selecting jurors who did not have fixed opinions that the petitioner was guilty. The petitioner's Page 359 U. S. 398 counsel therefore renewed his motion for a change of venue, which motion was denied. He renewed the motion a second time, on December 7, 1955, reciting in his moving papers:"in the voir dire examination of 355 jurors called in this case to qualify as jurors, 233 have expressed and formed their opinion as stated in said voir dire that the defendant is guilty. . . ."Again the motion was denied. Alternatively, on each of eight days over the four weeks required to select a jury, counsel sought a continuance of the trial on the ground that a fair trial at that time was not possible in the prevailing atmosphere of hostility toward the petitioner. All of the motions for a continuance were denied. The State Prosecutor, in a radio broadcast during the second week of the voir dire examination, stated that "the unusual coverage given to the case by the newspapers and radio" caused "trouble in getting a jury of people who are not [sic] unbiased and unprejudiced in the case."The petitioner's counsel exhausted all 20 of his peremptory challenges, and, when 12 jurors were ultimately accepted by the court, also unsuccessfully challenged all of them for alleged bias and prejudice against the petitioner, complaining particularly that four of the jurors, in their voir dire examinations, stated that they had an opinion that petitioner was guilty of the murder charged. [Footnote 5] Page 359 U. S. 399Also at the trial, the State's Prosecuting Attorney took the stand as part of his presentation of the State's case, and, over petitioner's objection, was allowed to testify that the petitioner, five days after his arrest, on April 13, 1955, had orally confessed the murder of Kerr to him. The Prosecuting Attorney was also permitted in summation, again over petitioner's objection, to vouch his own testimony by commenting to the jury, "I testified myself what was told me."The opinions of the Indiana Supreme Court and the District Court held the constitutional claim to be without merit. Irvin v. State, 236 Ind. 384, 392-394, 139 N.E.2d 898, 901-902; Irvin v. Dowd, 153 F. Supp. 531, 535-539. On the other hand, Chief Judge Duffy of the Court of Appeals, concurring in the affirmance of the dismissal by the District Court, reached a contrary conclusion:"Irvin was not accorded due process of law in the trial which resulted in his conviction and death sentence. In my judgment, he did not receive a fair trial, because some of the jury had preconceived opinions as to defendant's guilt, and also because of the conduct of the prosecuting attorney."251 F.2d 548, 554.The Gibson County jury returned its verdict on December 20, 1955, and assessed the death penalty. Indiana law allows 30 days from the date of the verdict within which to file a motion for a new trial in the trial court. Burns' Ind.Stat.Ann., 1956 Replacement Vol., Page 359 U. S. 400 § 9-1903. The petitioner's counsel, on January 19, 1956, the 30th day, filed such a motion specifying 415 grounds of error constituting the alleged denial of constitutional rights. However, the petitioner had escaped from custody the night before, January 18, 1956, and, on January 23, 1956, the trial court overruled the motion, noting that the petitioner had been an escapee when the motion was filed and was still at large. The petitioner was captured in California about three weeks later, and, on February 17, 1956, was confined in the Indiana State Prison.Under Indiana law the denial of the new trial was not appealable, but was reviewable by the Indiana Supreme Court only if assigned as error in the event of an appeal from the judgment of conviction. The State Supreme Court has held:"The statute [providing for appeal] does not authorize an appeal from every ruling which a court may make against a defendant in a criminal action, but only authorizes an appeal 'from any judgment . . . against him,' and provides for review, upon such appeal, of decisions and rulings of the court made in the progress of the case. This court has construed the statute as authorizing an appeal only from a final judgment in a criminal action. The action of a trial court in overruling a motion for a new trial may be reviewed upon an appeal from a judgment of conviction rendered against a defendant, but the overruling of a motion for a new trial must be assigned as error. In such case, the appeal is from the judgment of conviction, and not from the ruling upon the motion for a new trial. The overruling of a motion for a new trial does not constitute a judgment, and an appeal does not lie from the court's action in overruling such motion."Selke v. State, 211 Ind. 232, 234, 6 N.E.2d 50, 571. Page 359 U. S. 401 The judgment of conviction imposing the death sentence was entered January 9, 1956. The petitioner was entitled to appeal, as a matter of right, from that judgment, provided, in compliance with a State Supreme Court rule, [Footnote 6] the appeal was perfected by filing with the Clerk of the Supreme Court a transcript of the trial record and an assignment of errors within 90 days of the judgment. The Supreme Court may, in its discretion, extend the time on proper motion made within the 90-day period. The questions before the Supreme Court are those raised by the appellant in his assignment of errors. Page 359 U. S. 402On March 22, 1956, the petitioner applied for an extension of time within which to file the trial transcript and his assignment of errors. This was after he was returned to the custody of the State and well within 90 days from January 9, 1956, the date of the judgment of conviction. We were advised on oral argument that the State objected to this motion "because he [petitioner] had escaped," and a hearing was held on the objection by the State Supreme Court. Petitioner's motion was granted, and the time was extended to June 1, 1956. The assignment of errors, timely filed with the trial transcript of some 5,000 pages, assigned only one ground of error -- that "the [trial] Court erred in overruling appellant's motion for new trial." The petitioner's brief of over 700 pages opened by advising the State Supreme Court that,"Under this single assignment of error, the appellant has combined all errors alleged to have been committed prior to the filing of the motion for a new trial."In short, the form of the assignment was a shorthand way of specifying the 415 grounds stated in the motion for new trial as constituting the claimed denial of constitutional rights. Indeed, the only arguments made in the lengthy brief related to the constitutional claim. The State's brief devoted some 70 pages to answering these contentions, and, in 7 additional pages, argued that, in any event, the Circuit Court had not erred in denying the motion for a new trial, because the petitioner was an escapee at the time it was filed and decided.The case before the Indiana Supreme Court was thus an appeal perfected in full compliance with Indiana procedure; therefore, the court was required under Indiana law to pass on the merits of the petitioner's assignment of error. That the assignment of error was sufficient to present the constitutional claim is evident from the court's acceptance of it as the basis for considering the 415 grounds of alleged error constituting that claim. Page 359 U. S. 403 However, under the single assignment of error, the judgment of conviction could be affirmed by the State Supreme Court if, for any reason finding support in the record, the motion for a new trial was properly overruled. The State argued that the overruling should be upheld on either of two grounds: one, because the petitioner was an escapee at the time the motion was made and decided, and two, because the trial itself was fair, and without error. Petitioner's appeal clearly raised both of these issues, and the Indiana Supreme Court discussed both in its opinion.We think that the District Court and Court of Appeals erred in concluding that the State Supreme Court decision rested on the ground that the petitioner was an escapee when his motion for a new trial was made and decided. On the contrary, the opinion, to us, is more reasonably to be read as resting the judgment on the holding that the petitioner's constitutional claim is without merit. As we have shown, under the state procedure, the State Supreme Court could have rested its decision solely on the federal constitutional claim. [Footnote 7] This, we think, is what the Indiana high court did. The opinion discusses both issues. The discussion of the escape issue concludes with the statement, "No error could have been committed in overruling the motion for a new trial under the circumstances." 236 Ind. at 392, 139 N.E.2d at 902. But the opinion proceeds:"Our decision on the point under examination makes it unnecessary for us to consider the other contentions of the appellant; however, because of the finality of the sentence in the case, we have reviewed the evidence to satisfy ourselves that there is no miscarriage of justice in this case."236 Ind. at 392-393, 139 N.E.2d at 902. The conclusion reached after discussion of the merits is:"It does not appear from the record and argument had, Page 359 U. S. 404 that the appellant was denied due process of law under the Fourteenth Amendment. . . ."236 Ind. at 394, 139 N.E.2d at 902. The court's statement that its conclusion on the escape point made it "unnecessary" to consider the constitutional claim was not a holding that the judgment was rested on that ground. Rather, the court proceeded to determine the merits "because of the finality of the sentence" and "to satisfy ourselves that there is no miscarriage of justice." In this way, in our view, the State Supreme Court discharged the obligation which rests upon"the state courts, equally with the courts of the Union, . . . to guard, enforce, and protect every right granted or secured by the constitution of the United States. . . ."Robb v. Connolly, 111 U. S. 624, 111 U. S. 637. We thus believe that the opinion is to be read as rested upon the State Supreme Court's considered conclusion that the conviction resulting in the death sentence was not obtained in disregard of the protections secured to the petitioner by the Constitution of the United States.In this posture, 28 U.S.C. § 2254 does not bar the petitioner's resort to federal habeas corpus. The doctrine of exhaustion of state remedies in federal habeas corpus was judicially fashioned after the Congress, by the Act of February 5, 1867, greatly expanded the habeas corpus jurisdiction of the federal courts to embrace "all cases where any person may be restrained of his . . . liberty in violation of the constitution, or of any treaty or law of the United States. . . ." 14 Stat. 385. Although the statute has been reenacted with minor changes at various times, the sweep of the jurisdiction granted by this broad phrasing has remained unchanged. [Footnote 8]Since there inhered in this expanded grant of power, beside the added burden on the federal courts, the potentiality Page 359 U. S. 405 of conflict between federal and state courts, this Court, starting with the decision in Ex parte Royall, 117 U. S. 241, developed the doctrine of exhaustion of state remedies, a"rule . . . that the . . . courts of the United States, while they have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in custody under the authority of a State in violation of the Constitution, . . . yet, except in cases of peculiar urgency, ought not to exercise that jurisdiction by a discharge of the person in advance of a final determination of his case in the courts of the State. . . ."Tinsley v. Anderson, 171 U. S. 101, 171 U. S. 104-105. The principles are now reasonably clear."Ordinarily, an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted."Ex parte Hawk, 321 U. S. 114, 321 U. S. 116-117. The principles of the doctrine have been embodied in 28 U.S.C. § 2254, which was enacted by Congress to codify the existing habeas corpus practice. See Darr v. Burford, 339 U. S. 200, 339 U. S. 210-214; Young v. Ragen, 337 U. S. 235, 337 U. S. 238, note 1; Brown v. Allen, 344 U. S. 443, 344 U. S. 447-450. As is stated in the Reviser's Note: "This new section is declaratory of existing law as affirmed by the Supreme Court." [Footnote 9]The petitioner in this case plainly invoked "all state remedies available," and obtained "a final determination" of his constitutional claim from the Indiana Supreme Court. Certainly Brown v. Allen, 344 U. S. 443, relied Page 359 U. S. 406 upon by the Court of Appeals, does not bear on his situation. In that case, the two petitioners in Daniels v. Allen had 60 days in which to make and serve a statement of the case on appeal from a conviction in the state trial court. Counsel failed to serve this statement until 61 days had expired, and the trial judge struck the appeal as out of time. The pertinent North Carolina rule provided that the time limitation was "mandatory," and precluded an appeal to the State Supreme Court. The State Supreme Court dismissed petitioners' attempted appeal on the ground that no appeal had been filed. This Court held that, under the doctrine of exhaustion of state remedies, habeas corpus ought not be granted, since petitioners had sought too late to invoke North Carolina's "adequate and easily complied-with method of appeal." 344 U.S. at 344 U. S. 485. In contrast, the petitioner's appeal from his judgment of conviction to the Indiana Supreme Court raising the constitutional claim was timely and was accepted by that court as fully complying with all pertinent procedural requirements. Furthermore, the State Supreme Court did reach and decide petitioner's federal constitutional claim.We therefore hold that the case is governed by the principle that the doctrine of exhaustion of state remedies embodied in 28 U.S.C. § 2254 does not bar resort to federal habeas corpus if the petitioner has obtained a decision on his constitutional claims from the highest court of the State, even though, as here, that court could have based its decision on another ground. Wade v. Mayo, 334 U. S. 672. In this view, we do not reach the question whether federal habeas corpus would have been available to the petitioner had the Indiana Supreme Court rested its decision on the escape ground.The judgment of the Court of Appeals is reversed and the case is remanded to that court. The Court of Appeals Page 359 U. S. 407 may decide the merits of petitioner's constitutional claim, or remand to the District Court for further consideration of that claim, as the Court of Appeals may determine.It is so ordered

U.S. Supreme CourtIrvin v. Dowd, 359 U.S. 394 (1959)Irvin v. DowdNo. 63Argued January 15, 1959Decided May 4, 1959359 U.S. 394SyllabusIn an Indiana State Court, petitioner was convicted of murder and sentenced to death. He escaped from custody and, while he was still at large, his counsel made a timely motion for a new trial, specifying 415 grounds of error constituting an alleged denial of federal constitutional rights. The trial court, in denying the motion, noted that petitioner was an escapee when the motion was made and decided. After his return to custody, petitioner filed a timely appeal to the State Supreme Court from the judgment of conviction, assigning as the only error the denial of the motion for a new trial. Under Indiana law, the appeal presented the State Supreme Court with two issues: (1) Whether the motion for a new trial was correctly denied because petitioner was an escapee at the time it was made, or (2) whether it was correctly denied because the trial did not, as petitioner alleged, deprive him of his constitutional rights. The Indiana Supreme Court discussed both issues in its opinion affirming the denial of the motion for a new trial. Subsequently, petitioner applied to a Federal District Court for a writ of habeas corpus under 28 U.S.C. § 2241. The District Court dismissed the writ on the ground that petitioner had not exhausted his state remedies, as required by 28 U.S.C. § 2254, and the Court of Appeals affirmed. Both Courts considered that the judgment of the Indiana Supreme Court rested on a holding that petitioner's motion for a new trial was properly denied because he was an escapee at the time it was made.Held:1. The opinion of the Indiana Supreme Court is more reasonably read as resting the judgment on the holding that the petitioner's constitutional claim is without merit. In this way, the State Supreme Court discharged its obligation to "guard, enforce, and protect every right granted or secured by the Constitution of the United States." Robb v. Connolly, 111 U. S. 624, 111 U. S. 637. Pp. 359 U. S. 403-404.2. The doctrine of exhaustion of state remedies, which was codified in 28 U.S.C. § 2254, does not bar resort to federal habeas Page 359 U. S. 395 corpus if the petitioner has obtained a decision on his constitutional claims from the highest court of a State, even though, as here, that court could have based its decision on another ground. Brown v. Allen, 344 U. S. 443, distinguished. Pp. 359 U. S. 404-406.3. The question is not reached whether federal habeas corpus would have been available to petitioner had the Indiana Supreme Court rested its decision on the escape ground. P. 359 U. S. 406.4. The judgment of the Court of Appeals is reversed, and the case is remanded to that Court, which may decide the merits of petitioner's constitutional claim or remand to the District Court for further consideration of that claim. Pp. 359 U. S. 406-407.251 F.2d 548, reversed.

1978_77-1645

WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 444 U. S. 25.MR. JUSTICE STEWART delivered the opinion of the Court.The Investment Advisers Act of 1940, 15 U.S.C. § 80b-1 et seq., was enacted to deal with abuses that Congress had Page 444 U. S. 13 found to exist in the investment advisers industry. The question in this case is whether that Act creates a private cause of action for damages or other relief in favor of persons aggrieved by those who allegedly have violated it.The respondent, a shareholder of petitioner Mortgage Trust of America (Trust), brought this suit in a Federal District Court as a derivative action on behalf of the Trust and as a class action on behalf of the Trust's shareholders. Named as defendants were the Trust, several individual trustees, the Trust's investment adviser, Transamerica Mortgage Advisors, Inc.(TAMA), and two corporations affiliated with TAMA, Land Capital, Inc. (Land Capital), and Transamerica Corp. (Transamerica), all of which are petitioners in this case. [Footnote 1]The respondent's complaint alleged that the petitioners, in the course of advising or managing the Trust, had been guilty of various frauds and breaches of fiduciary duty. The complaint set out three causes of action, each said to arise under the Investment Advisers Act of 1940. [Footnote 2] The first alleged that the advisory contract between TAMA and the Trust was unlawful because TAMA and Transamerica were not registered under the Act and because the contract had provided for grossly excessive compensation. The second alleged that the petitioners breached their fiduciary duty to the Trust by causing it to purchase securities of inferior quality from Land Capital. The third alleged that the petitioners had misappropriated profitable investment opportunities for the benefit Page 444 U. S. 14 of other companies affiliated with Transamerica. The complaint sought injunctive relief to restrain further performance of the advisory contract, rescission of the contract, restitution of fees and other considerations paid by the Trust, an accounting of illegal profits, and an award of damages.The trial court ruled that the Investment Advisers Act confers no private right of action, and accordingly dismissed the complaint. [Footnote 3] The Court of Appeals reversed, Lewis v. Transamerica Corp., 575 F.2d 237, holding that"implication of a private right of action for injunctive relief and damages under the Advisers Act in favor of appropriate plaintiffs is necessary to achieve the goals of Congress in enacting the legislation."Id. at 239. [Footnote 4] We granted certiorari to consider the important federal question presented. 439 U.S. 952.The Investment Advisers Act nowhere expressly provides for a private cause of action. The only provision of the Act that authorizes any suits to enforce the duties or obligations created by it is § 209, which permits the Securities and Exchange Commission (Commission) to bring suit in a federal district court to enjoin violations of the Act or the rules promulgated under it. [Footnote 5] The argument is made, however, that the Page 444 U. S. 15 clients of investment advisers were the intended beneficiaries of the Act and that courts should therefore imply a private cause of action in their favor. See Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 689; Cort v. Ash, 422 U. S. 66, 422 U. S. 78; J. I. Case Co. v. Borak, 377 U. S. 426, 377 U. S. 432. The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction. Touche Ross & Co. v. Redington, 442 U. S. 560, 442 U. S. 568; Cannon v. University of Chicago, supra at 441 U. S. 688; see National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U. S. 453, 414 U. S. 458 (Amtrak). While some opinions of the Court have placed considerable emphasis upon the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute, e.g., J. I. Case Co. v. Borak, supra, what must ultimately be determined is whether Congress intended to create the private remedy Page 444 U. S. 16 asserted, as our recent decisions have made clear. Touche Ross Co. v. Redington, supra at 442 U. S. 568; Cannon v. University of Chicago, supra at 441 U. S. 688. We accept this as the appropriate inquiry to be made in resolving the issues presented by the case before us.Accordingly, we begin with the language of the statute itself. Touche Ross & Co. v. Redington, supra at 442 U. S. 568; Cannon v. University of Chicago, supra at 441 U. S. 689; Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 430 U. S. 472; Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 430 U. S. 24. It is asserted that the creation of a private right of action can fairly be inferred from the language of two sections of the Act. The first is § 206, which broadly proscribes fraudulent practices by investment advisers, making it unlawful for any investment adviser"to employ any device, scheme, or artifice to defraud . . . [or] to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client,"or to engage in specified transactions with clients without making required disclosures. [Footnote 6] The second is § 215, which provides that contracts whose formation or performance would Page 444 U. S. 17 violate the Act "shall be void . . . as regards the rights of" the violator and knowing successors in interest. [Footnote 7]It is apparent that the two sections were intended to benefit the clients of investment advisers, and, in the case of § 215, the parties to advisory contracts as well. As we have previously recognized, § 206 establishes "federal fiduciary standards" to govern the conduct of investment advisers, Santa Fe Industries, Inc. v. Green, supra, at 430 U. S. 471, n. 11; Burks v. Lasker, 441 U. S. 471, 441 U. S. 481-482, n. 10; SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 375 U. S. 191-192. Indeed, the Act's legislative history leaves no doubt that Congress intended to impose enforceable fiduciary obligations. See H.R.Rep. No. 2639, 76th Cong., 3d Sess., 28 (1940); S.Rep. No. 1775, 76th Page 444 U. S. 18 Cong., 3d Sess., 21 (1940); SEC, Report on Investment Trusts and Investment Companies (Investment Counsel and Investment Advisory Services), H.R. Doc No. 477, 76th Cong., 2d Sess., 27-30 (1939). But whether Congress intended additionally that these provisions would be enforced through private litigation is a different question.On this question, the legislative history of the Act is entirely silent -- a state of affairs not surprising when it is remembered that the Act concededly does not explicitly provide any private remedies whatever. See Cannon v. University of Chicago, 441 U.S. at 441 U. S. 694. But while the absence of anything in the legislative history that indicates an intention to confer any private right of action is hardly helpful to the respondent, it does not automatically undermine his position. This Court has held that the failure of Congress expressly to consider a private remedy is not inevitably inconsistent with an intent on its part to make such a remedy available. Ibid. Such an intent may appear implicitly in the language or structure of the statute, or in the circumstances of its enactment.In the case of § 215, we conclude that the statutory language itself fairly implies a right to specific and limited relief in a federal court. By declaring certain contracts void, § 215, by its terms, necessarily contemplates that the issue of voidness under its criteria may be litigated somewhere. At the very least, Congress must have assumed that § 215 could be raised defensively in private litigation to preclude the enforcement of an investment advisers contract. But the legal consequences of voidness are typically not so limited. A person with the power to avoid a contract ordinarily may resort to a court to have the contract rescinded and to obtain restitution of consideration paid. See Deckert v. Independence Corp., 311 U. S. 282, 311 U. S. 289; S. Williston, Contracts § 1525 (3d ed.1970); J. Pomeroy, Equity Jurisprudence §§ 881 and 1092 (4th ed.1918). And this Court has previously recognized that a comparable Page 444 U. S. 19 provision, § 29(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(b), confers a "right to rescind" a contract void under the criteria of the statute. Mills v. Electric Ato-Lite Co., 396 U. S. 375, 396 U. S. 388. Moreover, the federal courts in general have viewed such language as implying an equitable cause of action for rescission or similar relief. E.g., Kardon v. National Gypsum Co., 69 F. Supp. 512, 514 (ED Pa.1946); see 3 L. Loss, Securities Regulation 1758-1759 (2d ed.1961). Cf. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 735.For these reasons, we conclude that, when Congress declared in § 215 that certain contracts are void, it intended that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract, and for restitution. [Footnote 8] Accordingly, we hold that the Court of Appeals was correct in ruling that the respondent may maintain an action on behalf of the Trust seeking to void the investment advisers contract. [Footnote 9]We view quite differently, however, the respondent's claims for damages and other monetary relief under § 206. Unlike § 215, § 206 simply proscribes certain conduct, and does not, in terms, create or alter any civil liabilities. If monetary liability to a private plaintiff is to be found, it must be read into the Act. Yet it is an elemental canon of statutory construction that, where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. Page 444 U. S. 20 "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Botany Mills v. United States, 278 U. S. 282, 278 U. S. 289. See Amtrak, 414 U.S. at 414 U. S. 458; Securities Investor Protection Corp. v. Barbour, 421 U. S. 412, 421 U. S. 419; T. I. M. E., Inc. v. United States, 359 U. S. 464, 359 U. S. 471. Congress expressly provided both judicial and administrative means for enforcing compliance with § 206. First, under § 217, 15 U.S.C. § 80b-17, willful violations of the Act are criminal offenses, punishable by fine or imprisonment, or both. Second, § 209 authorizes the Commission to bring civil actions in federal courts to enjoin compliance with the Act, including, of course, § 206. Third, the Commission is authorized by § 203 to impose various administrative sanctions on persons who violate the Act, including § 20. In view of these express provisions for enforcing the duties imposed by § 206, it is highly improbable that "Congress absentmindedly forgot to mention an intended private action." Cannon v. University of Chicago, supra at 441 U. S. 742 (POWELL, J., dissenting).Even settled rules of statutory construction could yield, of course, to persuasive evidence of a contrary legislative intent. Securities Investor Protection Corp. v. Barbour, supra at 421 U. S. 419; Amtrak, supra at 414 U. S. 458. But what evidence of intent exists in this case, circumstantial though it be, weighs against the implication of a private right of action for a monetary award in a case such as this. Under each of the securities laws that preceded the Act here in question, and under the Investment Company Act of 1940, which was enacted as companion legislation, Congress expressly authorized private suits for damages in prescribed circumstances. [Footnote 10] For example, Congress Page 444 U. S. 21 provided.an express damages remedy for misrepresentations contained in an underwriter's registration statement in § 11(a) of the Securities Act of 1933, and for certain materially misleading statements in § 18(a) of the Securities Exchange Act of 1934. "Obviously, then, when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly." Touche Ross & Co. v. Redington, 442 U.S. at 442 U. S. 572; Blue Chip Stamps v. Manor Drug Stores, supra at 421 U. S. 734; see Amtrak, supra., at 414 U. S. 458; T. I. M. E., Inc. v. United States, supra at 359 U. S. 471. The fact that it enacted no analogous provisions in the legislation here at issue strongly suggests that Congress was simply unwilling to impose any potential monetary liability on a private suitor. See Abrahamson v. Fleschner, 568 F.2d 862, 883 (CA2 1977) (Gurfein, J., concurring and dissenting).The omission of any such potential remedy from the Act's substantive provisions was paralleled in the jurisdictional section, § 214. [Footnote 11] Early drafts of the bill had simply incorporated Page 444 U. S. 22 by reference a provision of the Public Utility Holding Company Act of 1935, which gave the federal courts jurisdiction "of all suits in equity and actions at law brought to enforce any liability or duty created by" the statute (emphasis added). See S. 3580, 76th Cong., 3d Sess., §§ 40(a), 203 (introduced by Sen. Wagner, Mar. 14, 1940); H. . 8935, 76th Cong., 3d Sess., §§ 40(a), 203 (introduced by Rep. Lea, Mar. 14, 1940). After hearings on the bill in the Senate, representatives of the investment advisers industry and the staff of the Commission met to discuss the bill, and certain changes were made. The language that was enacted as § 214 first appeared in this compromise version of the bill. See Confidential Committee Print, S. 3580, 76th Cong., 3d Sess., § 213 (1940). That version, and the version finally enacted into law, S. 4108, 76th Cong., 3d Sess., § 214 (1940), both omitted any references to "actions at law" or to "liability." [Footnote 12] The unexplained deletion of a single phrase from a jurisdictional provision is, of course, not determinative of whether a private remedy exists. But it is one more piece of evidence that Congress did not intend to authorize a cause of action for anything beyond limited equitable relief. [Footnote 13] Page 444 U. S. 23Relying on the factors identified in Cort v. Ash, 422 U. S. 66, the respondent and the Commission, as amicus curiae, argue that our inquiry in this case cannot stop with the intent of Congress, but must consider the utility of a private remedy, and the fact that it may be one not traditionally relegated to state law. We rejected the same contentions last Term in Touche Ross & Co. v. Redington, where it was argued that these factors, standing alone, justified the implication of a private right of action under § 17(a) of the Securities Exchange Act of 1934. We said in that case:"It is true that, in Cort v. Ash, the Court set forth four factors that it considered 'relevant' in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause Page 444 U. S. 24 of action. Indeed, the first three factors discussed in Cort -- the language and focus of the statute, its legislative history, and its purpose, see 422 U.S. at 422 U. S. 78 -- are ones traditionally relied upon in determining legislative intent."442 U.S. at 442 U. S. 575-576.The statute in Touche Ross, by its terms, neither granted private rights to the members of any identifiable class nor proscribed any conduct as unlawful. Touche Ross & Co. v. Redington, 442 U.S. at 442 U. S. 576. In those circumstances, it was evident to the Court that no private remedy was available. Section 206 of the Act here involved concededly was intended to protect the victims of the fraudulent practices it prohibited. But the mere fact that the statute was designed to protect advisers' clients does not require the implication of a private cause of action for damages on their behalf. Touche Ross & Co. v. Redington, supra at 442 U. S. 57; Cannon v. University of Chicago, 441 U.S. at 441 U. S. 690-693; Securities Investor Protection Corp. v. Barbour, 421 U.S. at 421 U. S. 421. The dispositive question remains whether Congress intended to create any such remedy. Having answered that question in the negative, our inquiry is at an end.For the reasons stated in this opinion, we hold that there exists a limited private remedy under the Investment Advisers Act of 1940 to void an investment advisers contract, but that the Act confers no other private causes of action, legal or equitable. [Footnote 14] Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the Page 444 U. S. 25 case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTransamerica Mtg. Advisors, Inc. v. Lewis, 444 U.S. 11 (1979)Transamerica Mortgage Advisors, Inc. v. LewisNo. 77-1645Argued March 20, 1979Reargued October 2, 1979Decided November 13, 1979444 U.S. 11SyllabusRespondent, a shareholder of petitioner Mortgage Trust of America (Trust), brought this suit in Federal District Court as a derivative action on behalf of the Trust and as a class action on behalf of the Trust's shareholders, alleging that several trustees of the Trust, its investment adviser, and two corporations affiliated with the latter, had been guilty of various frauds and breaches of fiduciary duty in violation of the Investment Advisers Act of 1940 (Act). The complaint sought injunctive relief, rescission of the investment advisers contract between the Trust and the adviser, restitution of fees and other considerations paid by the Trust, an accounting of illegal profits, and an award of damages. The District Court ruled that the Act confers no private right of action and accordingly dismissed the complaint. The Court of Appeals reversed, holding that"implication of a private right of action for injunctive relief and damages under the Advisers Act in favor of appropriate plaintiffs is necessary to achieve the goals of Congress in enacting the legislation."Held:1. Under § 215 of the Act, which provides that contracts whose formation or performance would violate the Act "shall be void . . . as regards the rights of" the violator, there exists a limited private remedy to void an investment advisers contract. The language of § 215 itself fairly implies a right to specific and limited relief in a federal court. When Congress declared in § 215 that certain contracts are void, it intended that the customary legal incidents of voidness would follow, including the availability of a suit for rescission or for an injunction against continued operation of the contract, and for restitution. Pp. 444 U. S. 18-19.2. Section 206 of the Act -- which makes it unlawful for any investment adviser"to employ any device, scheme, or artifice to defraud . . . [or] to engage in any transaction, practice, or course of business which operates as a fraud or deceit upon any client or prospective client,"or to engage in specified transactions with clients without making required disclosures -- does not, however, create a private cause of action Page 444 U. S. 12 for damages. Unlike § 215, § 26 simply proscribes certain conduct, and does not, in terms, create or alter any civil liabilities. In view of the express provisions in other sections of the Act for enforcing the duties imposed by § 206, it is not possible to infer the existence of an additional private cause of action. And the mere fact that § 206 was designed to protect investment advisers' clients does not require the implication of a private cause of action for damages on their behalf. Pp. 444 U. S. 19-24.575 F.2d 237, affirmed in part, reversed in part, and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring statement, post, p. 444 U. S. 25. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 444 U. S. 25.

1980_80-780

JUSTICE POWELL delivered the opinion of the Court.This case concerns the federal taxes imposed upon employers by the Federal Insurance Contributions Act (FICA), 26 U.S.C. § 3101 et seq., and the Federal Unemployment Tax Act (FUTA), 26 U.S.C. § 3301 et seq. The question is whether petitioner should have included in the computation of "wages," which is the base for taxation under FICA and FUTA, the value of meals and lodging provided for its own convenience to employees working on offshore oil rigs.IDuring the tax years in question, 1967-1969, petitioner Rowan Companies, Inc., owned and operated rigs for drilling oil and gas wells, both on land and offshore. Some of petitioner's offshore rigs were located as many as 60 miles from land. It cost petitioner less and was more convenient to provide meals and lodging to employees at these rigs than to transport the employees to and from the rigs for each work shift. [Footnote 1] Employees worked at these rigs for 10-day tours of duty, and petitioner then transported them back to land for Page 452 U. S. 249 5-day periods of leave. All employees at a rig received the same meals and lodging facilities, regardless of employment status or pay. Employees did not receive any cash allowance if they chose not to eat a meal. Petitioner did not provide meals or lodging to employees during their leave; nor did it provide meals or lodging to employees working on land-based rigs.Petitioner did not include the value of the meals and lodging in computing its employees' "wages" for the purpose of paying taxes under FICA or FUTA. [Footnote 2] Nor did petitioner include this value in computing "wages" for the purpose of withholding its employees' federal income tax under 26 U.S.C. § 3402(a). [Footnote 3] Its uniform practice appeared to be consistent with the statutory language, as Congress defined "wages" in substantially identical language for each of these three obligations upon employers. [Footnote 4] Upon audit, however, the Internal Revenue Service included the fair value of the meals Page 452 U. S. 250 and lodging in the employees' "wages" for the purpose of FICA and FUTA, but not for the purpose of income tax withholding under § 3402(a). The Service acted consistently with the present Treasury Regulations that interpret the definition of "wages" in FICA and FUTA to include the value of these meals and lodging, [Footnote 5] whereas the substantially identical definition of "wages" in § 3401(a) is interpreted by Treasury Regulations to exclude this value. Compare Treas.Reg. §§ 31.3121(a)-1 (e), (f) (FICA), 26 CFR §§ 31.3121(a)-1(e), (f) (1980); Treas.Reg. §§ 31.3306(b)-1(e), (f) (FUTA), 26 CFR §§ 31.3306(b)-1(e), (f) (1980); with Treas.Reg. §§ 31.3401(a)-1(b)(9), (10) (income tax withholding), 26 CFR §§ 31.3401(a)-1(b)(9), (10) (1980). Petitioner paid the additional assessment and brought this suit for a refund under 28 U.S.C. § 1346(a)(1). [Footnote 6]The District Court for the Southern District of Texas granted the Government's motion for summary judgment. The Court of Appeals for the Fifth Circuit affirmed, expressing the view that the different interpretations of the definition of "wages" are justified by the different purposes of FICA and FUTA, on the one hand, and income tax withholding, on the other. 624 F.2d 701, 707 (1980). We granted a writ of certiorari, 449 U.S. 1109 (1981), because the Court of Appeals' decision conflicts with the decisions of other Courts of Appeals. [Footnote 7] We now reverse.IIThe Government acknowledges that petitioner properly excluded the value of the meals and lodging in computing the "wages" from which it withheld employees' income tax under Page 452 U. S. 251 § 3402(a). Under the Treasury Regulation interpreting the definition of "wages" for income tax withholding, the employer excludes the value of meals or lodging from "wages" if the employee excludes the value from his gross income. Treas.Reg. § 31.3401(a)-1(b)(9), 26 CFR § 31.3401(a)-1(b)(9) (1980). Under the "convenience of the employer" rule, an employee may exclude from gross income the value of meals and lodging furnished to him by his employer if the employer furnished both the meals and lodging for its own convenience, furnished the meals on its business premises, and required the employee to accept the lodging on the business premises as a condition of employment. 26 U.S.C. § 119 (1976 ed., Supp. III). [Footnote 8] Petitioner's provision of meals and lodging to employees on its offshore rigs satisfied each of these § 119 requirements. The value of the meals and lodging therefore was excludable by the employer from "wages" under Treas.Reg. § 31.3401(a)-1(b)(9), 26 CFR § 31.3401(a)-1(b)(9) (1980). See generally Commissioner v. Kowalski, 434 U. S. 77 (1977).Notwithstanding this acknowledgment, the Government contends that petitioner should have included the value of the meals and lodging in "wages" for purposes of FICA and FUTA. It relies on Treas.Reg. §§ 31.3121(a)-1(f) Page 452 U. S. 252 (FICA) and 31.3306(b)-1(f) (FUTA), 26 CFR §§ 31.3121(a)-1(f) and 31.3306 (b)-1(f) (1980), that provide:"Ordinarily, facilities or privileges (such as entertainment, medical services, or so-called 'courtesy' discounts on purchases), furnished or offered by an employer to his employees generally, are not considered as remuneration for employment if such facilities or privileges are of relatively small value and are offered or furnished by the employer merely as a means of promoting the health, good will, contentment or efficiency of his employees. The term 'facilities or privileges,' however, does not ordinarily include the value of meals or lodging furnished, for example, to restaurant or hotel employees, or to seamen or other employees aboard vessels, since generally these items constitute an appreciable part of the total remuneration of such employees."If valid, these regulations dictate that the value of the meals and lodging provided by petitioner to its employees on offshore rigs was includable in "wages" as defined in FICA and FUTA, even though excludable from "wages" under the substantially identical definition in § 3401(a) for income tax withholding. [Footnote 9]We consider Treasury Regulations valid if they "implement the congressional mandate in some reasonable manner." United States v. Correll, 389 U. S. 299, 389 U. S. 307 (1967); accord, 450 U. S. Portland Cement Co. of Utah, 450 U. S. 156, Page 452 U. S. 253 450 U. S. 169 (1981). In National Muffler Dealers Assn. v. United States, 440 U. S. 472, 440 U. S. 477 (1979), we stated:"In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmonizes with the plain language of the statute, its origin, and its purpose."Harmony between statutory language and regulation is particularly significant in this case. Congress itself defined the word at issue -- "wages" -- and the Commissioner interpreted Congress' definition only under his general authority to "prescribe all needful rules." 26 U.S.C. 7805(a). Because we therefore can measure the Commissioner's interpretation against a specific provision in the Code, we owe the interpretation less deference than a regulation issued under a specific grant of authority to define a statutory term or prescribe a method of executing a statutory provision. Compare Commissioner v. Portland Cement Co. of Utah, supra, at 450 U. S. 165; Fulman v. United States, 434 U. S. 528, 434 U. S. 533 (1978); Batterton v. Francis, 432 U. S. 416, 432 U. S. 424-425, and nn. 8-9 (1977). Where the Commissioner acts under specific authority, our primary inquiry is whether the interpretation or method is within the delegation of authority.Among other considerations relevant to the validity of Treasury Regulations, we inquire whether the regulation "is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent," National Muffler Dealers Assn. v. United States, 440 U.S. at 440 U. S. 477; and "[i]f the regulation dates from a later period, the manner in which it evolved merits inquiry." Ibid. We also consider, if pertinent,"the consistency of the Commissioner's interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent reenactments of the statute."Ibid. In this case, we hold that Treas.Reg. § 31.3121(a)-1(f) and 31.3306 (b)-1(f) are invalid, for they fail to implement the congressional mandate in a consistent and reasonable manner. Page 452 U. S. 254ACongress chose "wages" as the base for measuring employers' obligations under FICA, FUTA, and income tax withholding. In Central Illinois Public Service Co. v. United States, 435 U. S. 21 (1978), we considered Congress' use of the concepts of "income" and "wages" for the purpose of income tax withholding. The question was whether an employer should have included in "wages" for income tax withholding the reimbursements it had given employees for lunch expenses on company travel that had not required overnight stays. We held that the employer was not required to include the reimbursements in "wages," even though the reimbursements constituted "income" to the employees. [Footnote 10] This holding relied on the recognition that"[t]he two concepts -- income and wages -- obviously are not necessarily the same. Wages usually are income, but many items qualify as income and yet clearly are not wages."Id. at 435 U. S. 25 (footnote omitted). In short, "wages" is a narrower concept than "income," see ibid., and the fact that the reimbursements were "income" to the employees did not necessarily mean that the employer had to include them in "wages" for income tax withholding.Petitioner contends that its position in this case follows from our reasoning in Central Illinois. Because "wages" is a narrower concept than "income" for the purposes of income tax withholding, it is argued that the value of the meals and lodging in this case -- which the Government acknowledges is not "income" -- therefore cannot be "wages" under FICA and FUTA. Petitioner's argument rests on the assumption that Congress intended the term "wages" to have Page 452 U. S. 255 the same meaning for purposes of FICA, FUTA, and income tax withholding. We now consider whether petitioner's assumption is correct.BCongress enacted the predecessor provisions of FICA and FUTA as Titles VIII and IX of the Social Security Act of 1935, ch. 531, 49 Stat. 636, 639. It chose "wages" as the base for taxation of employers, § 804, 49 Stat. 637; § 901, 49 Stat. 639, and it defined "wages." § 811(a), 49 Stat. 639; § 907 (b), 49 Stat. 642. Congress originated the present income tax withholding system in § 172 of the Revenue Act of 1942, 56 Stat. 884. See Central Illinois Public Service Co. v. United States, supra, at 435 U. S. 26-27. It again chose "wages" as the base, 56 Stat. 888, and defined "wages" in substantially the same language that it used in FICA and FUTA, id. at 887. When Congress revised the withholding system by replacing § 172 with the Current Tax Payment Act of 1943, 57 Stat. 126, it retained the definition of "wages." Ibid. In view of this sequence of consistency, the plain language of the statutes is strong evidence that Congress intended "wages" to mean the same thing under FICA, FUTA, and income tax withholding.The legislative histories of the Acts establishing income tax withholding support the conclusion to be drawn from the plain language. These histories reveal a congressional concern for "the interest of simplicity and ease of administration." S.Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942) (Revenue Act of 1942). See Central Illinois Public Service Co. v. United States, supra, at 435 U. S. 31. They also reveal that one of the means Congress chose in order to promote simplicity was to base withholding upon the same measure -- "wages" -- as taxation under FICA and FUTA. Thus, whereas the withholding system proposed by the House provided for withholding upon dividends and bond interest in addition to wages, H.R.Rep. No. 2333, 77th Cong., 2d Sess., Page 452 U. S. 256 125 (1942), the system proposed by the Senate and enacted in § 172 limited withholding to wages. S.Rep. No. 1631, supra, at 165. "This was a standard that was intentionally narrow and precise." Central Illinois Public Service Co. v. United States, supra, at 435 U. S. 31. Section 172 also specified that remuneration for certain services was excepted from "wages." According to the Senate Report,"[t]hese exceptions [for income tax withholding] are identical with the exceptions extended to such services for Social Security tax purposes, and are intended to receive the same construction and have the same scope."S.Rep. No. 1631, supra, at 166.When Congress replaced § 172, the House devoted much attention to the specified exceptions from "wages," H.R.Rep. No. 268, 78th Cong., 1st Sess., pt. 1, p. 14 (1943); H.R.Rep. No. 401, 78th Cong., 1st Sess., pt. 1, pp. 22-23 (1943), but it left the essential definition of "wages" unchanged. H.R.Rep. No. 268, supra, at 14. The Senate modified the bill proposed by the House, and reported:"[T]he methods of collection, payment, and administration of the withholding tax have been coordinated generally with those applicable to the Social Security tax imposed on employees under section 1400 of the code. This proposal has been made in order to facilitate the work of both the Government and the employer in administering the withholding system."S.Rep. No. 221, 78th Cong., 1st Sess., 17 (1943); see also H.R.Conf.Rep. No. 510, 78th Cong., 1st Sess., 28 (1943). [Footnote 11] Page 452 U. S. 257In sum, Congress intended in both the Revenue Act of 1942 and the Current Tax Payment Act of 1943 to coordinate the income tax withholding system with FICA and FUTA. In both instances, Congress did so to promote simplicity and ease of administration. Contradictory interpretations of substantially identical definitions do not serve that interest. It would be extraordinary for a Congress pursuing this interest to intend, without ever saying so, for identical definitions to be interpreted differently.Despite the plain language of Congress' definition of "wages" and this legislative history, the Government contends that FICA and FUTA compose a distinct system of taxation to which the rules of income taxation, such as the exclusion of the value of meals and lodging from "income" under the "convenience of the employer" rule in § 119, do not apply. In support, the Government recites congressional Committee Reports indicating that Congress enacted the Social Security Act to "relieve the existing distress and . . . to reduce destitution and dependency in the future," H.R.Rep. No. 615, 74th Cong., 1st Sess., 3 (1935). See also S.Rep. No. 628, 74th Cong., 1st Sess., 2 (1935). These Reports also state that"[w]ages include not only the cash payments made to the employee for work done, but also compensation for services in any other form, such as room, board, etc."H.R.Rep. No. 615, supra, at 32 (Title VIII (FICA)); accord, id. at 36 (Title IX (FUTA)); S.Rep. No. 628, supra, at 44 (FICA), 49 (FUTA). The Government concludes that Congress intended to impose the taxes under FICA and FUTA upon a broad range of remuneration in order to accomplish the Act's purposes.We are not persuaded by this contention. The reference by Congress to "room, board, etc." as examples of "wages" under Titles VIII and IX is ambiguous. It does not necessarily Page 452 U. S. 258 mean that Congress intended to tax remuneration in kind without regard to principles developed under income taxation, such as the "convenience-of-the-employer" rule. [Footnote 12] This rule first appeared in 1919, O.D. 265, 1 Cum.Bull. 71, and was well established by 1935. See Commissioner v. Kowalski, 434 U.S. at 847. There is no evidence in the Committee Reports cited by the Government that Congress intended to exclude this established rule from determinations under Titles VIII and IX or to create a different rule to govern "room, board, etc." We therefore think that the reference in the Committee Reports to "room, board, etc." lends no support to the validity of the Treasury Regulations on which the Government relies. [Footnote 13]The Government further contends, however, that a line of Treasury Regulations and rulings unbroken since 1940 refutes petitioner's view that Congress intended a consistent interpretation of the term "wages." It also contends that we may infer congressional endorsement of these Treasury Regulations and rulings from Congress' reenactment of FICA, FUTA, and the income tax withholding provisions in the Internal Revenue Code of 1954. We now address these contentions.CThe history of the Treasury Regulations and ruling interpreting Congress' definition of "wages" in FICA and FUTA Page 452 U. S. 259 is far from consistent. The Commissioner's contemporaneous construction of Titles VIII (FICA) and IX (FUTA) of the Social Security Act of 1935 was that the "convenience of the employer" rule applied to the computation of "wages." Treas. Regs. 90, Art. 207 (1936) (Title IX); Treas. Regs. 91, Art. 14 (1936) (Title VIII). [Footnote 14] Pursuant to Treas.Regs. 90, Art. 207, the Service ruled in 1937 that "supper money" paid to employees working overtime for the convenience of the employer was excludable from "wages" under both Titles. S.S.T. 110, 1937-1 Cum.Bull. 441. Again in 1938, the Service ruled in S.S.T. 302, 1931 Cum.Bull. 457, that free lunches provided by an employer for its own convenience were excludable from "wages" under Title IX. See also S.S.T. 383, 1940-1 Cum.Bull. 210-211.The position taken in the Treasury Regulations and rulings subsequently changed, but without explanation. In 1939, Congress passed the Social Security Act Amendments of 1939, ch. 666, 53 Stat. 1360, that amended some of the specified exclusions from "wages" under FICA and FUTA, but left unchanged the definition of "wages." Compare § 603, 614, 53 Stat. 1382, 1392, with §§ 1426(a), 1607(b), Internal Revenue Code of 1939, 26 U.S.C. §§ 1426(a), 1607(b) (1952 ed.). In 1940, however, the Commissioner issued Treas.Regs. 106, § 402.227 (FICA), and Treas.Regs; 107, § 403.227 (FUTA). These Regulations, which were virtually Page 452 U. S. 260 identical to the present Treasury Regulations at issue in this case, excluded the "convenience of the employer" rule from the computation of "wages" under FICA and FUTA. No reasons were stated for this change. Pursuant to the new Regulations, the Service ruled in 1940 that the value of meals and lodging furnished to the crew operating a steamship was includable in "wages" under FICA and FUTA. S.S.T. 386, 1940-1 Cum.Bull. 211-212. In 1944, the Commissioner stated in Mim. 5657, 1944 Cum.Bull. 551, that the value of meals and lodging furnished by an employer was includable in "wages," and the Commissioner added without explanation that"[i]t is immaterial, for the purposes of such taxes, whether the quarters or meals are furnished for the convenience of the employer."The Government contends that the 1940 Regulations and the rulings issued pursuant to them acquired "the effect of law" when Congress reenacted FICA and FUTA without substantial change in the Internal Revenue Code of 1954. United States v. Correll, 389 U.S. at 389 U. S. 305; Cammarano v. United States, 358 U. S. 498, 358 U. S. 510-511 (1959). In its view, the 1936 Treasury Regulations and the rulings under them were short-lived, and therefore are inconsequential. See National Muffler Dealers Assn. v. United States, 440 U.S. at 440 U. S. 485-486. [Footnote 15]We are unconvinced. Despite Treas.Regs. 106 and 107 and the rulings issued under them, the rule of S.S.T. 302 issued in 1938 -- that the value of meals provided for the convenience of the employer is excludable from "wages" -- remained in effect until after 1954. In 1957, the Service ruled Page 452 U. S. 261 that S.S.T. 302 did not apply to the provision of meals to restaurant employees, but it also stated that S.S.T. 302 was otherwise "still in full force and effect." Rev.Rul. 57-471, 1957-2 Cum.Bull. 632. The Service did not explain why it took this position as to S.S.T. 302. It is thus clear that, as late as 1957 -- 17 years after Treas.Regs. 106 and 107 were adopted -- the Service itself was inconsistent in construing the term "wages." Indeed, it was not until 1962 that the Commissioner finally disavowed S.S.T. 302 in Rev.Rul. 62-150. 1962-2 Cum.Bull. 213. [Footnote 16] It therefore assumes a great deal to argue that in 1954, when FICA and FUTA were reenacted, Congress implicitly approved these Treasury Regulations. [Footnote 17] The Commissioner himself had offered no explanation by 1954 Page 452 U. S. 262 as to why the contemporaneous regulations of 1936 were changed in 1940 or why inconsistent rulings still were being issued. Indeed, the Government in this case has not yet offered an explanation.The history of the Treasury Regulations and rulings interpreting Congress' definition of "wages" in FICA and FUTA therefore lends only the most ambiguous support to the view that Congress intended to approve different interpretations of "wages" when it reenacted the Internal Revenue Code in 1954. The differing interpretations were not substantially contemporaneous constructions of the statutes, and nothing in the manner in which the interpretations changed is probative of congressional endorsement. Nor is there evidence of any particular consideration of these regulations by Congress during reenactment. Page 452 U. S. 263IIIWe conclude that Treas.Reg. §§ 31.3121(a)-1(f) and 31.3306(b)-1(f) fail to implement the statutory definition of "wages" in a consistent or reasonable manner. The plain language and legislative histories of the relevant Acts indicate that Congress intended its definition to be interpreted in the same manner for FICA and FUTA as for income tax withholding. The Treasury Regulations on which the Government relies fail to do so, and their inconsistent and unexplained application undermine the contention that Congress nonetheless endorsed them. As Congress did intend a consistent interpretation of its definition, these Treasury Regulations also are inconsistent with the Court's reasoning in Central Illinois.We therefore hold that the Regulations are invalid, and that the Service erred in relying upon them to include in the computation of "wages" the value of the meals and lodging that petitioner provided for its own convenience to its employees on offshore oil rigs. The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtRowan Cos., Inc. v. United States, 452 U.S. 247 (1981)Rowan Cos., Inc. v. United StatesNo. 80-780Argued April 21, 1981Decided June 8, 1981452 U.S. 247SyllabusPetitioner, for its own convenience, provided meals and lodging to its employees working on offshore oil rigs. Petitioner did not include the value of the meals and lodging in computing the employees' "wages" for the purpose of paying taxes under the Federal Insurance Contributions Act (FICA) and the Federal Unemployment Tax Act (FUTA) or withholding the employees' federal income taxes. Upon audit, the Internal Revenue Service included the value of the meals and lodging in the employees' "wages" for FICA and FUTA, but not for income tax withholding. In doing so, the IRS acted consistently with Treasury Regulations that interpret the definition of "wages" in FICA and FUTA to include the value of such meals and lodging, whereas the substantially identical definition of "wages" in the income tax withholding provisions is interpreted by Treasury Regulations to exclude this value. Petitioner paid the additional assessment for FICA and FUTA taxes and brought suit in Federal District Court for a refund. The District Court granted summary judgment for the Government, and the Court of Appeals affirmed, holding that the different interpretations of the definition of "wages" was justified by the different purposes of FICA and FUTA, on the one hand, and income tax withholding, on the other.Held: The Treasury Regulations interpreting the definition of "wages" in FICA and FUTA to include the value of the meals and lodging are invalid, for they fail to implement the statutory definition in a consistent or reasonable manner. The plain language and legislative histories of the relevant statutes indicate that Congress intended its definition of "wages" to be interpreted in the same manner for FICA and FUTA as for income tax withholding. Pp. 452 U. S. 250-263.624 F.2d 701, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 452 U. S. 263. Page 452 U. S. 248

1988_88-454

JUSTICE WHITE delivered the opinion of the Court.The questions presented here are whether the federal drug forfeiture statute authorizes a district court to enter a pretrial order freezing assets in a defendant's possession, even where the defendant seeks to use those assets to pay an attorney; if so, we must decide whether such an order is permissible under the Constitution. We answer both of these questions in the affirmative.IIn July 1987, an indictment was entered, alleging that respondent had directed a large-scale heroin distribution enterprise. The multicount indictment alleged violations of racketeering laws, creation of a continuing criminal enterprise (CCE), and tax and firearm offenses. The indictment also alleged that three specific assets -- a home, an apartment, and $35,000 in cash -- had been accumulated by respondent as a result of his narcotics trafficking. These assets, the indictment Page 491 U. S. 603 alleged, were subject to forfeiture under the Comprehensive Forfeiture Act of 1984 (CFA), 98 Stat. 2044, as amended, 21 U.S.C. § 853(a) (1982 ed., Supp. V), because they were "property constituting, or derived from . . . proceeds . . . obtained" from drug law violations. [Footnote 1]On the same day that the indictment was unsealed, the District Court granted the Government's ex parte motion, pursuant to § 853(e)(1)(A), [Footnote 2] for a restraining order freezing Page 491 U. S. 604 the above-mentioned assets pending trial. Shortly thereafter, respondent moved to vacate this restraining order, to permit him to use the frozen assets to retain an attorney. Respondent's motion further sought a declaration that, if these assets were used to pay an attorney's fees, § 853(c)'s third-party transfers provision would not subsequently be used to reclaim such payments if respondent was convicted and his assets forfeited. [Footnote 3] Respondent raised various statutory challenges to the restraining order, and claimed that it interfered with his Sixth Amendment right to counsel of choice. The District Court denied the motion to vacate. Page 491 U. S. 605On appeal, the Second Circuit concluded that respondent's statutory and Sixth Amendment challenges were lacking, but remanded the case to the District Court for an adversarial hearing "at which the government ha[d] the burden to demonstrate the likelihood that the assets are forfeitable"; if the Government failed its burden at such a hearing, the Court of Appeals held, any fees paid to an attorney would be exempt from forfeiture, irrespective of the final outcome at respondent's trial. 836 F.2d 74, 84 (1987). Pursuant to this mandate, on remand, the District Court held a 4-day hearing on whether continuing the restraining order was proper. At the end of the hearing, the District Court ruled that it would continue the restraining order because the Government had "overwhelmingly established a likelihood" that the property in question would be forfeited at the end of trial. App. to Pet. for Cert. 86a. Ultimately, respondent's criminal case proceeded to trial, where he was represented by a Criminal Justice Act-appointed attorney. [Footnote 4]In the meantime, the Second Circuit vacated its earlier opinion and heard respondent's appeal en banc. [Footnote 5] The en Page 491 U. S. 606 banc court, by an 8-to-4 vote, ordered that the District Court's restraining order be modified to permit the restrained assets to be used to pay attorney's fees. 852 F.2d 1400 (1988). The Court was sharply divided as to its rationale. Three of the judges found that the order violated the Sixth Amendment, while three others questioned it on statutory grounds; two judges found § 853 suspect under the Due Process Clause for its failure to include a statutory provision requiring the sort of hearing that the panel had ordered in the first place. The four dissenting judges would have upheld the restraining order.We granted certiorari, 488 U.S. 941 (1988), because the Second Circuit's decision created a conflict among the Courts of Appeals over the statutory and constitutional questions presented. [Footnote 6] We now reverse.IIWe first must address the question whether § 853 requires, upon conviction, forfeiture of assets that an accused intends to use to pay his attorneys.A"In determining the scope of a statute, we look first to its language." United States v. Turkette, 452 U. S. 576, 452 U. S. 580 (1981). In the case before us, the language of § 853 is plain and unambiguous: all assets falling within its scope are to be forfeited upon conviction, with no exception existing for the assets used to pay attorney's fees -- or anything else, for that matter. Page 491 U. S. 607As observed above, § 853(a) provides that a person convicted of the offenses charged in respondent's indictment "shall forfeit . . . any property" that was derived from the commission of these offenses. After setting out this rule, § 853(a) repeats later in its text that upon conviction a sentencing court "shall order" forfeiture of all property described in § 853(a). Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied, or broader words to define the scope of what was to be forfeited. Likewise, the statute provides a broad definition of "property" when describing what types of assets are within the section's scope: "real property . . . tangible and intangible personal property, including rights, privileges, interests, claims, and securities." 21 U.S.C. § 853(b) (1982 ed., Supp. V). Nothing in this all-inclusive listing even hints at the idea that assets to be used to pay an attorney are not "property" within the statute's meaning.Nor are we alone in concluding that the statute is unambiguous in failing to exclude assets that could be used to pay an attorney from its definition of forfeitable property. This argument, advanced by respondent here, see Brief for Respondent 12-19, has been unanimously rejected by every Court of Appeals that has finally passed on it, [Footnote 7] as it was by the Second Circuit panel below, see 836 F.2d at 78-80; id. at 85-86 (Oakes, J., dissenting); even the judges who concurred on statutory grounds in the en banc decision did not accept this position, see 852 F.2d at 1405-1410 (Winter, J., concurring). We note also that the Brief for American Bar Page 491 U. S. 608 Association as Amicus Curiae 6, frankly admits that the statute "on [its] face, broadly cover[s] all property derived from alleged criminal activity and contain[s] no specific exemption for property used to pay bona fide attorneys' fees."Respondent urges us, nonetheless, to interpret the statute to exclude such property for several reasons. Principally, respondent contends that we should create such an exemption because the statute does not expressly include property to be used for attorneys' fees, and/or because Congress simply did not consider the prospect that forfeiture would reach assets that could be used to pay for an attorney. In support, respondent observes that the legislative history is "silent" on this question, and that the House and Senate debates fail to discuss this prospect. [Footnote 8] But this proves nothing: the legislative Page 491 U. S. 609 history and congressional debates are similarly silent on the use of forfeitable assets to pay stockbroker's fees, laundry bills, or country club memberships; no one could credibly argue that, as a result, assets to be used for these purposes are similarly exempt from the statute's definition of forfeitable property. The fact that the forfeiture provision reaches assets that could be used to pay attorney's fees, even though it contains no express provisions to this effect, "does not demonstrate ambiguity'" in the statute: "It demonstrates breadth.'" Sedima, S.P.R.L. v. Imrex Co., 473 U. S. 479, 473 U. S. 499 (1985) (quoting Haroco, Inc. v. American Nat. Bank & Trust Co. of Chicago, 747 F.2d 384, 398 (CA7 1984)). The statutory provision at issue here is broad and unambiguous, and Congress' failure to supplement § 853(a)'s comprehensive phrase -- "any property" -- with an exclamatory "and we even mean assets to be used to pay an attorney" does not lessen the force of the statute's plain language. Page 491 U. S. 610We also find unavailing respondent's reliance on the comments of several legislators -- made following enactment -- to the effect that Congress did not anticipate the use of the forfeiture law to seize assets that would be used to pay attorneys. See Brief for Respondent 15-16, and n. 9 (citing comments of Sen. Leahy and Reps. Hughes and Shaw). As we have noted before, such post-enactment views "form a hazardous basis for inferring the intent" behind a statute, United States v. Price, 361 U. S. 304, 361 U. S. 313 (1960); instead, Congress' intent is "best determined by [looking to] the statutory language that it chooses," Sedima, S.P.R.L., supra, at 473 U. S. 495, n. 13. Moreover, we observe that these comments are further subject to question because Congress has refused to act on repeated suggestions by the defense bar for the sort of exemption respondent urges here, [Footnote 9] even though it has amended § 853 in other respects since these entreaties were first heard. See Pub.L. 99-570, §§ 1153(b), 1864, 100 Stat. 3207-13, 3207-54.In addition, we observe that in the very same law by which Congress adopted the CFA -- Pub.L. 98-473, 98 Stat. 1837 -- Congress also adopted a provision for the special forfeiture of collateral profits (e.g., profits from books, movies, etc.) that a convicted defendant derives from his crimes. See Victims of Crime Act of 1984, 98 Stat. 2175-2176 (now codified at 18 U.S.C. §§ 3681-3682 (1982 ed., Supp. V)). That forfeiture provision expressly exempts "pay[ments] for legal representation of the defendant in matters arising from the offense for which such defendant has been convicted, but no more than 20 percent of the total [forfeited collateral profits] may be so used." § 3681(c)(1)(B)(ii). Thus, Congress adopted expressly -- in a statute enacted simultaneously with the one under review in this case -- the precise exemption from forfeiture Page 491 U. S. 611 which respondent asks us to imply into § 853. The express exemption from forfeiture of assets that could be used to pay attorney's fees in Chapter XIV of Pub.L. 98473 indicates to us that Congress understood what it was doing in omitting such an exemption from Chapter III of that enactment.Finally, respondent urges us, see Brief for Respondent 2029, to invoke a variety of general canons of statutory construction, as well as several prudential doctrines of this Court, to create the statutory exemption he advances; among these doctrines is our admonition that courts should construe statutes to avoid decision as to their constitutionality. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 485 U. S. 575 (1988); NLRB. v. Catholic Bishop of Chicago, 440 U. S. 490, 440 U. S. 500 (1979). We respect these canons, and they are quite often useful in close cases, or when statutory language is ambiguous. But we have observed before that such "interpretative canon[s are] not a license for the judiciary to rewrite language enacted by the legislature." United States v. Albertini, 472 U. S. 675, 472 U. S. 680 (1985). Here, the language is clear and the statute comprehensive: § 853 does not exempt assets to be used for attorney's fees from its forfeiture provisions.In sum, whatever force there might be to respondent's claim for an exemption from forfeiture under § 853(a) of assets necessary to pay attorney's fees -- based on his theories about the statute's purpose, or the implications of interpretative canons, or the understandings of individual members of Congress about the statute's scope -- "[t]he short answer is that Congress did not write the statute that way." United States v. Naftalin, 441 U. S. 768, 441 U. S. 773 (1979).BAlthough § 853(a) recognizes no general exception for assets used to pay an attorney, we are urged that the provision Page 491 U. S. 612 in § 853(e)(1)(A) for pretrial restraining orders on assets in a defendant's possession should be interpreted to include such an exemption. It was on this ground that Judge Winter concurred below. 852 F.2d at 1405-1411.The restraining order subsection provides that, on the Government's application, a district court"may enter a restraining order or injunction . . . or take any other action to preserve the availability of property . . . for forfeiture under this section."21 U.S.C. § 853(e)(1) (1982 ed., Supp. V). Judge Winter read the permissive quality of the subsection (i.e., "may enter") to authorize a district court to employ "traditional principles of equity" before restraining a defendant's use of forfeitable assets; a balancing of hardships, he concluded, generally weighed against restraining a defendant's use of forfeitable assets to pay for an attorney. 852 F.2d at 1406. Judge Winter further concluded that assets not subjected to pretrial restraint under § 853(e), if used to pay an attorney, may not be subsequently seized for forfeiture to the Government, notwithstanding the authorization found in § 853(c) for recoupment of forfeitable assets transferred to third parties.This reading seriously misapprehends the nature of the provisions in question. As we have said, § 853(a) is categorical: it contains no reference at all to § 853(e) or § 853(c), let alone any reference indicating that its reach is limited by those sections. Perhaps some limit could be implied if these provisions were necessarily inconsistent with § 853(a). But that is not the case. Under § 853(e)(1), the trial court "may" enter a restraining order if the United States requests it, but not otherwise, and it is not required to enter such an order if a bond or some other means to "preserve the availability of property described in subsection (a) of this section for forfeiture" is employed. Thus, § 853(e)(1)(A) is plainly aimed at implementing the commands of § 853(a), and cannot sensibly be construed to give the district court discretion to permit Page 491 U. S. 613 the dissipation of the very property that § 853(a) requires be forfeited upon conviction.We note that the "equitable discretion" that is given to the judge under § 853(e)(1)(A) turns out to be no discretion at all as far as the issue before us here is concerned: Judge Winter concludes that assets necessary to pay attorney's fees must be excluded from any restraining order. See 852 F.2d at 1407-1409. For that purpose, the word "may" becomes "may not." The discretion found in § 853(e) becomes a command to use that subsection (and § 853(c)) to frustrate the attainment of § 853(a)'s ends. This construction is improvident. Whatever discretion Congress gave the district courts in §§ 853(e) and 853(c), that discretion must be cabined by the purposes for which Congress created it: "to preserve the availability of property . . . for forfeiture." We cannot believe that Congress intended to permit the effectiveness of the powerful "relation-back" provision of § 853(c), and the comprehensive "any property . . . any proceeds" language of § 853(a), to be nullified by any other construction of the statute.This result may seem harsh, but we have little doubt that it is the one that the statute mandates. Section 853(c) states that"[a]ll right, title, and interest in [forfeitable] property . . . vests in the United States upon the commission of the act giving rise to forfeiture."Permitting a defendant to use assets for his private purposes that, under this provision, will become the property of the United States if a conviction occurs cannot be sanctioned. Moreover, this view is supported by the relevant legislative history, which states that"[t]he sole purpose of [§ 853's] restraining order provision . . . is to preserve the status quo, i.e., to assure the availability of the property pending disposition of the criminal case."S.Rep. No. 98-225, p. 204 (1983). If, instead, the statutory interpretation adopted by Judge Winter's concurrence were applied, this purpose would not be achieved. Page 491 U. S. 614We conclude that there is no exemption from § 853's forfeiture or pretrial restraining order provisions for assets which a defendant wishes to use to retain an attorney. In enacting § 853, Congress decided to give force to the old adage that "crime does not pay." We find no evidence that Congress intended to modify that nostrum to read, "crime does not pay, except for attorney's fees." If, as respondent and supporting amici so vigorously assert, we are mistaken as to Congress' intent, that body can amend this statute to otherwise provide. But the statute, as presently written, cannot be read any other way.IIIHaving concluded that the statute authorized the restraining order entered by the District Court, we reach the question whether the order violated respondent's right to counsel of choice as protected by the Sixth Amendment or the Due Process Clause of the Fifth Amendment.ARespondent's most sweeping constitutional claims are that, as a general matter, operation of the forfeiture statute interferes with a defendant's Sixth Amendment right to counsel of choice, and the guarantee afforded by the Fifth Amendment's Due Process Clause of a "balance of forces" between the accused and the Government. In this regard, respondent contends, the mere prospect of post-trial forfeiture is enough to deter a defendant's counsel of choice from representing him.In another decision we announce today, Caplin & Drysdale, Chartered v. United States, post, p. 491 U. S. 617, we hold that neither the Fifth nor the Sixth Amendment to the Constitution requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay that defendant's legal fees. We rely on our conclusion in that case to dispose of the similar constitutional claims raised by respondent here. Page 491 U. S. 615BIn addition to the constitutional issues raised in Caplin & Drysdale, respondent contends that freezing the assets in question before he is convicted -- and before they are finally adjudged to be forfeitable -- raises distinct constitutional concerns. We conclude, however, that assets in a defendant's possession may be restrained in the way they were here based on a finding of probable cause to believe that the assets are forfeitable. [Footnote 10]We have previously permitted the Government to seize property based on a finding of probable cause to believe that the property will ultimately be proved forfeitable. See, e.g., United States v. $8,850, 461 U. S. 555 (1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974). Here, where respondent was not ousted from his property, but merely restrained from disposing of it, the governmental intrusion was even less severe than those permitted by our prior decisions.Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent's possession, based on a finding of probable cause, when we have held that (under appropriate circumstances), the Government may restrain persons where there Page 491 U. S. 616 is a finding of probable cause to believe that the accused has committed a serious offense. See United States v. Salerno, 481 U. S. 739 (1987). Given the gravity of the offenses charged in the indictment, respondent himself could have been subjected to pretrial restraint if deemed necessary to "reasonably assure [his] appearance [at trial] and the safety of . . . the community," 18 U.S.C. § 3142(e) (1982 ed., Supp. V); we find no constitutional infirmity in § 853(e)'s authorization of a similar restraint on respondent's property to protect its "appearance" at trial and protect the community's interest in full recovery of any ill-gotten gains.Respondent contends that both the nature of the Government's property right in forfeitable assets and the nature of the use to which he would have put these assets (i.e., retaining an attorney) require some departure from our established rule of permitting pretrial restraint of assets based on probable cause. We disagree. In Caplin & Drysdale, we conclude that a weighing of these very interests suggests that the Government may -- without offending the Fifth or Sixth Amendments -- obtain forfeiture of property that a defendant might have wished to use to pay his attorney. Post, p. 491 U. S. 617. Given this holding, we find that a pretrial restraining order does not "arbitrarily" interfere with a defendant's "fair opportunity" to retain counsel. Cf. Powell v. Alabama, 287 U. S. 45, 287 U. S. 69, 287 U. S. 53 (1932). Put another way: if the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial.IVFor the reasons given above, the judgment of the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Monsanto, 491 U.S. 600 (1989)United States v. MonsantoNo. 88-454Argued March 21, 1989Decided June 22, 1989491 U.S. 600SyllabusRespondent, who allegedly directed a large-scale heroin distribution enterprise, was indicted for alleged violations of racketeering laws, creation of a continuing criminal enterprise, and tax and firearm offenses. The indictment also alleged that respondent had accumulated three specified assets as a result of his narcotics trafficking, which were subject to forfeiture under the Comprehensive Forfeiture Act of 1984, 21 U.S.C. § 853. After the indictment was unsealed, the District Court granted the Government's ex parte motion under § 853(e)(1)(A) for a restraining order freezing the assets pending trial. Respondent, raising various statutory arguments and claiming that the order interfered with his Sixth Amendment right to counsel of his choice, moved to vacate the order to permit him to use frozen assets to retain an attorney. He also sought a declaration that if the assets were used to pay attorney's fees, § 853(c)'s third-party transfer provision would not be used to reclaim such payments if respondent was convicted and his assets forfeited. The District Court denied the motion. However, the Court of Appeals ultimately ordered that the restraining order be modified to permit the restrained assets to be used to pay attorney's fees.Held:1. There is no exemption from § 853's forfeiture or pretrial restraining order provisions for assets that a defendant wishes to use to retain an attorney. Pp. 491 U. S. 606-614.(a) Section 853's language is plain and unambiguous. Congress could not have chosen stronger words to express its intent that forfeiture be mandatory than § 853(a)'s language that upon conviction a person "shall forfeit . . . any property" and that the sentencing court "shall order" a forfeiture. Likewise, the statute provides a broad definition of property which does not even hint at the idea that assets used for attorney's fees are not included. Every Court of Appeals that has finally passed on this argument has agreed with this view. Neither the Act's legislative history nor legislators' post-enactment statements support respondent's argument that an exception should be created because the statute does not expressly include property to be used for attorney's fees, or because Congress simply did not consider the prospect that forfeiture Page 491 U. S. 601 would reach such property. To the contrary, in the Victims of Crime Act -- which requires forfeiture of a convicted defendant's collateral profits derived from his crimes and which was enacted simultaneously with the statute in question -- Congress adopted expressly the precise exemption from forfeiture which respondent is seeking to have implied in § 853. Moreover, respondent's admonition that courts should construe statutes to avoid decision as to their constitutionality is not license for the judiciary to rewrite statutory language. Pp. 491 U. S. 606-611.(b) Respondent's reading of § 853(e)(1)(A) -- which provides that a district court "may enter a restraining order or injunction . . . or take any other action to preserve the availability of property . . . for forfeiture" -- misapprehends the nature of § 853 by giving a district court equitable discretion to determine whether to exempt assets from pretrial restraint and by concluding that, if such assets are used for attorney's fees, they may not subsequently be seized for forfeiture to the Government under § 853(c). Section 853(e)(1)(A) plainly is aimed at implementing § 853(a)'s commands, and cannot sensibly be construed to give the district court discretion to permit the dissipation of the very property it requires be forfeited upon conviction, since this would nullify § 853(a)'s strong language, as well as § 853(c)'s powerful "relation-back" provision. Pp. 491 U. S. 611-614.2. The restraining order did not violate respondent's right to counsel of choice as protected by the Sixth Amendment or the Due Process Clause of the Fifth Amendment. For the reasons stated in Caplin & Drysdale, Chartered v. United States, post p. 491 U. S. 617, neither the Fifth nor the Sixth Amendment requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay the defendant's legal fees. Moreover, a defendant's assets may be frozen before conviction based on a finding of probable cause to believe the assets are forfeitable. See, e.g., United States v. $8,850, 461 U. S. 555; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663. Indeed, concluding that the Government could not restrain such property would be odd considering that, under appropriate circumstances, the Government may restrain persons accused of a serious offense on a probable cause finding. See United States v. Salerno, 481 U. S. 739. Pp. 491 U. S. 614-616.852 F.2d 1400, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 491 U.S. 635. Page 491 U. S. 602

1979_78-1007

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE WHITE and MR. JUSTICE POWELL joined.We granted certiorari to consider a facial constitutional challenge to a requirement in a congressional spending program that, absent an administrative waiver, 10% of the federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned and controlled by members of statutorily identified minority groups. 441 U.S. 960 (1979).IIn May, 1977, Congress enacted the Public Works Employment Act of 1977, Pub.L. 928, 91 Stat. 116, which amended the Local Public Works Capital Development and Investment Act of 1976, Pub.L. 9369, 90 Stat. 999, 42 U.S.C. § 6701 et seq. The 1977 amendments authorized an additional $4 billion appropriation for federal grants to be made by the Secretary of Commerce, acting through the Economic Development Administration (EDA), to state and local governmental entities for use in local public works projects. Among the changes made was the addition of the provision that has Page 448 U. S. 454 become the focus of this litigation. Section 103(f)(2) of the 1977 Act, referred to as the "minority business enterprise" or "MBE" provision, requires that: [Footnote 1]"Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises. For purposes of this paragraph, the term 'minority business enterprise' means a business at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."In late May, 1977, the Secretary promulgated regulations governing administration of the grant program which were amended two months later. [Footnote 2] In August, 1977, the EDA issued guidelines supplementing the statute and regulations with respect to minority business participation in local public works grants, [Footnote 3] and in October, 1977, the EDA issued a technical bulletin promulgating detailed instructions and information to assist grantees and their contractors in meeting the 10% MBE requirement. [Footnote 4] Page 448 U. S. 455On November 30, 1977, petitioners filed a complaint in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief to enjoin enforcement of the MBE provision. Named as defendants were the Secretary of Commerce, as the program administrator, and the State and City of New York, as actual and potential project grantees. Petitioners are several associations of construction contractors and subcontractors, and a firm engaged in heating, ventilation, and air conditioning work. Their complaint alleged that they had sustained economic injury due to enforcement of the 10% MBE requirement, and that the MBE provision, on its face, violated the Equal Protection Clause of the Fourteenth Amendment, the equal protection component of the Due Process Clause of the Fifth Amendment, and various statutory antidiscrimination provisions. [Footnote 5]After a hearing held the day the complaint was filed, the District Court denied a requested temporary restraining order and scheduled the matter for an expedited hearing on the merits. On December 19, 1977, the District Court issued a memorandum opinion upholding the validity of the MBE program and denying the injunctive relief sought. Fullilove v. Kreps, 443 F. Supp. 253 (1977).The United States Court of Appeals for the Second Circuit affirmed, 584 F.2d 600 (1978), holding that, "even under the most exacting standard of review, the MBE provision passes constitutional muster." Id. at 603. Considered in the context of many years of governmental efforts to remedy past racial and ethnic discrimination, the court found it Page 448 U. S. 456 "difficult to imagine" any purpose for the program other than to remedy such discrimination. Id. at 605. In its view, a number of factors contributed to the legitimacy of the MBE provision, most significant of which was the narrowed focus and limited extent of the statutory and administrative program, in size, impact, and duration, id. at 607-608; the court looked also to the holdings of other Courts of Appeals and District Courts that the MBE program was constitutional, id. at 608-609. [Footnote 6] It expressly rejected petitioners' contention that the 10% MBE requirement violated the equal protection guarantees of the Constitution. [Footnote 7] Id. at 609.IIAThe MBE provision was enacted as part of the Public Works Employment Act of 1977, which made various amendments to Title I of the Local Public Works Capital Development and Investment Act of 1976. The 1976 Act was intended Page 448 U. S. 457 as a short-term measure to alleviate the problem of national unemployment and to stimulate the national economy by assisting state and local governments to build needed public facilities. [Footnote 8] To accomplish these objectives, the Congress authorized the Secretary of Commerce, acting through the EDA, to make grants to state and local governments for construction, renovation, repair, or other improvement of local public works projects. [Footnote 9] The 1976 Act placed a number of restrictions on project eligibility designed to assure that federal moneys were targeted to accomplish the legislative purposes. [Footnote 10] It established criteria to determine grant priorities and to apportion federal funds among political jurisdictions. [Footnote 11] Those criteria directed grant funds toward areas of high unemployment. [Footnote 12] The statute authorized the appropriation of up to $2 billion for a period ending in September, 1977; [Footnote 13] this appropriation was soon consumed by grants made under the program.Early in 1977, Congress began consideration of expanded appropriations and amendments to the grant program. Under administration of the 1976 appropriation, referred to as "Round I" of the local public works program, applicants seeking some $25 billion in grants had competed for the $2 billion in available funds; of nearly 25,000 applications, only some 2,000 were granted. [Footnote 14] The results provoked widespread Page 448 U. S. 458 concern for the fairness of the allocation process. [Footnote 15] Because the 1977 Act would authorize the appropriation of an additional $4 billion to fund "Round II" of the grant program, [Footnote 16] the congressional hearings and debates concerning the amendment focused primarily on the politically sensitive problems of priority and geographic distribution of grants under the supplemental appropriation. [Footnote 17] The result of this attention was inclusion in the 1977 Act of provisions revising the allocation criteria of the 1976 legislation. Those provisions, however, retained the underlying objective to direct funds into areas of high unemployment. [Footnote 18] The 1977 Act also added new restrictions on applicants seeking to qualify for federal grants; [Footnote 19] among these was the MBE provision.The origin of the provision was an amendment to the House version of the 1977 Act, H.R. 11, offered on the floor of the House on February 23, 1977, by Representative Mitchell of Maryland. [Footnote 20] As offered, the amendment provided: [Footnote 21]"Notwithstanding any other provision of law, no grant shall be made under this Act for any local public works project unless at least 10 per centum of the articles, materials, and supplies which will be used in such project are procured from minority business enterprises. For purposes of this paragraph, the term 'minority business Page 448 U. S. 459 enterprise' means a business at least 50 percent of which is owned by minority group members or, in case of publicly owned businesses, at least 51 percent of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."The sponsor stated that the objective of the amendment was to direct funds into the minority business community, a sector of the economy sorely in need of economic stimulus but which, on the basis of past experience with Government procurement programs, could not be expected to benefit significantly from the public works program as then formulated. [Footnote 22] He cited the marked statistical disparity that, in fiscal year 1976 less than 1% of all federal procurement was concluded with minority business enterprises, although minorities comprised 15-18% of the population. [Footnote 23] When the amendment was put forward during debate on H.R. 11, [Footnote 24] Representative Mitchell reiterated the need to ensure that minority firms would obtain a fair opportunity to share in the benefits of this Government program. [Footnote 25]The amendment was put forward not as a new concept, but rather one building upon prior administrative practice. Page 448 U. S. 460 In his introductory remarks, the sponsor rested his proposal squarely on the ongoing program under § 8(a) of the Small Business Act, Pub.L. 85-536, § 2, 72 Stat. 389, which, as will become evident, served as a model for the administrative program developed to enforce the MBE provision: [Footnote 26]"The first point in opposition will be that you cannot have a set-aside. Well, Madam Chairman, we have been doing this for the last 10 years in Government. The 8-A set-aside under SBA has been tested in the courts more than 30 times and has been found to be legitimate and bona fide. We are doing it in this bill."Although the proposed MBE provision, on its face, appeared mandatory, requiring compliance with the 10% minority participation requirement "[n]otwithstanding any other provision of law," its sponsor gave assurances that existing administrative practice would ensure flexibility in administration if, with respect to a particular project, compliance with the 10% requirement proved infeasible. [Footnote 27]Representative Roe of New Jersey then suggested a change of language expressing the twin intentions (1) that the federal administrator would have discretion to waive the 10% requirement where its application was not feasible, and (2) that the grantee would be mandated to achieve at least 10% participation by minority businesses unless infeasibility was demonstrated. [Footnote 28] He proposed as a substitute for the first sentence of the amendment the language that eventually was enacted: [Footnote 29]"Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 percent Page 448 U. S. 461 of the amount of each grant shall be expended for minority business enterprises."The sponsor fully accepted the suggested clarification because it retained the directive that the initial burden of compliance would fall on the grantee. That allocation of burden was necessary because, as he put it,"every agency of the Government has tried to figure out a way to avoid doing this very thing. Believe me, these bureaucracies can come up with 10,000 ways to avoid doing it. [Footnote 30]"Other supporters of the MBE amendment echoed the sponsor's concern that a number of factors, difficult to isolate or quantify, seemed to impair access by minority businesses to public contracting opportunities. Representative Conyers of Michigan spoke of the frustration of the existing situation, in which, due to the intricacies of the bidding process and through no fault of their own, minority contractors and businessmen were unable to gain access to government contracting opportunities. [Footnote 31]Representative Biaggi of New York then spoke to the need for the amendment to "promote a sense of economic equality in this Nation." He expressed the view that, without the amendment, "this legislation may be potentially inequitable to minority businesses and workers" in that it would perpetuate the historic practices that have precluded minority businesses from effective participation in public contracting opportunities. [Footnote 32] The amendment was accepted by the House. [Footnote 33]Two weeks later, the Senate considered S. 427, its package of amendments to the Local Public Works Capital Development and Investment Act of 1976. At that time Senator Brooke of Massachusetts introduced an MBE amendment, Page 448 U. S. 462 worded somewhat differently than the House version, but aimed at achieving the same objectives. [Footnote 34] His statement in support of the 10% requirement reiterated and summarized the various expressions on the House side that the amendment was necessary to ensure that minority businesses were not deprived of access to the government contracting opportunities generated by the public works program. [Footnote 35]The Senate adopted the amendment without debate. [Footnote 36] The Conference Committee, called to resolve differences between the House and Senate versions of the Public Works Employment Act of 1977, adopted the language approved by the House for the MBE provision. [Footnote 37] The Conference Reports added only the comment: "This provision shall be dependent on the availability of minority business enterprises located in the project area." [Footnote 38]The device of a 10% MBE participation requirement, subject to administrative waiver, was thought to be required to assure minority business participation; otherwise, it was thought that repetition of the prior experience could be expected, Page 448 U. S. 463 with participation by minority business accounting for an inordinately small percentage of government contracting. The causes of this disparity were perceived as involving the longstanding existence and maintenance of barriers impairing access by minority enterprises to public contracting opportunities, or sometimes as involving more direct discrimination, but not as relating to lack -- as Senator Brooke put it -- "of capable and qualified minority enterprises who are ready and willing to work." [Footnote 39] In the words of its sponsor, the MBE provision was "designed to begin to redress this grievance that has been extant for so long." [Footnote 40]BThe legislative objectives of the MBE provision must be considered against the background of ongoing efforts directed toward deliverance of the century-old promise of equality of economic opportunity. The sponsors of the MBE provision in the House and the Senate expressly linked the provision to the existing administrative programs promoting minority opportunity in government procurement, particularly those related to § 8(a) of the Small Business Act of 1953. [Footnote 41] Section 8(a) delegates to the Small Business Administration (SBA) an authority and an obligation "whenever it determines such action is necessary" to enter into contracts with any procurement agency of the Federal Government to furnish required goods or services, and, in turn, to enter into subcontracts with small businesses for the performance of such contracts. This authority lay dormant for a decade. Commencing in 1968, however, the SBA was directed by the President [Footnote 42] to develop a program pursuant to its § 8(a) authority to assist small Page 448 U. S. 464 business concerns owned and controlled by "socially or economically disadvantaged" persons to achieve a competitive position in the economy.At the time the MBE provision was enacted, the regulations governing the § 8(a) program defined "social or economic disadvantage" as follows: [Footnote 43]"An applicant concern must be owned and controlled by one or more persons who have been deprived of the opportunity to develop and maintain a competitive position in the economy because of social or economic disadvantage. Such disadvantage may arise from cultural, social, chronic economic circumstances or background, or other similar cause. Such persons include, but are not limited to, black Americans, American Indians, Spanish-Americans, oriental Americans, Eskimos, and Aleuts. . . ."The guidelines accompanying these regulations provided that a minority business could not be maintained in the program, even when owned and controlled by members of the identified minority groups, if it appeared that the business had not been deprived of the opportunity to develop and maintain a competitive position in the economy because of social or economic disadvantage. [Footnote 44] Page 448 U. S. 465As the Congress began consideration of the Public Works Employment Act of 1977, the House Committee on Small Business issued a lengthy Report summarizing its activities, including its evaluation of the ongoing § 8(a) program. [Footnote 45] One chapter of the Report, entitled "Minority Enterprises and Allied Problems of Small Business," summarized a 1975 Committee Report of the same title dealing with this subject matter. [Footnote 46] The original Report, prepared by the House Subcommittee on SBA Oversight and Minority Enterprise, observed: [Footnote 47]"The subcommittee is acutely aware that the economic policies of this Nation must function within and be guided by our constitutional system which guarantees 'equal protection of the laws.' The effects of past inequities stemming from racial prejudice have not remained in the past. The Congress has recognized the reality that past discriminatory practices have, to some degree, adversely affected our present economic system.""While minority persons comprise about 16 percent of the Nation's population, of the 13 million businesses in the United States, only 382,000, or approximately 3.0 percent, are owned by minority individuals. The most recent data from the Department of Commerce also indicates that the gross receipts of all businesses in this country totals about $2,540.8 billion, and, of this amount, only $16.6 billion, or about 0.65 percent was realized by minority business concerns.""These statistics are not the result of random chance. The presumption must be made that past discriminatory systems have resulted in present economic inequities. In order to right this situation, the Congress has formulated certain remedial programs designed to uplift those socially Page 448 U. S. 466 or economically disadvantaged persons to a level where they may effectively participate in the business mainstream of our economy.*""* For the purposes of this report, the term 'minority' shall include only such minority individuals as are considered to be economically or socially disadvantaged. [Footnote 48]"The 1975 Report gave particular attention to the § 8(a) program, expressing disappointment with its limited effectiveness. [Footnote 49] With specific reference to Government construction contracting, the Report concluded,"there are substantial § 8(a) opportunities in the area of Federal construction, but . . . the practices of some agencies preclude the realization of this potential. [Footnote 50]"The Subcommittee took "full notice . . . as evidence for its consideration" of reports submitted to the Congress by the General Accounting Office and by the U.S. Commission on Civil Rights, which reflected a similar dissatisfaction with the effectiveness of the § 8(a) program. [Footnote 51] The Page 448 U. S. 467 Civil Rights Commission report discussed at some length the barriers encountered by minority businesses in gaining access to government contracting opportunities at the federal, state, and local levels. [Footnote 52] Among the major difficulties confronting minority businesses were deficiencies in working capital, inability to meet bonding requirements, disabilities caused by an inadequate "track record," lack of awareness of bidding opportunities, unfamiliarity with bidding procedures, preselection before the formal advertising process, and the exercise of discretion by government procurement officers to disfavor minority businesses. [Footnote 53]The Subcommittee Report also gave consideration to the operations of the Office of Minority Business Enterprise, an agency of the Department of Commerce organized pursuant to Executive Orders [Footnote 54] to formulate and coordinate federal efforts to assist the development of minority businesses. The Report concluded that OMBE efforts were "totally inadequate" to achieve its policy of increasing opportunities for subcontracting by minority businesses on public contracts. OMBE efforts were hampered by a "glaring lack of specific objectives which each prime contractor should be required to achieve," by a "lack of enforcement provisions," and by a "lack of any meaningful monitoring system." [Footnote 55]Against this backdrop of legislative and administrative programs, it is inconceivable that Members of both Houses were not fully aware of the objectives of the MBE provision and of the reasons prompting its enactment. Page 448 U. S. 468CAlthough the statutory MBE provision itself outlines only the bare bones of the federal program, it makes a number of critical determinations: the decision to initiate a limited racial and ethnic preference; the specification of a minimum level for minority business participation; the identification of the minority groups that are to be encompassed by the program; and the provision for an administrative waiver where application of the program is not feasible. Congress relied on the administrative agency to flesh out this skeleton, pursuant to delegated rulemaking authority, and to develop an administrative operation consistent with legislative intentions and objectives.As required by the Public Works Employment Act of 1977, the Secretary of Commerce promulgated regulations to set into motion "Round II" of the federal grant program. [Footnote 56] The regulations require that construction projects funded under the legislation must be performed under contracts awarded by competitive bidding, unless the federal administrator has made a determination that, in the circumstances relating to a particular project, some other method is in the public interest. Where competitive bidding is employed, the regulations echo the statute's requirement that contracts are to be awarded on the basis of the "lowest responsive bid submitted by a bidder meeting established criteria of responsibility," and they also restate the MBE requirement. [Footnote 57]EDA also has published guidelines devoted entirely to the administration of the MBE provision. The guidelines outline the obligations of the grantee to seek out all available, qualified, bona fide MBE's, to provide technical assistance as needed, to lower or waive bonding requirements where Page 448 U. S. 469 feasible, to solicit the aid of the Office of Minority Business Enterprise, the SBA, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process. [Footnote 58]EDA regulations contemplate that, as anticipated by Congress, most local public works projects will entail the award of a predominant prime contract, with the prime contractor assuming the above grantee obligations for fulfilling the 10% MBE requirement. [Footnote 59] The EDA guidelines specify that, when prime contractors are selected through competitive bidding, bids for the prime contract "shall be considered by the Grantee to be responsive only if at least 10 percent of the contract funds are to be expended for MBE's." [Footnote 60] The administrative program envisions that competitive incentive will motivate aspirant prime contractors to perform their obligations under the MBE provision so as to qualify as "responsive" bidders. And, since the contract is to be awarded to the lowest responsive bidder, the same incentive is expected to motivate prime contractors to seek out the most competitive of the available, qualified, bona fide minority firms. This too is consistent with the legislative intention. [Footnote 61]The EDA guidelines also outline the projected administration of applications for waiver of the 10% MBE requirement, which may be sought by the grantee either before or during the bidding process. [Footnote 62] The Technical Bulletin issued by EDA discusses in greater detail the processing of waiver requests, clarifying certain issues left open by the guidelines. It specifies that waivers may be total or partial, depending on Page 448 U. S. 470 the circumstances, [Footnote 63] and it illustrates the projected operation of the waiver procedure by posing hypothetical questions with projected administrative responses. One such hypothetical is of particular interest, for it indicates the limitations on the scope of the racial or ethnic preference contemplated by the federal program when a grantee or its prime contractor is confronted with an available, qualified, bona fide minority business enterprise who is not the lowest competitive bidder. The hypothetical provides: [Footnote 64]"Question: Should a request for waiver of the 10% requirement based on an unreasonable price asked by an MBE ever be granted?""Answer: It is possible to imagine situations where an MBE might ask a price for its product or services that is unreasonable and where, therefore, a waiver is justified. However, before a waiver request will be honored, the following determinations will be made:""a) The MBE's quote is unreasonably priced. This determination should be based on the nature of the product or service of the subcontractor, the geographic location of the site and of the subcontractor, prices of similar products or services in the relevant market area, and general business conditions in the market area. Furthermore, a subcontractor's price should not be considered unreasonable if he is merely trying to cover his costs because the price results from disadvantage which affects the MBE's cost of doing business or results from discrimination.""b) The contractor has contacted other MBEs and has no meaningful choice but to accept an unreasonably high price."This announced policy makes clear the administrative understanding that a waiver or partial waiver is justified (and will Page 448 U. S. 471 be granted) to avoid subcontracting with a minority business enterprise at an "unreasonable" price, i.e., a price above competitive levels which cannot be attributed to the minority firm's attempt to cover costs inflated by the present effects of disadvantage or discrimination.This administrative approach is consistent with the legislative intention. It will be recalled that, in the Report of the House Subcommittee on SBA Oversight and Minority Enterprise, the Subcommittee took special care to note that, when using the term "minority," it intended to include "only such minority individuals as are considered to be economically or socially disadvantaged." [Footnote 65] The Subcommittee also was cognizant of existing administrative regulations designed to ensure that firms maintained on the lists of bona fide minority business enterprises be those whose competitive position is impaired by the effects of disadvantage and discrimination. In its Report, the Subcommittee expressed its intention that these criteria continue to govern administration of the SBA's § 8(a) program. [Footnote 66] The sponsors of the MBE provision, in their reliance on prior administrative practice, intended that the term "minority business enterprise" would be given that same limited application; this even found expression in the legislative debates, where Representative Roe made the point: [Footnote 67]"[W]hen we are talking about companies held by minority groups . . . [c]ertainly people of a variety of backgrounds are included in that. That is not really a measurement. They are talking about people in the minority and deprived."The EDA Technical Bulletin provides other elaboration of the MBE provision. It clarifies the definition of "minority Page 448 U. S. 472 group members." [Footnote 68] It also indicates EDA's intention"to allow credit for utilization of MBEs only for those contracts in which involvement constitutes a basis for strengthening the long-term and continuing participation of the MBE in the construction and related industries. [Footnote 69]"Finally, the Bulletin outlines a procedure for the processing of complaints of "unjust participation by an enterprise or individuals in the MBE program," or of improper administration of the MBE requirement. [Footnote 70]IIIWhen we are required to pass on the constitutionality of an Act of Congress, we assume "the gravest and most delicate duty that this Court is called on to perform." Blodgett v. Holden, 275 U. S. 142, 275 U. S. 148 (1927) (opinion of Holmes, J.). A program that employs racial or ethnic criteria, even in a remedial context, calls for close examination; yet we are bound to approach our task with appropriate deference to the Congress, a coequal 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. Art. I, § 8, cl. 1; Amdt. 14, § 5. In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 102 (1973), we accorded "great weight to the decisions of Congress" even though the legislation implicated fundamental constitutional rights guaranteed by the First Amendment. The rule is not different when a congressional program raises equal protection concerns. See, e.g., Cleland v. National College of Business, 435 U. S. 213 (1978); Mathews v. De Castro, 429 U. S. 181 (1976). Page 448 U. S. 473Here we pass, not on a choice made by a single judge or a school board, but on a considered decision of the Congress and the President. However, in no sense does that render it immune from judicial scrutiny, and it "is not to say we defer' to the judgment of the Congress . . . on a constitutional question," or that we would hesitate to invoke the Constitution should we determine that Congress has overstepped the bounds of its constitutional power. Columbia Broadcasting, supra at 412 U. S. 103.The clear objective of the MBE provision is disclosed by our necessarily extended review of its legislative and administrative background. The program was designed to ensure that, to the extent federal funds were granted under the Public Works Employment Act of 1977, grantees who elect to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. The MBE program does not mandate the allocation of federal funds according to inflexible percentages solely based on race or ethnicity.Our analysis proceeds in two steps. At the outset, we must inquire whether the objectives of this legislation are within the power of Congress. If so, we must go on to decide whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives and does not violate the equal protection component of the Due Process Clause of the Fifth Amendment.A(1)In enacting the MBE provision, it is clear that Congress employed an amalgam of its specifically delegated powers. The Public Works Employment Act of 1977, by its very nature, is primarily an exercise of the Spending Power. U.S. Page 448 U. S. 474 Const., Art. I, 8, cl. 1. This Court has recognized that the power to "provide for the . . . general Welfare" is an independent grant of legislative authority, distinct from other broad congressional powers. Buckley v. Valeo, 424 U. S. 1, 424 U. S. 90-91 (1976); United States v. Butler, 297 U. S. 1, 297 U. S. 65-66 (1936). Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy. E.g., California Bankers Assn. v. Shultz, 416 U. S. 21 (1974); Lau v. Nichols, 414 U. S. 563 (1974); Oklahoma v. CSC, 330 U. S. 127 (1947); Helvering v. Davis, 301 U. S. 619 (1937); Steward Machine Co. v. Davis, 301 U. S. 548 (1937).The MBE program is structured within this familiar legislative pattern. The program conditions receipt of public works grants upon agreement by the state or local governmental grantee that at least 10% of the federal funds will be devoted to contracts with minority businesses, to the extent this can be accomplished by overcoming barriers to access and by awarding contracts to bona fide MBE's. It is further conditioned to require that MBE bids on these contracts are competitively priced, or might have been competitively priced but for the present effects of prior discrimination. Admittedly, the problems of administering this program with respect to these conditions may be formidable. Although the primary responsibility for ensuring minority participation falls upon the grantee, when the procurement practices of the grantee involve the award of a prime contract to a general or prime contractor, the obligations to assure minority participation devolve upon the private contracting party; this is a contractual condition of eligibility for award of the prime contract. Page 448 U. S. 475Here we need not explore the outermost limitations on the objectives attainable through such an application of the Spending Power. The reach of the Spending Power, within its sphere, is at least as broad as the regulatory powers of Congress. If, pursuant to its regulatory powers, Congress could have achieved the objectives of the MBE program, then it may do so under the Spending Power. And we have no difficulty perceiving a basis for accomplishing the objectives of the MBE program through the Commerce Power insofar as the program objectives pertain to the action of private contracting parties, and through the power to enforce the equal protection guarantees of the Fourteenth Amendment insofar as the program objectives pertain to the action of state and local grantees.(2)We turn first to the Commerce Power. U.S.Const., Art. I, § 8, cl. 3. Had Congress chosen to do so, it could have drawn on the Commerce Clause to regulate the practices of prime contractors on federally funded public works projects. Katzenbach v. McClung, 379 U. S. 294 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964). The legislative history of the MBE provision shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Thus, Congress could take necessary and proper action to remedy the situation. Ibid.It is not necessary that these prime contractors be shown responsible for any violation of antidiscrimination laws. Our cases dealing with application of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, express no doubt of the congressional authority to prohibit practices "challenged as perpetuating the effects of [not unlawful] discrimination occurring prior to the effective date of the Act." Franks v. Page 448 U. S. 476 Bowman Transportation Co., 424 U. S. 747, 424 U. S. 761 (1976); see California Brewers Assn. v. Bryant, 444 U. S. 598 (1980); Teamsters v. United States, 431 U. S. 324 (1977); Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975); Griggs v. Duke Power Co., 401 U. S. 424 (1971). Insofar as the MBE program pertains to the actions of private prime contractors, the Congress could have achieved its objectives under the Commerce Clause. We conclude that, in this respect, the objectives of the MBE provision are within the scope of the Spending Power.(3)In certain contexts, there are limitations on the reach of the Commerce Power to regulate the actions of state and local governments. National League of Cities v. Usery, 426 U. S. 833 (1976). To avoid such complications, we look to § 5 of the Fourteenth Amendment for the power to regulate the procurement practices of state and local grantees of federal funds. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). A review of our cases persuades us that the objectives of the MBE program are within the power of Congress under § 5 "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment.In Katzenbach v. Morgan, 384 U. S. 641 (1966), we equated the scope of this authority with the broad powers expressed in the Necessary and Proper Clause, U.S.Const., Art. I, § 8, cl. 18."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."384 U.S. at 384 U. S. 651. In Katzenbach, the Court upheld § 4(e) of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C.1973b(e), which prohibited application of state English language literacy requirements to otherwise qualified voters who had completed the sixth grade in an accredited American school in Page 448 U. S. 477 which a language other than English was the predominant medium of instruction. To uphold this exercise of congressional authority, the Court found no prerequisite that application of a literacy requirement violate the Equal Protection Clause. 384 U.S. at 384 U. S. 648-649. It was enough that the Court could perceive a basis upon which Congress could reasonably predicate a judgment that application of literacy qualifications within the compass of § 4(e) would discriminate in terms of access to the ballot and consequently in terms of access to the provision or administration of governmental programs. Id. at 384 U. S. 652-653.Four years later, in Oregon v. Mitchell, 400 U. S. 112 (1970), we upheld § 201 of the Voting Rights Act Amendments of 1970, 84 Stat. 315, which imposed a 5-year nationwide prohibition on the use of various voter-qualification tests and devices in federal, state, and local elections. The Court was unanimous, albeit in separate opinions, in concluding that Congress was within its authority to prohibit the use of such voter qualifications; Congress could reasonably determine that its legislation was an appropriate method of attacking the perpetuation of prior purposeful discrimination, even though the use of these tests or devices might have discriminatory effects only. See City of Rome v. United States, 446 U. S. 156, 446 U. S. 176-177 (1980). Our cases reviewing the parallel power of Congress to enforce the provisions of the Fifteenth Amendment, U.S.Const., Amdt. 15, § 2, confirm that congressional authority extends beyond the prohibition of purposeful discrimination to encompass state action that has discriminatory impact perpetuating the effects of past discrimination. South Carolina v. Katzenbach, 383 U. S. 301 (1966); cf. City of Rome, supra.With respect to the MBE provision, Congress had abundant evidence from which it could conclude that minority businesses have been denied effective participation in public contracting opportunities by procurement practices that perpetuated Page 448 U. S. 478 the effects of prior discrimination. Congress, of course, may legislate without compiling the kind of "record" appropriate with respect to judicial or administrative proceedings. Congress had before it, among other data, evidence of a long history of marked disparity in the percentage of public contracts awarded to minority business enterprises. This disparity was considered to result not from any lack of capable and qualified minority businesses, but from the existence and maintenance of barriers to competitive access which had their roots in racial and ethnic discrimination, and which continue today, even absent any intentional discrimination or other unlawful conduct. Although much of this history related to the experience of minority businesses in the area of federal procurement, there was direct evidence before the Congress that this pattern of disadvantage and discrimination existed with respect to state and local construction contracting as well. In relation to the MBE provision, Congress acted within its competence to determine that the problem was national in scope.Although the Act recites no preambulary "findings" on the subject, we are satisfied that Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination. Accordingly, Congress reasonably determined that the prospective elimination of these barriers to minority firm access to public contracting opportunities generated by the 1977 Act was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under § 5 of the Fourteenth Amendment. We conclude that, in this respect, the objectives of the MBE provision are within the scope of the Spending Power. Page 448 U. S. 479(4)There are relevant similarities between the MBE program and the federal spending program reviewed in Lau v. Nichols, 414 U. S. 563 (1974). In Lau, a language barrier "effectively foreclosed" non-English-speaking Chinese pupils from access to the educational opportunities offered by the San Francisco public school system. Id. at 414 U. S. 564-566. It had not been shown that this had resulted from any discrimination, purposeful or otherwise, or from other unlawful acts. Nevertheless, we upheld the constitutionality of a federal regulation applicable to public school systems receiving federal funds that prohibited the utilization of"criteria or methods of administration which have the effect . . . of defeating or substantially impairing accomplishment of the objectives of the [educational] program as respect individuals of a particular race, color, or national origin."Id. at 414 U. S. 568 (emphasis added). Moreover, we upheld application to the San Francisco school system, as a recipient of federal funds, of a requirement that,"[w]here inability to speak and understand the English language excludes national origin minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students."Ibid.It is true that the MBE provision differs from the program approved in Lau in that the MBE program directly employs racial and ethnic criteria as a means to accomplish congressional objectives; however, these objectives are essentially the same as those approved in Lau. Our holding in Lau is instructive on the exercise of congressional authority by way of the MBE provision. The MBE program, like the federal regulations reviewed in Lau, primarily regulates state action in the use of federal funds voluntarily sought and accepted by the grantees subject to statutory and administrative conditions. The MBE participation requirement is directed at Page 448 U. S. 480 the utilization of criteria, methods, or practices thought by Congress to have the effect of defeating, or substantially impairing, access by the minority business community to public funds made available by congressional appropriations.BWe now turn to the question whether, as a means to accomplish these plainly constitutional objectives, Congress may use racial and ethnic criteria, in this limited way, as a condition attached to a federal grant. We are mindful that"[i]n no matter should we pay more deference to the opinion of Congress than in its choice of instrumentalities to perform a function that is within its power,"National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U. S. 582, 337 U. S. 603 (1949) (opinion of Jackson, J.). However, Congress may employ racial or ethnic classifications in exercising its Spending or other legislative powers only if those classifications do not violate the equal protection component of the Due Process Clause of the Fifth Amendment. We recognize the need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal.Again, we stress the limited scope of our inquiry. Here we are not dealing with a remedial decree of a court, but with the legislative authority of Congress. Furthermore, petitioners have challenged the constitutionality of the MBE provision on its face; they have not sought damages or other specific relief for injury allegedly flowing from specific applications of the program; nor have they attempted to show that, as applied in identified situations, the MBE provision violated the constitutional or statutory rights of any party to this case. [Footnote 71] In Page 448 U. S. 481 these circumstances, given a reasonable construction and in light of its projected administration, if we find the MBE program, on its face, to be free of constitutional defects, it must be upheld as within congressional power. Parker v. Levy, 417 U. S. 733, 417 U. S. 760 (1974); Fortson v. Dorsey, 379 U. S. 433, 379 U. S. 438-439 (1965); Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 515 (1964); see United States v. Raines, 362 U. S. 17, 362 U. S. 20-24 (1960).Our review of the regulations and guidelines governing administration of the MBE provision reveals that Congress enacted the program as a strictly remedial measure; moreover, it is a remedy that functions prospectively, in the manner of an injunctive decree. Pursuant to the administrative program, grantees and their prime contractors are required to seek out all available, qualified, bona fide MBE's; they are required to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the SBA, or other sources for assisting MBE's to obtain required working capital, and to give guidance through the intricacies of the bidding process. Supra at 448 U. S. 468-469. The program assumes that grantees who undertake these efforts in good faith will obtain at least 10% participation by minority business enterprises. It is recognized that, to achieve this target, contracts will be awarded to available qualified bona fide MBE's even though they are not the lowest competitive bidders, so long as their higher bids, when challenged, are found to reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination. Supra at 448 U. S. 470-471. There is available to the grantee a provision authorized by Congress for administrative waiver on Page 448 U. S. 482 a case-by-case basis should there be a demonstration that, despite affirmative efforts, this level of participation cannot be achieved without departing from the objectives of the program. Supra at 448 U. S. 469-470. There is also an administrative mechanism, including a complaint procedure, to ensure that only bona fide MBE's are encompassed by the remedial program, and to prevent unjust participation in the program by those minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination. Supra at 448 U. S. 471-472.(1)As a threshold matter, we reject the contention that, in the remedial context, the Congress must act in a wholly "color-blind" fashion. In Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 402 U. S. 18-21 (1971), we rejected this argument in considering a court-formulated school desegregation remedy on the basis that examination of the racial composition of student bodies was an unavoidable starting point, and that racially based attendance assignments were permissible so long as no absolute racial balance of each school was required. In McDaniel v. Barresi, 402 U. S. 39, 402 U. S. 41 (1971), citing Swann, we observed:"In this remedial process, steps will almost invariably require that students be assigned 'differently because of their race.' Any other approach would freeze the status quo that is the very target of all desegregation processes."(Citations omitted.) And in North Carolina Board of Education v. Swann, 402 U. S. 43 (1971), we invalidated a state law that absolutely forbade assignment of any student on account of race, because it foreclosed implementation of desegregation plans that were designed to remedy constitutional violations. We held that"[j]ust as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy."Id. at 402 U. S. 46. Page 448 U. S. 483In these school desegregation cases we dealt with the authority of a federal court to formulate a remedy for unconstitutional racial discrimination. However, the authority of a court to incorporate racial criteria into a remedial decree also extends to statutory violations. Where federal antidiscrimination laws have been violated, an equitable remedy may, in the appropriate case, include a racial or ethnic factor. Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); see Teamsters v. United States, 431 U. S. 324 (1977); Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975). In another setting, we have held that a state may employ racial criteria that are reasonably necessary to assure compliance with federal voting rights legislation, even though the state action does not entail the remedy of a constitutional violation. United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144, 430 U. S. 147-165 (1977) (opinion of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.); id. at 430 U. S. 180-187 (BURGER, C.J., dissenting on other grounds).When we have discussed the remedial powers of a federal court, we have been alert to the limitation that"[t]he power of the federal courts to restructure the operation of local and state governmental entities 'is not plenary. . . .' [A] federal court is required to tailor 'the scope of the remedy' to fit the nature and extent of the . . . violation."Dayton Board of Education v. Brinkman, 433 U. S. 406, 433 U. S. 419-420 (1977) (quoting Milliken v. Bradley, 418 U. S. 717, 418 U. S. 738 (1974), and Swann v. Charlotte-Mecklenburg Board of Education, supra at 402 U. S. 16).Here we deal, as we noted earlier, not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees. Congress not only may induce voluntary action to assure compliance Page 448 U. S. 484 with existing federal statutory or constitutional antidiscrimination provisions, but also where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct. Supra at 448 U. S. 473-480.(2)A more specific challenge to the MBE program is the charge that it impermissibly deprives nonminority businesses of access to at least some portion of the government contracting opportunities generated by the Act. It must be conceded that, by its objective of remedying the historical impairment of access, the MBE provision can have the effect of awarding some contracts to MBE's which otherwise might be awarded to other businesses, who may themselves be innocent of any prior discriminatory actions. Failure of nonminority firms to receive certain contracts is, of course, an incidental consequence of the program, not part of its objective; similarly, past impairment of minority-firm access to public contracting opportunities may have been an incidental consequence of "business as usual" by public contracting agencies and among prime contractors.It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks, supra at 424 U. S. 777; see Albemarle Paper Co., supra; United Jewish Organizations, supra. The actual "burden" shouldered by nonminority firms is relatively light in this connection when we consider the scope of this public works program as compared with overall construction contracting opportunities. [Footnote 72] Moreover, although we may assume that the complaining Page 448 U. S. 485 parties are innocent of any discriminatory conduct, it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities.(3)Another challenge to the validity of the MBE program is the assertion that it is underinclusive -- that it limits its benefit to specified minority groups, rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Such an extension would, of course, be appropriate for Congress to provide; it is not a function for the courts.Even in this context, the well established concept that a legislature may take one step at a time to remedy only part of a broader problem is not without relevance. See Dandridge v. Williams, 397 U. S. 471 (1970); Williamson v. Lee Optical Co., 348 U. S. 483 (1955). We are not reviewing a federal program that seeks to confer a preferred status upon a nondisadvantaged minority or to give special assistance to only one of several groups established to be similarly disadvantaged minorities. Even in such a setting, the Congress is not without a certain authority. See, e.g., Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256 (1979); Califano v. Webster, 430 U. S. 313 (1977); Morton v Mancari, 417 U. S. 535 (1974).The Congress has not sought to give select minority groups a preferred standing in the construction industry, but has Page 448 U. S. 486 embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities. There has been no showing in this case that Congress has inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. It is not inconceivable that, on very special facts, a case might be made to challenge the congressional decision to limit MBE eligibility to the particular minority groups identified in the Act. See Vance v. Bradley, 440 U. S. 93, 440 U. S. 109-112 (1979); Oregon v. Mitchell, 400 U.S. at 400 U. S. 240 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.). But on this record, we find no basis to hold that Congress is without authority to undertake the kind of limited remedial effort represented by the MBE program. Congress, not the courts, has the heavy burden of dealing with a host of intractable economic and social problems(4)It is also contended that the MBE program is overinclusive -- that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination. It is conceivable that a particular application of the program may have this effect; however, the peculiarities of specific applications are not before us in this case. We are not presented here with a challenge involving a specific award of a construction contract or the denial of a waiver request; such questions of specific application must await future cases.This does not mean that the claim of overinclusiveness is entitled to no consideration in the present case. The history of governmental tolerance of practices using racial or ethnic criteria for the purpose or with the effect of imposing an invidious discrimination must alert us to the deleterious Page 448 U. S. 487 effects of even benign racial or ethnic classifications when they stray from narrow remedial justifications. Even in the context of a facial challenge such as is presented in this case, the MBE provision cannot pass muster unless, with due account for its administrative program, it provides a reasonable assurance that application of racial or ethnic criteria will be limited to accomplishing the remedial objectives of Congress, and that misapplications of the program will be promptly and adequately remedied administratively.It is significant that the administrative scheme provides for waiver and exemption. Two fundamental congressional assumptions underlie the MBE program: (1) that the present effects of past discrimination have impaired the competitive position of businesses owned and controlled by members of minority groups; and (2) that affirmative efforts to eliminate barriers to minority firm access, and to evaluate bids with adjustment for the present effects of past discrimination, would assure that at least 10% of the federal funds granted under the Public Works Employment Act of 1977 would be accounted for by contracts with available, qualified, bona fide minority business enterprises. Each of these assumptions may be rebutted in the administrative process.The administrative program contains measures to effectuate the congressional objective of assuring legitimate participation by disadvantaged MBE's. Administrative definition has tightened some less definite aspects of the statutory identification of the minority groups encompassed by the program. [Footnote 73] There is administrative scrutiny to identify and Page 448 U. S. 488 eliminate from participation in the program MBE's who are not "bona fide" within the regulations and guidelines; for example, spurious minority-front entities can be exposed. A significant aspect of this surveillance is the complaint procedure available for reporting "unjust participation by an enterprise or individuals in the MBE program." Supra at 448 U. S. 472. And even as to specific contract awards, waiver is available to avoid dealing with an MBE who is attempting to exploit the remedial aspects of the program by charging an unreasonable price, i.e., a price not attributable to the present effects of past discrimination. Supra at 448 U. S. 469-471. We must assume that Congress intended close scrutiny of false claims and prompt action on them.Grantees are given the opportunity to demonstrate that their best efforts will not succeed or have not succeeded in achieving the statutory 10% target for minority firm participation within the limitations of the program's remedial objectives. In these circumstances, a waiver or partial waiver is available once compliance has been demonstrated. A waiver may be sought and granted at any time during the contracting process, or even prior to letting contracts, if the facts warrant. Page 448 U. S. 489Nor is the program defective because a waiver may be sought only by the grantee, and not by prime contractors who may experience difficulty in fulfilling contract obligations to assure minority participation. It may be administratively cumbersome, but the wisdom of concentrating responsibility at the grantee level is not for us to evaluate; the purpose is to allow the EDA to maintain close supervision of the operation of the MBE provision. The administrative complaint mechanism allows for grievances of prime contractors who assert that a grantee has failed to seek a waiver in an appropriate case. Finally, we note that, where private parties, as opposed to governmental entities, transgress the limitations inherent in the MBE program, the possibility of constitutional violation is more removed. See Steelworkers v. Weber, 443 U. S. 193, 443 U. S. 20 (1979).That the use of racial and ethnic criteria is premised on assumptions rebuttable in the administrative process gives reasonable assurance that application of the MBE program will be limited to accomplishing the remedial objectives contemplated by Congress, and that misapplications of the racial and ethnic criteria can be remedied. In dealing with this facial challenge to the statute, doubts must be resolved in support of the congressional judgment that this limited program is a necessary step to effectuate the constitutional mandate for equality of economic opportunity. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration, and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment. [Footnote 74] Miscarriages of administration could have only a transitory economic impact on businesses not encompassed by the program, and would not be irremediable. Page 448 U. S. 490IVCongress, after due consideration, perceived a pressing need to move forward with new approaches in the continuing effort to achieve the goal of equality of economic opportunity. In this effort, Congress has necessary latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives; this is especially so in programs where voluntary cooperation with remedial measures is induced by placing conditions on federal expenditures. That the program may press the outer limits of congressional authority affords no basis for striking it down.Petitioners have mounted a facial challenge to a program developed by the politically responsive branches of Government. For its part, the Congress must proceed only with programs narrowly tailored to achieve its objectives, subject to continuing evaluation and reassessment; administration of the programs must be vigilant and flexible; and, when such a program comes under judicial review, courts must be satisfied that the legislative objectives and projected administration give reasonable assurance that the program will function within constitutional limitations. But as Mr. Justice Jackson admonished in a different context in 1941: [Footnote 75]"The Supreme Court can maintain itself and succeed in its tasks only if the counsels of self-restraint urged most earnestly by members of the Court itself are humbly and faithfully heeded. After the forces of conservatism and liberalism, of radicalism and reaction, of emotion and of self-interest are all caught up in the legislative process and averaged and come to rest in some compromise measure such as the Missouri Compromise, the N.R.A. the A.A.A., a minimum wage law, or some other legislative policy, a decision striking it down closes an area of compromise in which conflicts have actually, if only Page 448 U. S. 491 temporarily, been composed. Each such decision takes away from our democratic federalism another of its defenses against domestic disorder and violence. The vice of judicial supremacy, as exerted for ninety years in the field of policy, has been its progressive closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts."Mr. Justice Jackson reiterated these thoughts shortly before his death in what was to be the last of his Godkin Lectures: [Footnote 76]"I have said that, in these matters, the Court must respect the limitations on its own powers, because judicial usurpation is to me no more justifiable and no more promising of permanent good to the country than any other kind. So I presuppose a Court that will not depart from the judicial process, will not go beyond resolving cases and controversies brought to it in conventional form, and will not consciously encroach upon the functions of its coordinate branches."In a different context, to be sure, that is, in discussing the latitude which should be allowed to states in trying to meet social and economic problems, Mr. Justice Brandeis had this to say:"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation."New State Ice Co. v. Liebmann, 285 U. S. 262, 285 U. S. 311 (1932) (dissenting opinion).Any 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. This case is one which requires, and which has received, that kind Page 448 U. S. 492 of examination. This opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as University of California Regents v. Bakke, 438 U. S. 265 (1978). However, our analysis demonstrates that the MBE provision would survive judicial review under either "test" articulated in the several Bakke opinions. The MBE provision of the Public Works Employment Act of 1977 does not violate the Constitution. [Footnote 77]Affirmed

U.S. Supreme CourtFullilove v. Klutznick, 448 U.S. 448 (1980)Fullilove v. KlutznickNo. 78-1007Argued November 27, 1979Decided July 2, 1980448 U.S. 448SyllabusThe "minority business enterprise" (MBE) provision of the Public Works Employment Act of 1977 (1977 Act) requires that, absent an administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members, defined as United States citizens "who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Under implementing regulations and guidelines, grantees and their private prime contractors are required, to the extent feasible, in fulfilling the 10% MBE requirement, to seek out all available, qualified, bona fide MBE's, to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the Small Business Administration, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process. The administrative program, which recognizes that contracts will be awarded to bona fide MBE's even though they are not the lowest bidders if their bids reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination, provides for handling grantee applications for administrative waiver of the 10% MBE requirement on a case-by-case basis if infeasibility is demonstrated by a showing that, despite affirmative efforts, such level of participation cannot be achieved without departing from the program's objectives. The program also provides an administrative mechanism to ensure that only bona fide MBE's are encompassed by the program, and to prevent unjust participation by minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination.Petitioners, several associations of construction contractors and subcontractors and a firm engaged in heating, ventilation, and air conditioning work, filed suit for declaratory and injunctive relief in Federal District Court, alleging that they had sustained economic injury due to enforcement of the MBE requirement, and that the MBE provision, on its face, violated, inter alia, the Equal Protection Clause of the Fourteenth Page 448 U. S. 449 Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment. The District Court upheld the validity of the MBE program, and the Court of Appeals affirmed.Held: The judgment is affirmed. Pp. 448 U. S. 456-492; 448 U. S. 517-522.584 F.2d 600, affirmed.MR. CHIEF .JUSTICE BURGER, joined by MR. JUSTICE WHITE and MR. JUSTICE POWELL, concluded that the MBE provision of the 1977 Act, on its face, does not violate the Constitution. Pp. 448 U. S. 456-492.(a) Viewed against the legislative and administrative background of the 1977 Act, the legislative objectives of the MBE provision and of the administrative program thereunder were to ensure -- without mandating the allocation of federal funds according to inflexible percentages solely based on race or ethnicity -- that, to the extent federal funds were granted under the 1977 Act, grantees who elected to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. Pp. 448 U. S. 456-472.(b) In considering the constitutionality of the MBE provision, it first must be determined whether the objectives of the legislation are within Congress' power. Pp. 448 U. S. 472-480.(i) The 1977 Act, as primarily an exercise of Congress' Spending Power under Art. I, § 8, cl. 1, "to provide for the . . . general Welfare," conditions receipt of federal moneys upon the receipt's compliance with federal statutory and administrative directives. Since the reach of the Spending Power is at least as broad as Congress' regulatory powers, if Congress, pursuant to its regulatory powers, could have achieved the objectives of the MBE program, then it may do so under the Spending Power. Pp. 448 U. S. 473-475(ii) Insofar as the MBE program pertains to the actions of private prime contractors, including those not responsible for any violation of antidiscrimination laws, Congress could have achieved its objectives under the Commerce Clause. The legislative history shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Pp. 448 U. S. 475-476.(iii) Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under § 5 of the Fourteenth Amendment "to enforce, by appropriate legislation" the equal protection guarantee of that Amendment. Congress had abundant historical basis from which it could conclude Page 448 U. S. 450 that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination, and that the prospective elimination of such barriers to minority-firm access to public contracting opportunities was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Cf., e.g., Katzenbach v. Morgan, 384 U. S. 641; Oregon v. Mitchell, 400 U. S. 112. Pp. 448 U.S. 476-478.(iv) Thus, the objectives of the MBE provision are within the scope of Congress' Spending Power. Cf. Lau v. Nichols, 414 U. S. 563. Pp. 448 U. S. 479-480.(c) Congress' use here of racial and ethnic criteria as a condition attached to a federal grant is a valid means to accomplish its constitutional objectives, and the MBE provision, on its face, does not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 448 U. S. 480-492.(i) In the MBE program's remedial context, there is no requirement that Congress act in a wholly "color-blind" fashion. Cf., e.g., Swann v. Charlotte-Mecklenberg Board of Education, 402 U. S. 1; McDaniel v. Barresi, 402 U. S. 39; North Carolina Board of Education v. Swann, 402 U. S. 43. Pp. 448 U. S. 482-484.(ii) The MBE program is not constitutionally defective because it may disappoint the expectations of access to a portion of government contracting opportunities of nonminority firms who may themselves be innocent of any prior discriminatory actions. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 777. Pp. 448 U. S. 484-485.(iii) Nor is the MBE program invalid as being underinclusive in that it limits its benefit to specified minority groups, rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities, and there has been no showing that Congress inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. Pp. 448 U. S. 485-486. Page 448 U. S. 451(iv) The contention that the MBE program, on its face, is overinclusive in that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination is also without merit. The MBE provision, with due account for its administrative program, provides a reasonable assurance that application of racial or ethnic criteria will be narrowly limited to accomplishing Congress' remedial objectives, and that misapplications of the program will be promptly and adequately remedied administratively. In particular, the administrative program provides waiver and exemption procedures to identify and eliminate from participation MBE's who are not "bona fide," or who attempt to exploit the remedial aspects of the program by charging an unreasonable price not attributable to the present effects of past discrimination. Moreover, grantees may obtain a waiver if they demonstrate that their best efforts will not achieve or have not achieved the 10% target for minority firm participation within the limitations of the program's remedial objectives. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment. Pp. 448 U. S. 486-489.(d) In the continuing effort to achieve the goal of equality of economic opportunity, Congress has latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives, especially in programs where voluntary cooperation is induced by placing conditions on federal expenditures. When a program narrowly tailored by Congress to achieve its objectives comes under judicial review, it should be upheld if the courts are satisfied that the legislative objectives and projected administration of the program give reasonable assurance that the program will function within constitutional limitations. Pp. 448 U. S. 490-492.MR. JUSTICE MARSHALL, joined by MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN, concurring in the judgment, concluded that the proper inquiry for determining the constitutionality of racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination is whether the classifications serve important governmental objectives and are substantially related to achievement of those objectives, University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 359 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., concurring in judgment in part and dissenting in part), and that, judged under this standard, the 10% minority set-aside provision of the 1977 Act is plainly constitutional, the racial classifications being substantially related to the achievement of the important and Page 448 U. S. 452 congressionally articulated goal of remedying the present effects of past racial discrimination. Pp. 448 U. S. 517-521.BURGER, C.J., announced the judgment of the Court and delivered an opinion, in which WHITE and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 448 U. S. 495. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN and BLACKMUN, J.J., joined, post p. 448 U. S. 517. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 448 U. S. 522. STEVENS, J., filed a dissenting opinion, post, p. 448 U. S. 532. Page 448 U. S. 453

1976_75-616

MR. JUSTICE POWELL delivered the opinion of the Court.In 1971, respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner, the Village of Arlington Heights, Ill., for the rezoning of a 15-acre parcel from single-family to multiple family classification. Using federal financial assistance, MHDC planned to build 190 clustered townhouse units for low- and moderate-income tenants. The Village denied the rezoning request. MHDC, joined by other plaintiffs who are also respondents here, brought suit in the United States District Court for the Northern District of Illinois. [Footnote 1] They alleged that the denial was racially discriminatory and that it violated, inter alia, the Fourteenth Amendment and the Fair Housing Act of 1968, 82 Stat. 81, 42 U.S.C. 3601 et seq. Following a bench trial, the District Court entered judgment for the Village, 373 F. Supp. 208 (1974), and respondents appealed. The Court of Appeals for the Seventh Circuit reversed, finding that the "ultimate effect" of the denial was racially discriminatory, and that the refusal to rezone therefore violated the Fourteenth Amendment. 517 F.2d 409 (1975). We granted Page 429 U. S. 255 the Village's petition for certiorari, 423 U.S. 1030 (1975), and now reverse.IArlington Heights is a suburb of Chicago, located about 26 miles northwest of the downtown Loop area. Most of the land in Arlington Heights is zoned for detached single-family homes, and this is in fact the prevailing land use. The Village experienced substantial growth during the 1960's, but, like other communities in northwest Cook County, its population of racial minority groups remained quite low. According to the 1970 census, only 27 of the Village's 64,000 residents were black.The Clerics of St. Viator, a religious order (Order), own an 80-acre parcel just east of the center of Arlington Heights. Part of the site is occupied by the Viatorian high school, and part by the Order's three-story novitiate building, which houses dormitories and a Montessori school. Much of the site, however, remains vacant. Since 1959, when the Village first adopted a zoning ordinance, all the land surrounding the Viatorian property has been zoned R-3, a single-family specification with relatively small minimum lot-size requirements. On three sides of the Viatorian land there are single-family homes just across a street; to the east, the Viatorian property directly adjoins the backyards of other single-family homes.The Order decided in 1970 to devote some of its land to low- and moderate-income housing. Investigation revealed that the most expeditious way to build such housing was to work through a nonprofit developer experienced in the use of federal housing subsidies under § 236 of the National Housing Act, 48 Stat. 1246, as added and amended, 12 U.S.C. § 17I5z-1. [Footnote 2] Page 429 U. S. 256MHDC is such a developer. It was organized in 1968 by several prominent Chicago citizens for the purpose of building low- and moderate-income housing throughout the Chicago area. In 1970, MHDC was in the process of building one § 236 development near Arlington Heights, and already had provided some federally assisted housing on a smaller scale in other parts of the Chicago area.After some negotiation, MHDC and the Order entered into a 99-year lease and an accompanying agreement of sale covering a 15-acre site in the southeast corner of the Viatorian property. MHDC became the lessee immediately, but the sale agreement was contingent upon MHDC's securing zoning clearances from the Village and § 236 housing assistance from the Federal Government. If MHDC proved unsuccessful in securing either, both the lease and the contract of sale would lapse. The agreement established a bargain purchase price of $300,000, low enough to comply with federal limitations governing land-acquisition costs for § 236 housing.MHDC engaged an architect and proceeded with the project, Page 429 U. S. 257 to be known as Lincoln Green. The plans called for 20 two-story buildings with a total of 190 units, each unit having its own private entrance from the outside. One hundred of the units would have a single bedroom, thought likely to attract elderly citizens. The remainder would have two, three, or four bedrooms. A large portion of the site would remain open, with shrubs and trees to screen the homes abutting the property to the east.The planned development did not conform to the Village's zoning ordinance, and could not be built unless Arlington Heights rezoned the parcel to R-5, its multiple family housing classification. Accordingly, MHDC filed with the Village Plan Commission a petition for rezoning, accompanied by supporting materials describing the development and specifying that it would be subsidized under § 236. The materials made clear that one requirement under § 236 is an affirmative marketing plan designed to assure that a subsidized development is racially integrated. MHDC also submitted studies demonstrating the need for housing of this type and analyzing the probable impact of the development. To prepare for the hearings before the Plan Commission and to assure compliance with the Village building code, fire regulations, and related requirements, MHDC consulted with the Village staff for preliminary review of the development. The parties have stipulated that every change recommended during such consultations was incorporated into the plans.During the spring of 1971, the Plan Commission considered the proposal at a series of three public meetings, which drew large crowds. Although many of those attending were quite vocal and demonstrative in opposition to Lincoln Green, a number of individuals and representatives of community groups spoke in support of rezoning. Some of the comments, both from opponents and supporters, addressed what was referred to as the "social issue" -- the desirability or undesirability of introducing at this location in Arlington Heights Page 429 U. S. 258 low- and moderate income housing, housing that would probably be racially integrated.Many of the opponents, however, focused on the zoning aspects of the petition, stressing two arguments. First, the area always had been zoned single-family, and the neighboring citizens had built or purchased there in reliance on that classification. Rezoning threatened to cause a measurable drop in property value for neighboring sites. Second, the Village's apartment policy, adopted by the Village Board in 1962 and amended in 1970, called for R-5 zoning primarily to serve as a buffer between single-family development and land uses thought incompatible, such as commercial or manufacturing districts. Lincoln Green did not meet this requirement, as it adjoined no commercial or manufacturing district.At the close of the third meeting, the Plan Commission adopted a motion to recommend to the Village's Board of Trustees that it deny the request. The motion stated:"While the need for low and moderate income housing may exist in Arlington Heights or its environs, the Plan Commission would be derelict in recommending it at the proposed location."Two members voted against the motion and submitted a minority report, stressing that, in their view, the change to accommodate Lincoln Green represented "good zoning." The Village Board met on September 28, 1971, to consider MHDC's request and the recommendation of the Plan Commission. After a public hearing, the Board denied the rezoning by a 6-1 vote.The following June, MHDC and three Negro individuals filed this lawsuit against the Village, seeking declaratory and injunctive relief. [Footnote 3] A second nonprofit corporation and an individual of Mexican-American descent intervened as plaintiffs. Page 429 U. S. 259 The trial resulted in a judgment for petitioners. Assuming that MHDC had standing to bring the suit, [Footnote 4] the District Court held that the petitioners were not motivated by racial discrimination or intent to discriminate against low income groups when they denied rezoning, but rather by a desire "to protect property values and the integrity of the Village's zoning plan." 373 F. Supp. at 211. The District Court concluded also that the denial would not have a racially discriminatory effect.A divided Court of Appeals reversed. It first approved the District Court's finding that the defendants were motivated by a concern for the integrity of the zoning plan, rather than by racial discrimination. Deciding whether their refusal to rezone would have discriminatory effects was more complex. The court observed that the refusal would have a disproportionate impact on blacks. Based upon family income, blacks constituted 40% of those Chicago area residents who were eligible to become tenants of Lincoln Green, although they composed a far lower percentage of total area population. The court reasoned, however, that, under our decision in James v. Valtierra, 402 U. S. 137 (1971), such a disparity in racial impact alone does not call for strict scrutiny of a municipality's decision that prevents the construction of the low-cost housing. [Footnote 5]There was another level to the court's analysis of allegedly discriminatory results. Invoking language from Kennedy Park Homes Assn. v. City of Lackawanna, 436 F.2d 108, Page 429 U. S. 260 112 (CA2 1970), cert. denied, 401 U.S. 1010 (1971), the Court of Appeals ruled that the denial of rezoning must be examined in light of its "historical context and ultimate effect." [Footnote 6] 517 F.2d at 413. Northwest Cook County was enjoying rapid growth in employment opportunities and population, but it continued to exhibit a high degree of residential segregation. The court held that Arlington Heights could not simply ignore this problem. Indeed, it found that the Village had been "exploiting" the situation by allowing itself to become a nearly all-white community. Id. at 414. The Village had no other current plans for building low- and moderate-income housing, and no other R-5 parcels in the Village were available to MHDC at an economically feasible price.Against this background, the Court of Appeals ruled that the denial of the Lincoln Green proposal had racially discriminatory effects and could be tolerated only if it served compelling interests. Neither the buffer policy nor the desire to protect property values met this exacting standard. The court therefore concluded that the denial violated the Equal Protection Clause of the Fourteenth Amendment.IIAt the outset, petitioners challenge the respondents' standing to bring the suit. It is not clear that this challenge was pressed in the Court of Appeals, but since our jurisdiction to decide the case is implicated, Jenkins v. McKeithen, 395 U. S. 411, 395 U. S. 421 (1969) (plurality opinion), we shall consider it.In Warth v. Seldin, 422 U. S. 490 (1975), a case similar in some respects to this one, we reviewed the constitutional limitations and prudential considerations that guide a court in determining a party's standing, and we need not repeat that discussion here. The essence of the standing question, Page 429 U. S. 261 in its constitutional dimension, is"whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf."Id. at 422 U. S. 498-499, quoting Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962). The plaintiff must show that he himself is injured by the challenged action of the defendant. The injury may be indirect, see United States v. SCRAP, 412 U. S. 669, 412 U. S. 688 (1973), but the complaint must indicate that the injury is indeed fairly traceable to the defendant's acts or omissions. Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 426 U. S. 41-42 (1976); O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 498 (1974); Linda R. S. v. Richard D., 410 U. S. 614, 410 U. S. 617 (1973).AHere there can be little doubt that MHDC meets the constitutional standing requirements. The challenged action of the petitioners stands as an absolute barrier to constructing the housing MHDC had contracted to place on the Viatorian site. If MHDC secures the injunctive relief it seeks, that barrier will be removed. An injunction would not, of course, guarantee that Lincoln Green will be built. MHDC would still have to secure financing, qualify for federal subsidies, [Footnote 7] and carry through with construction. But all housing developments are subject to some extent to similar uncertainties. When a project is as detailed and specific as Lincoln Green, a court is not required to engage in undue speculation Page 429 U. S. 262 as a predicate for finding that the plaintiff has the requisite personal stake in the controversy. MHDC has shown an injury to itself that is "likely to be redressed by a favorable decision." Simon v. Eastern Ky. Welfare Rights Org., supra at 426 U. S. 38.Petitioners nonetheless appear to argue that MHDC lacks standing because it has suffered no economic injury. MHDC, they point out, is not the owner of the property in question. Its contract of purchase is contingent upon securing rezoning. [Footnote 8] MHDC owes the owners nothing if rezoning is denied.We cannot accept petitioners' argument. In the first place, it is inaccurate to say that MHDC suffers no economic injury from a refusal to rezone, despite the contingency provisions in its contract. MHDC has expended thousands of dollars on the plans for Lincoln Green and on the studies submitted to the Village in support of the petition for rezoning. Unless rezoning is granted, many of these plans and studies will be worthless even if MHD finds another site at an equally attractive price.Petitioners' argument also misconceives our standing requirements. It has long been clear that economic injury is not the only kind of injury that can support a plaintiff's Page 429 U. S. 263 standing. United States v. SCRAP, supra at 412 U. S. 686-687; Sierra Club v. Morton, 405 U. S. 727, 405 U. S. 734 (1972); Data Processing Service v. Camp, 397 U. S. 150, 397 U. S. 154 (1970). MHDC is a nonprofit corporation. Its interest in building Lincoln Green stems not from a desire for economic gain, but rather from an interest in making suitable low-cost housing available in areas where such housing is scarce. This is not mere abstract concern about a problem of general interest. See Sierra Club v. Morton, supra at 405 U. S. 739. The specific project MHDC intends to build, whether or not it will generate profits, provides that "essential dimension of specificity" that informs judicial decisionmaking. Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 418 U. S. 221 (1974).BClearly MHDC has met the constitutional requirements, and it therefore has standing to assert its own rights. Foremost among them is MHDC's right to be free of arbitrary or irrational zoning actions. See Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Nectow v. City of Cambridge, 277 U. S. 183 (1928); Village of Belle Terre v. Boraas, 416 U. S. 1 (1974). But the heart of this litigation has never been the claim that the Village's decision fails the generous Euclid test, recently reaffirmed in Belle Terre. Instead, it has been the claim that the Village's refusal to rezone discriminates against racial minorities in violation of the Fourteenth Amendment. As a corporation, MHDC has no racial identity and cannot be the direct target of the petitioners' alleged discrimination. In the ordinary case, a party is denied standing to assert the rights of third persons. Warth v. Seldin, 422 U.S. at 422 U. S. 499. But we need not decide whether the circumstances of this case would justify departure from that prudential limitation and permit MHDC to assert the constitutional rights of its prospective minority tenants. See Barrows v. Jackson, 346 U. S. 249 (1953); cf. 396 U. S. Page 429 U. S. 264 Little Hunting Park, 396 U. S. 229, 396 U. S. 237 (1969); Buchanan v. Warley, 245 U. S. 60, 245 U. S. 72-73 (1917). For we have at least one individual plaintiff who has demonstrated standing to assert these rights as his own. [Footnote 9]Respondent Ransom, a Negro, works at the Honeywell factory in Arlington Heights and lives approximately 20 miles away in Evanston in a 5-room house with his mother and his son. The complaint alleged that he seeks and would qualify for the housing MHDC wants to build in Arlington Heights. Ransom testified at trial that, if Lincoln Green were built he would probably move there, since it is closer to his job.The injury Ransom asserts is that his quest for housing nearer his employment has been thwarted by official action that is racially discriminatory. If a court grants the relief he seeks, there is at least a "substantial probability," Warth v. Seldin, supra at 422 U. S. 504, that the Lincoln Green project will materialize, affording Ransom the housing opportunity he desires in Arlington Heights. His is not a generalized grievance. Instead, as we suggested in Warth, supra at 422 U. S. 507, 422 U. S. 508 n. 18, it focuses on a particular project and is not dependent on speculation about the possible actions of third parties not before the court. See id. at 422 U. S. 505; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 426 U. S. 41-42. Unlike the individual plaintiffs in Warth, Ransom has adequately averred an "actionable causal relationship" between Arlington Heights' zoning practices and his asserted injury. Warth v. Seldin, supra at 422 U. S. 507. We therefore proceed to the merits.IIIOur decision last Term, in Washington v. Davis, 426 U. S. 229 (1976), made it clear that official action will not be held Page 429 U. S. 265 unconstitutional solely because it results in a racially disproportionate impact. "Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Id. at 426 U. S. 242. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Although some contrary indications may be drawn from some of our cases, [Footnote 10] the holding in Davis reaffirmed a principle well established in a variety of contexts. E.g., Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 413 U. S. 208 (1973) (schools); Wright v. Rockefeller, 376 U. S. 52, 376 U. S. 56-57 (1964) (election districting); Akins v. Texas, 325 U. S. 398, 325 U. S. 403-404 (1945) (jury selection).Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. [Footnote 11] In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose Page 429 U. S. 266 has been a motivating factor in the decision, this judicial deference is no longer justified. [Footnote 12]Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action -- whether it "bears more heavily on one race than another," Washington v. Davis, supra at 426 U. S. 242 -- may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U. S. 356 (1886); Guinn v. United States, 238 U. S. 347 (1915); Lane v. Wilson, 307 U. S. 268 (1939); Gomillion v. Lightfoot, 364 U. S. 339 (1960). The evidentiary inquiry is then relatively easy. [Footnote 13] But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, [Footnote 14] and the Court must look to other evidence. [Footnote 15] Page 429 U. S. 267The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. See Lane v. Wilson, supra; Griffin v. School Board, 377 U. S. 218 (1964); Davis v. Schnell, 81 F. Supp. 872 (SD Ala.), aff'd per curiam, 336 U.S. 933 (1949); cf. Keyes v. School Dist. No. 1, Denver Colo. supra at 413 U. S. 207. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes. Reitman v. Mulkey, 387 U. S. 369, 387 U. S. 373-376 (1967); Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 250 (1936). For example, if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC's plan to erect integrated housing, [Footnote 16] we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached. [Footnote 17] Page 429 U. S. 268The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances, the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege. See Tenney v. Brandhove, 341 U. S. 367 (1951); United States v. Nixon, 418 U. S. 683, 418 U. S. 705 (1974); 8 J. Wigmore, Evidence § 2371 (McNaughton rev. ed.1961). [Footnote 18]The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed. With these in mind, we now address the case before us.IVThis case was tried in the District Court and reviewed in the Court of Appeals before our decision in Washington v. Davis, supra. The respondents proceeded on the erroneous theory that the Village's refusal to rezone carried a racially discriminatory effect and was, without more, unconstitutional. But both courts below understood that at least part of their function was to examine the purpose underlying the decision. Page 429 U. S. 269 In making its findings on this issue, the District Court noted that some of the opponents of Lincoln Green who spoke at the various hearings might have been motivated by opposition to minority groups. The court held, however, that the evidence "does not warrant the conclusion that this motivated the defendants." 373 F. Supp. at 211.On appeal, the Court of Appeals focused primarily on respondents' claim that the Village's buffer policy had not been consistently applied and was being invoked with a strictness here that could only demonstrate some other underlying motive. The court concluded that the buffer policy, though not always applied with perfect consistency, had on several occasions formed the basis for the Board's decision to deny other rezoning proposals. "The evidence does not necessitate a finding that Arlington Heights administered this policy in a discriminatory manner." 517 F.2d at 412. The Court of Appeals therefore approved the District Court's findings concerning the Village's purposes in denying rezoning to MHDC.We also have reviewed the evidence. The impact of the Village's decision does arguably bear more heavily on racial minorities. Minorities constitute 18% of the Chicago area population, and 40% of the income groups said to be eligible for Lincoln Green. But there is little about the sequence of events leading up to the decision that would spark suspicion. The area around the Viatorian property has been zoned R-3 since 1959, the year when Arlington Heights first adopted a zoning map. Single-family homes surround the 80-acre site, and the Village is undeniably committed to single-family homes as its dominant residential land use. The rezoning request progressed according to the usual procedures. [Footnote 19] The Plan Commission even scheduled two additional Page 429 U. S. 270 hearings, at least in part to accommodate MHDC and permit it to supplement its presentation with answers to questions generated at the first hearing.The statements by the Plan Commission and Village Board members, as reflected in the official minutes, focused almost exclusively on the zoning aspects of the MHDC petition, and the zoning factors on which they relied are not novel criteria in the Village's rezoning decisions. There is no reason to doubt that there has been reliance by some neighboring property owners on the maintenance of single-family zoning in the vicinity. The Village originally adopted its buffer policy long before MHDC entered the picture, and has applied the policy too consistently for us to infer discriminatory purpose from its application in this case. Finally, MHDC called one member of the Village Board to the stand at trial. Nothing in her testimony supports an inference of invidious purpose. [Footnote 20]In sum, the evidence does not warrant overturning the concurrent findings of both courts below. Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village's decision. [Footnote 21] Page 429 U. S. 271 This conclusion ends the constitutional inquiry. The Court of Appeals' further finding that the Village's decision carried a discriminatory "ultimate effect" is without independent constitutional significance.VRespondents' complaint also alleged that the refusal to rezone violated the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. They continue to urge here that a zoning decision made by a public body may, and that petitioners' action did, violate § 3604 or § 3617. The Court of Appeals, however, proceeding in a somewhat unorthodox fashion, did not decide the statutory question. We remand the case for further consideration of respondents' statutory claims.Reversed

U.S. Supreme CourtArlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977)Village of Arlington Heights v. MetropolitanHousing Development Corp.No. 75-616Argued October 13, 1976Decided January 11, 1977429 U.S. 252SyllabusRespondent Metropolitan Housing Development Corp. (MHDC), a nonprofit developer, contracted to purchase a tract within the boundaries of petitioner Village in order to build racially integrated low- and moderate-income housing. The contract was contingent upon securing rezoning as well as federal housing assistance. MHDC applied to the Village for the necessary rezoning from a single-family to a multiple-family (R-5) classification. At a series of Village Plan Commission public meetings, both supporters and opponents touched upon the fact that the project would probably be racially integrated. Opponents also stressed zoning factors that pointed toward denial of MHDC's application: the location had always been zoned single-family, and the Village's apartment policy called for limited use of R-5 zoning, primarily as a buffer between single-family development and commercial or manufacturing districts, none of which adjoined the project's proposed location. After the Village denied rezoning, MHDC and individual minority respondents filed this suit for injunctive and declaratory relief, alleging that the denial was racially discriminatory and violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment and the Fair Housing Act. The District Court held that the Village's rezoning denial was motivated not by racial discrimination but by a desire to protect property values and maintain the Village's zoning plan. Though approving those conclusions, the Court of Appeals reversed, finding that the "ultimate effect" of the rezoning denial was racially discriminatory and observing that the denial would disproportionately affect blacks, particularly in view of the fact that the general suburban area, though economically expanding, continued to be marked by residential segregation.Held:1. MHDC and at least one individual respondent have standing to bring this action. Pp. 429 U. S. 260-264.(a) MHDC has met the constitutional standing requirements by showing injury fairly traceable to petitioners' acts. The challenged action of the Village stands as an absolute barrier to constructing the housing for which MHDC had contracted, a barrier which could be Page 429 U. S. 253 removed if injunctive relief were granted. MHDC, despite the contingency provisions in its contract, has suffered economic injury based upon the expenditures it made in support of its rezoning petition, as well as noneconomic injury from the defeat of its objective, embodied in its specific project, of making suitable low-cost housing available where such housing is scarce. Pp. 429 U. S. 261-263.(b) Whether MHDC has standing to assert the constitutional rights of its prospective minority tenants need not be decided, for at least one of the individual respondents, a Negro working in the Village and desirous of securing low-cost housing there but who now lives 20 miles away, has standing. Focusing on the specific MHDC project, he has adequately alleged an "actionable causal relationship" between the Village's zoning practices and his asserted injury. Warth v. Seldin, 422 U. S. 490, 422 U. S. 507. Pp. 429 U. S. 263-264.2. Proof of a racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause of the Fourteenth Amendment, and respondents failed to carry their burden of proving that such an intent or purpose was a motivating factor in the Village's rezoning decision. Pp. 429 U.S. 264-271.(a) Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. "[Such] impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Washington v. Davis, 426 U. S. 229, 426 U. S. 242. A racially discriminatory intent, as evidenced by such factors as disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers, must be shown. Pp. 429 U.S. 264-268.(b) The evidence does not warrant overturning the concurrent findings of both courts below that there was no proof warranting the conclusion that the Village's rezoning decision was racially motivated. Pp. 429 U. S. 268-271.3. The statutory question whether the rezoning decision violated the Fair Housing Act of 1968 was not decided by the Court of Appeals, and should be considered on remand. P. 429 U. S. 271.517 F.2d 409, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 429 U. S. 271. WHITE, J., filed a dissenting opinion, post, p. 429 U. S. 272. STEVENS, J., took no part in the consideration or decision of the case. Page 429 U. S. 254

1958_20

MR. JUSTICE BLACK delivered the opinion of the Court.Petitioner was convicted and sentenced to five years imprisonment by a United States District Court in Oklahoma on a charge that he violated the Mann Act, 18 U.S.C. § 2421, by transporting a girl from Arkansas to Oklahoma for immoral purposes. Over petitioner's objection the District Court permitted the Government Page 358 U. S. 75 to use his wife as a witness against him. [Footnote 1] Relying on Yoder v. United States, 80 F.2d 665, the Court of Appeals for the Tenth Circuit held that this was not error. 249 F.2d 735. As other Courts of Appeals have followed a longstanding rule of evidence which bars a husband or wife from testifying against his or her spouse, [Footnote 2] we granted certiorari. 355 U.S. 925.The common law rule, accepted at an early date as controlling in this country, was that husband and wife were incompetent as witnesses for or against each other. The rule rested mainly on a desire to foster peace in the family and on a general unwillingness to use testimony of witnesses tempted by strong self-interest to testify falsely. Since a defendant was barred as a witness in his own behalf because of interest, it was quite natural to bar his spouse in view of the prevailing legal fiction that husband and wife were one person. See 1 Coke, Commentary upon Littleton (19th ed. 1832) 6.b. The rule yielded to exceptions in certain types of cases, however. Thus, this Court, in Stein v. Bowman, 13 Pet. 209, while recognizing the "general rule that neither a husband nor wife can be a witness for or against the other," noted that the rule does not apply "where the husband commits an offence against the person of his wife." 13 Pet. at 38 U. S. 221. But the Court emphasized that no exception left spouses free to testify for or against each other merely because they so desired. 13 Pet. at 38 U. S. 223. [Footnote 3] Page 358 U. S. 76Aside from slight variations in application, and despite many critical comments, the rule stated in Stein v. Bowman was followed by this and other federal courts until 1933, when this Court decided Funk v. United States, 290 U. S. 371. [Footnote 4] That case rejected the phase of the common law rule which excluded testimony by spouses for each other. The Court recognized that the basic reason underlying this exclusion of evidence had been the practice of disqualifying witnesses with a personal interest in the outcome of a case. Widespread disqualifications because of interest, however, had long since been abolished both in this country and in England in accordance with the modern trend which permitted interested witnesses to testify and left it for the jury to assess their credibility. Certainly, since defendants were uniformly allowed to testify in their own behalf, there was no longer a good reason to prevent them from using their spouses as witnesses. With the original reason for barring favorable testimony of spouses gone, the Court concluded that this aspect of the old rule should go too.The Funk case, however, did not criticize the phase of the common law rule which allowed either spouse to exclude adverse testimony by the other, but left this question open to further scrutiny. 290 U.S. at 290 U. S. 373; Griffin v. United States, 336 U. S. 704, 336 U. S. 714-715. More recently, Congress has confirmed the authority asserted by this Court in Funk to determine admissibility of evidence under the "principles of the common law as they Page 358 U. S. 77 may be interpreted . . . in the light of reason and experience." Fed.Rules Crim.Proc., 26. The Government does not here suggest that authority, reason, or experience requires us wholly to reject the old rule forbidding one spouse to testify against the other. It does ask that we modify the rule so that, while a husband or wife will not be compelled to testify against the other, either will be free to do so voluntarily. Nothing in this Court's cases supports such a distinction between compelled and voluntary testimony, and it was emphatically rejected in Stein v. Bowman, supra, a leading American statement of the basic principles on which the rule rests. 13 Pet. at 38 U. S. 223. Consequently, if we are to modify the rule as the Government urges, we must look to experience and reason, not to authority.While the rule forbidding testimony of one spouse for the other was supported by reasons which time and changing legal practices had undermined, we are not prepared to say the same about the rule barring testimony of one spouse against the other. The basic reason the law has refused to pit wife against husband or husband against wife in a trial where life or liberty is at stake was a belief that such a policy was necessary to foster family peace, not only for the benefit of husband, wife and children, but for the benefit of the public as well. Such a belief has never been unreasonable, and is not now. Moreover, it is difficult to see how family harmony is less disturbed by a wife's voluntary testimony against her husband than by her compelled testimony. In truth, it seems probable that much more bitterness would be engendered by voluntary testimony than by that which is compelled. But the Government argues that the fact a husband or wife testifies against the other voluntarily is strong indication that the marriage is already gone. Doubtless this is often true. But not all marital flare-ups in which one spouse wants to hurt the other are permanent. The widespread Page 358 U. S. 78 success achieved by courts throughout the country in conciliating family differences is a real indication that some apparently broken homes can be saved provided no unforgivable act is done by either party. Adverse testimony given in criminal proceedings would, we think, be likely to destroy almost any marriage.Of course, cases can be pointed out in which this exclusionary rule has worked apparent injustice. But Congress or this Court, by decision or under its rulemaking power, 18 U.S.C. § 3771, can change or modify the rule where circumstances or further experience dictates. In fact, specific changes have been made from time to time. Over the years, the rule has evolved from the common law absolute disqualification to a rule which bars the testimony of one spouse against the other unless both consent. See Stein v. Bowman, supra; Funk v. United States, supra; Benson v. United States, 146 U. S. 325, 146 U. S. 331-333; United States v. Mitchell, 137 F.2d 1006, 1008. In 1887, Congress enabled either spouse to testify in prosecutions against the other for bigamy, polygamy or unlawful cohabitation. 24 Stat. 635. See Miles v. United States, 103 U. S. 304, 103 U. S. 315-316. Similarly, in 1917 and again in 1952, Congress made wives and husbands competent to testify against each other in prosecutions for importing aliens for immoral purposes. 39 Stat. 878 (1917), reenacted as 66 Stat. 230, 8 U.S.C. § 1328 (1952).Other jurisdictions have been reluctant to do more than modify the rule. English statutes permit spouses to testify against each other in prosecutions for only certain types of crimes. See Evidence of Spouses in Criminal Cases, 99 Sol.J. 551. And most American States retain the rule, though many provide exceptions in some classes of cases. [Footnote 5] The limited nature of these exceptions Page 358 U. S. 79 shows there is still a widespread belief, grounded on present conditions, that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences. Under these circumstances, we are unable to subscribe to the idea that an exclusionary rule based on the persistent instincts of several centuries should now be abandoned. As we have already indicated, however, this decision does not foreclose whatever changes in the rule may eventually be dictated by "reason and experience."Notwithstanding the error in admitting the wife's testimony, we are urged to affirm the conviction upon the alternative holding of the Court of Appeals that her evidence was harmless to petitioner. See Fed.Rules Crim.Proc. 52(a). But, after examining the record, we cannot say that her testimony did not have substantial influence on the jury. See Kotteakos v. United States, 328 U. S. 750, 328 U. S. 764-765. Interstate transportation of the prosecutrix between Arkansas and Oklahoma was conceded, and the only factual issue in the case was whether petitioner's dominant purpose in making the trip was to facilitate her practice of prostitution in Tulsa, Oklahoma. [Footnote 6] Page 358 U. S. 80 The prosecutrix testified that petitioner agreed to take her to Tulsa where she could earn money by working as a prostitute with a woman called "Jane Wilson." Petitioner denied any intention on his part that the prosecutrix engage in such activity, and testified, in effect, that her transportation was only an accommodation incidental to a business trip he was making to Oklahoma City, Oklahoma. Petitioner's dominant purpose for the trip was thus a sharply contested issue of fact which, on the evidence in the record, the jury could have resolved either way depending largely on whether it believed the prosecutrix or the petitioner. The Government placed "Jane Wilson" on the stand. In response to questions by the Assistant United States Attorney, she swore that she was petitioner's wife and that she was a prostitute at the time petitioner took the prosecutrix to Tulsa. Not wholly satisfied with this testimony, the prosecutor brought out for the first time on redirect examination that "Jane Wilson" had been a prostitute before she married petitioner. The mere presence of a wife as a witness against her husband in a case of this kind would most likely impress jurors adversely. When to this there is added her sworn testimony that she was a prostitute both before and after marriage, we cannot be sure that her evidence, though in part cumulative, did not tip the scales against petitioner on the close and vital issue of whether his prime motivation in making the interstate trip was immoral. See Krulewitch v. United States, 336 U. S. 440, 336 U. S. 444-445. At Page 358 U. S. 81 least use of the wife's testimony was a strong suggestion to the jury that petitioner was probably the kind of man to whom such a purpose would have been perfectly natural.Reversed

U.S. Supreme CourtHawkins v. United States, 358 U.S. 74 (1958)Hawkins v. United StatesNo. 20Argued October 14, 1958Decided November 24, 1958358 U.S. 74SyllabusAt petitioner's trial in a Federal District Court in which he was convicted of violating the Mann Act, 18 U.S.C. § 2421, by transporting a girl from Arkansas to Oklahoma for immoral purposes, his wife was permitted to testify against him over his objection.Held: though the wife did not object to testifying, admission of her testimony over his objection was error. Pp. 358 U. S. 74-81.(a) Though Congress or this Court, by decision or under its rulemaking power, can change or modify the rule where reason or experience dictates, and some specific exceptions have been made, this Court is not now prepared to abandon so much of the old common law rule as forbade one spouse to testify against the other over the latter's objection. Pp. 358 U. S. 75-79.(b) On the record in this case, it cannot be said that the wife's testimony did not have substantial influence on the jury, and its admission was not harmless error. Pp. 358 U. S. 79-81.249 F.2d 735, reversed.

1968_3

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.These four cases, three from Mississippi and one from Virginia, involve the application of the Voting Rights Act of 1965 [Footnote 1] to state election laws and regulations. The Mississippi cases were consolidated on appeal and argued together in this Court. Because of the grounds on which we decide all four cases, the appeal in the Virginia case is also disposed of by this opinion. [Footnote 2] Page 393 U. S. 548In South Carolina v. Katzenbach, 383 U. S. 301 (1966), we held the provisions of the Act involved in these cases to be constitutional. These cases merely require us to determine whether the various state enactments involved are subject to the requirements of the Act.We gave detailed treatment to the history and purposes of the Voting Rights Act in South Carolina v. Katzenbach, supra. Briefly, the Act implemented Congress' firm intention to rid the country of racial discrimination in voting. It provided stringent new remedies against those practices which have most frequently denied citizens the right to vote on the basis of their race. Thus, in States covered by the Act, [Footnote 3] literacy tests and similar voting qualifications were suspended for a period of five years from the last occurrence of substantial voting discrimination. However, Congress apparently feared that the mere suspension of existing tests would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect. [Footnote 4] Not underestimating the ingenuity of those bent on preventing Negroes from voting, Congress therefore enacted § 5, the focal point of these cases.Under § 5, if a State covered by the Act passes any "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," no person can be deprived of his right to vote "for failure to comply with" the new enactment "unless and until" the State seeks and receives a declaratory judgment in the United States District Court for the District of Page 393 U. S. 549 Columbia that the new enactment "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." 79 Stat. 439, 42 U.S.C. § 1973c (1964 ed. Supp. I). See 393 U.S. 544app|>Appendix, infra.However, § 5 does not necessitate that a covered State obtain a declaratory judgment action before it can enforce any change in its election laws. It provides that a State may enforce a new enactment if the State submits the new provision to the Attorney General of the United States and, within 30 days of the submission, the Attorney General does not formally object to the new statute or regulation. The Attorney General does not act as a court in approving or disapproving the state legislation. If the Attorney General objects to the new enactment, the State may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia. Also, the State is not required to first submit the new enactment to the Attorney General, as it may go directly to the District Court for the District of Columbia. The provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable. [Footnote 5] Once the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional Page 393 U. S. 550 suits attacking its constitutionality; there is no further remedy provided by § 5.In these four cases, the States have passed new laws or issued new regulations. The central issue is whether these provisions fall within the prohibition of § 5 that prevents the enforcement of "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" unless the State first complies with one of the section's approval procedures.No. 25 Fairley v. Patterson, involves a 1966 amendment to § 2870 of the Mississippi Code of 1942. [Footnote 6] The amendment provides that the board of supervisors of each county may adopt an order providing that board members be elected at large by all qualified electors of the county. Prior to the 1966 amendment, all counties, by law, were divided into five districts; each district elected one member of the board of supervisors. After the amendment, Adams and Forrest Counties adopted the authorized orders, specifying that each candidate must run at large, but also requiring that each candidate be a resident of the county district he seeks to represent.The appellants are qualified electors and potential candidates in the two counties. They sought a declaratory judgment in the United States District Court for the Southern District of Mississippi that the amendment to § 2870 was subject to the provisions of § 5 of the Act, and hence could not be enforced until the State complied with the approval requirements of § 5. [Footnote 7]No. 26, Bunton v. Patterson, concerns a 1966 amendment to § 6271-08 of the Mississippi Code. [Footnote 8] The amendment Page 393 U. S. 551 provides that, in 11 specified counties, the county superintendent of education shall be appointed by the board of education. Before the enactment of this amendment, all these counties had the option of electing or appointing the superintendent. Appellants are qualified electors and potential candidates for the position of county superintendent of education in three of the counties covered by the 1966 amendment. They sought a declaratory judgment that the amendment was subject to § 6, and thus unenforceable unless the State complied with the § 5 approval requirements.No. 36, Whitley v. Williams, involves a 1966 amendment to § 3260 of the Mississippi Code, which changed the requirements for independent candidates running in general elections. [Footnote 9] The amendment makes four revisions: (1) it establishes a new rule that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election; (2) the time for filing a petition as an independent candidate is changed to 60 days before the primary election from the previous 40 days before the general election; (3) the number of signatures of qualified electors needed for the independent qualifying petition is increased substantially; and (4) a new provision is added that each qualified elector who signs the independent qualifying petition must personally sign the petition and must include his polling precinct and county. Appellants are potential candidates whose nominating petitions for independent listing on the ballot were rejected for failure to comply with one or more of the amended provisions. [Footnote 10] Page 393 U. S. 552In all three of these cases, the three-judge District Court ruled that the amendments to the Mississippi Code did not come within the purview of and are not covered by § 5, and dismissed the complaints. [Footnote 11] Appellants brought direct appeals to this Court. [Footnote 12] We consolidated the cases and postponed consideration of jurisdiction to a hearing on the merits. 392 U.S. 902 (1968).No. 3, Allen v. State Board of Elections, concerns a bulletin issued by the Virginia Board of Elections to all election judges. The bulletin was an attempt to modify the provisions of § 24-252 of the Code of Virginia of 1950 which provides, inter alia, that "any voter [may] place on the official ballot the name of any person in his own handwriting. . . ." [Footnote 13] The Virginia Code (§ 24-251) further provides that voters with a physical incapacity may be assisted in preparing their ballots. For example, one who is blind may be aided in the preparation of his ballot by a person of his choice. Those unable to mark their ballots due to any other physical disability may be assisted by one of the election judges. However, no statutory provision is made for assistance to those who wish to write in a name, but who are unable to do so because of illiteracy. When Virginia was brought under the coverage of the Voting Rights Act of 1965, Virginia election officials apparently thought that the provision in § 24-252, requiring a voter to cast a write-in vote in the voter's own handwriting, was incompatible with the provisions of § 4(a) of the Act suspending the Page 393 U. S. 553 enforcement of any test or device as a prerequisite to voting. [Footnote 14] Therefore, the Board of Elections issued a bulletin to all election judges, instructing that the election judge could aid any qualified voter in the preparation of his ballot, if the voter so requests and if the voter is unable to mark his ballot due to illiteracy. [Footnote 15]Appellants are functionally illiterate registered voters from the Fourth Congressional District of Virginia. They brought a declaratory judgment action in the United States District Court for the Eastern District of Virginia, claiming that § 24-252 and the modifying bulletin violate the Equal Protection Clause of the Fourteenth Amendment and the voting Rights Act of 1965. A three-judge court was convened and the complaint dismissed. [Footnote 16] A direct appeal was brought to this Court and we postponed consideration of jurisdiction to a hearing on the merits. 392 U.S. 902 (1968).In the 1966 elections, appellants attempted to vote for a write-in candidate by sticking labels, printed with the name of their candidate, on the ballot. The election officials refused to count appellants' ballots, claiming that the Virginia election law did not authorize marking ballots with labels. As the election outcome would not have been changed had the disputed ballots been counted, appellants sought only prospective relief. In the District Court, appellants did not assert that § 5 precluded enforcement Page 393 U. S. 554 of the procedure prescribed by the bulletin. Rather, they argued § 4 suspended altogether the requirement of § 24-252 that the voter write the name of his choice in the voter's own handwriting. Appellants first raised the applicability of § 5 in their jurisdictional statement filed with this Court. We are not precluded from considering the applicability of § 5, however. The Virginia legislation was generally attacked on the ground that it was inconsistent with the Voting Rights Act. Where all the facts are undisputed, this Court may, in the interests of judicial economy, determine the applicability of the provisions of that Act even though some specific sections were not argued below. [Footnote 17]We postponed consideration of our jurisdiction in these cases to a hearing on the merits. Therefore, before reaching the merits, we first determine whether these cases are properly before us on direct appeal from the district courts.IThese suits were instituted by private citizens; an initial question is whether private litigants may invoke the jurisdiction of the district courts to obtain the relief requested in these suits. 28 U.S.C. § 1343 provides:"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . . (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."Clearly, if § 5 authorizes appellants to secure the relief sought, the district courts had jurisdiction over these suits.The Voting Rights Act does not explicitly grant or deny private parties authorization to seek a declaratory judgment Page 393 U. S. 555 that a State has failed to comply with the provisions of the Act. [Footnote 18] However, § 5 does provide that "no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, § 5]." Analysis of this language, in light of the major purpose of the Act, indicates that appellants may seek a declaratory judgment that a new state enactment is governed by § 5. Further, after proving that the State has failed to submit the covered enactment for § 5 approval, the private party has standing to obtain an injunction against further enforcement, pending the State's submission of the legislation pursuant to §5. [Footnote 19] Page 393 U. S. 556The Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens. South Carolina v. Katzenbach, supra, at 383 U. S. 308, 383 U. S. 309. Congress realized that existing remedies were inadequate to accomplish this purpose, and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws. [Footnote 20]The achievement of the Act's laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. [Footnote 21] For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff, and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. [Footnote 22] Page 393 U. S. 557 It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the § 5 approval requirements.We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action. In J. I. Case Co. v. Borak, 377 U. S. 426 (1964), we were called upon to consider § 14(a) of the Securities Exchange Act of 1934. 48 Stat. 895, 15 U.S.C. § 78n(a). That section provides that it shall be"unlawful for any person . . . [to violate] such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors."We held that,"[w]hile this language makes no specific reference to a private right of action, among its chief purposes is 'the protection of investors,' which certainly implies the availability of judicial relief where necessary to achieve that result."377 U.S. at 377 U. S. 432.A similar analysis is applicable here. The guarantee of § 5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to § 5, might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement of the prohibition. [Footnote 23]IIAnother question involving the jurisdiction of the district courts is presented by § 14(b) of the Act. It provides that"[n]o court other than the District Court Page 393 U. S. 558 for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [§ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act. . . ."79 Stat. 445, 42 U.S.C. § 19731(b) (1964 ed., Supp. I). The appellants sought declaratory judgments that the state enactments were subject to § 5 of the Act; appellees thus argue that these actions could be initiated only in the District Court for the District of Columbia.Section 14(b) must be read with the Act's other enforcement provisions. Section 12(f) provides that the district courts shall have jurisdiction over actions brought pursuant to § 12(d) to enjoin a person from acting when "there are reasonable grounds to believe that [such person] is about to engage in any act or practice prohibited by [§ 5]." [Footnote 24] These § 12(f) injunctive actions are distinguishable from the actions mentioned in § 14(b). The § 14(b) injunctive action is one aimed at prohibiting enforcement of the provisions of the Voting Rights Act, and would involve an attack on the constitutionality of the Act itself. See Katzenbach v. Morgan, 384 U. S. 641 (1966). On the other hand, the § 12(f) action is aimed at prohibiting the enforcement of a state enactment that is for some reason violative of the Act. Cf. United States v. Ward, 352 F.2d 329 (C.A. 5th Cir.1965); Perez v. Rhiddlehoover, 247 F. Supp. 65 (D.C.E.D.La.1965). A similar distinction is possible with respect to declaratory judgments. A declaratory judgment brought by the State pursuant to § 5 requires an adjudication that a new enactment does not have the purpose or effect of racial discrimination. However, a declaratory judgment action brought by a private litigant does not require the Court to reach this difficult substantive issue. The only Page 393 U. S. 559 issue is whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement. The difference in the magnitude of these two issues suggests that Congress did not intend that both can be decided only by the District of Columbia District Court. Indeed, the specific grant of jurisdiction to the district courts in 12(f) indicates Congress intended to treat "coverage" questions differently from "substantive discrimination" questions. See Perez v. Rhiddlehoover, supra, at 72.Moreover as we indicated in South Carolina v. Katzenbach, supra, the power of Congress to require suits to be brought only in the District of Columbia District Court is grounded in Congress' power, under Art. III, § 1, to "ordain and establish" inferior federal tribunals. We further noted Congress did not exceed constitutional bounds in imposing limitations on "litigation against the Federal Government. . . ." 383 U.S. at 383 U. S. 332 (emphasis added). Of course, in declaratory judgment actions brought by private litigants, the United States will not be a party. This distinction further suggests interpreting § 14(b) as applying only to declaratory judgment actions brought by the State.There are strong reasons for adoption of this interpretation. Requiring that declaratory judgment actions be brought in the District of Columbia places a burden on the plaintiff. The enormity of the burden, of course, will vary with the size of the plaintiff's resources. Admittedly, it would be easier for States to bring § 5 actions in the district courts in their own States. However, the State has sufficient resources to prosecute the actions easily in the Nation's Capital, and Congress has power to regulate which federal court shall hear suits against the Federal Government. On the other hand, the individual litigant will often not have sufficient resourcesPage 393 U. S. 560 to maintain an action easily outside the district in which he resides, especially in cases where the individual litigant is attacking a local city or county regulation. Thus, for the individual litigant, the District of Columbia burden may be sufficient to preclude him from bringing suit.We hold that the restriction of § 14(b) does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to the approval requirements of § 5, and that these actions may be brought in the local district court pursuant to 28 U.S.C. § 1343(4).IIIA final jurisdictional question remains. These actions were all heard before three-judge district courts. We have jurisdiction over an appeal brought directly from the three-judge court only if the three-judge court was properly convened. Pennsylvania Public Utility Comm'n v. Pennsylvania R. Co., 382 U. S. 281 (1965); Zemel v. Rusk, 381 U. S. 1, 381 U. S. 5 (1965); see 28 U.S.C. § 1253. Appellants initially claimed that the statutes and regulations in question violated the Fifteenth Amendment. However, by stipulation these claims were removed from the cases prior to a hearing in the District Court and the cases were submitted solely on the question of the applicability of § 5. [Footnote 25] We held in Swift Co. v. Wickham, 382 U. S. 111, 382 U. S. 127 (1965), that a three-judge court is not required under 28 U.S.C. § 2281 if the state statute is attacked on the grounds that it is in conflict with a federal statute and consequently violates the Supremacy Clause. These suits involve such an attack, Page 393 U. S. 561 and, in the absence of a statute authorizing a three-judge court, would not be proper before a district court of three judges.Appellants maintain that § 5 authorizes a three-judge court, in suits brought by private litigants, to enforce the approval requirements of the section. The final sentence of § 5 provides that"[a]ny action under this section shall be heard and determined by a court of three judges . . . and any appeal shall lie to the Supreme Court."42 U.S.C. § 1973c (1964 ed., Supp. I) (emphasis added). Appellees argue that this sentence refers only to the action specifically mentioned in the first sentence of § 5 (i.e., declaratory judgment suits brought by the State), and does not apply to suits brought by the private litigant.As we have interpreted § 5, suits involving the section may be brought in at least three ways. First, of course, the State may institute a declaratory judgment action. Second, an individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny. Third, the Attorney General may bring an injunctive action to prohibit the enforcement of a new regulation because of the State's failure to obtain approval under § 5. All these suits may be viewed as being brought "under" § 5. The issue is whether the language "under this section" should be interpreted as authorizing a three-judge action in these suits.We have long held that congressional enactments providing for the convening of three-judge courts must be strictly construed. Phillips v. United States, 312 U. S. 246 (1941). Convening a three-judge court places a burden on our federal court system, and may often result in a delay in a matter needing swift initial adjudication. See Swift Co. v. Wickham, supra at 382 U. S. 128. Also, a Page 393 U. S. 562 direct appeal may be taken from a three-judge court to this Court, thus depriving us of the wise and often crucial adjudications of the courts of appeals. Thus, we have been reluctant to extend the range of cases necessitating the convening of three-judge courts. Ibid.However, we have not been unaware of the legitimate reasons that prompted Congress to enact three-judge court legislation. See Swift & Co. v. Wickham, supra, at 382 U. S. 116-119. Notwithstanding the problems for judicial administration, Congress has determined that three-judge courts are desirable in a number of circumstances involving confrontations between state and federal power or in circumstances involving a potential for substantial interference with government administration. [Footnote 26] The Voting Rights Act of 1965 is an example. Federal supervision over the enforcement of state legislation always poses difficult problems for our federal system. The problems are especially difficult when the enforcement of state enactments may be enjoined and state election procedures suspended because the State has failed to comply with a federal approval procedure.In drafting § 5, Congress apparently concluded that, if the governing authorities of a State differ with the Attorney General of the United States concerning the purpose or effect of a change in voting procedures, it is inappropriate to have that difference resolved by a single district judge. The clash between federal and state power and the potential disruption to state government are apparent. There is no less a clash and potential for disruption when the disagreement concerns whether a state enactment is subject to § 5. The result of both Page 393 U. S. 563 suits can be an injunction prohibiting the State from enforcing its election laws. Although a suit brought by the individual citizen may not involve the same federal-state confrontation, the potential for disruption of state election procedures remains.Other provisions of the Act indicate that Congress was well aware of the extraordinary effect the Act might have on federal-state relationships and the orderly operation of state government. For example, § 10, which prohibits the collection of poll taxes as a prerequisite to voting, contains a provision authorizing a three-judge court when the Attorney General brings an action "against the enforcement of any requirement of the payment of a poll tax as a precondition to voting. . . ." 79 Stat. 442, 42 U.S.C. §§ 1973h(a)-(c) (1964 ed., Supp. I). See also 42 U.S.C. § 1973b(a) (1964 ed., Supp. I).We conclude that, in light of the extraordinary nature of the Act in general, and the unique approval requirements of § 5, Congress intended that disputes involving the coverage of § 5 be determined by a district court of three judges.IVFinding that these cases are properly before us, we turn to a consideration of whether these state enactments are subject to the approval requirements of § 5. These requirements apply to "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting. . . ." 42 U.S.C. § 1973c (1964 ed., Supp. I). The Act further provides that the term "voting""shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing . . . or 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 with respect to candidates for public Page 393 U. S. 564 or party office and propositions for which votes are received in an election."§ 14(c)(1), 79 Stat. 445, 42 U.S.C. § 19731(c)(1) (1964 ed., Supp. I). See 393 U.S. 544app|>Appendix, infra. Appellees in the Mississippi cases maintain that § 5 covers only those state enactments which prescribe who may register to vote. While accepting that the Act is broad enough to insure that the votes of all citizens should be cast, appellees urge that § 5 does not cover state rules relating to the qualification of candidates or to state decisions as to which offices shall be elective.Appellees rely on the legislative history of the Act to support their view, citing the testimony of former Assistant Attorney General Burke Marshall before a subcommittee of the House Committee on the Judiciary:"Mr. CORMAN. We have not talked at all about whether we have to be concerned with not only who can vote, but who can run for public office, and that has been an issue in some areas in the South in 1964. Have you given any consideration to whether or not this bill ought to address itself to the qualifications for running for public office, as well as the problem of registration?""Mr. MARSHALL. The problem that the bill was aimed at was the problem of registration, Congressman. If there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in the bill. [Footnote 27]"Appellees in No. 25 also argue that § 5 was not intended to apply to a change from district to at-large voting, because application of § 5 would cause a conflict in the administration of reapportionment legislation. Page 393 U. S. 565 They contend that, under such a broad reading of § 5, enforcement of a reapportionment plan could be enjoined for failure to meet the § 5 approval requirements, even though the plan had been approved by a federal court. [Footnote 28] Appellees urge that Congress could not have intended to force the States to submit a reapportionment plan to two different courts. [Footnote 29]We must reject a narrow construction that appellees would give to § 5. The Voting Rights 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. [Footnote 30] Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation Page 393 U. S. 566 to the right to vote, recognizing that voting includes "all action necessary to make a vote effective." 79 Stat. 445, 42 U.S.C. § 19731(c)(1) (1969 ed., Supp. I). See Reynolds v. Sims, 377 U. S. 533, 377 U. S. 555 (1964). We are convinced that, in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the § 5 approval requirements.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. For example, § 2 of the Act, as originally drafted, included a prohibition against any "qualification or procedure." During the Senate hearings on the bill, Senator Fong expressed concern that the word "procedure" was not broad enough to cover various practices that might effectively be employed to deny citizens their right to vote. In response, the Attorney General said he had no objection to expanding the language of the section, as the word "procedure" "was intended to be all-inclusive of any kind of practice." [Footnote 31] Indicative of an intention Page 393 U. S. 567 to give the Act the broadest possible scope, Congress expanded the language in the final version of § 2 to include any "voting qualifications or prerequisite to voting, or standard, practice, or procedure." 42 U.S.C. § 1973 (1964 ed., Supp. I).Similarly, in the House hearings, it was emphasized that § 5 was to have a broad scope:"Mr. KATZENBACH. The justification for [the approval requirements] is simply this: our experience in the areas that would be covered by this bill has been such as to indicate frequently on the part of State legislatures a desire in a sense to outguess the courts of the United States or even to outguess the Congress of the United States. . . . [A]s the Chairman may recall . . . , at the time of the initial school desegregation, . . . the legislature passed I Page 393 U. S. 568 don't know how many laws in the shortest period of time. Every time the judge issued a decree, the legislature . . . passed a law to frustrate that decree.""If I recollect correctly, the school board was ordered to do something and the legislature immediately took away all authority of the school boards. They withdrew all funds from them to accomplish the purposes of the act."House Hearings 60.Also, the remarks of both opponents and proponents during the debate over passage of the Act demonstrate that Congress was well aware of another admonition of the Attorney General. [Footnote 32] He had stated in the House hearings that two or three types of changes in state election law (such as changing from paper ballots to voting machines) could be specifically excluded from § 5 without undermining the purpose of the section. He emphasized, however, that there were "precious few" changes that could be excluded,"because there are an awful lot of things that could be started for purposes of evading the 15th amendment if there is the desire to do so."House Hearings 95. It is significant that Congress chose not to include even these minor exceptions in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.In light of the mass of legislative history to the contrary, especially the Attorney General's clear indication that the section was to have a broad scope and Congress' refusal to engraft even minor exceptions, the single remark of Assistant Attorney General Burke Marshall cannot be given determinative weight. Indeed, in any case where the legislative hearings and debate are so voluminous, no single statement or excerpt of testimony can Page 393 U. S. 569 be conclusive. [Footnote 33] Also, the question of whether § 5 might cause problems in the implementation of reapportionment legislation is not properly before us at this time. There is no direct conflict between our interpretation of this statute and the principles involved in the reapportionment cases. The argument that some administrative problem might arise in the future does not establish that Congress intended that § 5 have a narrow scope; we leave to another case a consideration of any possible conflict.The weight of the legislative history and an analysis of the basic purposes of the Act indicate that the enactment in each of these cases constitutes a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" within the meaning of § 5.No. 25 involves a change from district to at-large voting for county supervisors. The right to vote can be affected by a dilution of voting power, as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U. S. 633, 377 U. S. 555 (1964). Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice, just as would prohibiting some of them from voting.In No. 26, an important county officer in certain counties was made appointive, instead of elective. The power of a citizen's vote is affected by this amendment; after Page 393 U. S. 570 the change, he is prohibited from electing an officer formerly subject to the approval of the voters. Such a change could be made either with or without a discriminatory purpose or effect; however, the purpose of § 5 was to submit such changes to scrutiny.The changes in No. 36 appear aimed at increasing the difficulty for an independent candidate to gain a position on the general election ballot. These changes might also undermine the effectiveness of voters who wish to elect independent candidates. One change involved in No. 36 deserves special note. The amendment provides that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election. This is a "procedure with respect to voting" with substantial impact. One must forgo his right to vote in his party primary if he thinks he might later wish to become an independent candidate.The bulletin in No. 3 outlines new procedures for casting write-in votes. As in all these cases, we do not consider whether this change has a discriminatory purpose or effect. It is clear, however, that the new procedure with respect to voting is different from the procedure in effect when the State became subject to the Act; therefore, the enactment must meet the approval requirements of § 5 in order to be enforceable.In these cases, as in so many others that come before us, we are called upon to determine the applicability of a statute where the language of the statute does not make crystal clear its intended scope. In all such cases, we are compelled to resort to the legislative history to determine whether, in light of the articulated purposes of the legislation, Congress intended that the statute apply to the particular cases in question. We are of the opinion that, with the exception of the statement of Assistant Attorney General Burke Marshall, the balance of legislative history (including the statements of the Attorney General and congressional action expanding the Page 393 U. S. 571 language) indicates that § 5 applies to these cases. In saying this, we, of course, express no view on the merit of these enactments; we also emphasize that our decision indicates no opinion concerning their constitutionality.VAppellees in the Mississippi cases argue that, even if these state enactments are covered by § 5, they may now be enforced, since the State submitted them to the Attorney General and he has failed to object. While appellees admit that they have made no "formal" submission to the Attorney General, they argue that no formality is required. They say that, once the Attorney General has become aware of the state enactment, the enactment has been "submitted" for purposes of § 5. Appellees contend that the Attorney General became aware of the enactments when served with a copy of appellees' briefs in these cases.We reject this argument. While the Attorney General has not required any formal procedure, we do not think the Act contemplates that a "submission" occurs when the Attorney General merely becomes aware of the legislation, no matter in what manner. Nor do we think the service of the briefs on the Attorney General constituted a "submission." A fair interpretation of the Act requires that the State, in some unambiguous and recordable manner, submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act.VIAppellants in the Mississippi cases have asked this Court to set aside the elections conducted pursuant to these enactments and order that new elections be held under the pre-amendment laws. The Solicitor General has also urged us to order new elections if the State does not promptly institute § 5 approval proceedings. We decline Page 393 U. S. 572 to take corrective action of such consequence, however. These § 5 coverage questions involve complex issues of first impression -- issues subject to rational disagreement. The state enactments were not so clearly subject to § 5 that the appellees' failure to submit them for approval constituted deliberate defiance of the Act. Moreover, the discriminatory purpose or effect of these statutes, if any, has not been determined by any court. We give only prospective effect to our decision, bearing in mind that our judgment today does not end the matter so far as these States are concerned. They remain subject to the continuing strictures of § 5 until they obtain from the United States District Court for the District of Columbia a declaratory judgment that, for at least five years, they have not used the "tests or devices" prohibited by § 4. 42 U.S.C. § 1973b(a) (1964 ed., Supp. I).In No. 3, the judgment of the District Court is vacated; in Nos. 25, 26, and 36, the judgments of the District Court are reversed. All four cases are remanded to the District Courts with instructions to issue injunctions restraining the further enforcement of the enactments until such time as the States adequately demonstrate compliance with § 5.It is so ordered

U.S. Supreme CourtAllen v. State Bd. of Elections, 393 U.S. 544 (1969)Allen v. State Board of ElectionsNo. 3Argued October 15, 1968Decided March 3, 1969*393 U.S. 544SyllabusPursuant to § 4(b) of the Voting Rights Act of 1965 the provisions of § 4(a), suspending all "tests or devices" for five years, were made applicable to certain States, including Mississippi and Virginia. As a result, those States were prohibited by § 5 from enacting or seeking"to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,"without first submitting the change to the U.S. Attorney General and obtaining his consent or securing a favorable declaratory judgment from the District Court for the District of Columbia. In Nos. 25, 26, and 36, appellants sought declaratory judgments in the District Court for the Southern District of Mississippi that certain amendments to the Mississippi Code were subject to the provisions of § 5, and thus not enforceable until the State complied with the approval requirements. In No. 25, the amendment provided for at-large election of county supervisors instead of election by districts. In No. 26, the amendment eliminated the option of electing or appointing superintendents of education in 11 counties and provided that they shall be appointed. The amendment in No. 36 changed the requirements for independent candidates running in general elections. In all three cases, the three-judge District Court ruled that the amendments did not come within the purview of § 5, and dismissed the complaints. No. 3 concerned a bulletin issued by the Virginia Board of Elections instructing election judges to assist qualified, illiterate voters who request assistance in marking ballots. Appellants sought a declaratory judgment in the District Court for the Eastern District of Page 393 U. S. 545 Virginia that the statute providing for handwritten write-in votes and the modifying bulletin violated the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act. In the 1966 election, appellants attempted to use labels for write-in candidates, but the election officials refused to count appellants' ballots. Appellants sought only prospective relief, as the election outcome would not have been changed if the ballots had been counted. In the District Court, they did not argue that § 5 precluded enforcement of the procedure set out in the bulletin, but that § 4 suspended the write-in requirement. The three-judge court dismissed the complaint.Held:1. Since the Virginia legislation was generally attacked as inconsistent with the Voting Rights Act, and there is no factual dispute, the Court may, in the interests of judicial economy, determine the applicability in No. 3 of § 5 of the Act, even though that section was not argued below. P. 393 U. S. 554.2. Private litigants may invoke the jurisdiction of the district courts to obtain relief under § 5, to insure the Act's guarantee that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to that section. Pp. 393 U. S. 554-557.3. The restriction of § 14(b) of the Act, which provides that"[n]o court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [§ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this subchapter,"does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to § 5's approval requirements, and these actions may be brought in the local district courts. Pp. 393 U. S. 557-560.4. In light of the extraordinary nature of the Act and its effect on federal-state relationships, and the unique approval requirements of § 5, which also provides that "[a]ny action under this section shall be heard and determined by a court of three judges," disputes involving the coverage of § 5 should be determined by three-judge courts. Pp. 393 U. S. 560-563.5. The state statutes involved in these cases are subject to the approval requirements of § 5. Pp. 393 U. S. 563-571.(a) The Act, which gives a broad interpretation to the right to vote and recognizes that voting includes "all action necessary Page 393 U. S. 546 to make a vote effective " 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 race. Pp. 393 U. S. 565-566.(b) The legislative history lends support to the view that Congress intended to reach any enactment which altered the election law of a covered State in even a minor way. Pp. 393 U. S. 566-569.(c) There is no direct conflict between the Court's interpretation of this Act and the principles established by the reapportionment cases, and consideration of any possible conflict should await a concrete case. P. 393 U. S. 569.(d) The enactment in each of these cases constitutes a "voting qualification or prerequisite to voting or standard practice or procedure with respect to voting" within the meaning of § 5. Pp. 393 U. S. 569-571.6. The Act requires that the State must in some unambiguous and recordable manner submit any legislation or regulation to the Attorney General with a request for his consideration pursuant to the Act, and there is no "submission" when the Attorney General merely becomes aware of the legislation or when briefs are served on him. P. 393 U. S. 571.7. In view of the complexity of these issues of first impression, the lack of deliberate defiance of the Act resulting from the States' failure to submit the enactments for approval, and the fact that the discriminatory purpose or effect of these statutes, if any, has not been judicially determined, this decision has prospective effect only. The States remain subject to the continuing strictures of § 5 until they obtain from the District Court for the District of Columbia a declaratory judgment that, for at least five years, they have not used the "tests or devices" proscribed by § 4. Pp. 393 U. S. 571-572.No. 3, 268 F. Supp. 218, vacated and remanded. No. 25, 282 F. Supp. 164; No. 26, 281 F. Supp. 918; and No. 36 each reversed and remanded. Page 393 U. S. 547

1984_83-2129

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to resolve a conflict in the Circuits over whether misrepresentation or nondisclosure is a necessary element of a violation of § 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(e).IOn December 21, 1982, Burlington Northern, Inc., made a hostile tender offer for El Paso Gas Co. Through a wholly Page 472 U. S. 3 owned subsidiary, Burlington proposed to purchase 25.1 million El Paso shares at $24 per share. Burlington reserved the right to terminate the offer if any of several specified events occurred. El Paso management initially opposed the takeover, but its shareholders responded favorably, fully subscribing the offer by the December 30, 1982, deadline.Burlington did not accept those tendered shares; instead, after negotiations with El Paso management, Burlington announced on January 10, 1983, the terms of a new and friendly takeover agreement. Pursuant to the new agreement, Burlington undertook, inter alia, to (1) rescind the December tender offer, (2) purchase 4,166,667 shares from El Paso at $24 per share, (3) substitute a new tender offer for only 21 million shares at $24 per share, (4) provide procedural protections against a squeeze-out merger [Footnote 1] of the remaining El Paso shareholders, and (5) recognize "golden parachute" [Footnote 2] contracts Page 472 U. S. 4 between El Paso and four of its senior officers. By February 8, more than 40 million shares were tendered in response to Burlington's January offer, and the takeover was completed.The rescission of the first tender offer caused a diminished payment to those shareholders who had tendered during the first offer. The January offer was greatly oversubscribed, and consequently those shareholders who retendered were subject to substantial proration. Petitioner Barbara Schreiber filed suit on behalf of herself and similarly situated shareholders, alleging that Burlington, El Paso, and members of El Paso's board of directors violated § 14(e)'s prohibition of "fraudulent, deceptive, or manipulative acts or practices . . . in connection with any tender offer." 15 U.S.C. § 78n(e). She claimed that Burlington's withdrawal of the December tender offer, coupled with the substitution of the January tender offer, was a "manipulative" distortion of the market for El Paso stock. Schreiber also alleged that Burlington violated § 14(e) by failing in the January offer to disclose the "golden parachutes" offered to four of El Paso's managers. She claims that this January nondisclosure was a deceptive act forbidden by § 14(e).The District Court dismissed the suit for failure to state a claim. 568 F. Supp. 197 (Del.1983). The District Court reasoned that the alleged manipulation did not involve a misrepresentation, and so did not violate § 14(e). The District Court relied on the fact that, in cases involving alleged violations of § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), this Court has required misrepresentation for there to be a "manipulative" violation of the section. 568 F. Supp. at 202.The Court of Appeals for the Third Circuit affirmed. 731 F.2d 163 (1984). The Court of Appeals held that the acts Page 472 U. S. 5 alleged did not violate the Williams Act, because"§ 14(e) was not intended to create a federal cause of action for all harms suffered because of the proffering or the withdrawal of tender offers."Id. at 165. The Court of Appeals reasoned that § 14(e) was"enacted principally as a disclosure statute, designed to insure that fully-informed investors could intelligently decide how to respond to a tender offer."Id. at 165-166. It concluded that the "arguable breach of contract" alleged by petitioner was not a "manipulative act" under § 14(e).We granted certiorari to resolve the conflict, [Footnote 3] 469 U.S. 815 (1984). We affirm.IIAWe are asked in this case to interpret § 14(e) of the Securities Exchange Act, 82 Stat. 457, as amended, 15 U.S.C. § 78n(e). The starting point is the language of the statute. Section 14(e) provides:"It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or Page 472 U. S. 6 invitation. The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative."Petitioner relies on a construction of the phrase, "fraudulent, deceptive, or manipulative acts or practices." Petitioner reads the phrase "fraudulent, deceptive, or manipulative acts or practices" to include acts which, although fully disclosed, "artificially" affect the price of the takeover target's stock. Petitioner's interpretation relies on the belief that § 14(e) is directed at purposes broader than providing full and true information to investors.Petitioner's reading of the term "manipulative" conflicts with the normal meaning of the term. We have held in the context of an alleged violation of § 10(b) of the Securities Exchange Act:"Use of the word 'manipulative' is especially significant. It is and was virtually a term of art when used in connection with the securities markets. It connotes intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities."Ernst & Ernst v. Hochfelder, 425 U. S. 185, 425 U. S. 199 (1976) (emphasis added).Other cases interpreting the term reflect its use as a general term comprising a range of misleading practices:"The term refers generally to practices, such as wash sales, matched orders, or rigged prices, that are intended to mislead investors by artificially affecting market activity. . . . Section 10(b)'s general prohibition of practices deemed by the SEC to be "manipulative" -- in this technical sense of artificially affecting market activity in order to mislead investors -- is fully consistent with the fundamental purpose of the 1934 Act "to substitute Page 472 U. S. 7 a philosophy of full disclosure for the philosophy of caveat emptor. . . .'" . . . Indeed, nondisclosure is usually essential to the success of a manipulative scheme. . . . No doubt Congress meant to prohibit the full range of ingenious devices that might be used to manipulate securities prices. But we do not think it would have chosen this "term of art" if it had meant to bring within the scope of § 10(b) instances of corporate mismanagement such as this, in which the essence of the complaint is that shareholders were treated unfairly by a fiduciary." Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 430 U. S. 476-477 (1977). The meaning the Court has given the term "manipulative" is consistent with the use of the term at common law, [Footnote 4] and with its traditional dictionary definition. [Footnote 5]She argues, however, that the term "manipulative" takes on a meaning in § 14(e) that is different from the meaning it has in § 10(b). Petitioner claims that the use of the disjunctive "or" in § 14(e) implies that acts need not be deceptive or fraudulent to be manipulative. But Congress used the phrase "manipulative or deceptive" in § 10(b) as well, and we have interpreted "manipulative" in that context to require Page 472 U. S. 8 misrepresentation. [Footnote 6] Moreover, it is a "familiar principle of statutory construction that words grouped in a list should be given related meaning.'" Securities Industry Assn. v. Board of Governors, FRS, 468 U. S. 207, 468 U. S. 218 (1984). All three species of misconduct, i.e., "fraudulent, deceptive, or manipulative," listed by Congress are directed at failures to disclose. The use of the term "manipulative" provides emphasis and guidance to those who must determine which types of acts are reached by the statute; it does not suggest a deviation from the section's facial and primary concern with disclosure or congressional concern with disclosure which is the core of the Act.BOur conclusion that "manipulative" acts under § 14(e) require misrepresentation or nondisclosure is buttressed by the purpose and legislative history of the provision. Section 14(e) was originally added to the Securities Exchange Act as part of the Williams Act, 82 Stat. 457."The purpose of the Williams Act is to insure that public shareholders who are confronted by a cash tender offer for their stock will not be required to respond without adequate information."Rondeau v. Mosinee Paper Corp., 422 U. S. 49, 422 U. S. 58 (1975). [Footnote 7]It is clear that Congress relied primarily on disclosure to implement the purpose of the Williams Act. Senator Williams, the bill's Senate sponsor, stated in the debate:"Today, the public shareholder, in deciding whether to accept or reject a tender offer, possesses limited information. No matter what he does, he acts without adequate knowledge to enable him to decide rationally what is the best course of action. This is precisely the dilemma Page 472 U. S. 9 which our securities laws are designed to prevent."113 Cong.Rec. 24664 (1967).The expressed legislative intent was to preserve a neutral setting in which the contenders could fully present their arguments. [Footnote 8] The Senate sponsor went on to say:"We have taken extreme care to avoid tipping the scales either in favor of management or in favor of the person making the takeover bids. S. 510 is designed solely to require full and fair disclosure for the benefit of investors. The bill will at the same time provide the offeror and management equal opportunity to present their case."Ibid.To implement this objective, the Williams Act added §§ 13(d), 13(e), 14(d), 14(e), and 14(f) to the Securities Exchange Act. Some relate to disclosure; §§ 13(d), 14(d), and 14(f) all add specific registration and disclosure provisions. Others -- §§ 13(e) and 14(d) -- require or prohibit certain acts so that investors will possess additional time within which to take advantage of the disclosed information. [Footnote 9] Page 472 U. S. 10Section 14(e) adds a "broad antifraud prohibition," Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 430 U. S. 24 (1977), modeled on the antifraud provisions of § 10(b) of the Act and Rule 10b-5, 17 CFR § 240.10b-5 (1984). [Footnote 10] It supplements the Page 472 U. S. 11 more precise disclosure provisions found elsewhere in the Williams Act, while requiring disclosure more explicitly addressed to the tender offer context than that required by § 10(b).While legislative history specifically concerning § 14(e) is sparse, the House and Senate Reports discuss the role of § 14(e). Describing § 14(e) as regulating "fraudulent transactions," and stating the thrust of the section:"This provision would affirm the fact that persons engaged in making or opposing tender offers or otherwise seeking to influence the decision of investors or the outcome of the tender offer are under an obligation to make full disclosure of material information to those with whom they deal."H.R.Rep. No. 1711, 90th Cong., 2d Sess., 11 (1968) (emphasis added); S.Rep. No. 550, 90th Cong., 1st Sess., 11 (1967) (emphasis added). Nowhere in the legislative history is there the slightest suggestion that § 14(e) serves any purpose other than disclosure, [Footnote 11] or that the term "manipulative" should be read as an Page 472 U. S. 12 invitation to the courts to oversee the substantive fairness of tender offers; the quality of any offer is a matter for the marketplace.To adopt the reading of the term "manipulative" urged by petitioner would not only be unwarranted in light of the legislative purpose, but would be at odds with it. Inviting judges to read the term "manipulative" with their own sense of what constitutes "unfair" or "artificial" conduct would inject uncertainty into the tender offer process. An essential piece of information -- whether the court would deem the fully disclosed actions of one side or the other to be "manipulative" -- would not be available until after the tender offer had closed. This uncertainty would directly contradict the expressed congressional desire to give investors full information.Congress' consistent emphasis on disclosure persuades us that it intended takeover contests to be addressed to shareholders. In pursuit of this goal, Congress, consistent with the core mechanism of the Securities Exchange Act, created sweeping disclosure requirements and narrow substantive safeguards. The same Congress that placed such emphasis on shareholder choice would not at the same time have required judges to oversee tender offers for substantive fairness. It is even less likely that a Congress implementing that intention would express it only through the use of a single word placed in the middle of a provision otherwise devoted to disclosure.CWe hold that the term "manipulative," as used in § 14(e), requires misrepresentation or nondisclosure. It connotes "conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities." Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 199. Without misrepresentation or nondisclosure, § 14(e) has not been violated.Applying that definition to this case, we hold that the actions of respondents were not manipulative. The amended complaint fails to allege that the cancellation of the first Page 472 U. S. 13 tender offer was accompanied by any misrepresentation, nondisclosure, or deception. The District Court correctly found: "All activity of the defendants that could have conceivably affected the price of El Paso shares was done openly." 568 F. Supp. at 203.Petitioner also alleges that El Paso management and Burlington entered into certain undisclosed and deceptive agreements during the making of the second tender offer. The substance of the allegations is that, in return for certain undisclosed benefits, El Paso managers agreed to support the second tender offer. But both courts noted that petitioner's complaint seeks only redress for injuries related to the cancellation of the first tender offer. Since the deceptive and misleading acts alleged by petitioner all occurred with reference to the making of the second tender offer -- when the injuries suffered by petitioner had already been sustained -- these acts bear no possible causal relationship to petitioner's alleged injuries. The Court of Appeals dealt correctly with this claim.IIIThe judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtSchreiber v. Burlington Northern, 472 U.S. 1 (1985)Schreiber v. Burlington Northern, Inc.No. 83-2129Argued January 9, 1985Decided June 4, 1985472 U.S. 1SyllabusIn December 1982, respondent Burlington Northern, Inc., made a hostile tender offer for El Paso Gas Co. to which a majority of El Paso's shareholders ultimately subscribed. Burlington did not accept the tendered shares, and instead, in January, 1983, after negotiations with El Paso, announced a new and friendly takeover agreement. Pursuant to this agreement, Burlington undertook to rescind the December tender offer and substitute a new tender offer. The January tender offer was soon oversubscribed. The rescission of the first tender offer caused a diminished payment to those shareholders who had tendered during the first offer, because those shareholders who retendered were subject to substantial proration. Petitioner filed suit in Federal District Court on behalf of herself and similarly situated shareholders, alleging that Burlington, El Paso, and members of El Paso's board of directors had violated § 14(e) of the Securities Exchange Act of 1934, which prohibits "fraudulent, deceptive, or manipulative acts or practices . . . in connection with any tender offer." She claimed that Burlington's withdrawal of the December tender offer, coupled with the substitution of the January tender offer, was a "manipulative" distortion of the market for El Paso stock. The District Court dismissed the suit for failure to state a claim, holding that the alleged manipulation did not involve a misrepresentation, and so did not violate § 14(e). The Court of Appeals affirmed. Page 472 U. S. 2Held:1. "Manipulative" acts under § 14(e) require misrepresentation or nondisclosure. To read the term "manipulative" in § 14(e) to include acts that, although fully disclosed, "artificially" affect the price of the takeover target's stock conflicts with the normal meaning of the term as connoting conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities. Pp. 472 U. S. 5-8.2. This interpretation of the term "manipulative" as used in § 14(e) is supported by the provision's purpose and legislative history. The purpose of the Williams Act, which added § 14(e) to the Securities Exchange Act, was to ensure that public shareholders who are confronted with a tender offer will not be required to respond without adequate information. Nowhere in the legislative history is there any suggestion that § 14(e) serves any purpose other than disclosure, or that the term "manipulative" should be read as an invitation to the courts to oversee the substantive fairness of tender offers; the quality of any offer is a matter for the marketplace. Pp. 472 U. S. 8-12.3. Applying the above interpretation of the term "manipulative" to this case, respondents' actions were not manipulative. Pp. 472 U. S. 12-13.731 F.2d 163, affirmed.BURGER, C.J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the decision of the case, and O'CONNOR, J., who took no part in the consideration or decision of the case.

1992_91-1695

382 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIPJohn A. Lucas argued the cause for respondents. With him on the brief was Lansing R. Palmer.JUSTICE WHITE delivered the opinion of the Court.Rule 3003(c) of the Federal Rules of Bankruptcy Procedure sets out the requirements for filing proofs of claim in Chapter 9 Municipality and Chapter 11 Reorganization cases.1 Rule 3003(c)(3) provides that the "court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed." Rule 9006 is a general rule governing the computation, enlargement, and reduction of periods of time prescribed in other bankruptcy rules. Rule 9006(b)(1) empowers a bankruptcy court to permit a late filing if the movant's failure to comply with an earlier deadline "was the result of excusable neglect." 2 In this case, we are1 Bankruptcy Rule 3003(c), in relevant part, provides: "(c) Filing Proof of Claim."(1) Who May File. Any creditor or indenture trustee may file a proof of claim within the time prescribed by subdivision (c)(3) of this rule."(2) Who Must File. Any creditor or equity security holder whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the time prescribed by subdivision (c)(3) of this rule; any creditor who fails to do so shall not be treated as a creditor with respect to such claim for the purposes of voting and distribution."(3) Time for Filing. The court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed. Notwithstanding the expiration of such time, a proof of claim may be filed to the extent and under the conditions stated in Rule 3002(c)(2), (c)(3), and (c)(4)."2 Bankruptcy Rule 9006(b) provides: "(b) Enlargement."(1) In General. Except as provided in paragraphs (2) and (3) of this subdivision, when an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if the request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) on motion made after the expira-383called upon to decide whether an attorney's inadvertent failure to file a proof of claim within the deadline set by the court can constitute "excusable neglect" within the meaning of the Rule. Finding that it can, we affirm.IOn April 12, 1989, petitioner filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the Eastern District of Tennessee. The petition sought relief under Chapter 11 of the Bankruptcy Code. Petitioner also filed a list of its 20 largest unsecured creditors, including all but one of respondents here. The following month, after obtaining extensions of time from the Bankruptcy Court, petitioner filed a statement of financial affairs and schedules of its assets and liabilities. The schedules, as amended, listed all of the respondents except Ft. Oglethorpe Associates Limited Partnership as creditors holding contingent, unliquidated, or disputed claims; the Ft. Oglethorpe partnership was not listed at all. Under § 1111 of the Bankruptcy Code, 11 U. S. C. § 1111(a), and Bankruptcy Rule 3003(c)(2), all such creditors are required to file a proof of claim with the bankruptcy court before the deadline, or "bar date," established by the court.On April 13, 1989, the day after petitioner filed its Chapter 11 petition, the Bankruptcy Court mailed a "Notice for Meeting of Creditors" to petitioner's creditors. Along with the announcement of a May 5 meeting was the following passage:tion of the specified period permit the act to be done where the failure to act was the result of excusable neglect."(2) Enlargement Not Permitted. The court may not enlarge the time for taking action under Rules 1007(d), 1017(b)(3), 2003(a) and (d), 7052, 9023, and 9024."(3) Enlargment Limited. The court may enlarge the time for taking action under Rules 1006(b)(2), 1017(e), 3002(c), 4003(b), 4004(a), 4007(c), 8002, and 9033, only to the extent and under the conditions stated in those rules."384384 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIP"You must file a proof of claim if your claim is scheduled as disputed, contingent or unliquidated, is unlisted or you do not agree with the amount. See 11 U. S. C. Sec. 1111 & Bankruptcy rule 3003. Bar date is August 3, 1989." App.29a.The notice was received and read by Mark A. Berlin, president of the corporate general partners of each of the respondents. Berlin duly attended the creditors' meeting on May 5. The following month, respondents retained an experienced bankruptcy attorney, Marc Richards, to represent them in the proceedings. Berlin stated in an affidavit that he provided Richards with a complete copy of the case file, including a copy of the court's April 13, 1989, notice to creditors. Berlin also asserted that he inquired of Richards whether there was a deadline for filing claims and that Richards assured him that no bar date had been set and that there was no urgency in filing proofs of claim. Id., at 121a. Richards and Berlin both attended a subsequent meeting of creditors on June 16, 1989.Respondents failed to file any proofs of claim by the August 3, 1989, bar date. On August 23, 1989, respondents filed their proofs, along with a motion that the court permit the late filing under Rule 9006(b)(1). In particular, respondents' counsel explained that the bar date, of which he was unaware, came at a time when he was experiencing "a major and significant disruption" in his professional life caused by his withdrawal from his former law firm on July 31, 1989. Id., at 56a. Because of this disruption, counsel did not have access to his copy of the case file in this matter until midAugust. Ibid.The Bankruptcy Court refused the late filing. Following precedent from the Court of Appeals for the Eleventh Circuit, the court held that a party may claim "excusable neglect" only if its" 'failure to timely perform a duty was due to circumstances which were beyond [its] reasonable [c]ontrol.'" Id., at 124a (quoting In re South Atlantic Financial385Corp., 767 F.2d 814, 817 (CAll 1985) (some internal quotation marks omitted), cert. denied sub nom. Biscayne 21 Condominium Associates, Inc. v. South Atlantic Financial Corp., 475 U. S. 1015 (1986)). Finding that respondents had received notice of the bar date and could have complied, the court ruled that they could not claim "excusable neglect."On appeal, the District Court affirmed in part and reversed in part. The court found "respectable authority for the narrow reading of 'excusable neglect'" adopted by the Bankruptcy Court, but concluded that the Court of Appeals for the Sixth Circuit would follow "a more liberal approach." App. 157a. Embracing a test announced by the Court of Appeals for the Ninth Circuit, the District Court remanded with instructions that the Bankruptcy Court evaluate respondents' conduct against several factors, including: '" "(1) whether granting the delay will prejudice the debtor; (2) the length of the delay and its impact on efficient court administration; (3) whether the delay was beyond the reasonable control of the person whose duty it was to perform; (4) whether the creditor acted in good faith; and (5) whether clients should be penalized for their counsel's mistake or neglect." ", Id., at 158a-159a (quoting In re Dix, 95 B. R. 134, 138 (CA9 Bkrtcy. Appellate Panel 1988) (in turn quoting In re Magouirk, 693 F.2d 948, 951 (CA9 1982))). The District Court also suggested that the Bankruptcy Court consider whether the failure to comply with the bar date "resulted from negligence, indifference or culpable conduct on the part of a moving creditor or its counsel." App. 159a.On remand, the Bankruptcy Court applied the so-called Dix factors and again denied respondents' motion. Specifically, the Bankruptcy Court found (1) that petitioner would not be prejudiced by the late filings; (2) that the 20-day delay in filing the proofs of claim would have no adverse impact on efficient court administration; (3) that the reason for the delay was not outside respondents' control; (4) that respondents and their counsel acted in good faith; and (5) that, in386386 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIPlight of Berlin's business sophistication and his actual knowledge of the bar date, it would not be improper to penalize respondents for the neglect of their counsel. App. 168a172a. The court also found that respondents' counsel was negligent in missing the bar date and, "[t]o a degree," indifferent to it. Id., at 172a. In weighing these considerations, the Bankruptcy Court "attache[d] considerable importance to Dix factors 3 and 5," and concluded that a ruling in respondents' favor, notwithstanding their actual notice of the bar date, "would render nugatory the fixing of the claims' bar date in this case." Id., at 173a. The District Court affirmed the ruling.The Court of Appeals for the Sixth Circuit reversed. The Court of Appeals agreed with the District Court that "excusable neglect" was not limited to cases where the failure to act was due to circumstances beyond the movant's control. The Court of Appeals also agreed with the District Court that the five "Dix factors" were helpful, although not necessarily exhaustive, guides. In re Pioneer Investment Services Co., 943 F.2d 673, 677 (1991). The court found, however, that the Bankruptcy Court had misapplied the fifth Dix factor to this case. Because Berlin had inquired of counsel whether there were any impending filing deadlines and been told that none existed, the Court of Appeals ruled that the Bankruptcy Court had "inappropriately penalized the [respondents] for the errors of their counsel." 943 F. 2d, at 677.The Court of Appeals also found "it significant that the notice containing the bar date was incorporated in a document entitled 'Notice for Meeting of Creditors.'" Id., at 678. "Such a designation," the court explained, "would not have put those without extensive experience in bankruptcy on notice that the date appended to the end of this notice was intended to be the final date for filing proof of claims." Ibid. Indeed, based on a comparison between the notice in this case and the model notice set out in Official Bankruptcy Form 16, the court concluded that the notice given respond-387ents contained a "dramatic ambiguity," which could well have confused "[e]ven persons experienced in bankruptcy." Ibid. Having determined that the fifth Dix factor favored respondents rather than petitioner, the Court of Appeals found that the record demonstrated "excusable neglect."Because of the conflict in the Courts of Appeals over the meaning of "excusable neglect,"3 we granted certiorari, 504 U. S. 984 (1992), and now affirm.II AThere is, of course, a range of possible explanations for a party's failure to comply with a court-ordered filing deadline. At one end of the spectrum, a party may be prevented from complying by forces beyond its control, such as by an act of God or unforeseeable human intervention. At the other, a3 The Courts of Appeals for the Fourth, Seventh, Eighth, and Eleventh Circuits have taken a narrow view of "excusable neglect" under Rule 9006(b)(1), requiring a showing that the delay was caused by circumstances beyond the movant's control. See In re Davis, 936 F.2d 771, 774 (CA4 1991); In re Danielson, 981 F.2d 296, 298 (CA7 1992); Hanson v. First Bank of South Dakota, N. A., 828 F.2d 1310, 1314-1315 (CA8 1987); In re Analytical Systems, Inc., 933 F.2d 939, 942 (CAll 1991). The Court of Appeals for the Tenth Circuit, by contrast, has applied a more flexible analysis similar to that employed by the Court of Appeals in the present case. In re Centric Corp., 901 F.2d 1514, 1517-1518, cert. denied sub nom. Trustees of Centennial State Carpenters Pension Trust Fund v. Centric Corp., 498 U. S. 852 (1990). The Courts of Appeals similarly have divided in their interpretations of "excusable neglect" as found in Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Some courts have required a showing that the movant's failure to meet the deadline was beyond its control, see, e. g., 650 Park Ave. Corp. v. McRae, 836 F.2d 764, 767 (CA2 1988); Pratt v. McCarthy, 850 F.2d 590, 592 (CA9 1988), while others have adopted a more flexible approach similar to that employed by the Court of Appeals in this case, see, e. g., Consolidated Freightways Corp. of Delaware v. Larson, 827 F.2d 916 (CA3 1987), cert. denied sub nom. Consolidated Freightways Corp. v. Secretary of Transp. of Pennsylvania, 484 U. S. 1032 (1988); Lorenzen v. Employees Retirement Plan of Sperry-Hutchinson Co., 896 F.2d 228, 232-233 (CA7 1990).388388 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIPparty simply may choose to flout a deadline. In between lie cases where a party may choose to miss a deadline although for a very good reason, such as to render first aid to an accident victim discovered on the way to the courthouse, as well as cases where a party misses a deadline through inadvertence, miscalculation, or negligence. Petitioner contends that the Bankruptcy Court was correct when it first interpreted Rule 9006(b)(1) to require a showing that the movant's failure to comply with the court's deadline was caused by circumstances beyond its reasonable control. Petitioner suggests that exacting enforcement of filing deadlines is essential to the Bankruptcy Code's goals of certainty and finality in resolving disputed claims. Under petitioner's view, any showing of fault on the part of the late filer would defeat a claim of "excusable neglect."We think that petitioner's interpretation is not consonant with either the language of the Rule or the evident purposes underlying it. First, the Rule grants a reprieve to out-oftime filings that were delayed by "neglect." The ordinary meaning of "neglect" is "to give little attention or respect" to a matter, or, closer to the point for our purposes, "to leave undone or unattended to esp[ecially] through carelessness." Webster's Ninth New Collegiate Dictionary 791 (1983) (emphasis added). The word therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness. Courts properly assume, absent sufficient indication to the contrary, that Congress intends the words in its enactments to carry "their ordinary, contemporary, common meaning." Perrin v. United States, 444 U. S. 37, 42 (1979). Hence, by empowering the courts to accept late filings "where the failure to act was the result of excusable neglect," Rule 9006(b)(1), Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control.389Contrary to petitioner's suggestion, this flexible understanding of "excusable neglect" accords with the policies underlying Chapter 11 and the bankruptcy rules. The "excusable neglect" standard of Rule 9006(b)(1) governs late filings of proofs of claim in Chapter 11 cases but not in Chapter 7 cases.4 The rules' differentiation between Chapter 7 and Chapter 11 filings corresponds with the differing policies of the two chapters. Whereas the aim of a Chapter 7 liquidation is the prompt closure and distribution of the debtor's estate, Chapter 11 provides for reorganization with the aim of rehabilitating the debtor and avoiding forfeitures by creditors. See United States v. Whiting Pools, Inc., 462 U. S. 198,203 (1983). In overseeing this latter process, the bankruptcy courts are necessarily entrusted with broad equitable powers to balance the interests of the affected parties, guided by the overriding goal of ensuring the success of the reorganization. See NLRB v. Bildisco & Bildisco, 465 U. S. 513, 527-528 (1984). This context suggests that Rule 9006's allowance for late filings due to "excusable neglect" entails a correspondingly equitable inquiry.The history of the present bankruptcy rules confirms this view. Rule 9006(b) is derived from Rule 906(b) of the former bankruptcy rules, which governed bankruptcy pro-4 The time-computation and time-extension provisions of Rule 9006, like those of Federal Rule of Civil Procedure 6, are generally applicable to any time requirement found elsewhere in the rules unless expressly excepted. Subsections (b)(2) and (b)(3) of Rule 9006 enumerate those time requirements excluded from the operation of the "excusable neglect" standard. One of the time requirements listed as excepted in Rule 9006(b)(3) is that governing the filing of proofs of claim in Chapter 7 cases. Such filings are governed exclusively by Rule 3002(c). See Rule 9006(b)(3); In re Coastal Alaska Lines, Inc., 920 F.2d 1428, 1432 (CA9 1990). By contrast, Rule 9006(b) does not make a similar exception for Rule 3003(c), which, as noted earlier, establishes the time requirements for proofs of claim in Chapter 11 cases. Consequently, Rule 9006(b)(1) must be construed to govern the permissibility of late filings in Chapter 11 bankruptcies. See Advisory Committee's Note accompanying Rule 9006(b)(1).390390 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIPceedings under the former Bankruptcy Act. Like Rule 9006(b)(1), former Rule 906(b) permitted courts to accept late filings "where the failure to act was the result of excusable neglect." The forerunner of Rule 3003(c), which now establishes the requirements for filing claims in Chapter 11 cases, was former Rule 10-401(b), which established the filing requirements for proofs of claim in reorganization cases under Chapter X of the former Act, Chapter l1's predecessor. The Advisory Committee's Notes accompanying that former Rule make clear that courts were entrusted with the authority under Rules 10-401(b) and 906(b) to accept tardy filings "in accordance with the equities of the situation":"If the court has fixed a bar date for the filing of proofs of claim, it may still enlarge that time within the provisions of Bankruptcy Rule 906(b) which is made applicable in this subdivision. This policy is in accord with Chapter X generally which is to preserve rather than to forfeit rights. In § 102 it rejects the notion expressed in § 57n of the Act that claims must be filed within a six-month period to participate in any distribution. Section 224(4) of Chapter X of the Act permits distribution to certain creditors even if they fail to file claims and § 204 fixes a minimum period of 5 years before distribution rights under a plan may be forfeited. This approach was intentional as expressed in Senate Report 1916 (75th Cong., 3d Sess., April 20, 1938):"'Sections 204 and 205 insure participation in the benefits of the reorganization to those who, through inadvertence or otherwise, have failed to file their claims or otherwise evidence their interests during the pendency of the proceedings.'"This attitude is carried forward in the rules, first by dispensing with the need to file proofs of claims and stock interests in most instances and, secondly, by permitting enlargement of the fixed bar date in a particular391case with leave of court and for cause shown in accordance with the equities of the situation." Advisory Committee's Note accompanying Rule 10-401(b), reprinted in 13A J. Moore & L. King, Collier on Bankruptcy' 10401.01, p. 10-401-4 (14th ed. 1977).This history supports our conclusion that the enlargement of prescribed time periods under the "excusable neglect" standard of Rule 9006(b)(1) is not limited to situations where the failure to timely file is due to circumstances beyond the control of the filer.Our view that the phrase "excusable neglect" found in Bankruptcy Rule 9006(b)(1) is not limited as petitioner would have it is also strongly supported by the Federal Rules of Civil Procedure, which use that phrase in several places. Indeed, Rule 9006(b)(1) was patterned after Rule 6(b) of those Rules.5 Under Rule 6(b), where the specified period for the performance of an act has elapsed, a district court may enlarge the period and permit the tardy act where the omission is the "result of excusable neglect." 6 As with Rule 9006(b)(1), there is no indication that anything other than the commonly accepted meaning of the phrase was intended by its drafters. It is not surprising, then, that in applying Rule 6(b), the Courts of Appeals have generally recognized that5 See Advisory Committee's Note accompanying Rule 9006(b). 6 Federal Rule of Civil Procedure 6(b) provides:"(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b) and (c)(2), 52 (b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them."392392 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIP"excusable neglect" may extend to inadvertent delays.7 Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable" neglect, it is clear that "excusable neglect" under Rule 6(b) is a somewhat "elastic concept" 8 and is not limited strictly to omissions caused by circumstances beyond the control of the movant.9The "excusable neglect" standard for allowing late filings is also used elsewhere in the Federal Rules of Civil Procedure. When a party should have asserted a counterclaim but did not, Rule 13(f) permits the counterclaim to be set up by amendment where the omission is due to "oversight, inadvertence, or excusable neglect, or when justice requires." In the context of such a provision, it is difficult indeed to imagine that "excusable neglect" was intended to be limited as petitioner insists it should be.107See, e. g., United States v. Borromeo, 945 F.2d 750, 753-754 (CA41991); Hill v. Marshall, No. 86-3987, 1988 U. S. App. LEXIS 14742, *4 (CA6, Nov. 4, 1988); Dominic v. Hess Oil V. I. Corp., 841 F.2d 513, 517 (CA3 1988); Sony Corp. v. Elm State Electronics, Inc., 800 F.2d 317, 319 (CA2 1986); United States ex rel. Robinson v. Bar Assn. of District of Columbia, 89 U. S. App. D. C. 185, 186, 190 F.2d 664, 665 (1951). But see Hewlett-Packard Co. v. Olympus Corp., 931 F.2d 1551, 1552-1553 (CA Fed. 1991).84A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 479 (2d ed. 1987).9The Courts of Appeals generally have given a similar interpretation to "excusable neglect" in the context of Rule 45(b) of the Federal Rules of Criminal Procedure, which, like Rule 9006(b), was modeled after Rule 6(b). See, e. g., United States v. Roberts, 978 F.2d 17,21-24 (CA11992); Warren v. United States, 123 U. S. App. D. C. 160, 163, 358 F.2d 527, 530 (1965); Calland v. United States, 323 F.2d 405, 407-408 (CA7 1963).10 In assessing what constitutes "excusable neglect" under Rule 13(f), the lower courts have looked, inter alia, to the good faith of the claimant, the extent of the delay, and the danger of prejudice to the opposing party. See, e. g., New York Petroleum Corp. v. Ashland Oil, Inc., 757 F.2d 288, 291 (Temp. Emerg. Ct. App. 1985); Gaines v. Farese, No. 87-5567, 1990 U. S. App. LEXIS 18086, *9 (CA6, Oct. 11, 1990); Barrett v. United States Banknote Corp., 1992-2 Trade Cases' 69,956, p. 68,607 (SDNY 1992);393The same is true of Rule 60(b)(1), which permits courts to reopen judgments for reasons of "mistake, inadvertence, surprise, or excusable neglect," but only on motion made within one year of the judgment. Rule 60(b)(6) goes further, however, and empowers the court to reopen a judgment even after one year has passed for "any other reason justifying relief from the operation of the judgment." These provisions are mutually exclusive, and thus a party who failed to take timely action due to "excusable neglect" may not seek relief more than a year after the judgment by resorting to subsection (6). Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847, 863, and n. 11 (1988). To justify relief under subsection (6), a party must show "extraordinary circumstances" suggesting that the party is faultless in the delay. See ibid.; Ackermann v. United States, 340 U. S. 193, 197-200 (1950); Klapprott v. United States, 335 U. S. 601, 613-614 (1949). If a party is partly to blame for the delay, relief must be sought within one year under subsection (1) and the party's neglect must be excusable. In Klapprott, for example, the petitioner had been effectively prevented from taking a timely appeal of a judgment by incarceration, ill health, and other factors beyond his reasonable control. Four years after a default judgment had been entered against him, he sought to reopen the matter under Rule 60(b) and was permitted to do so. As explained by Justice Black:"It is contended that the one-year limitation [of subsection (1)] bars petitioner on the premise that the petition to set aside the judgment showed, at most, nothing but 'excusable neglect.' And of course, the one-year limitation would control if no more than 'neglect' was disclosed by the petition. In that event the petitioner could not avail himself of the broad 'any other reason' clause ofTechnographics, Inc. v. Mercer Corp., 142 F. R. D. 429, 430 (MD Pa. 1992). Federal Rule of Bankruptcy Procedure 7013 contains a similar allowance for late counterclaims brought by a trustee or debtor in possession.394394 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIP60(b). But petitioner's allegations set up an extraordinary situation which cannot fairly or logically be classified as mere 'neglect' on his part. The undenied facts set out in the petition reveal far more than a failure to defend ... due to inadvertence, indifference, or careless disregard of consequences." Id., at 613.Justice Frankfurter, although dissenting on other grounds, agreed that Klapprott's allegations of inability to comply with earlier deadlines took his case outside the scope of "excusable neglect" "because 'neglect' in the context of its subject matter carries the idea of negligence and not merely of non-action." Id., at 630.Thus, at least for purposes of Rule 60(b), "excusable neglect" is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence. Because of the language and structure of Rule 60(b), a party's failure to file on time for reasons beyond his or her control is not considered to constitute "neglect." See Klapprott, supra.ll This latter result, however, would not obtain under Bankruptcy Rule 9006(b)(1). Had respondents here been prevented from complying with the bar date by an act of God or some other circumstance beyond their control, the Bankruptcy Court plainly would have been permitted to find "excusable neglect." At the same time, reading Rule 9006(b)(1) inflexibly to exclude every instance of an inadvertent or negligent omission would ignore the most natu-11 A similar, but even more explicit, dichotomy can be found in a former Rule of the Court of Appeals for the Second Circuit governing the late filing of appeals. That Rule permitted late filings" 'upon a showing ... (a) that the delay has been due to cause beyond the control of the moving party or (b) that the delay has been due to circumstances which shall be deemed to be merely excusable neglect ... .''' Rule 15(2), U. S. C. C. A., Second Circuit, quoted in Pyramid Motor Freight Corp. v. Ispass, 330 U. S. 695, 703, n. 10 (1947). Although the meaning given "excusable neglect" for purposes of this Rule obviously is not controlling for purposes of Rule 9006(b)(1), it does suggest that the meaning of "excusable neglect" urged by petitioner is far from natural.395ral meaning of the word "neglect" and would be at odds with the accepted meaning of that word in analogous contexts.12BThis leaves, of course, the Rule's requirement that the party's neglect of the bar date be "excusable." It is this requirement that we believe will deter creditors or other parties from freely ignoring court-ordered deadlines in the hopes of winning a permissive reprieve under Rule 9006(b)(1). With regard to determining whether a party's neglect of a deadline is excusable, we are in substantial agreement with the factors identified by the Court of Appeals. Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable," we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.13 These include, as the Court of Appeals found, the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. See 943 F. 2d, at 677.1412 See also United States v. Boyle, 469 U. S. 241, 245, n. 3 (1985) ("neglect" as used in statute governing late filing of tax returns "impl[ies] carelessness").13The dissent discerns in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990), an indication that the factors relevant to this inquiry extend no further than the movant's culpability and the reason for the delay, see post, at 401. We cannot agree. Lujan held that a District Court did not abuse its discretion in declining to permit a late filing under Rule 6(b) of the Civil Rules on grounds of excusable neglect. 497 U. S., at 897898. The Court did not, however, define "excusable neglect" or even decide whether that standard could have been met on the facts of that case.14 The dissent would permit judges to take account of the full range of equitable considerations only if they have first made a threshold determination that the movant is "sufficiently blameless" in the delay, see post, at 400. The dissent believes that this formulation of the Rule's requirements396396 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIPThere is one aspect of the Court of Appeals' analysis, however, with which we disagree. The Court of Appeals suggested that it would be inappropriate to penalize respondents for the omissions of their attorney, reasoning that "the ultimate responsibility of filing the ... proof[s] of clai[m] rested with [respondents'] counsel." Ibid. The court also appeared to focus its analysis on whether respondents did all they reasonably could in policing the conduct of their attorney, rather than on whether their attorney, as respondents' agent, did all he reasonably could to comply with the courtordered bar date. In this, the court erred.In other contexts, we have held that clients must be held accountable for the acts and omissions of their attorneys. In Link v. Wabash R. Co., 370 U. S. 626 (1962), we held that a client may be made to suffer the consequence of dismissal of its lawsuit because of its attorney's failure to attend a scheduled pretrial conference. In so concluding, we found "no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client." Id., at 633. To the contrary, the Court wrote:would bring needed clarity to the Rule's application and save judicial resources. See post, at 408. But narrowing the range of factors to be considered in making the "excusable neglect" determination will not eliminate disputes over how the remaining factors should be applied in any given case. For purposes of the present case at least, the dissent appears willing to draw a line between ordinary negligence and partial "indifference" to deadlines, see post, at 407, but parties with valuable interests at stake will no doubt find this distinction susceptible of litigation. The only reliable means of eliminating the "indeterminacy" the dissent finds so troubling would be to adopt a bright-line rule of the sort embraced by some Courts of Appeals, erecting a rigid barrier against late filings attributable in any degree to the movant's negligence. As we have suggested, however, such a construction is irreconcilable with our cases assigning a more flexible meaning to "excusable neglect." Faced with a choice between our own precedent and Black's Law Dictionary, we adhere to the former.397"Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyeragent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'" Id., at 633-634 (quoting Smith v. Ayer, 101 U. S. 320, 326 (1880)).This principle also underlies our decision in United States v. Boyle, 469 U. S. 241 (1985), that a client could be penalized for counsel's tardy filing of a tax return. This principle applies with equal force here and requires that respondents be held accountable for the acts and omissions of their chosen counsel. Consequently, in determining whether respondents' failure to file their proofs of claim prior to the bar date was excusable, the proper focus is upon whether the neglect of respondents and their counsel was excusable.IIIAlthough the Court of Appeals in this case erred in not attributing to respondents the fault of their counsel, we conclude that its result was correct nonetheless. First, petitioner does not challenge the findings made below concerning the respondents' good faith and the absence of any danger of prejudice to the debtor or of disruption to efficient judicial administration posed by the late filings. Nor would we be inclined in any event to unsettle factual findings entered by a Bankruptcy Court and affirmed by both the District Court and Court of Appeals. See Goodman v. Lukens Steel Co., 482 U. S. 656, 665 (1987). Indeed, in this case, the Bankruptcy Court took judicial notice of the fact that the debtor's second amended plan of reorganization, offered after this litigation was well underway, takes account of respondents' claims. App. 168a-169a. As the Court of Appeals found,398398 PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LTD. PARTNERSHIPthe lack of any prejudice to the debtor or to the interests of efficient judicial administration, combined with the good faith of respondents and their counsel, weigh strongly in favor of permitting the tardy claim.In assessing the culpability of respondents' counsel, we give little weight to the fact that counsel was experiencing upheaval in his law practice at the time of the bar date. We do, however, consider significant that the notice of the bar date provided by the Bankruptcy Court in this case was outside the ordinary course in bankruptcy cases. As the Court of Appeals noted, ordinarily the bar date in a bankruptcy case should be prominently announced and accompanied by an explanation of its significance. See 943 F. 2d, at 678. We agree with the court that the "peculiar and inconspicuous placement of the bar date in a notice regarding a creditors['J meeting," without any indication of the significance of the bar date, left a "dramatic ambiguity" in the notification. Ibid.15 This is not to say, of course, that respondents' counsel was not remiss in failing to apprehend the notice. To be sure, were there any evidence of prejudice to petitioner or to judicial administration in this case, or any indication at all of bad faith, we could not say that the Bankruptcy Court abused its discretion in declining to find the neglect to be "excusable." In the absence of such a showing, however, we15 Indeed, one commentator has warned expressly of the deficiency in the method of notification employed by the Bankruptcy Court here: "Prior to the adoption of the present bankruptcy rules some bankruptcy courts placed a time to close the receipt of claims in chapter 11 in the notice sent to the listed creditors for the first meeting of creditors. This practice should be strongly discouraged. It conflicts with some of the factual circumstances giving rise to a claim in chapter 11 and can ambush unwitting creditors. Since creditors are notorious for failing to read all of the boilerplate language in the xeroxed form distributed as the notice of the first meeting of creditors, counsel for creditors will be wise to double check and ask for a prompt receipt of the notice from the client or examine the notice on file in the particular bankruptcy case." R. Aaron, Bankruptcy Law Fundamentals § 8.02[7], p. 8-21 (rev. ed. 1991).399conclude that the unusual form of notice employed in this case requires a finding that the neglect of respondents' counsel was, under all the circumstances, "excusable."For these reasons, the judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1992SyllabusPIONEER INVESTMENT SERVICES CO. v.BRUNSWICK ASSOCIATES LIMITED PARTNERSHIP ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 91-1695. Argued November 30, 1992-Decided March 24,1993As unsecured creditors of petitioner-a company seeking relief under Chapter 11 of the Bankruptcy Code-respondents were required to file proofs of claim with the Bankruptcy Court before the deadline, or bar date, established by that court. An August 3, 1989, bar date was included in a "Notice for Meeting of Creditors" received from the court by Mark Berlin, an official for respondents. Respondents' attorney was provided with a complete copy of the case file and, when asked, assertedly assured Berlin that no bar date had been set. On August 23, 1989, respondents asked the court to accept their proofs under Bankruptcy Rule 9006(b)(1), which allows a court to permit late filings where the movant's failure to comply with the deadline "was the result of excusable neglect." The court refused, holding that a party may claim excusable neglect only if the failure to timely perform was due to circumstances beyond its reasonable control. The District Court remanded the case, ordering the Bankruptcy Court to evaluate respondents' conduct under a more liberal standard. The Bankruptcy Court applied that standard and again denied the motion, finding that several factorsthe danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, and whether the creditor acted in good faith-favored respondents, but that the delay was within their control and that they should be penalized for their counsel's mistake. The District Court affirmed, but the Court of Appeals reversed. It found that the Bankruptcy Court had inappropriately penalized respondents for their counsel's error, since Berlin had asked the attorney about the impending deadlines and since the peculiar and inconspicuous placement of the bar date in a notice for a creditors' meeting without any indication of the date's significance left a dramatic ambiguity in the notification that would have confused even a person experienced in bankruptcy.Held:1. An attorney's inadvertent failure to file a proof of claim by the bar date can constitute "excusable neglect" within the meaning of Rule 9006(b)(1). Pp. 387-397.381(a) Contrary to petitioner's suggestion, Congress plainly contemplated that the courts would be permitted to accept late filings caused by inadvertence, mistake, or carelessness, not just those caused by intervening circumstances beyond the party's control. This flexible understanding comports with the ordinary meaning of "neglect." It also accords with the underlying policies of Chapter 11 and the bankruptcy rules, which entrust broad equitable powers to the courts in order to ensure the success of a debtor's reorganization. In addition, this view is confirmed by the history of the present bankruptcy rules and is strongly supported by the fact that the phrase "excusable neglect," as used in several of the Federal Rules of Civil Procedure, is understood to be a somewhat "elastic concept." Pp.387-395.(b) The determination of what sorts of neglect will be considered "excusable" is an equitable one, taking account of all relevant circumstances. These include the first four factors applied in the instant case. However, the Court of Appeals erred in not attributing to respondents the fault of their counsel. Clients may be held accountable for their attorney's acts and omissions. See, e. g., Link v. Wabash R. Co., 370 U. S. 626. Thus, in determining whether respondents' failure to timely file was excusable, the proper focus is upon whether the neglect of respondents and their counsel was excusable. Pp. 395-397.2. The neglect of respondents' counsel was, under all the circumstances, excusable. As the Court of Appeals found, the lack of any prejudice to the debtor or to the interest of efficient judicial administration, combined with the good faith of respondents and their counsel, weigh strongly in favor of permitting the tardy claim. As for the culpability of respondents' counsel, it is significant that the notice of the bar date in this case was outside the ordinary course in bankruptcy cases. Normally, such a notice would be prominently announced and accompanied by an explanation of its significance, not inconspicuously placed in a notice regarding a creditors' meeting. Pp. 397-399.943 F.2d 673, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which SCALIA, SOUTER, and THOMAS, JJ., joined, post, p. 399.Craig J. Donaldson argued the cause and filed briefs for petitioner.382Full Text of Opinion

1967_324

MR. JUSTICE FORTAS delivered the opinion of the Court.This case brings before us, once again, troublesome problems arising from state taxation of an interstate commercial enterprise. At issue is a tax assessment pursuant to a Missouri statute specifying the manner in which railroad rolling stock is to be assessed for the State's ad valorem tax on that property. [Footnote 1]In 1964, the Norfolk & Western Railway Co. (N & W), a Virginia corporation with interstate rail operations. leased all of the property of appellant Wabash Railroad Company. The Wabash owned substantial fixed property and rolling stock, and did substantial business in Missouri, as well as in other States. Prior to the lease, N & W owned no fixed property and only a minimal amount of rolling stock in Missouri. N & W is primarily a coal-carrying railroad. Much of its equipment and all of its specialized coal-carrying equipment are generally located in the coal regions of Virginia, West Virginia, and Kentucky, and along the coal-ferrying routes from those regions to the eastern seaboard and the Great Lakes. Scarcely any of the specialized equipment ever enters Missouri. According to appellants, the Wabash property in Missouri was leased by N & W in order to diversify its business, not to provide the opportunity for an integrated through movement of traffic.By the terms of the lease, the N & W became obligated to pay the 1965 taxes on the property of the Wabash in Missouri and elsewhere. [Footnote 2] Upon receiving notice of the Page 390 U. S. 320 1965 assessment from the appellee Missouri Tax Commission, the N & W filed a request for an adjustment and hearing before the Commission. The hearing was held, and the Commission sustained its assessment against the taxpayer's challenge. On judicial review, the Commission's decision was affirmed without opinion by the Circuit Court of Cole County, and then by the Supreme Court of Missouri. Appellants filed an appeal in this Court, contending that the assessment, in effect, reached property not located in Missouri, and thus violated the Due Process Clause and the Commerce Clause of the United States Constitution. We noted probable jurisdiction. 389 U.S. 810 (1967).IThe Missouri property taxable to the N & W was assessed by the State Tax Commission at $31,298,939. Of this sum, $12,177,597 relates to fixed property within the State, an assessment that is not challenged by appellants. Their attack is aimed only at that portion of the assessment relating to rolling stock, $19,981,757. [Footnote 3]With respect to the assessment of rolling stock, the Commission used the familiar mileage formula authorized by the Missouri statute. In relevant part, this provides (§ 151.060 subd. 3):". . . when any railroad shall extend beyond the limits of this state and into another state in which a tax is levied and paid on the rolling stock of such road, then the said commission shall assess, equalize Page 390 U. S. 321 and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this state bears to the total length of the road as owned or controlled by such company."The Commission arrived at the assessment of rolling stock by first determining the value of all rolling stock, regardless of where located, owned or leased by the N & W as of the tax day, January 1, 1965. Value was ascertained by totaling the original cost, less accrued depreciation at 5% a year up to 75% of cost, of each locomotive, car, and other piece of mobile equipment. To the total value, $513,309,877, was applied an "equalizing factor" of 47%, employed in assessing all railroad property in an attempt to bring such assessments down to the level of other property assessments in Missouri. The Commission next found that 8.2824% of all the main and branch line road (excluding secondary and side tracks) owned, leased, or controlled by the N & W was situated in Missouri. This percentage was applied to the equalized value of all N & W rolling stock, and the resulting figure was $19,981,757.There is no suggestion in this case that the Commission failed to follow the literal command of the statute. The problem arises because of appellants' contention that, in mechanically applying the statutory formula, the Commission here arrived at an unconscionable and unconstitutional result. It is their submission that the assessment was so far out of line with the actual facts of record with respect to the value of taxable rolling stock in the State as to amount to an unconstitutional attempt to exercise state taxing power on out-of-state property.Appellants submitted evidence based upon an inventory of all N & W rolling stock that was actually in Missouri on tax day. The equalized value of this rolling Page 390 U. S. 322 stock, calculated on the same "cost less depreciation" basis employed by the Commission, was approximately $7,600,000, as compared with the assessed value of $19,981,000. Appellants also submitted evidence to show that the tax day inventory was not unusual. The evidence showed that, both before and in the months immediately after the Wabash lease, the equalized value of the N & W rolling stock actually in Missouri never ranged far above the $7,600,000 figure. In the preceding year, 1964, the rolling stock assessment against the Wabash was only $9,177,683, and appellants demonstrated that neither the amount of rolling stock in Missouri nor the Missouri operations of the N & W and Wabash had materially increased in the intervening period. [Footnote 4] The assessment of the fixed properties (for which no mileage formula was applied) hardly increased between 1964 and 1965. In 1964, prior to the lease, the fixed properties in Missouri were assessed at $12,092,594; in 1965, after the lease, the assessment was $12, 177,597.The Supreme Court of Missouri concluded that the result reached by the Commission was justifiable. It pointed out that the statutory method used by the Commission proceeds on the assumption that"rolling stock is substantially evenly divided throughout the railroad's entire system, and the percentage of all units which are located in Missouri at any given time, or for any given period of time, will be substantially the same as the percentage of all the miles of road of the railroad located in Missouri."It then held that the evaluation found by the Commission could be justified on the theory of "enhancement," Page 390 U. S. 323 although the Commission had not referred to that principle. The court described the theory as follows:"The theory underlying such method of assessment is that rolling stock regularly employed in one state has an enhanced or augmented value when it is connected to, and because of its connection with, an integrated operational whole, and may, therefore, be taxed according to its value""as part of the system, although the other parts be outside the State; -- in other words, the tax may be made to cover the enhanced value which comes to the property in the State through its organic relation to the system.""Pullman Co. v. Richardson, 261 U. S. 330, 261 U. S. 338."The court correctly noted, however, that, "even if the validity of such methods be conceded, the results, to be valid, must be free of excessiveness and discrimination." It concluded that, in the present case, the result reached by the Commission was justifiable. We disagree. In our opinion, the assessment violates the Due Process and Commerce Clauses of the Constitution.IIEstablished principles are not lacking in this much discussed area of the law. It is, of course, settled that a State may impose a property tax upon its fair share of an interstate transportation enterprise. Marye v. Baltimore & Ohio R. Co., 127 U. S. 117, 127 U. S. 123-124 (1888); Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18 (1891); Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169 (1949); Braniff Airways, Inc. v. Nebraska State Board of Equalization and Assessment, 347 U. S. 590 (1954). That fair share may be regarded as the value, appropriately ascertained, of tangible assets permanently or habitually employed in the taxing State, including a portion of the intangible, or "going concern," value of Page 390 U. S. 324 the enterprise. Railway Express Agency v. Virginia, 347 U. S. 359, 347 U. S. 364 (1954); Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 246 U. S. 455 (1918); Adams Express Co. v. Ohio State Auditor, 166 U. S. 185, 166 U. S. 218-225 (1897). The value may be ascertained by reference to the total system of which the intrastate assets are a part. As the Court has stated the rule,"the tax may be made to cover the enhanced value which comes to the [tangible] property in the State through its organic relation to the [interstate] system."Pullman Co. v. Richardson, 261 U. S. 330, 261 U. S. 338 (1923). Going concern value, of course, is an elusive concept not susceptible of exact measurement. Rowley v. Chicago & N.W. R. Co., 293 U. S. 102, 293 U. S. 109 (1934); Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362, 310 U. S. 365-366 (1940). As a consequence, the States have been permitted considerable latitude in devising formulas to measure the value of tangible property located within their borders. Union Tank Line Co. v. Wright, 249 U. S. 275, 249 U. S. 282 (1919). Such formulas usually involve a determination of the percentage of the taxpayer's tangible assets situated in the taxing State and the application of this percentage to a figure representing the total going concern value of the enterprise. See, e.g., Rowley v. Chicago & N.W. R. Co., 293 U. S. 102 (1934); Pittsburgh, C., C. & St. L.R. Co. v. Backus, 154 U. S. 421 (1894). A number of such formulas have been sustained by the Court, even though it could not be demonstrated that the results they yielded were precise evaluations of assets located within the taxing State. See, e.g., Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362, 310 U. S. 365-366 (1940).On the other hand, the Court has insisted for many years that a State is not entitled to tax tangible or intangible property that is unconnected with the State. The Delaware Railroad Tax, 18 Wall. 206, 85 U. S. 229 (1874); Fargo v. Hart, 193 U. S. 490, 193 U. S. 499 (1904). In some cases, Page 390 U. S. 325 the Court has concluded that States have, in fact, cast their tax burden upon property located beyond their borders. Fargo v. Hart, 193 U. S. 490, 193 U. S. 499-503 (1904); Union Tank Line Co. v. Wright, 249 U. S. 275, 249 U. S. 283-286 (1919); Wallace v. Hines, 253 U. S. 66, 253 U. S. 69-70 (1920); Southern R. Co. v. Kentucky, 274 U. S. 76, 274 U. S. 81-84 (1927). The taxation of property not located in the taxing State is constitutionally invalid, both because it imposes an illegitimate restraint on interstate commerce and because it denies to the taxpayer the process that is his due. [Footnote 5] A State will not be permitted, under the shelter of an imprecise allocation formula or by ignoring the peculiarities of a given enterprise, to "project the taxing power of the state plainly beyond its borders." Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362, 310 U. S. 365 (1940). Any formula used must bear a rational relationship, both on its face and in its application, to property values connected with the taxing State. Fargo v. Hart, 193 U. S. 490, 193 U. S. 499-500 (1904). [Footnote 6] Page 390 U. S. 326IIIApplying these principles to the facts of the case now before us, we conclude that Missouri's assessment of N & W's rolling stock cannot be sustained. This Court has, in various contexts, permitted mileage formulas as a basis for taxation. See, e.g., Pittsburgh, C., C. St. L.R. Co. v. Backus, 154 U. S. 421 (1894). A railroad challenging the result reached by the application of such a formula has a heavy burden. See Butler Brothers v. McColgan, 315 U. S. 501, 315 U. S. 507 (1942); Norfolk & Western R. Co. v. North Carolina, 297 U. S. 682, 297 U. S. 688 (1936). It is confronted by the vastness of the State's taxing power and the latitude that the exercise of that power must be given before it encounters constitutional restraints. Its task is to show that application of the mileage method in its case has resulted in such gross overreaching, beyond the values represented by the intrastate assets purported to be taxed, as to violate the Due Process and Commerce Clauses of the Constitution. Cf. Capitol Greyhound Lines v. Brice, 339 U. S. 542, 339 U. S. 547 (1950). But here the appellants have borne that burden, and the State has made no effort to offset the convincing case that they have made.Here, the record shows that rigid application of the mileage formula led to a grossly distorted result. The rolling stock in Missouri was assessed to N & W at $19,981,757. It was practically the same property that had been assessed the preceding year at $9,177,683 to the Wabash. Appellants introduced evidence of the results of an actual count of the rolling stock in Missouri. Page 390 U. S. 327 On the basis of this actual count, the equalized assessment would have been less than half of the value assessed by the State Commission. The Commission's mileage formula resulted in postulating that N & W's rolling stock in Missouri constituted 8.2824% of its rolling stock. But appellants showed that the rolling stock usually employed in the State comprised only about 2.71% by number of units (and only 3.16% by "cost less depreciation" value) of the total N & W fleet.Our decisions recognize the practical difficulties involved, and do not require any close correspondence between the result of computations using the mileage formula and the value of property actually located in the State, but our cases certainly forbid an unexplained discrepancy as gross as that in this case. [Footnote 7] Such discrepancy certainly means that the impact of the state tax is not confined to intrastate property even within the broad tolerance permitted. The facts of life do not neatly lend themselves to the niceties of constitutionalism; but neither does the Constitution tolerate any result, however distorted, just because it is the product of a convenient mathematical formula which, in most situations, may produce a tolerable product.The basic difficulty here is that the record is totally barren of any evidence relating to enhancement or to going concern or intangible value, or to any other factor which might offset the devastating effect of the demonstrated discrepancy. The Missouri Supreme Court attempted to justify the result by reference to "enhanced" Page 390 U. S. 328 value, but the Missouri Commission made no effort to show such value or to measure the extent to which it might be attributed to the rolling stock in the State. In fact, N & W showed that it is chiefly a coal-carrying railroad, 70% of whose 1964 revenue was derived from coal traffic. It demonstrated that its coal operations require a great deal of specialized equipment, scarcely any of which ever enters Missouri. It showed that traffic density on its Missouri tracks was only 54% of traffic density on the N & W system as a whole. Finally, it proved that the overwhelming majority of its rolling stock regularly present in Missouri was rolling stock it had leased from the Wabash. As long ago as Pittsburgh, C., C. & St. L.R. Co. v. Backus, 154 U. S. 421 (1894), we indicated that an otherwise valid mileage formula might not be validly applied to ascertain the value of tangible assets within the taxing State in exceptional situations, for example,"where, in certain localities, the company is engaged in a particular kind of business requiring for sole use in such localities an extra amount of rolling stock."Id. at 154 U. S. 431.The Missouri Supreme Court did not challenge the factual data submitted by the N & W. Its decision that these data did not place this case within the realm of "exceptional situations" recognized by this Court was apparently based on the conclusion that the lease transaction between Wabash and the N & W had increased the value of tangible assets formerly belonging to the two separate lines. This may be true, but it does not follow that the Constitution permits us, without evidence as to the amount of enhancement that may be assumed, to bridge the chasm between the formula and the facts of record. The difference between the assessed value and the actual value as shown by the evidence to which we have referred is too great to be explained by the mere assertion, without more, that it is due to an assumed and Page 390 U. S. 329 nonparticularized increase in intangible value. See Wallace v. Hines, 253 U. S. 66, 253 U. S. 69 (1920).As the Court recognized in Fargo v. Hart, 193 U. S. 490, 193 U. S. 499-500 (1904), care must be exercised lest the mileage formula"be made a means of unlawfully taxing the privilege, or property outside the State, under the name of enhanced value or goodwill, if it is not closely confined to its true meaning. So long as it fairly may be assumed that the different parts of a line are about equal in value, a division by mileage is justifiable. But it is recognized in the cases that if, for instance, a railroad company had terminals in one State equal in value to all the rest of the line through another, the latter State could not make use of the unity of the road to equalize the value of every mile. That would be taxing property outside of the State under a pretense."We repeat that it is not necessary that a State demonstrate that its use of the mileage formula has resulted in an exact measure of value. But when a taxpayer comes forward with strong evidence tending to prove that the mileage formula will yield a grossly distorted result in its particular case, the State is obliged to counter that evidence or to make the accommodations necessary to assure that its taxing power is confined to its constitutional limits. If it fails to do so, and if the record shows that the taxpayer has sustained the burden of proof to show that the tax is so excessive as to burden interstate commerce, the taxpayer must prevail.IVAccordingly, we conclude that, on the present record, Missouri has in this case exceeded the limits of her constitutional power to tax, as defined by the Due Process Page 390 U. S. 330 and Commerce Clauses. It will be open to the Missouri Supreme Court, so far as our action today is concerned, to remand the case to the appropriate tribunal to reopen the record for additional evidence to support the assessment. We vacate the judgment of the Supreme Court of Missouri and remand the cause to it for further proceedings not inconsistent with our decision.Vacated and remanded

U.S. Supreme CourtNorfolk & W. R. Co. v. Missouri State Tax Comm'n, 390 U.S. 317 (1968)Norfolk & Western Railway Co. v. Missouri State Tax CommissionNo. 324Argued January 25, 1968Decided March 11, 1968390 U.S. 317SyllabusAppellant N & W, a predominantly coal-carrying railroad with operations centered in the eastern part of the country and which owned no fixed property and only minimal rolling stock in Missouri, leased the property of the Wabash Railroad and became obligated to pay 1965 taxes on fixed property and rolling stock located in Missouri. A state statute prescribes a formula for determining the amount of rolling stock of an interstate railroad that Missouri shall assess for purposes of ad valorem taxation. The statute apportions to Missouri a part of the entire value of all rolling stock of an interstate railroad on the ratio of miles operated in Missouri to the railroad's total road mileage. Applying that formula, which resulted in the postulation that N & W's rolling stock in Missouri constituted 8.2824% of its total rolling stock, the Missouri Tax Commission put N & W's rolling stock assessment at $19,981,757. N & W challenged the assessment, which it showed was more than 2 1/2 times the value of N & W's rolling stock in the State on tax day and more than twice Wabash's assessment for practically the same property in the previous year. Neither N & W's rolling stock in Missouri (about 2.71% of N & W's total rolling stock by number of units and 3.16% by value), the overwhelming amount of which had been leased from Wabash, nor the Missouri operations of N & W and Wabash had materially increased in the intervening period. N & W's coal operations require a great deal of specialized equipment, scarcely any of which enters Missouri, and traffic density on Missouri tracks is but 54% of traffic density on the N & W system as a whole. The Tax Commission's assessment against N & W was affirmed on appeal. The Missouri Supreme Court held that use of the mileage formula could be justified on the theory that the rolling stock regularly employed in one State has an "enhanced Page 390 U. S. 318 value" when connected to "an integrated operational whole."Held:1. Application of the mileage formula resulted in an assessment which, on the record in this case, went far beyond the value of appellants' rolling stock in Missouri, and violated the Due Process and Commerce Clauses. Pp. 390 U. S. 323-329.(a) A State may impose a property tax upon its fair share of an interstate transportation enterprise, including a portion of the enterprise's intangible value. Pp. 390 U. S. 323-324.(b) Though a State has considerable latitude in devising formulas to measure tangible property within its borders, it is not entitled to tax tangible or intangible property unconnected with the State. Pp. 390 U. S. 324-325.(c) Appellants' evidence satisfied the burden which rests on a railroad attacking a mileage formula of showing that the formula reached assets outside the State, and Missouri has not countered such evidence here. Pp. 390 U. S. 326-327.(d) Though this Court's decisions recognize the practical difficulties in applying a mileage formula, they forbid an unexplained discrepancy as gross as that here revealed. P. 390 U. S. 327.(e) The record is totally barren of evidence relating to the enhanced value of property in Missouri by reason of the incorporation of such property into the entire N & W system. Pp. 390 U. S. 327-329.2. The Missouri Supreme Court may remand the case to the appropriate tribunal to reopen the record for additional evidence supporting the assessment. P. 390 U. S. 330.426 S.W.2d 362, vacated and remanded. Page 390 U. S. 319

1963_64

MR. JUSTICE HARLAN delivered the opinion of the Court.A federal grand jury alleged in an indictment, returned in the United States District Court for the Southern District of Florida, that on April 13, 1962, the appellees that kidnaped at gunpoint the pilot of a private Cessna 172 airplane and compelled him to transport them from Florida to Cuba. Count 1 of the indictment charged appellees with having violated 18 U.S.C. § 1201, [Footnote 1] the Federal Kidnaping Act. Under Court 2, appellees were charged with the commission of "aircraft piracy" in contravention of a 1961 amendment to § 902 of the Federal Aviation Act of 1958, 75 Stat. 466, 49 U.S.C. (Supp. IV) § 1472(i). [Footnote 2]The District Court dismissed the indictment on September 17, 1962, before trial. It held that a kidnaping is not "for ransom or reward or otherwise," as required by § 1201(a), unless committed for the pecuniary benefit of Page 376 U. S. 77 the defendant, and that a private airplane is not "an aircraft in flight in air commerce" within the meaning of the aircraft piracy provision, which it read as limited to commercial airliners. The Government's petition for rehearing, filed October 17, was denied on November 8. On December 5, the Government filed a notice of appeal to this Court under 18 U.S.C. § 3731, permitting direct appeal when the dismissal of an indictment is based on construction of the statute upon which the indictment is founded. We noted probable jurisdiction, 372 U.S. 963. We conclude that the judgment of dismissal must be reversed.IAppellees contend that this Court is without jurisdiction, and is thereby precluded from considering the case on its merits. They argue that, absent authorization by statute or rule, the filing of a petition for rehearing by the Government in a criminal case cannot extent the time for appeal. Rule 11(2) of this Court provides:"An appeal permitted by law from a district court to this court in a criminal case shall be in time when the notice of appeal prescribed by Rule 10 is filed with the clerk of the district court within thirty days after entry of the judgment or order appealed from."It is undisputed that the notice of appeal was filed by the United States within 30 days from the denial of the petition for rehearing, although not within 30 days of the original entry of judgment. Since the petition for rehearing was filed within 30 days of the judgment, we are not faced with an attempt to rejuvenate an extinguished right to appeal. Cf. Allegrucci v. United States, 372 U.S. 954. The question, therefore, is simply whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal Page 376 U. S. 78 renders the judgment not final for purposes of appeal until the court disposes of the petition -- in other words, whether, in such circumstances, the 30-day period prescribed by Rule 11(2) begins to run from the date of entry of judgment or the denial of the petition for rehearing.The latter is the well established rule in civil cases, whether brought here by appeal or certiorari, e.g., United States v. Ellicott, 223 U. S. 524, 223 U. S. 539; Morse v. United States, 270 U. S. 151, 270 U. S. 153-154; Bowman v. Loperena, 311 U. S. 262, 311 U. S. 264-266. That a rehearing petition, at least when filed within the original period for review, may also extend the time for filing a petition for certiorari by a criminal defendant is the unarticulated premise on which the Court has consistently proceeded. See, e.g., Panico v. United States, 375 U. S. 29 (order extending time for filing entered 19 days after denial of petition for rehearing en banc, 45 days after original judgment of Court of Appeals); Corey v. United States, 375 U. S. 169 (petition for certiorari filed 30 days after denial of rehearing, 45 days after original judgment of Court of Appeals); Genovese v. United States, decided with Evola v. United States, 375 U. S. 32 (order extending time for filing entered 16 days after denial of rehearing and rehearing en banc, 49 days after entry of original judgment). In Craig v. United States, 298 U.S. 637, this Court dismissed an application for a writ of certiorari as premature,"without prejudice to a renewal of the application within thirty days after action by the Circuit Court of Appeals on the petition for rehearing."This summary disposition plainly reflects an advertent decision that criminal judgments are nonfinal for purposes of appeal so long as timely rehearing petitions are pending.We have recently recognized the appropriateness of petitions for rehearing by the United States in criminal cases, Forman v. United States, 361 U. S. 416, 361 U. S. 425-426. Page 376 U. S. 79 The practice of the Court has been to treat such petitions as having the same effect on the permissible time for seeking review as do similar petitions in civil cases and in criminal cases in which the Government has won below. United States v. Williams, 341 U. S. 58 (appeal from dismissal of indictment by District Court; notice of appeal filed 29 days after denial of motion for rehearing, 44 days after entry of original order); United States v. Smith, 342 U. S. 225 (appeal from dismissal of indictment by District Court; notice of appeal filed 28 days after denial of petition for rehearing, 109 days after entry of original order); United States v. Calderon, 348 U. S. 160 (petition for certiorari from Court of Appeals; order extending time for filing entered 28 days after denial of rehearing, 88 days after entry of original judgment).Appellees place great reliance on the absence of any statute or rule governing the effect of rehearing petitions of the Government, but both the civil and criminal procedural doctrines lack such a foundation. The wording of Rule 11(2) of this Court, as unilluminating on this issue as it may be standing alone, is virtually identical to that of Rule 22(2), which encompasses petitions for certiorari both by criminal defendants and the Government. The inference is compelling that no difference in treatment is intended between appealable judgments and those reviewable by certiorari, or between criminal defendants and the United States. We are constrained to read these rules as consistent with a traditional and virtually unquestioned practice.Rule 37(a)(2) of the Federal Rules of Criminal Procedure [Footnote 3] does not alter this conclusion, since it sheds no Page 376 U. S. 80 light on the relevance of a petition for rehearing. Nor can the principle of strict construction of statutes permitting governmental appeals in criminal cases, Carroll v. United States, 354 U. S. 394, be utilized to undermine a well established procedural rule for criminal, as well as civil, litigation. No persuasive considerations of policy dictate of deviant standard for government appeals.Of course, speedy disposition of criminal cases is desirable, but to deprive the Government of the opportunity to petition a lower court for the correction of errors might, in some circumstances, actually prolong the process of litigation -- since plenary consideration of a question of law here ordinarily consumes more time than disposition of a petition for rehearing -- and could, in some cases, impose an added and unnecessary burden of adjudication upon this Court. [Footnote 4] It would be senseless for this Court to pass on an issue while a motion for rehearing is pending below, and no significant saving of time would be achieved by altering the ordinary rule to the extent of compelling a notice of appeal to be filed while the petition for rehearing is under consideration.We conclude that this appeal was timely filed, and that the Court has jurisdiction to determine the case on its merits. Page 376 U. S. 81IIBy interpreting 18 U.S.C. § 1201 to require a motive of pecuniary profit, the District Court disregarded the plain holding of Gooch v. United States, 297 U. S. 124, in which the defendant, who had seized and carried away a state peace officer attempting to effectuate his arrest, was held subject to prosecution under the statute. Prior to a 1934 amendment, the Federal Kidnaping Act had been applicable only if the person transported was held for ransom or reward. The wording was then changed to encompass persons held "for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof," 48 Stat. 781. (Emphasis added.) The Court in Gooch, noting the ambiguity of the word "reward," found convincing evidence in the amendment's legislative history that the addition of "otherwise" was intended to make clear that a nonpecuniary motive did not preclude prosecution under the statute. The Senate Judiciary Committee, which quoted from a memorandum of the Justice Department and the House Judiciary Committee both had reported that the bill was designed to extend federal jurisdiction under the Act to cases of persons kidnaped and held "not only for reward, but for any other reason." [Footnote 5] The Court's conclusion that the amended statute covered the facts before it was clearly in accord with the congressional purpose.The Courts of Appeals have consistently followed Gooch, e.g., United States v. Parker, 103 F.2d 857; Brooks v. United States, 199 F.2d 336; Hayes v. United States, 296 F.2d 657, and appellees do not challenge the authority of that case. While recognizing that the Page 376 U. S. 82 statute is not limited to kidnapings for pecuniary gain, they assert that it is restricted to kidnapings for an otherwise illegal purpose. This contention is without support in the language of the provision, its legislative history, judicial decisions, or reason. The wording certainly suggests no distinction based on the ultimate purpose of a kidnaping; were one intended, the exclusion of parent-child kidnapings would have been largely superfluous, since such conduct is rarely the result of an intrinsically illegal purpose. Nothing in the reports or debates supports appellees' position. In two cases, Wheatley v. United States, 159 F.2d 599, 600; Bearden v. United States, 304 F.2d 532 (judgment vacated on another ground, 372 U. S. 252), Courts of Appeals have assumed that the applicability of the statute does not turn on the illegality of the ultimate purpose of the kidnaper. No policy considerations support appellees' strained reading of 18 U.S.C. § 1201. A murder committed to accelerate the accrual of one's rightful inheritance is hardly less heinous than one committed to facilitate a theft; by the same token, we find no compelling correlation between the propriety of the ultimate purpose sought to be furthered by a kidnaping and the undesirability of the act of kidnaping itself. Appellees rely on the principle of strict construction of penal statutes, [Footnote 6] but that maxim is hardly a directive to this Court to invent distinctions neither reflective of the policy behind congressional enactments nor intimated by the words used to implement the legislative goal. [Footnote 7] Page 376 U. S. 83We hold that the District Court improperly dismissed the first court of the indictment.IIIThe 1961 "aircraft piracy" amendment to the Federal Aviation Act makes it a federal crime, inter alia, to exercise control, by threat of force with wrongful intent, of "an aircraft in flight in air commerce," § 902(i), 75 Stat. 466, 49 U.S.C. (Supp. IV) § 1472(i). Examination of the provision itself and its relation to the rest of the statute, apart from reference to the legislative history, stands against the conclusion of the court below. The Cessna 172 was "an aircraft"; it was "in flight"; it was in flight "in air commerce." Appellees assert that, had Congress intended to include private airplanes, it could have referred to "any aircraft," but, standing alone, the phrase "an aircraft" is, on its face, an all-inclusive term. Appellees' contention that the statutory language refers only to commercial airlines is contradicted by the definition of air commerce in the original act, § 101 of the Federal Page 376 U. S. 84 Aviation Act of 1958, 72 Stat. 737, 49 U.S.C. (Supp. IV) § 1301:"(4) 'Air commerce' means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any Federal airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce."Without question, this definition covers the facts alleged in the indictment in this case. That the relation between the language of the "aircraft piracy" amendment and the above definition was not overlooked by the drafters is indicated by the different phraseology used in a contemporaneous amendment concerning concealed weapons. Section 902(l) of the amended act, 75 Stat. 466, 49 U.S.C. (Supp. IV) § 1472(l), makes it a crime to carry such a weapon "while aboard an aircraft being operated by an air carrier in air transportation." Thus, Congress knew how to choose words to refer solely to commercial airliners when it wished to do so.The conclusions drawn from the statute itself are confirmed by the legislative history. The House Committee on Interstate and Foreign Commerce reported, H.R.Rep. No. 958, 87th Cong., 1st Sess., that the term "air commerce" was used by design because of its broad scope as defined in existing law, p. 8. It specifically cited "the urgent need for stronger Federal laws applicable to criminal acts committed aboard commercial and private aircraft," p. 3, and noted that the subsection regarding weapons"would be limited to aircraft being used in air carrier commercial operations, whereas these other subsections (including that relating to aircraft piracy) would apply also in the case of private aircraft,"p. 15. Page 376 U. S. 85Comments during House debate accord with the Committee's understanding, see remarks of Congressman Harris (107 Cong.Rec. 16545) and Congressman Williams (107 Cong.Rec. 16547-16548). The remarks of Senator Engle, the sponsor of the aircraft piracy provisions in the Senate, during debate are explicit: "Yes; it applies to all airplanes in air commerce, which includes, of course, not only commercial aircraft, but private airplanes as well." (107 Cong.Rec. 15243). The statements of members of Congress evincing a concern for the protection of passengers aboard commercial airlines, see, e.g., remarks of Congressman Rostenkowski (107 Cong.Rec. 16552), do not reflect any intent to put private aircraft beyond the scope of the provision. Indeed, since one of the often-expressed purposes of the aircraft piracy amendment was to provide a solution to the jurisdictional problems involved in fixing a locus for a crime committed in transit and in arresting a deplaning passenger who may have engaged in criminal activity over the territory of a different State, see, e.g., H.R.Rep. No. 958, 87th Cong., 1st Sess., pp. 3-5, one would suppose, absent any other evidence, a design to include private aircraft; these problems are as pertinent to acts committed aboard them as to those done on commercial airliners. Finding that the plainly expressed intent of Congress, as manifested both in the statutory language and legislative history, was to include private aircraft within the scope of § 902(i), we conclude that dismissal of the second count of the indictment was also incorrect.The judgment below is reversed, and the case is remanded to the District Court with instructions to reinstate both counts of the indictment.It is so ordered

U.S. Supreme CourtUnited States v. Healy, 376 U.S. 75 (1964)United States v. HealyNo. 64Argued January 6, 1964Decided February 17, 1964376 U.S. 75Syllabus1. An indictment was dismissed by the District Court before trial based upon the construction of the statute upon which the indictment was founded. The Government filed notice of appeal within 30 days of the denial of the petition for rehearing, but more than 30 days after the entry of the original judgment. Under Rule 11(2) of this Court, a criminal appeal from a district court to this Court must be filed within 30 days after entry of "the judgment or order" appealed from, and appellees contended that the filing of a petition for rehearing without authorization by statute or rule cannot extend the time for appeal.Held: the timely filing of a petition for a rehearing in a criminal case, no less than in a civil case, renders the judgment nonfinal for purposes of appeal until the court disposes of the petition, and, in such an instance, the 30-day period prescribed by Rule 11(2) begins to run from the date of the denial of the petition for rehearing. Pp. 376 U. S. 77-80.2. Appellees were indicted under tuo counts for forcing at gunpoint the pilot of a private airplane to transport them from Florida to Cuba. One count, under 18 U.S.C. § 1201, for kidnaping, was dismissed by the District Court on the ground that the kidnaping was not "for ransom or reward or otherwise" unless committed for the pecuniary benefit of the defendant.Held: the statute, as Gooch v. United States, 297 U. S. 124, plainly held, is not confined to kidnapings for pecuniary gain, nor need the underlying purpose for which the kidnaping is done be an illegal one in order for the statute to apply. Pp. 376 U. S. 81-82.3. The other count, under § 902(i) of the Federal Aviation Act of 1958, as amended in 1961, for "aircraft piracy," was dismissed by the District Court on the ground that a private airplane is not "an aircraft in flight in air commerce" within the meaning of the statute.Held: both the language of the statute and its legislative history manifest congressional intent to include private aircraft within the scope of § 902(i). Pp. 376 U. S. 83-85.Reversed and remanded. Page 376 U. S. 76

1989_88-1905

Chief Justice REHNQUIST delivered the opinion of the Court.Petitioners, members of the State Bar of California, sued that body claiming its use of their membership dues to finance certain ideological or political activities to which they were opposed violated their rights under the First Amendment of the United States Constitution. The Supreme Court of California rejected this challenge on the grounds that respondent State Bar is a state agency, and as such may use the dues for any purpose within its broad statutory authority. We agree that lawyers admitted to practice in the State may be required to join and pay dues to the State Bar, but disagree as to the scope of permissible dues-financed activities in which respondent may engage.Respondent State Bar is an organization created under California law to regulate the State's legal profession. [Footnote 1] It is Page 496 U. S. 5 an entity commonly referred to as an "integrated bar" -- an association of attorneys in which membership and dues are required as a condition of practicing law in a State. Respondent's broad statutory mission is to "promote the improvement of the administration of justice.'" 47 Cal. 3d 1152, 1156, 255 Cal. Rptr. 542, 543, 767 P.2d 1020, 1021 (1989) (quoting Cal.Bus. & Prof.Code Ann. § 6031(a) (West Supp.1990)). The association performs a variety of functions such as"examining applicants for admission, formulating rules of professional conduct, disciplining members for misconduct, preventing unlawful practice of the law, and engaging in study and recommendation of changes in procedural law and improvement of the administration of justice."Id., at 1159, 255 Cal.Rptr., at 545-546, 767 P.2d, at 1023-1024 (quotation omitted). Respondent also engages in a number of other activities which are the subject of the dispute in this case."[T]he State Bar for many years has lobbied the Legislature and other governmental agencies, filed amicus curiae briefs in pending cases, held an annual conference of delegates at which issues of current interest are debated and resolutions approved, and engaged in a variety of education programs."Id. at 1156, 255 Cal. Rptr. at 543-544, 767 P.2d at 1021-1022. These activities are financed principally through the use of membership dues.Petitioners, 21 members of the State Bar, sued in state court, claiming that, through these activities, respondent expends mandatory dues payments to advance political and ideological causes to which they do not subscribe. [Footnote 2] Asserting Page 496 U. S. 6 that their compelled financial support of such activities violates their First and Fourteenth Amendment rights to freedom of speech and association, petitioners requested, inter alia, an injunction restraining respondent from using mandatory bar dues or the name of the State Bar of California to advance political and ideological causes or beliefs. The trial court granted summary judgment to respondent on the grounds that it is a governmental agency, and therefore permitted under the First Amendment to engage in the challenged activities. The California Court of Appeal reversed, holding that, while respondent's regulatory activities were similar to those of a government agency, its "administration-of-justice" functions were more akin to the activities of a labor union. The court held that, under our opinion in Abood v. Detroit Board of Education, 431 U. S. 209 (1977), such activities"could be financed from mandatory dues only if the particular action in question served a state interest important enough to overcome the interference with dissenters' First Amendment rights."47 Cal. 3d at 1159, 255 Cal. Rptr. at 545, 767 P.2d at 1023.The Supreme Court of California reversed the Court of Appeal by a divided vote. The court reasoned that respondent's Page 496 U. S. 7 status as a public corporation, as well as certain of its other characteristics, made it a "government agency." It also expressed its belief that subjecting respondent's activities to First Amendment scrutiny would place an "extraordinary burden" on its mission to promote the administration of justice. Id. at 1161-1166, 255 Cal. Rptr. at 547-550, 767 P.2d at 1025-1028. The court distinguished other cases subjecting the expenditures of state bar associations to First Amendment scrutiny, see, e.g., Gibson v. The Florida Bar, 798 F.2d 1564 (CA11 1986), on the grounds that none of the associations involved in those cases rested"upon a constitutional and statutory structure comparable to that of the California State Bar. None involves an extensive degree of legislative involvement and regulation."47 Cal. 3d at 1167, 255 Cal. Rptr. at 551, 767 P.2d at 1029. The court concluded that "the State Bar, considered as a government agency, may use dues for any purpose within the scope of its statutory authority." Id. at 1168, 255 Cal. Rptr. at 552, 767 P.2d at 1030. With the exception of certain election campaigning conducted by respondent and its president, the court found that all of respondent's challenged activities fell within its statutory authority. Id. at 1168-1173, 255 Cal. Rptr. at 552-555, 767 P.2d at 1030-1033. We granted certiorari, 493 U.S. 806 (1989), to consider petitioners' First Amendment claims. We now reverse and remand for further proceedings.In Lathrop v. Donohue, 367 U. S. 820 (1961), a Wisconsin lawyer claimed that he could not constitutionally be compelled to join and financially support a state bar association which expressed opinions on, and attempted to influence, legislation. Six Members of this Court, relying on Railway Employes v. Hanson, 351 U. S. 225 (1956), rejected this claim."In our view, the case presents a claim of impingement upon freedom of association no different from that which we decided in [Hanson]. We there held that § 2, Eleventh of the Railway Labor Act . . . did not, on its face, Page 496 U. S. 8 abridge protected rights of association in authorizing union-shop agreements between interstate railroads and unions of their employees conditioning the employees' continued employment on payment of union dues, initiation fees and assessments. . . . In rejecting Hanson's claim of abridgment of his rights of freedom of association, we said,""On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who, by state law, is required to be a member of an integrated bar.""351 U.S. at 351 U. S. 238. Both in purport and in practice, the bulk of State Bar activities serve the function, or at least so Wisconsin might reasonably believe, of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State, without any reference to the political process. It cannot be denied that this is a legitimate end of state policy. We think that the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the organization created to attain the objective also engages in some legislative activity. Given the character of the integrated bar shown on this record, in the light of the limitation of the membership requirement to the compulsory payment of reasonable annual dues, we are unable to find any impingement upon protected rights of association."Lathrop, 367 U.S. at 367 U. S. 842-843 (plurality opinion) (footnote omitted). Justice Harlan, joined by Justice Frankfurter, similarly concluded that"[t]he Hanson case . . . decided by a unanimous Court, surely lays at rest all doubt that a State may constitutionally condition the right to practice law upon membership in an integrated bar association, a condition fully as justified Page 496 U. S. 9 by state needs as the union shop is by federal needs."Id. at 367 U. S. 849 (opinion concurring in judgment).The Lathrop plurality emphasized, however, the limited scope of the question it was deciding:"[Lathrop's] compulsory enrollment imposes only the duty to pay dues. . . . We therefore are confronted, as we were in [Hanson], only with a question of compelled financial support of group activities, not with involuntary membership in any other aspect."Id. at 367 U. S. 828-829 (plurality opinion) (footnote omitted). Indeed, the plurality expressly reserved judgment on Lathrop's additional claim that his free speech rights were violated by the Wisconsin Bar's use of his mandatory dues to support objectionable political activities, believing that the record was not sufficiently developed to address this particular claim. [Footnote 3] Petitioners here present this very claim for decision, contending that the use of their compulsory dues to finance political and ideological activities of the State Bar with which they disagree violates their rights of free speech guaranteed by the First Amendment.In Abood v. Detroit Board of Education, 431 U. S. 209 (1977), the Court confronted the issue of whether, consistent with the First Amendment, agency-shop dues of nonunion public employees could be used to support political and ideological causes of the union which were unrelated to collective bargaining activities. We held that, while the Constitution did not prohibit a union from spending"funds for the expression of political views . . . or toward the advancement of other ideological causes not germane to its duties as collective bargaining representative,"the Constitution did require that such expenditures be"financed from charges, dues, or assessments paid by employees who [did] not object to advancing those ideas and who [were] not coerced into doing so against their will by the threat of loss of governmental employment."Id. at 431 U. S. 235-236. Noting that, just as Page 496 U. S. 10 prohibitions on making contributions to organizations for political purposes implicate fundamental First Amendment concerns, see Buckley v. Valeo, 424 U. S. 1 (1976), "compelled . . . contributions for political purposes works no less an infringement of . . . constitutional rights." Abood, supra, at 431 U. S. 234. The Court acknowledged Thomas Jefferson's view that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.'" 431 U.S. at 431 U. S. 234, 431 U. S. 235, n. 31 (quoting I. Brant, James Madison: The Nationalist 354 (1948)). While the decision in Abood was also predicated on the grounds that a public employee could not be compelled to relinquish First Amendment rights as a condition of public employment, see 431 U.S. at 431 U. S. 234-236, in the later case of Ellis v. Railway Clerks, 466 U. S. 435 (1984), the Court made it clear that the principles of Abood apply equally to employees in the private sector. See 466 U.S. at 466 U. S. 455-457.Although several federal and state courts have applied the Abood analysis in the context of First Amendment challenges to integrated bar associations, see 47 Cal. 3d at 1166, 255 Cal. Rptr. at 550, 767 P.2d at 1028 (collecting cases), the California Supreme Court in this case held that respondent's status as a regulated state agency exempted it from any constitutional constraints on the use of its dues."If the bar is considered a governmental agency, then the distinction between revenue derived from mandatory dues and revenue from other sources is immaterial. A governmental agency may use unrestricted revenue, whether derived from taxes, dues, fees, tolls, tuition, donation, or other sources, for any purposes within its authority."Id. at 1167, 255 Cal. Rptr. at 551, 767 P.2d 1029. Respondent also urges this position, invoking the so-called "government speech" doctrine:"The government must take substantive positions and decide disputed issues to govern. . . . So long as it bases its actions on legitimate goals, government may speak despite citizen disagreement with its message, for government is not required to be content-neutral."Brief for Page 496 U. S. 11 Respondent 16. See also Abood, supra, 431 U.S. at 431 U. S. 259, n. 13 (Powell, J., concurring in judgment) ("[T]he reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people.")Of course the Supreme Court of California is the final authority on the "governmental" status of the State Bar of California for purposes of state law. But its determination that respondent is a "government agency," and therefore entitled to the treatment accorded a governor, a mayor or a State Tax Commission, for instance, is not binding on us when such a determination is essential to the decision of a federal question. The State Bar of California is a good deal different from most other entities that would be regarded in common parlance as "governmental agencies." Its principal funding comes not from appropriations made to it by the legislature, but from dues levied on its members by the Board of Governors. [Footnote 4] Only lawyers admitted to practice in the State of California are members of the State Bar, and all 122,000 lawyers admitted to practice in the State must be members. Respondent undoubtedly performs important and valuable services for the State by way of governance of the profession, but those services are essentially advisory in nature. The State Bar does not admit anyone to the practice of law, it does not finally disbar or suspend anyone, nor does it ultimately establish ethical codes of conduct. All of those functions are reserved by California law to the State Supreme Court. See Cal. Bus. & Prof.Code Ann. § 6064 (1974) (admissions); § 6076 (rules of professional conduct); Cal.Bus. Page 496 U. S. 12 & Prof.Code Ann. § 6100 (West Supp.1990) (disbarment or suspension).There is, by contrast, a substantial analogy between the relationship of the State Bar and its members, on the one hand, and the relation of the employee unions and their members, on the other. The reason behind the legislative enactment of "agency shop" laws is to prevent "free riders" -- those who receive the benefit of union negotiation with their employers, but who do not choose to join the union and pay dues -- from avoiding their fair share of the cost of a process from which they benefit. The members of the State Bar concededly do not benefit as directly from respondent's activities as do employees from union negotiations with management, but the position of the organized bars has generally been that they prefer a large measure of self-regulation to regulation conducted by a government body which has little or no connection with the profession. The plan established by California for the regulation of the profession is for recommendations as to admission to practice, the disciplining of lawyers, codes of conduct, and the like to be made to the courts or the legislature by the organized bar. It is entirely appropriate that all of the lawyers who derive benefit from the unique status of being among those admitted to practice before the courts should be called upon to pay a fair share of the cost of the professional involvement in this effort.But the very specialized characteristics of the State Bar of California discussed above served to distinguish it from the role of the typical government official or agency. Government officials are expected as a part of the democratic process to represent and to espouse the views of a majority of their constituents. With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over Page 496 U. S. 13 issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed. Cf. United States v. Lee, 455 U. S. 252, 455 U. S. 260 (1982) ("The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief").The State Bar of California was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. Its members and officers are such not because they are citizens or voters, but because they are lawyers. We think that these differences between the State Bar, on the one hand, and traditional government agencies and officials, on the other hand, render unavailing respondent's argument that it is not subject to the same constitutional rule with respect to the use of compulsory dues as are labor unions representing public and private employees.Respondent would further distinguish the two situations on the grounds that the compelled association in the context of labor unions serves only a private economic interest in collective bargaining, while the State Bar serves more substantial public interests. But legislative recognition that the agency shop arrangements serves vital national interests in preserving industrial peace, see Ellis, 466 U.S. at 466 U. S. 455-456, indicates that such arrangements serve substantial public interests as well. We are not possessed of any scales which would enable us to determine that the one outweighs the other sufficiently to produce a different result here.Abood held that a union could not expend a dissenting individual's dues for ideological activities not "germane" to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar is justified by the State's interest in regulating the legal profession and improving the quality of legal services. Page 496 U. S. 14 The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity. The difficult question, of course, is to define the latter class of activities.Construing the Railway Labor Act in Ellis, supra, we held:"[W]hen employees such as petitioners object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit."Id. at 466 U. S. 448. We think these principles are useful guidelines for determining permissible expenditures in the present context as well. Thus, the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or "improving the quality of the legal service available to the people of the State." Lathrop, 367 U.S. at 367 U. S. 843 (plurality opinion).The Supreme Court of California decided that most of the activities complained of by petitioners were within the scope of the State Bar's statutory authority, and were therefore not only permissible but could be supported by the compulsory dues of objecting members. The Supreme Court of California quoted the language of the relevant statute to the effect Page 496 U. S. 15 that the State Bar was authorized to "aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice.'" 47 Cal. 3d at 1169, 255 Cal. Rptr. at 552, 767 P.2d at 1030. Simply putting this language alongside our previous discussion of the extent to which the activities of the State Bar may be financed from compulsory dues might suggest that there is little difference between the two. But there is a difference, and that difference is illustrated by the allegations in petitioners' complaint as to kinds of State Bar activities which the Supreme Court of California has now decided may be funded with compulsory dues.Petitioners assert that the State Bar has engaged in, inter alia, lobbying for or against state legislation (1) prohibiting state and local agency employers from requiring employees to take polygraph tests; (2) prohibiting possession of armor-piercing handgun ammunition; (3) creating an unlimited right of action to sue anybody causing air pollution; and (4) requesting Congress to refrain from enacting a guest worker program or from permitting the importation of workers from other countries. Petitioners' complaint also alleges that the Conference of Delegates funded and sponsored by the State Bar endorsed a gun control initiative, disapproved statements of a United States senatorial candidate regarding court review of a victim's bill of rights, endorsed a nuclear weapons freeze initiative, and opposed federal legislation limiting federal court jurisdiction over abortions, public school prayer and busing. See n 2, supra.Precisely where the line falls between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisors to those ultimately charged with the regulation of the legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals, on the other, will not always be easy to discern. But the extreme ends of the spectrum are clear: Page 496 U. S. 16 compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum, petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the bar or proposing ethical codes for the profession.In declining to apply our Abood decision to the activities of the State Bar, the Supreme Court of California noted that it would entail"an extraordinary burden. . . . The bar has neither time nor money to undertake a bill-by-bill, case-by-case Ellis analysis, nor can it accept the risk of litigation every time it decides to lobby a bill or brief a case."47 Cal. 3d at 1165-1166, 255 Cal. Rptr. at 550, 767 P.2d at 1028. In this respect, we agree with the assessment of Justice Kaufman in his concurring and dissenting opinion in that court:"[C]ontrary to the majority's assumption, the State Bar would not have to perform the three-step Ellis analysis prior to each instance in which it seeks to advise the Legislature or the courts of its views on a matter. Instead, according to [Teachers v.] Hudson, [475 U.S. 292 (1986)],""the constitutional requirements for the [association's] collection of . . . fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.""(Id. at 475 U. S. 310). Since the bar already is statutorily required to submit detailed budgets to the Legislature prior to obtaining approval for setting members' annual dues (Bus. and Prof. Code § 6140.1), the argument that the constitutionally mandated procedures would create 'an extraordinary burden' for the bar is unpersuasive.""While such a procedure would likely result in some additional administrative burden to the bar and perhaps prove at times to be somewhat inconvenient, such additional burden or inconvenience is hardly sufficient to justify Page 496 U. S. 17 contravention of the constitutional mandate. It is noteworthy that unions representing government employees have developed, and have operated successfully within the parameters of Abood procedures for over a decade.""Id. at 1192, 255 Cal. Rptr. at 568, 767 P.2d at 1046 (citations omitted; footnote omitted)."In Teachers v. Hudson, 475 U. S. 292 (1986), where we outlined a minimum set of procedures by which a union in an agency shop relationship could meet its requirement under Abood, we had a developed record regarding different methods fashioned by unions to deal with the "free rider" problem in the organized labor setting. We do not have any similar record here. We believe an integrated bar could certainly meet its Abood obligation by adopting the sort of procedures described in Hudson. Questions as to whether one or more alternate procedures would likewise satisfy that obligation are better left for consideration upon a more fully developed record.In addition to their claim for relief based on respondent's use of their mandatory dues, petitioners' complaint also requested an injunction prohibiting the State Bar from using its name to advance political and ideological causes or beliefs. See supra at 496 U. S. 5-6. This request for relief appears to implicate a much broader freedom of association claim than was at issue in Lathrop. Petitioners challenge not only their "compelled financial support of group activities," see supra at 496 U. S. 9, but urge that they cannot be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory financial support is justified under the principles of Lathrop and Abood. The California courts did not address this claim, and we decline to do so in the first instance. The state courts remain free, of course, to consider this issue on remand.The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtKeller v. State Bar of California, 496 U.S. 1 (1990)Keller v. State Bar of CaliforniaNo. 88-1905Argued Feb. 27, 1990Decided June 4, 1990496 U.S. 1SyllabusRespondent State Bar of California is an "integrated bar" -- i.e., an association of attorneys in which membership and dues are required as a condition of practicing law -- created under state law to regulate the State's legal profession. In fulfilling its broad statutory mission to "promote the improvement of the administration of justice," the Bar uses its membership dues for self-regulatory functions, such as formulating rules of professional conduct and disciplining members for misconduct. It also uses dues to lobby the legislature and other governmental agencies, file amicus curiae, briefs in pending cases, hold an annual delegates conference for the debate of current issues and the approval of resolutions, and engage in educational programs. Petitioners, State Bar members, brought suit in state court claiming that, through these latter activities, the Bar expends mandatory dues payments to advance political and ideological causes to which they do not subscribe, in violation of their First and Fourteenth Amendment rights to freedom of speech and association. They requested, inter alia, an injunction restraining the Bar from using mandatory dues or its name to advance political and ideological causes or beliefs. The court granted summary judgment to the Bar on the grounds that it is a governmental agency, and therefore permitted under the First Amendment to engage in the challenged activities. The Court of Appeal reversed, holding that, while the Bar's regulatory activities were similar to those of a government agency, its "administration-of-justice" functions were more akin to the activities of a labor union. Relying on the analysis of Abood v. Detroit Bd. of Page 496 U. S. 2 Education, 431 U. S. 209 -- which prohibits the agency-shop dues of dissenting nonunion employees from being used to support political and ideological union causes that are unrelated to collective bargaining activities -- the court held that the Bar's activities could be financed from mandatory dues only if a particular action served a state interest important enough to overcome the interference with dissenters' First Amendment rights. The State Supreme Court reversed, reasoning that the Bar was a "government agency" that could use its dues for any purpose within the scope of its statutory authority, and that subjecting the Bar's activities to First Amendment scrutiny would place an "extraordinary burden" on its statutory mission. With the exception of certain election campaigning, the court found that all of the challenged activities fell within the Bar's statutory authority.Held:1. The State Bar's use of petitioners' compulsory dues to finance political and ideological activities with which petitioners disagree violates their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services. Pp. 496 U. S. 9-17.(a) The State Supreme Court's determination that the State Bar is a "government agency" for the purposes of state law is not binding on this Court when such a determination is essential to the decision of a federal question. The State Bar is not a typical "government agency." The Bar's principal funding comes from dues levied on its members, rather than from appropriations made by the legislature; its membership is composed solely of lawyers admitted to practice in the State, and its services by way of governance of the profession are essentially advisory in nature, since the ultimate responsibility of such governance is reserved by state law to the State Supreme Court. By contrast, there is a substantial analogy between the relationship of the Bar and its members and that of unions and their members. Just as it is appropriate that employees who receive the benefit of union negotiation with their employer pay their fair share of the cost of that process by paying agency-shop dues, it is entirely appropriate that lawyers who derive benefit from the status of being admitted to practice before the courts should be called upon to pay a fair share of the cost of the professional involvement in this effort. The State Bar was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. These differences between the State Bar and traditional government agencies render unavailing respondent's argument that it is not subject to the same constitutional rule with respect to the use of compulsory dues as are labor unions. Pp. 496 U. S. 10-13. Page 496 U. S. 3(b) Abood cannot be distinguished on the ground that the compelled association in the context of labor unions serves only a private economic interest in collective bargaining, while the Bar serves more substantial public interests. In fact, the legislative recognition that the agency-shop arrangements serve vital national interests in preserving industrial peace indicates that they serve a substantial public interest as well. It is not possible to determine that the Bar's interests outweigh these other interests sufficiently to produce a different result here. P. 496 U. S. 13.(c) The guiding standard for determining permissible Bar expenditures relating to political or ideological activities is whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services. Precisely where the line falls between permissible and impermissible dues-financed activities will not always be easy to discern. But the extreme ends of the spectrum are clear: Compulsory dues may not be used to endorse or advance a gun control or nuclear weapons freeze initiative, but may be spent on activities connected with disciplining Bar members or proposing the profession's ethical codes. Pp. 496 U. S. 13-16.(d) Since the Bar is already required to submit detailed budgets to the state legislature before obtaining approval to set annual dues, the State Supreme Court's assumption that complying with Abood would create an extraordinary burden for the Bar is unpersuasive. Any burden that might result is insufficient to justify contravention of a constitutional mandate, and unions have operated successfully within the boundaries of Abood procedures for over a decade. An integrated bar could meet its Abood obligation by adopting the sort of procedures described in Teacher v. Hudson, 475 U. S. 292. Questions whether alternate procedures would also satisfy the obligation should be left for consideration upon a more fully developed record. Pp. 496 U. S. 16-17.2. Petitioners' freedom of association claim based on the State Bar's use of its name to advance political and ideological causes or beliefs will not be addressed by this Court in the first instance. P. 496 U. S. 17.47 Cal. 3d 1152, 255 Cal. Rptr. 542, 767 P.2d 1020 (1989), reversed and remanded.REHNQUIST, C.J., delivered the opinion for a unanimous Court. Page 496 U. S. 4

1968_68

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.Appellants and the class they represent are unsentenced inmates awaiting trial in the Cook County jail who, though they are qualified Cook County electors, cannot readily appear at the polls either because they are charged with nonbailable offenses or because they have been unable to post the bail imposed by the courts of Illinois. [Footnote 1] They cannot obtain absentee ballots, for they constitute one of a number of classes for whom no provision for absentee voting has yet been made by the Illinois Legislature. The constitutionality of Illinois' failure to include them with those who are entitled to vote absentee is the primary issue in this direct appeal from a three-judge court.The specific provisions attacked here, Ill.Rev.Stat., c. 46, § § 19-1 to 19-3, have made absentee balloting available to four classes of persons: (1) those who are absent from the county of their residence for any reason whatever; (2) those who are "physically incapacitated," so long as they present an affidavit to that effect from a licensed physician; (3) those whose observance of a religious holiday precludes attendance at the polls, and (4) those who are serving as poll watchers in precincts Page 394 U. S. 804 other than their own on election day. [Footnote 2] The availability of the absentee ballot in Illinois has been extended to its present coverage by various amendments over the last 50 years. Prior to 1917, Illinois had no provision for absentee voting, requiring personal attendance at the polls, and in that year the legislature made absentee voting available to those who would be absent from the county on business or other duties. In 1944, absentee voting was made available to all those absent from the county for any reason. The provisions for those remaining in the county but unable to appear at the polls because of physical incapacity, religious holidays, or election duties were added in 1955, 1961, and 1967, respectively.On March 29, 1967, appellants made timely [Footnote 3] application for absentee ballots for the April 4 primary because of their physical inability to appear at the polls on that election day. The applications were accompanied by an affidavit from the warden of the Cook County jail attesting to that inability. These applications were refused by Page 394 U. S. 805 the appellee Board of Election Commissioners on the ground that appellants were not "physically incapacitated" within the meaning of §§ 19-1 and 19-2 of the Illinois Election Code. On the same day, appellants filed a complaint, alleging that they were unconstitutionally excluded from the coverage of the absentee provisions. They requested that a three-judge court be convened to rule the provisions violative of equal protection insofar as the provisions required denial of an absentee ballot to one judicially incapacitated while making it available at the same time to one medically incapacitated, and they sought an injunction to restrain appellee Board "from refusing to grant [appellants'] timely applications for absentee ballots." The District Court granted appellants' request for temporary relief on March 30, before the three-judge court was convened, and ordered the Board to issue ballots to qualified Illinois electors awaiting trial in the Cook County jail. [Footnote 4] Both parties then filed motions for summary judgment, the Board asserting that to honor the applications would subject its members to criminal liability under Illinois law. [Footnote 5] Page 394 U. S. 806On December 11, the District Court granted summary judgment for the Board, holding that the Illinois provisions extending absentee voting privileges to those physically incapacitated because of medical reasons from appearing at the polls constituted a proper and reasonable legislative classification not violative of equal protection. The case was brought here by appellants on direct appeal, 390 U.S. 1038 (1968), and we affirm.Appellants argue that Illinois' absentee ballot provisions violate the Equal Protection Clause of the Fourteenth Amendment for two reasons. First, they contend that, since the distinction between those medically incapacitated and those "judicially" incapacitated bears no reasonable relationship to any legitimate state objective, the classifications are arbitrary and therefore in violation of equal protection. Secondly, they argue that, since pretrial detainees imprisoned in other States or in counties within the State other than those of their own residence can vote absentee as Illinois citizens absent from the county for any reason, it is clearly arbitrary to deny the absentee ballot to other unsentenced inmates simply because they happen to be incarcerated within their own resident counties. Underlying appellants' contentions is the assertion that, since voting rights are involved, there is a narrower scope for the operation of the presumption of constitutionality than would ordinarily be the case with state legislation challenged in this Court. See Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 370 (1886).Before confronting appellants' challenge to Illinois' absentee provisions, we must determine initially how stringent a standard to use in evaluating the classifications made thereunder and whether the distinctions must be justified by a compelling state interest; for appellants assert Page 394 U. S. 807 that we are dealing generally with an alleged infringement of a basic, fundamental right. See, e.g., Reynolds v. Sims, 377 U. S. 533 (1964); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966). Thus, while the "States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised," Lassiter v. Northampton County Board of Elections, 360 U. S. 45, 360 U. S. 50 (1959), we have held that, once the States grant the franchise, they must not do so in a discriminatory manner. See Carrington v. Rash, 380 U. S. 89 (1965). More importantly, however, we have held that, because of the overriding importance of voting rights, classifications "which might invade or restrain them must be closely scrutinized and carefully confined" where those rights are asserted under the Equal Protection Clause; Harper v. Virginia Board of Elections, supra, at 383 U. S. 670. And a careful examination on our part is especially warranted where lines are drawn on the basis of wealth or race, Harper v. Virginia Board of Elections, supra, two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny. Douglas v. California, 372 U. S. 353 (1963); McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 192 (1964).Such an exacting approach is not necessary here, however, for two readily apparent reasons. First, the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race. Secondly, there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here, but a claimed right to receive absentee ballots. Despite appellants' claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny Page 394 U. S. 808 appellants the exercise of the franchise; nor, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. Ill.Rev.Stat., c. 46, § 3-5 (1967). Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has, in fact, precluded appellants from voting. [Footnote 6] We are then left with the more traditional standards for evaluating appellants' equal protection claims. [Footnote 7] Though the wide leeway allowed the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and the presumption of statutory validity that adheres thereto, admit of no Page 394 U. S. 809 settled formula, some basic guidelines have been firmly fixed. The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them. See McGowan v. Maryland, 366 U. S. 420 (1961); Kotch v. Board of River Port Pilot Commissioners, 330 U. S. 552 (1947); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911). With this much discretion, a legislature traditionally has been allowed to take reform "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 of Oklahoma, Inc., 348 U. S. 483, 348 U. S. 489 (1955), and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. See Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251 (1907).Since there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise, it seems quite reasonable for Illinois' Legislature to treat differently the physically handicapped, who must, after all, present affidavits from their physicians attesting to an absolute inability to appear personally at the polls in order to qualify for an absentee ballot. Illinois could, of course, make voting easier for all concerned by extending absentee voting privileges to those in appellants' class. Its failure to do so, however, hardly seems arbitrary, particularly in view of the many other classes of Illinois citizens not covered Page 394 U. S. 810 by the absentee provisions, for whom voting may be extremely difficult, if not practically impossible. [Footnote 8]Similarly, the different treatment accorded unsentenced inmates incarcerated within and those incarcerated without their resident counties may reflect a legislative determination that, without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates. Such a temptation, with its attendant risks to prison discipline would, of course, be much less urgent with prisoners incarcerated out of state or outside their resident counties. Constitutional safeguards are not thereby offended simply because some prisoners, as a result, find voting more convenient than appellants.We are satisfied then that appellants' challenge to the allegedly unconstitutional incompleteness of Illinois' absentee voting provisions cannot be sustained. Ironically, it is Illinois' willingness to go further than many States [Footnote 9] in extending the absentee voting privileges so Page 394 U. S. 811 as to include even those attending to election duties that has provided appellants with a basis for arguing that the provisions operate in an invidiously discriminatory fashion to deny them a more convenient method of exercising the franchise. Indeed, appellants' challenge seems to disclose not an arbitrary scheme or plan, but, rather, the very opposite -- a consistent and laudable state policy of adding, over a 50-year period, groups to the absentee coverage as their existence comes to the attention of the legislature. That Illinois has not gone still further, as perhaps it might, should not render void its remedial legislation, which need not, as we have stated before, "strike at all evils at the same time." Semler v. Dental Examiners, 294 U. S. 608, 294 U. S. 610 (1935).Accordingly, the judgment of the District Court isAffirmed

U.S. Supreme CourtMcDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969)McDonald v. Board of Election CommissionersNo. 68Argued November 19, 1968Decided April 28, 1969394 U.S. 802SyllabusAppellants are qualified Cook County electors who are unsentenced inmates of the Cook County jail awaiting trial. They allege that Illinois' failure to include them among the classes of persons entitled to absentee ballots violates the Equal Protection Clause of the Fourteenth Amendment. The District Court granted summary judgment for appellees holding that extending absentee ballots to those physically incapacitated for medical reasons constituted a proper and reasonable classification not violative of equal protection.Held: Illinois' failure to provide absentee ballots for appellants does not violate the Equal Protection Clause. Pp. 394 U. S. 806-811.(a) While classifications "which might invade or restrain [voting rights] must be closely scrutinized and carefully confined," a more exacting judicial scrutiny is not necessary here, since the distinctions made by Illinois' absentee voting provisions are not drawn on the basis of wealth or race, Harper v. Virginia Board of Elections, 383 U. S. 663, and there is nothing in the record to show that Illinois has precluded appellants from voting. Pp. 394 U. S. 806-808.(b) A state legislature traditionally has been allowed to take reform "one step at a time," and need not run the risk of losing its entire remedial scheme (here absentee voting) because it failed to cover every group that might have been included. Pp. 394 U. S. 809, 394 U. S. 811.(c) Since there is nothing to show that the judicially incapacitated appellants are absolutely prohibited from voting, it is reasonable for Illinois to treat differently the physically handicapped. Pp. 394 U. S. 809-810.(d) Constitutional safeguards are not offended by the different treatment accorded unsentenced inmates incarcerated within and those incarcerated without their counties of residence. P. 394 U. S. 810.277 F. Supp. 14, affirmed. Page 394 U. S. 803

1964_491

MR. JUSTICE DOUGLAS delivered the opinion of the Court.These appeals present the same question: is § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, 76 Stat. 840, constitutional as construed and applied? The statute provides in part:"Mail matter, except sealed letters, which originates or which is printed or otherwise prepared in a foreign country and which is determined by the Secretary of the Treasury pursuant to rules and regulations to be promulgated by him to be 'communist political propaganda', shall be detained by the Postmaster General upon its arrival for delivery in the United States, or upon its subsequent deposit in the United States domestic mails, and the addressee shall be notified that such matter has been received and will be delivered only upon the addressee's request, except that such detention shall not be required in the case of any matter which is furnished pursuant to subscription or which is otherwise ascertained by the Postmaster General to be desired by the addressee."39 U.S.C. § 4008(a).The statute defines "communist political propaganda" as political propaganda (as that term is defined in § 1(j) of the Foreign Agents Registration Act of 1938 [Footnote 1]) which is Page 381 U. S. 303 issued by or on behalf of any country with respect to which there is in effect a suspension or withdrawal of tariff concessions or from which foreign assistance is withheld pursuant to certain specified statutes. 39 U.S.C. § 4008(b). The statute contains an exemption from its provisions for mail addressed to government agencies and educational institutions, or officials thereof, and for mail sent pursuant to a reciprocal cultural international agreement. 39 U.S.C. § 4008(c).To implement the statute, the Post Office maintains 10 or 11 screening points through which is routed all unsealed mail from the designated foreign countries. At these points, the nonexempt mail is examined by Customs authorities. When it is determined that a piece of mail is "communist political propaganda," the addressee is mailed a notice identifying the mail being detained and advising that it will be destroyed unless the addressee requests delivery by returning an attached reply card within 20 days.Prior to March 1, 1965, the reply card contained a space in which the addressee could request delivery of any "similar publication" in the future. A list of the persons thus manifesting a desire to receive "communist political propaganda" was maintained by the Post Office. The Government in its brief informs us that the keeping of this list was terminated, effective March 15, 1965. Thus, under the new practice, a notice is sent and must be returned for each individual piece of mail desired. The only standing instruction which it is now possible to leave with the Post Office is not to deliver any "communist political Page 381 U. S. 304 propaganda." [Footnote 2] And the Solicitor General advises us that the Post Office Department "intends to retain its assumption that those who do not return the card want neither the identified publication nor any similar one arriving subsequently."No. 491 arose out of the Post Office's detention in 1963 of a copy of the Peking Review #12 addressed to appellant, Dr. Corliss Lamont, who is engaged in the publishing and distributing of pamphlets. Lamont did not respond to the notice of detention which was sent to him, but instead instituted this suit to enjoin enforcement of the statute, alleging that it infringed his rights under the First and Fifth Amendments. The Post Office thereupon notified Lamont that it considered his institution of the suit to be an expression of his desire to receive "communist political propaganda," and therefore none of his mail would be detained. Lamont amended his complaint to challenge on constitutional grounds the placement of his name on the list of those desiring to receive "communist political propaganda." The majority of the three-judge District Court nonetheless dismissed the complaint as moot, 229 F. Supp. 913, because Lamont would now receive his mail unimpeded. Insofar as the list was concerned, the majority thought that any legally significant harm to Lamont as a result of being listed was merely a speculative possibility, and so, on this score, the controversy was not yet ripe for adjudication. Lamont appealed from the dismissal, and we noted probable jurisdiction. 379 U.S. 926.Like Lamont, appellee Heilberg in No. 848, when his mail was detained, refused to return the reply card and Page 381 U. S. 305 instead filed a complaint in the District Court for an injunction against enforcement of the statute. The Post Office reacted to this complaint in the same manner as it had to Lamont's complaint, but the District Court declined to hold that Heilberg's action was thereby mooted. Instead, the District Court reached the merits, and unanimously held that the statute was unconstitutional under the First Amendment. 236 F. Supp. 405. The Government appealed, and we noted probable jurisdiction. 379 U.S. 997.There is no longer even a colorable question of mootness in these cases, for the new procedure, as described above, requires the postal authorities to send a separate notice for each item as it is received and the addressee to make a separate request for each item. Under the new system, we are told, there can be no list of persons who have manifested a desire to receive "communist political propaganda" and whose mail will therefore go through relatively unimpeded. The Government concedes that the changed procedure entirely precludes any claim of mootness and leaves for our consideration the sole question of the constitutionality of the statute.We conclude that the Act, as construed and applied, is unconstitutional because it requires an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee's First Amendment rights. As stated by Mr. Justice Holmes in Milwaukee Pub. Co. v. Burleson, 255 U. S. 407, 255 U. S. 437 (dissenting):"The United States may give up the post office when it sees fit, but, while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues. . . . [Footnote 3] "Page 381 U. S. 306We struck down in Murdock v. Pennsylvania, 319 U. S. 105, a flat license tax on the exercise of First Amendment rights. A registration requirement imposed on a labor union organizer before making a speech met the same fate in Thomas v. Collins, 323 U. S. 516. A municipal licensing system for those distributing literature was held invalid in Lovell v. City of Griffin, 303 U. S. 444. We recently reviewed in Harman v. Forssenius, 380 U. S. 528, an attempt by a State to impose a burden on the exercise of a right under the Twenty-fourth Amendment. There, a registration was required by all federal electors who did not pay the state poll tax. We stated:"For federal elections, the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed. Any material requirement imposed upon the federal voter solely because of his refusal to waive the constitutional immunity subverts the effectiveness of the Twenty-fourth Amendment and must fall under its ban."Id. p. 380 U. S. 542.Here the Congress -- expressly restrained by the First Amendment from "abridging" freedom of speech and of press -- is the actor. The Act sets administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail. Just as the licensing or taxing authorities in the Lovell, Thomas, and Murdock cases sought to control the flow of ideas to the public, so here federal agencies regulate the flow of mail. We do not have here, any more than we had in Hannegan v. Esquire, Inc., 327 U. S. 146, any question concerning the extent to which Congress may Page 381 U. S. 307 classify the mail and fix the charges for its carriage. Nor do we reach the question whether the standard here applied could pass constitutional muster. Nor do we deal with the right of Customs to inspect material from abroad for contraband. We rest on the narrow ground that the addressee, in order to receive his mail, must request in writing that it be delivered. This amounts, in our judgment, to an unconstitutional abridgment of the addressee's First Amendment rights. The addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions. Their livelihood may be dependent on a security clearance. Public officials like schoolteachers who have no tenure might think they would invite disaster if they read what the Federal Government says contains the seeds of treason. Apart from them, any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as "communist political propaganda." The regime of this Act is at war with the "uninhibited, robust, and wide-open" debate and discussion that are contemplated by the First Amendment. New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 270.We reverse the judgment in No. 491 and affirm that in No. 848.It is so ordered

U.S. Supreme CourtLamont v. Postmaster General, 381 U.S. 301 (1965)Lamont v. Postmaster GeneralNo. 491Argued April 26, 1965Decided May 24, 1965*381 U.S. 301SyllabusThese cases challenge the constitutionality of § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, which requires the Postmaster General to detain and deliver only upon the addressee's request unsealed foreign mailings of "communist political propaganda." Under procedure effective March 15, 1965, the Post Office sends to the addressee a card which can be checked to have the mailing delivered. The card states that, if it is not returned within 20 days, it will be assumed that the addressee does not want that publication or any similar one in the future. When the addressee in these cases received the Post Office notices, they sued to enjoin enforcement of the statute.Held: the Act, as construed and applied, is unconstitutional, since it imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment. Pp. 92 U. S. 305-307.229 F. Supp. 913, reversed; 235 F. Supp. 405, affirmed. Page 381 U. S. 302

1997_97-634

208 PENNSYLVANIA DEPT. OF CORRECTIONS v. YESKEYJUSTICE SCALIA delivered the opinion of the Court.The question before us is whether Title II of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 337, 42 U. S. C. § 12131 et seq., which prohibits a "public entity" from discriminating against a "qualified individual with a disability" on account of that individual's disability, see § 12132, covers inmates in state prisons. Respondent Ronald Yeskey was such an inmate, sentenced in May 1994 to serve 18 to 36 months in a Pennsylvania correctional facility. The sentencing court recommended that he be placed in Pennsylvania's Motivational Boot Camp for first-time offenders, the successful completion of which would have led to his release on parole in just six months. See Pa. Stat. Ann., Tit. 61, § 1121 et seq. (Purdon Supp. 1998). Because of his medical history of hypertension, however, he was refused admission. He filed this suit against petitioners, the Commonwealth of Pennsylvania's Department of Corrections and several department officials, alleging that his exclusion from the Boot Camp violated the ADA. The District Court dismissed for failure to state a claim, Fed. Rule Civ. Proc. 12(b)(6), holding the ADA inapplicable to inmates in state prisons; the Third Circuit reversed, 118 F.3d 168 (1997); we granted certiorari, 522 U. S. 1086 (1998).Petitioners argue that state prisoners are not covered by the ADA for the same reason we held in Gregory v. Ashcroft, 501 U. S. 452 (1991), that state judges were not covered by the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. § 621 et seq. Gregory relied on the canon of construction that absent an "unmistakably clear" expression of intent to "alter the usual constitutional balance between thetional Prison Project of the ACLU Foundation et al. by Steven R. Shapiro, David M. Porter, Marjorie Rifkin, and Elizabeth Alexander.Briefs of amici curiae were filed for Adapt et al. by Stephen F. Gold; and for the National Advisory Group for Justice et al. by Michael Churchill.209States and the Federal Government," we will interpret a statute to preserve rather than destroy the States' "substantial sovereign powers." 501 U. S., at 460-461 (citations and internal quotation marks omitted). It may well be that exercising ultimate control over the management of state prisons, like establishing the qualifications of state government officials, is a traditional and essential state function subject to the plain-statement rule of Gregory. "One of the primary functions of government," we have said, "is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task." Procunier v. Martinez, 416 U. S. 396, 412 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U. S. 401, 414 (1989). "It is difficult to imagine an activity in which a State has a stronger interest," Preiser v. Rodriguez, 411 U. S. 475, 491 (1973).Assuming, without deciding, that the plain-statement rule does govern application of the ADA to the administration of state prisons, we think the requirement of the rule is amply met: the statute's language unmistakably includes State prisons and prisoners within its coverage. The situation here is not comparable to that in Gregory. There, although the ADEA plainly covered state employees, it contained an exception for "'appointee[s] on the policymaking level''' which made it impossible for us to "conclude that the statute plainly cover[ed] appointed state judges." 501 U. S., at 467. Here, the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt. Title II of the ADA provides:"Subject to the provisions of this subchapter, 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." 42 U. S. C. § 12132.210210 PENNSYLVANIA DEPT. OF CORRECTIONS v. YESKEYState prisons fall squarely within the statutory definition of "public entity," which includes "any department, agency, special purpose district, or other instrumentality of a State or States or local government." § 12131(1)(B).Petitioners contend that the phrase "benefits of the services, programs, or activities of a public entity," § 12132, creates an ambiguity, because state prisons do not provide prisoners with "benefits" of "programs, services, or activities" as those terms are ordinarily understood. We disagree. Modern prisons provide inmates with many recreational "activities," medical "services," and educational and vocational "programs," all of which at least theoretically "benefit" the prisoners (and any of which disabled prisoners could be "excluded from participation in"). See Block v. Rutherford, 468 U. S. 576, 580 (1984) (referring to "contact visitation program"); Hudson v. Palmer, 468 U. S. 517, 552 (1984) (discussing "rehabilitative programs and services"); Olim v. Wakinekona, 461 U. S. 238, 246 (1983) (referring to "appropriate correctional programs for all offenders"). Indeed, the statute establishing the Motivational Boot Camp at issue in this very case refers to it as a "program." Pa. Stat. Ann., Tit. 61, § 1123 (Purdon Supp. 1998). The text of the ADA provides no basis for distinguishing these programs, services, and activities from those provided by public entities that are not prisons.We also disagree with petitioners' contention that the term "qualified individual with a disability" is ambiguous insofar as concerns its application to state prisoners. The statute defines the term to include anyone 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." 42 U. S. C. § 12131(2).211Petitioners argue that the words "eligibility" and "participation" imply voluntariness on the part of an applicant who seeks a benefit from the State, and thus do not connote prisoners who are being held against their will. This is wrong on two counts: First, because the words do not connote voluntariness. See, e. g., Webster's New International Dictionary 831 (2d ed. 1949) ("eligible": "Fitted or qualified to be chosen or elected; legally or morally suitable; as, an eligible candidate"); id., at 1782 ("participate": "To have a share in common with others; to partake; share, as in a debate"). While "eligible" individuals "participate" voluntarily in many programs, services, and activities, there are others for which they are "eligible" in which "participation" is mandatory. A drug addict convicted of drug possession, for example, might, as part of his sentence, be required to "participate" in a drug treatment program for which only addicts are "eligible." And secondly, even if the words did connote voluntariness, it would still not be true that all prison "services," "programs," and "activities" are excluded from the ADA because participation in them is not voluntary. The prison law library, for example, is a service (and the use of it an activity), which prisoners are free to take or leave. Cf. Gabel v. Lynaugh, 835 F.2d 124, 125, n. 1 (CAS 1988) (per curiam) ("pro se civil rights litigation has become a recreational activity for state prisoners"). In the very case at hand, the governing law makes it clear that participation in the Boot Camp program is voluntary. See Pa. Stat. Ann., Tit. 61, § 1126(a) (Purdon Supp. 1998) ("An eligible inmate may make an application to the motivational boot camp selection committee for permission to participate in the motivational boot camp program"); § 1126(c) ("[c]onditio[n]" of "participa[tion]" is that applicant "agree to be bound by" certain "terms and conditions").Finally, petitioners point out that the statute's statement of findings and purpose, 42 U. S. C. § 12101, does not mention prisons and prisoners. That is perhaps questionable, since the provision's reference to discrimination "in such critical212212 PENNSYLVANIA DEPT. OF CORRECTIONS v. YESKEYareas as ... institutionalization," § 12101(a)(3), can be thought to include penal institutions. But assuming it to be true, and assuming further that it proves, as petitioners contend, that Congress did not "envisio[n] that the ADA would be applied to state prisoners," Brief for Petitioners 13-14, in the context of an unambiguous statutory text that is irrelevant. As we have said before, the fact that a statute can be "'applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.'" Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985) (citation omitted).Our conclusion that the text of the ADA is not ambiguous causes us also to reject petitioners' appeal to the doctrine of constitutional doubt, which requires that we interpret statutes to avoid "grave and doubtful constitutional questions," United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909). That doctrine enters in only "where a statute is susceptible of two constructions," ibid. And for the same reason we disregard petitioners' invocation of the statute's title, "Public Services," 104 Stat. 337. "[T]he title of a statute ... cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] shed[s] light on some ambiguous word or phrase." Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528529 (1947).We do not address another issue presented by petitioners: whether application of the ADA to state prisons is a constitutional exercise of Congress's power under either the Commerce Clause, compare Printz v. United States, 521 U. S. 898 (1997), with Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), or § 5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507 (1997). Petitioners raise this question in their brief, see Brief for Petitioners 22-23, but it was addressed by neither the District Court nor the Court of Appeals, where petitioners raised only the Gregory plain-statement issue. "Where213issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them." Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970) (citations omitted). See also Dothard v. Rawlinson, 433 U. S. 321, 323, n. 1 (1977); Duignan v. United States, 274 U. S. 195, 200 (1927). We decline to do so here.***Because the plain text of Title II of the ADA unambiguously extends to state prison inmates, the judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1997SyllabusPENNSYLVANIA DEPARTMENT OF CORRECTIONS ET AL. v. YESKEYCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 97-634. Argued April 28, 1998-Decided June 15, 1998Respondent Yeskey was sentenced to 18 to 36 months in a Pennsylvania correctional facility, but was recommended for placement in a Motivational Boot Camp for first-time offenders, the successful completion of which would have led to his parole in just six months. When he was refused admission because of his medical history of hypertension, he sued petitioners, Pennsylvania's Department of Corrections and several officials, alleging that the exclusion violated the Americans with Disabilities Act of 1990 (ADA), Title II of which prohibits a "public entity" from discriminating against a "qualified individual with a disability" on account of that disability, 42 U. S. C. § 12132. The District Court dismissed for failure to state a claim, holding the ADA inapplicable to state prison inmates, but the Third Circuit reversed.Held: State prisons fall squarely within Title II's statutory definition of "public entity," which includes "any ... instrumentality of a State ... or local government." § 12131(1)(B). Unlike the situation that obtained in Gregory v. Ashcroft, 501 U. S. 452, there is no ambiguous exception that renders the coverage uncertain. For that reason the plain-statement requirement articulated in Gregory, if applicable to federal intrusion upon the administration of state prisons, has been met. Petitioners' attempts to derive an intent not to cover prisons from the statutory references to the "benefits" of programs and to "qualified individual" are rejected; some prison programs, such as this one, have benefits and are restricted to qualified inmates. The statute's lack of ambiguity also requires rejection of petitioners' appeal to the doctrine of constitutional doubt. The Court does not address the issue whether applying the ADA to state prisons is a constitutional exercise of Congress's power under either the Commerce Clause or the Fourteenth Amendment because it was addressed by neither of the lower courts. pp. 208-213.118 F.3d 168, affirmed.SCALIA, J., delivered the opinion for a unanimous Court.207Paul A. Tufano argued the cause for petitioners. With him on the briefs was Syndi L. Guido.Donald Specter argued the cause for respondent. With him on the brief were Eve H. Cervantez and Arlene B. Mayerson.Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Waxman, Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, Paul R. Q. Wolfson, Jessica Dunsay Silver, Linda F. Thome, and Seth M. Galanter. **Briefs of amici curiae urging reversal were filed for the State of Nevada et al. by Frankie Sue Del Papa, Attorney General of Nevada, and Anne B. Cathcart, Senior Deputy Attorney General, Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Elise Porter and Todd R. Marti, Assistant Attorneys General, John M. Ferren, Corporation Counsel of the District of Columbia, and Gus F. Diaz, Acting Attorney General of Guam, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Philip T. McLaughlin of New Hampshire, Peter Verniero of New Jersey, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Mark W Barnett of South Dakota, John Knox Walkup of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Mark L. Earley of Virginia, Julio A. Brady of the Virgin Islands, and William U. Hill of Wyoming; for the Council of State Governments et al. by Richard Ruda and James I. Crowley; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Republican Caucus of the Pennsylvania House of Representatives by John P. Krill, Jr., and David R. Fine.Briefs of amici curiae urging affirmance were filed for the National Association of Protection and Advocacy Systems et al. by Steven J. Schwartz, James R. Pingeon, and Stephen F. Hanlon; and for the N a-208Full Text of Opinion

1957_26

MR. JUSTICE BLACK delivered the opinion of the Court.The United States asks this Court to strike down as unconstitutional a tax statute of the State of Michigan as applied to a lessee of government property. In general terms, this statute, Public Act 189 of 1953, provides that, when tax exempt real property is used by a private party in a business conducted for profit, the private party is subject to taxation to the same extent as though he owned the property. [Footnote 1] Page 355 U. S. 468Here, the United States was the owner of an industrial plant in Detroit, Michigan. It leased a portion of that plant to the Borg-Warner Corporation at a stipulated annual rental for use in the latter's private manufacturing business. The lease provided that Borg-Warner could deduct from the agreed rental any taxes paid by it under Public Act 189 or similar state statutes enacted during the term of the lease, but the Government reserved the right to contest the validity of such taxes.On January 1, 1954, a tax was assessed against Borg-Warner under Public Act 189. The tax was based on the value of the property leased and computed at the rate used for calculating real property taxes. Under protest, Borg-Warner paid part of the assessment. Subsequently the United States and Borg-Warner filed this suit in a state court for refund of the amount paid. They charged that the tax was repugnant to the Constitution of the United States because it imposed a levy upon government property Page 355 U. S. 469 and discriminated against those using such property. The lower court, however, upheld the tax, and the Michigan Supreme Court affirmed. 345 Mich. 601, 77 N.W.2d 79. It ruled that the tax was neither discriminatory nor on the property of the United States, but instead was a tax on the lessee's privilege of using the property in a private business conducted for profit. We noted probable jurisdiction of an appeal by the United States and Borg-Warner from this decision. 352 U.S. 962.This Court has held that a State cannot constitutionally levy a tax directly against the Government of the United States or its property without the consent of Congress. McCulloch v. Maryland, 4 Wheat. 316; Van Brocklin v. Tennessee, 117 U. S. 151. At the same time, it is well settled that the Government's constitutional immunity does not shield private parties with whom it does business from state taxes imposed on them merely because part or all of the financial burden of the tax eventually falls on the Government. See, e.g., James v. Dravo Contracting Co., 302 U. S. 134; Graves v. New York ex rel. O'Keefe, 306 U. S. 466; Alabama v. King & Boozer, 314 U. S. 1. Of course, in determining whether a tax is actually laid on the United States or its property, this Court goes beyond the bare face of the taxing statute to consider all relevant circumstances.The Michigan statute challenged here imposes a tax on private lessees and users of tax exempt property who use such property in a business conducted for profit. Any taxes due under the statute are the personal obligation of the private lessee or user. The owner is not liable for their payment, nor is the property itself subject to any lien if they remain unpaid. So far as the United States is concerned as the owner of the exempt property used in this case, it seems clear that there was no attempt to levy against its property or treasury. Page 355 U. S. 470Nevertheless, the Government argues that, since the tax is measured by the value of the property used, it should be treated as nothing but a contrivance to lay a tax on that property. We do not find this argument persuasive. A tax for the beneficial use of property, as distinguished from a tax on the property itself, has long been a commonplace in this country. See Henneford v. Silas Mason Co., 300 U. S. 577, 300 U. S. 582-583. In measuring such a use tax, it seems neither irregular nor extravagant to resort to the value of the property used -- indeed, no more so than measuring a sales tax by the value of the property sold. Public Act 189 was apparently designed to equalize the annual tax burden carried by private businesses using exempt property with that of similar businesses using nonexempt property. Other things being the same, it seems obvious enough that use of exempt property is worth as much as use of comparable taxed property during the same interval. In our judgment, it was not an impermissible subterfuge, but a permissible exercise of its taxing power, for Michigan to compute its tax by the value of the property used.A number of decisions by this Court support this conclusion. For example, in Curry v. United States, 314 U. S. 14, we upheld unanimously a state use tax on a contractor who was using government-owned materials although the tax was based on the full value of those materials. Similarly, in Esso Standard Oil Co. v. Evans, 345 U. S. 495, the Court held valid a state tax on the privilege of storing gasoline even though that part of the tax which was challenged was measured by the number of gallons of government-owned gasoline stored with the taxpayer. While it is true that the tax here is measured by the value of government property, instead of by its quantity, as in Esso, such technical difference has no meaningful significance in determining whether the Constitution Page 355 U. S. 471 prohibits this tax. Still other cases further confirm the proposition that it may be permissible for a State to measure a tax imposed on a valid subject of state taxation by taking into account government property which is itself tax exempt. See, e.g., Home Insurance Co. of New York v. New York, 134 U. S. 594; Plummer v. Coler, 178 U. S. 115; Educational Films Corp. of America v. Ward, 282 U. S. 379; Pacific Co. v. Johnson, 285 U. S. 480, 285 U. S. 489-490.In urging that the tax assessed here be struck down, the appellants rely primarily on United States v. Allegheny County, 322 U. S. 174, but we do not think that case is at all controlling. In Allegheny, the Court ruled invalid a tax which the State did not contend was "anything other than the old and widely used ad valorem general property tax" to the extent it was laid on government property in the hands of a private bailee. Reviewing all the circumstances, the Court concluded that the tax was simply and forthrightly imposed on the property itself, not on the privilege of using or possessing it. In carefully reserving the question whether the bailee could be taxed for exercising such privileges, the Court stated:"Whether such a right of possession and use in view of all the circumstances could be taxed by appropriate proceedings we do not decide.""* * * *" "Actual possession and custody of Government property nearly always are in someone who is not himself the Government, but acts in its behalf and for its purposes. He may be an officer, an agent, or a contractor. His personal advantages from the relationship by way of salary, profit, or beneficial personal use of the property may be taxed as we have held."322 U.S. at 322 U. S. 184, 322 U. S. 186-187. Page 355 U. S. 472 Here, we have a tax which is imposed on a party using tax exempt property for its own "beneficial personal use" and "advantage." [Footnote 2]It is undoubtedly true, as the Government points out, that it will not be able to secure as high rentals if lessees are taxed for using its property. But, as this Court has ruled in James v. Dravo Contracting Co., 302 U. S. 134; Alabama v. King & Boozer, 314 U. S. 1, and numerous other cases, [Footnote 3] the imposition of an increased financial burden on the Government does not, by itself, vitiate a state tax. King & Boozer offers a striking example. There, a private party, acting under contract with the United States, purchased materials which the contract required him to transfer to the Government. At the same time, the Government agreed to pay his costs plus a fixed fee, so a state excise levied on his purchase was passed directly and completely to the Government. Yet, despite the immediate financial burden imposed on the United States, this Court, without dissent, upheld the tax.We are aware, of course, that the general principles laid down in Dravo, King & Boozer, and subsequent cases do not resolve all the difficulties in the area of intergovernmental tax immunity, but they were adopted by this Page 355 U. S. 473 Court, with the full support of the Government, as the least complicated, the most workable and the proper standards for decision in this much litigated and often confused field, and we adhere to them. [Footnote 4]It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals. Cf. 17 U. S. Maryland, 4 Wheat. 316. But here, the tax applies to every private party who uses exempt property in Michigan in connection with a business conducted for private gain. Under Michigan law, this means persons who use property owned by the Federal Government, the State, its political subdivisions, churches, charitable organizations and a great host of other entities. [Footnote 5] The class defined is not an arbitrary or invidiously discriminatory one. As suggested before, the the legislature apparently was trying to equate the tax burden imposed on private enterprise using exempt property with that carried by similar business using taxed property. Those using exempt property are required to pay no greater tax than Page 355 U. S. 474 that placed on private owners or passed on by them to their business lessees. In the absence of such equalization, the lessees of tax exempt property might well be given a distinct economic preference over their neighboring competitors, as well as escaping their fair share of local tax responsibility. Cf. Henneford v. Silas Mason Co., 300 U. S. 577, 300 U. S. 583-585. Nor is there any showing that the tax is in fact administered to discriminate against those using federal property. To the contrary, undisputed evidence introduced by appellees demonstrates that lessees of other exempt property have also been taxed. [Footnote 6]Today, the United States does business with a vast number of private parties. In this Court, the trend has been to reject immunizing these private parties from nondiscriminatory state taxes as a matter of constitutional law. Cf. Penn Dairies v. Milk Control Commission, 318 U. S. 261, 318 U. S. 270. Of course, this is not to say that Congress, acting within the proper scope of its power, cannot confer immunity by statute where it does not exist constitutionally. 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. As the Government points out, Congress has already extensively legislated in this area by permitting Page 355 U. S. 475 States to tax what would have otherwise been immune. To hold that the tax imposed here on a private business violates the Government's constitutional tax immunity would improperly impair the taxing power of the State.Affirmed

U.S. Supreme CourtUnited States v. City of Detroit, 355 U.S. 466 (1958)United States v. City of DetroitNo. 26Argued November 14, 1957Decided March 3, 1958355 U.S. 466SyllabusUnder Michigan Public Act 189 of 1953, the City of Detroit assessed against a private corporation engaged in business for profit taxes based upon the value of real property owned by the United States and leased to the corporation under a lease permitting the corporation to deduct from the agreed rental any such taxes paid by it but reserving to the Government the right to contest the validity of such taxes. In effect, the Act provides that, when tax exempt real property is used by a private party in a business conducted for profit, such private party is subject to taxation in the same amount and to the same extent as though he owned the property; that such taxes shall be assessed and collected in the same manner as taxes assessed to the owners of real property, except that they shall not become a lien against the property, but shall be a debt due from the user and collectible by direct action; and that the Act shall not apply to federal property for which payments are made in lieu of taxes in amounts equivalent to taxes which otherwise might lawfully be assessed.Held: the Act, on its face and as here applied, does not invade the constitutional immunity of federal property from taxation by the States or discriminate against the Government or those with whom it deals. Pp. 355 U. S. 467-475.(a) The Government's constitutional immunity does not shield private parties from state taxes imposed on them merely because part or all of the financial burden of the taxes eventually falls on the Government. Pp. 355 U. S. 469, 355 U. S. 472-473.(b) The tax here involved is not levied on the Government or its property, but on the private lessee who uses the property in a business conducted for profit. P. 355 U. S. 469.(c) The fact that the tax is measured by the value of the property used does not justify treating it as a mere contrivance to tax the property itself. Pp. 355 U. S. 470-471.(d) United States v. Allegheny County, 322 U. S. 174, distinguished. Pp. 355 U. S. 471-472.(e) Neither on its face nor as here applied does this tax operate so as to discriminate against the Federal Government or those with whom it deals. Pp. 355 U. S. 473-474. Page 355 U. S. 467(f) A different result is not required by the fact that the Act creates an exception to the tax on users where payments in lieu of taxes are made by the United States "in amounts equivalent to taxes which might otherwise be lawfully assessed" P. 474, n 6.(g) To hold that the tax imposed here on private business violates the Government's constitutional tax immunity would improperly impair the taxing power of the State. P. 355 U. S. 475.345 Mich. 601, 77 N.W.2d 79, affirmed.

1981_80-1082

JUSTICE REHNQUIST delivered the opinion of the Court.Respondent was convicted in November, 1974, by a New York state court jury on two counts of murder and one count of attempted murder. After trial, respondent moved to vacate his conviction pursuant to § 330.30 of the N.Y.Crim.Proc.Law (McKinney 1971) (CPL), [Footnote 1] and a hearing on his motion Page 455 U. S. 211 was held pursuant to CPL § 330.40. [Footnote 2] The hearing was held before the justice who presided at respondent's trial, and the motion to vacate was denied by him in an opinion concluding "beyond a reasonable doubt" that the events giving rise to the motion did not influence the verdict. People v. Phillips, 87 Misc.2d 613, 614, 630, 384 N.Y.S.2d 906, 907-908, 918 (1975). The Appellate Division of the Supreme Court, First Judicial Department, affirmed the conviction without opinion. 52 App.Div.2d 758, 384 N.Y.S.2d 715 (1976). The New York Court of Appeals denied leave to appeal. 39 N.Y.2d 949, 352 N.E.2d 894 (1976).Some four years after the denial of leave to appeal by the Court of Appeals, respondent sought federal habeas relief in the United States District Court for the Southern District of New York on the same ground which had been asserted in the state post-trial hearing. The District Court granted the writ, 485 F. Supp. 1365 (1980), and the United States Court of Appeals for the Second Circuit affirmed on a somewhat different ground. 632 F.2d 1019 (1980). We granted certiorari to consider the important questions of federal constitutional law in relation to federal habeas proceedings raised by these decisions. 450 U.S. 909 (1981). We now reverse. Page 455 U. S. 212IARespondent's original motion to vacate his conviction was based on the fact that a juror in respondent's case, one John Dana Smith, submitted during the trial an application for employment as a major felony investigator in the District Attorney's Office. [Footnote 3] Smith had learned of the position from a friend who had contacts within the office and who had inquired on Smith's behalf without mentioning Smith's name or the fact that he was a juror in respondent's trial. When Smith's application was received by the office, his name was placed on a list of applicants but he was not then contacted and was not known by the office to be a juror in respondent's trial.During later inquiry about the status of Smith's application, the friend mentioned that Smith was a juror in respondent's case. The attorney to whom the friend disclosed this fact promptly informed his superior, and his superior in turn informed the Assistant District Attorney in charge of hiring investigators. The following day, more than one week before the end of respondent's trial, the assistant informed the two attorneys actually prosecuting respondent that one of the jurors had applied to the office for employment as an investigator.The two prosecuting attorneys conferred about the application but concluded that, in view of Smith's statements during voir dire, [Footnote 4] there was no need to inform the trial court or defense Page 455 U. S. 213 counsel of the application. They did instruct attorneys in the office not to contact Smith until after the trial had ended, and took steps to insure that they would learn no information about Smith that had not been revealed during voir dire. When the jury retired to deliberate on November 20th, three alternate jurors were available to substitute for Smith, and neither the trial court nor the defense counsel knew of his application. The jury returned its verdict on November 21st.The District Attorney first learned of Smith's application on December 4th. Five days later, after an investigation to verify the information, he informed the trial court and defense counsel of the application and the fact that its existence was known to attorneys in his office at some time before the conclusion of the trial. Respondent's attorney then moved to set aside the verdict.At the hearing before the trial judge, Justice Harold Birns, the prosecuting attorneys explained their decision not to disclose the application and Smith explained that he had seen nothing improper in submitting the application during the trial. Justice Birns, "[f]rom all the evidence adduced" at the hearing, 87 Misc.2d at 621, 384 N.Y.S.2d at 912, found that "Smith's letter was indeed an indiscretion," but that it"in no way reflected a premature conclusion as to the [respondent's] guilt, or prejudice against the [respondent], or an in ability to consider the guilt or innocence of the [respondent] Page 455 U. S. 214 solely on the evidence."Id. at 627, 384 N.Y.S.2d at 915. With respect to the conduct of the prosecuting attorneys, Justice Birns found "no evidence" suggesting "a sinister or dishonest motive with respect to Mr. Smith's letter of application." Id. at 618-619, 384 N.Y.S.2d at 910.BIn his application for federal habeas relief, respondent contended that he had been denied due process of law under the Fourteenth Amendment to the United States Constitution by Smith's conduct. The District Court found insufficient evidence to demonstrate that Smith was actually biased. 485 F. Supp. at 1371. Nonetheless, the court imputed bias to Smith because "the average man in Smith's position would believe that the verdict of the jury would directly affect the evaluation of his job application." Id. at 1371-1372. Accordingly, the court ordered respondent released unless the State granted him a new trial within 90 days.The United States Court of Appeals for the Second Circuit affirmed by a divided vote. The court noted that "it is, at best, difficult and perhaps impossible to learn from a juror's own testimony after the verdict whether he was in fact impartial,'" but the court did not consider whether Smith was actually or impliedly biased. 632 F.2d at 1022. Rather, the Court of Appeals affirmed respondent's release simply because "the failure of the prosecutors to disclose their knowledge denied [respondent] due process." Ibid. The court explained:"To condone the withholding by the prosecutor of information casting substantial doubt as to the impartiality of a juror, such as the fact that he has applied to the prosecutor for employment, would not be fair to a defendant and would ill serve to maintain public confidence in the judicial process."Id. at 1023. [Footnote 5] Page 455 U. S. 215IIIn argument before this Court, respondent has relied primarily on reasoning adopted by the District Court. [Footnote 6] He contends that a court cannot possibly ascertain the impartiality of a juror by relying solely upon the testimony of the juror in question. Given the human propensity for self-justification, respondent argues, the law must impute bias to jurors in Smith's position. We disagree.This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias. For example, in Remmer v. United States, 347 U. S. 227 (1954), a juror in a federal criminal trial was approached by someone offering money in exchange for a favorable verdict. An FBI agent was assigned to investigate the attempted bribe, and the agent's report was reviewed by the trial judge and the prosecutor without disclosure to defense counsel. When they learned of the incident after trial, the defense attorneys moved that the verdict be vacated, alleging that "they would have moved for a mistrial and requested that the juror in question be replaced by an alternate juror" had the incident been disclosed to them during trial. Id. at 347 U. S. 229.This Court recognized the seriousness not only of the attempted bribe, which it characterized as "presumptively prejudicial," but also of the undisclosed investigation, which was "bound to impress the juror, and [was] very apt to do so Page 455 U. S. 216 unduly." Ibid. Despite this recognition, and a conviction that "[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions," ibid., the Court did not require a new trial like that ordered in this case. Rather, the Court instructed the trial judge to"determine the circumstances, the impact thereof upon the juror, and whether or not [they were] prejudicial, in a hearing with all interested parties permitted to participate."Id. at 347 U. S. 230 (emphasis added). In other words, the Court ordered precisely the remedy which was accorded by Justice Birns in this case.Even before the decision in Remmer, this Court confronted allegations of implied juror bias in Dennis v. United States, 339 U. S. 162 (1950). Dennis was convicted of criminal contempt for failure to appear before the Committee on UnAmerican Activities of the House of Representatives. He argued that the jury which convicted him, composed primarily of employees of the United States Government, was inherently biased because such employees were subject to Executive Order No. 9835, 3 CFR 627 (1943-1948 Comp.), which provided for their discharge upon reasonable grounds for belief that they were disloyal to the Government. Dennis contended that such employees would not risk the charge of disloyalty or the termination of their employment which might result from a vote for acquittal. The Court rejected this claim of implied bias, noting that Dennis was "free to show the existence of actual bias," but had failed to do so. 339 U.S. at 339 U. S. 167. The Court thus concluded:"A holding of implied bias to disqualify jurors because of their relationship with the Government is no longer permissible. . . . Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury."Id. at 339 U. S. 171-172. See also Frazier v. United States, 335 U. S. 497 (1948); United States v. Wood, 299 U. S. 123 (1936).Our decision last Term in Chandler v. Florida, 449 U. S. 560 (1981), also treated a claim of implied juror bias. Appellants in Chandler were convicted of various theft crimes at a Page 455 U. S. 217 jury trial which was partially televised under a new Canon of Judicial Ethics promulgated by the Florida Supreme Court. They claimed that the unusual publicity and sensational courtroom atmosphere created by televising the proceedings would influence the jurors and preclude a fair trial. Consistent with our previous decisions, we held that"the appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of his case -- be it printed or broadcast -- compromised the ability of the particular jury that heard the case to adjudicate fairly."Id. at 449 U. S. 575. Because the appellants did"not [attempt] to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them,"we refused to set aside their conviction. Id. at 449 U. S. 581.These cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case. [Footnote 7] Page 455 U. S. 218The District Court and the Court of Appeals disregarded this doctrine: they held that a post-trial hearing comporting with our decisions in Remmer and other cases prosecuted in the federal courts was constitutionally insufficient in a state court under the Due Process Clause of the Fourteenth Amendment. It seems to us to follow "as the night the day" that if, in the federal system, a post-trial hearing such as that conducted here is sufficient to decide allegations of juror partiality, the Due Process Clause of the Fourteenth Amendment cannot possibly require more of a state court system. [Footnote 8]Of equal importance, this case is a federal habeas action in which Justice Birns' findings are presumptively correct under 28 U.S.C. § 2254(d). We held last Term that federal courts in such proceedings must not disturb the findings of state courts unless the federal habeas court articulates some basis for disarming such findings of the statutory presumption that they are correct and may be overcome only by convincing evidence. Sumner v. Mata, 449 U. S. 539, 449 U. S. 551 (1981). Here neither the District Court nor the Court of Appeals took issue with the findings of Justice Birns.IIIAs already noted, the Court of Appeals did not rely upon the District Court's imputation of bias. Indeed, it did not even reach the question of juror bias, holding instead that the prosecutors' failure to disclose Smith's application, without more, violated respondent's right to due process of law. Respondent contends that the Court of Appeals thereby correctly Page 455 U. S. 219 preserved "the appearance of justice." Brief for Respondent 7. This contention, too, runs contrary to our decided cases.Past decisions of this Court demonstrate that the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. In Brady v. Maryland, 373 U. S. 83 (1963), for example, the prosecutor failed to disclose an admission by a participant in the murder which corroborated the defendant's version of the crime. The Court held that a prosecutor's suppression of requested evidence"violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."Id. at 373 U. S. 87. Applying this standard, the Court found the undisclosed admission to be relevant to punishment, and thus ordered that the defendant be resentenced. Since the admission was not material to guilt, however, the Court concluded that the trial itself complied with the requirements of due process despite the prosecutor's wrongful suppression. [Footnote 9] The Court thus recognized that the aim of due process "is not punishment of society for the misdeeds of the prosecutor, but avoidance of an unfair trial to the accused." Ibid.This principle was reaffirmed in United States v. Agurs, 427 U. S. 97 (1976). There we held that a prosecutor must disclose unrequested evidence which would create a reasonable doubt of guilt that did not otherwise exist. Consistent Page 455 U. S. 220 with Brady, we focused not upon the prosecutor's failure to disclose, but upon the effect of nondisclosure on the trial:"Nor do we believe the constitutional obligation [to disclose unrequested information] is measured by the moral culpability, or willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Conversely, if evidence actually has no probative significance at all, no purpose would be served by requiring a new trial simply because an inept prosecutor incorrectly believed he was suppressing a fact that would be vital to the defense. If the suppression of the evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor."427 U.S. at 427 U. S. 110 (footnote and citation omitted). [Footnote 10]In light of this principle, it is evident that the Court of Appeals erred when it concluded that prosecutorial misconduct alone requires a new trial. We do not condone the conduct of the prosecutors in this case. Nonetheless, as demonstrated in 455 U. S. Smith's conduct did not impair his ability to render an impartial verdict. The trial judge expressly so found. 87 Misc.2d at 627, 384 N.Y.S.2d at 915. Page 455 U. S. 221Therefore, the prosecutors' failure to disclose Smith's job application, although requiring a post-trial hearing on juror bias, did not deprive respondent of the fair trial guaranteed by the Due Process Clause.IVA federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution. As we said in Cupp v. Naughten, 414 U. S. 141, 414 U. S. 146 (1973):"Before a federal court may overturn a conviction resulting from a state trial . . . it must be established not merely that the [State's action] is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment."Absent such a constitutional violation, it was error for the lower courts in this case to order a new trial. Even if the Court of Appeals believed, as the respondent contends, that prosecutorial misbehavior would "reign unchecked" unless a new trial was ordered, it had no authority to act as it did. Federal courts hold no supervisory authority over state judicial proceedings, and may intervene only to correct wrongs of constitutional dimension. Chandler v. Florida, 449 U.S. at 449 U. S. 570, 449 U. S. 582-583; Cupp v. Naughten, supra, at 414 U. S. 146. No such wrongs occurred here. Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtSmith v. Phillips, 455 U.S. 209 (1982)Smith v. PhillipsNo. 80-1082Argued November 9, 1981Decided January 25, 1982455 U.S. 209SyllabusAfter being convicted of murder at a jury trial in a New York court, respondent moved to vacate his conviction on the ground that a juror in his case submitted during the trial an application for employment as an investigator in the District Attorney's Office, and that the prosecuting attorneys, upon being informed of the juror's application, withheld the information from the trial court and respondent's defense counsel until after the trial. At a hearing on the motion before the same judge who had presided at the trial, the motion was denied, the judge finding "beyond a reasonable doubt" that the events giving rise to the motion did not influence the verdict. The Appellate Division of the New York Supreme Court affirmed the conviction, and the New York Court of Appeals denied leave to appeal. Subsequently, respondent sought habeas corpus relief in Federal District Court, alleging that he had been denied due process of law under the Fourteenth Amendment by the conduct of the juror in question. While finding insufficient evidence to demonstrate that the juror was actually biased, the District Court nevertheless imputed bias to him and, accordingly, ordered respondent released unless the State granted him a new trial. The United States Court of Appeals, without considering whether the juror was actually or impliedly biased, affirmed on the ground that the prosecutors' failure to disclose their knowledge about the juror denied respondent due process.Held: Respondent was not denied due process of law either by the juror's conduct or by the prosecutors' failure to disclose the juror's job application. Pp. 455 U. S. 215-221.(a) Due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that held in this case. Remmer v. United States, 347 U. S. 227. Moreover, this being a federal habeas action, the state trial judge's findings are presumptively correct under 28 U.S.C. § 2254(d). Federal courts in such proceedings must not disturb the state courts' findings unless the federal habeas Page 455 U. S. 210 court articulates some basis for disarming such findings of the statutory presumption that they are correct and may be overcome only by Convincing evidence. Here, neither the District Court nor the Court of Appeals took issue with the state trial judge's findings. Pp. 455 U. S. 215-218.(b) The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Here, the prosecutors' failure to disclose the juror's job application, although requiring a post-trial hearing on juror bias, did not deprive respondent of the fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. Pp. 455 U. S. 218-221.(c) Absent a violation of some right guaranteed respondent by the Fourteenth Amendment, it was error for the lower courts to order a new trial. Federal courts hold no supervisory authority over state judicial proceedings, and may intervene only to correct wrongs of constitutional dimension. P. 455 U. S. 221.632 F.2d 1019, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 455 U. S. 221. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 455 U. S. 224.

1973_73-918

MR. JUSTICE STEWART delivered the opinion of the Court.These cases are here on cross-appeals from the judgment of a three-judge District Court in the Northern District of California. The plaintiffs in the District Court were four California prison inmates -- Booker T. Hillery, Jr., John Larry Spain, Bobby Bly, and Michael Shane Guile -- and three professional journalists -- Eve Pell, Betty Segal, and Paul Jacobs. The defendants were Raymond K. Procunier, Director of the California Department of Corrections, and several subordinate officers in that department. The plaintiffs brought the suit to challenge the constitutionality, under the First and Fourteenth Amendments, of § 415.071 of the California Department of Corrections Manual, which provides that "[p]ress and other media interviews with specific individual inmates will not be permitted." They sought both injunctive and declaratory relief under 42 U.S.C. § 1983. Section 415.071 was promulgated by defendant Procunier under authority vested in him by § 5058 of the California Penal Code, and is applied uniformly throughout the State's penal system to prohibit face-to-face interviews between press representatives and individual inmates whom they specifically name and request to interview. Page 417 U. S. 820 In accordance with 28 U.S.C. §§ 2281 and 2284, a three-judge court was convened to hear the case. [Footnote 1]The facts are undisputed. Pell, Segal, and Jacobs each requested permission from the appropriate corrections officials to interview inmates Spain, Bly, and Guile, respectively. In addition, the editors of a certain periodical requested permission to visit inmate Hillery to discuss the possibility of their publishing certain of his writings and to interview him concerning conditions at the prison. [Footnote 2] Pursuant to § 415.071, these requests were all denied. [Footnote 3] The plaintiffs thereupon sued to enjoin the continued enforcement of this regulation. The inmate plaintiffs contended that § 415.071 violates their rights of free speech Page 417 U. S. 821 under the First and Fourteenth Amendments. Similarly, the media plaintiffs asserted that the limitation that this regulation places on their newsgathering activity unconstitutionally infringes the freedom of the press guaranteed by the First and Fourteenth Amendments.The District Court granted the inmate plaintiffs' motion for summary judgment, holding that § 415.071, insofar as it prohibited inmates from having face-to-face communication with journalists, unconstitutionally infringed their First and Fourteenth Amendment freedoms. With respect to the claims of the media plaintiffs, the court granted the defendants' motion to dismiss. The court noted that,"[e]ven under § 415.071 as it stood before today's ruling [that inmates' constitutional rights were violated by § 415.071], the press was given the freedom to enter the California institutions and interview at random,"and concluded"that the even broader access afforded prisoners by today's ruling sufficiently protects whatever rights the press may have with respect to interviews with inmates."364 F. Supp. 196, 200.In No. 73-754, Corrections Director Procunier and the other defendants appeal from the judgment of the District Court that § 415.071 infringes the inmate plaintiffs' First and Fourteenth Amendment rights. In No. 73-918, the media plaintiffs appeal the court's rejection of their claims. We noted probable jurisdiction of both appeals and consolidated the cases for oral argument. 414 U.S. 1127, 1155.IIn No. 73-754, the inmate plaintiffs claim that § 415.071, by prohibiting their participation in face-to-face communication with newsmen and other members of the general public, violates their right of free speech under the First and Fourteenth Amendments. Although the constitutional right of free speech has never been Page 417 U. S. 822 thought to embrace a right to require a journalist or any other citizen to listen to a person's views, let alone a right to require a publisher to publish those views in his newspaper, see Avins v. Rutgers, State University of New Jersey, 385 F.2d 151 (CA3 1967); Chicago Joint Board, Clothing Workers v. Chicago Tribune Co., 435 F.2d 470 (CA7 1970); Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133 (CA9 1971), we proceed upon the hypothesis that, under some circumstances the right of free speech includes a right to communicate a person's views to any willing listener, including a willing representative of the press for the purpose of publication by a willing publisher.We start with the familiar proposition that"[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."Price v. Johnston, 334 U. S. 266, 334 U. S. 285 (1948). See also Cruz v. Beto, 405 U. S. 319, 405 U. S. 321 (1972). In the First Amendment context, a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.An important function of the corrections system is the deterrence of crime. The premise is that, by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses. This Page 417 U. S. 823 isolation, of course, also serves a protective function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity. Thus, since most offenders will eventually return to society, another paramount objective of the corrections system is the rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. It is in the light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners.The regulation challenged here clearly restricts one manner of communication between prison inmates and members of the general public beyond the prison walls. But this is merely to state the problem, not to resolve it. For the same could be said of a refusal by corrections authorities to permit an inmate temporarily to leave the prison in order to communicate with persons outside. Yet no one could sensibly contend that the Constitution requires the authorities to give even individualized consideration to such requests. Cf. Zemel v. Rusk, 381 U. S. 1, 381 U. S. 16-17 (1965). In order properly to evaluate the constitutionality of § 415.071, we think that the regulation cannot be considered in isolation, but must be viewed in the light of the alternative means of communication permitted under the regulations with persons outside the prison. We recognize that there "may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning," and"that [the] existence of other alternatives [does not] extinguis[h] altogether any constitutional interest on the part of the appellees in this particular form of access."Kleindienst v. Mandel, 408 Page 417 U. S. 824 U.S. 753,. 765 (1972). But we regard the available "alternative means of [communication as] a relevant factor" in a case such as this where "we [are] called upon to balance First Amendment rights against [legitimate] governmental . . . interests." Ibid.One such alternative available to California prison inmates is communication by mail. Although prison regulations, until recently, called for the censorship of statements, inter alia, that "unduly complain" or "magnify grievances," that express "inflammatory political, racial, religious or other views," or that were deemed "defamatory" or "otherwise inappropriate," we recently held that "the Department's regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands," and accordingly affirmed a district court judgment invalidating the regulations. Procunier v. Martinez, 416 U. S. 396, 416 U. S. 416 (1974). In addition, we held that"[t]he interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a 'liberty' interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment."Accordingly, we concluded that any "decision to censor or withhold delivery of a particular letter must be accompanied by minimal procedural safeguards." Id. at 416 U. S. 418, 416 U. S. 417. Thus, it is clear that the medium of written correspondence affords inmates an open and substantially unimpeded channel for communication with persons outside the prison, including representatives of the news media.Moreover, the visitation policy of the California Corrections Department does not seal the inmate off from personal contact with those outside the prison. Inmates are permitted to receive limited visits from members Page 417 U. S. 825 of their families, the clergy, their attorneys, and friends of prior acquaintance. [Footnote 4] The selection of these categories of visitors is based on the Director's professional judgment that such visits will aid in the rehabilitation of the inmate while not compromising the other legitimate objectives of the corrections system. This is not a case in which the selection is based on the anticipated content of the communication between the inmate and the prospective visitor. If a member of the press fell within any of these categories, there is no suggestion that he would not be permitted to visit with the inmate. More importantly, however, inmates have an unrestricted opportunity to communicate with the press or any other member of the public through their families, friends, clergy, or attorneys who are permitted to visit them at the prison. Thus, this provides another alternative avenue of communication between prison inmates and persons outside the prison.We would find the availability of such alternatives unimpressive if they were submitted as justification for governmental restriction of personal communication among members of the general public. We have recognized, however, that"[t]he relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private Page 417 U. S. 826 citizen,"and that the "internal problems of state prisons involve issues . . . peculiarly within state authority and expertise." Preiser v. Rodriguez, 411 U. S. 475, 411 U. S. 492 (1973).In Procunier v. Martinez, supra, we could find no legitimate governmental interest to justify the substantial restrictions that had there been imposed on written communication by inmates. When, however, the question involves the entry of people into the prisons for face-to-face communication with inmates, it is obvious that institutional considerations, such as security and related administrative problems, as well as the accepted and legitimate policy objectives of the corrections system itself, require that some limitation be placed on such visitations. So long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved, we believe that, in drawing such lines, "prison officials must be accorded latitude." Cruz v. Beto, 405 U.S. at 405 U. S. 321.In a number of contexts, we have held"that reasonable 'time, place and manner' regulations [of communicative activity] may be necessary to further significant governmental interests, and are permitted."Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 115 (1972); Cox v. New Hampshire, 312 U. S. 569, 312 U. S. 575-576 (1941); Poulos v. New Hampshire, 345 U. S. 395, 345 U. S. 398 (1953); Cox v. Louisiana, 379 U. S. 536, 379 U. S. 554-555 (1965); Adderley v. Florida, 385 U. S. 39, 385 U. S. 46-48 (1966). "The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable." Grayned, supra, at 408 U. S. 116 (internal quotation marks omitted). The "normal activity" to which a prison is committed -- the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence -- necessarily requires Page 417 U. S. 827 that considerable attention be devoted to the maintenance of security. Although they would not permit prison officials to prohibit all expression or communication by prison inmates, security considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders into the prison for face-to-face contact with inmates.In this case, the restriction takes the form of limiting visitations to individuals who have either a personal or professional relationship to the inmate family, friends of prior acquaintance, legal counsel, and clergy. In the judgment of the state corrections officials, this visitation policy will permit inmates to have personal contact with those persons who will aid in their rehabilitation, while keeping visitations at a manageable level that will not compromise institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue involves a regulation limiting one of several means of communication by an inmate, the institutional objectives furthered by that regulation and the measure of judicial deference owed to corrections officials in their attempt to serve those interests are relevant in gauging the validity of the regulation.Accordingly, in light of the alternative channels of communication that are open to prison inmates, [Footnote 5] we Page 417 U. S. 828 cannot say on the record in this case that this restriction on one manner in which prisoners can communicate with persons outside of prison is unconstitutional. So long as this restriction operates in a neutral fashion, without regard to the content of the expression, it falls within the "appropriate rules and regulations" to which "prisoners necessarily are subject," Cruz v. Beto, supra, at 405 U. S. 321, and does not abridge any First Amendment freedoms retained by prison inmate. [Footnote 6] Page 417 U. S. 829IIIn No. 73-918, the media plaintiffs ask us to hold that the limitation on press interviews imposed by § 415.071 violates the freedom of the press guaranteed by the First and Fourteenth Amendments. They contend that, irrespective of what First Amendment liberties may or may not be retained by prison inmates, members of the press have a constitutional right to interview any inmate who is willing to speak with them, in the absence of an individualized determination that the particular interview might create a clear and present danger to prison security or to some other substantial interest served by the corrections system. In this regard, the media plaintiffs do not claim any impairment of their freedom to publish, for California imposes no restrictions on what may be published about its prisons, the prison inmates, or the officers who administer the prisons. Instead, they rely on their right to gather news without governmental interference, which the media plaintiffs assert includes a right Page 417 U. S. 830 of access to the sources of what is regarded as newsworthy information. We note at the outset that this regulation is not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions. Indeed, the record demonstrates that, under current corrections policy, both the press and the general public are accorded full opportunities to observe prison conditions. [Footnote 7] The Department of Corrections regularly conducts public tours through the prisons for the benefit of interested citizens. In addition, new men are permitted to visit both the maximum security and minimum security sections of the institutions and to stop and speak about any subject to any inmates whom they might encounter. If security considerations permit, corrections personnel will step aside to permit such interviews to be confidential. Apart from general access to all parts of the institutions, newsmen are also permitted to enter the prisons to interview inmates selected at random by the corrections officials. By the same token, if a newsman wishes to write a story on a particular prison program, he is permitted to sit in on group meetings and to interview the inmate participants. In short, members Page 417 U. S. 831 of the press enjoy access to California prisons that is not available to other members of the public.The sole limitation on newsgathering in California prisons is the prohibition in § 415.071 of interviews with individual inmates specifically designated by representatives of the press. This restriction is of recent vintage, having been imposed in 1971 in response to a violent episode that the Department of Corrections felt was at least partially attributable to the former policy with respect to face-to-face prisoner-press interviews. Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish. Only members of the press were accorded this privilege; other members of the general public did not have the benefit of such an unrestricted visitation policy. Thus, the promulgation of § 415.071 did not impose a discrimination against press access, but merely eliminated a special privilege formerly given to representatives of the press vs-a-vs members of the public generally. [Footnote 8]In practice, it was found that the policy in effect prior to the promulgation of § 415.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual "public figures" within the prison society and gained a disproportionate degree of notoriety and influence among their Page 417 U. S. 832 fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institutions' ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971,"[d]uring an escape attempt at San Quentin, three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and, on August 23, § 415.071 was adopted to mitigate the problem."364 F. Supp. at 198. It is against this background that we consider the media plaintiffs' claims under the First and Fourteenth Amendments.The constitutional guarantee of a free press "assures the maintenance of our political system and an open society," Time, Inc. v. Hill, 385 U. S. 374, 385 U. S. 389 (1967), and secures "the paramount public interest in a free flow of information to the people concerning public officials," Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 77 (1964). See also New York Times Co. v. Sullivan, 376 U. S. 254 (1964). By the same token, "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'" New York Times Co. v. United States, 403 U. S. 713, 403 U. S. 714 (1971); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70 (1963); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. Kleindienst v. Mandel, 408 U.S. at 408 U. S. 762-763; Stanley v. Georgia, 394 U. S. 557, 394 U. S. 564 (1969). Page 417 U. S. 833In Branzburg v. Hayes, 408 U. S. 665 (1972), the Court went further and acknowledged that "news gathering is not without its First Amendment protections," id. at 408 U. S. 707, for "without some protection for seeking out the news, freedom of the press could be eviscerated," id. at 408 U. S. 681. In Branzburg, the Court held that the First and Fourteenth Amendments were not abridged by requiring reporters to disclose the identity of their confidential sources to a grand jury when that information was needed in the course of a good faith criminal investigation. The Court there could"perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings [was] insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial,"id. at 408 U. S. 690-691.In this case, the media plaintiffs contend that § 415.071 constitutes governmental interference with their newsgathering activities that is neither consequential nor uncertain, and that no substantial governmental interest can be shown to justify the denial of press access to specifically designated prison inmates. More particularly, the media plaintiffs assert that, despite the substantial access to California prisons and their inmates accorded representatives of the press -- access broader than is accorded members of the public generally -- face-to-face interviews with specifically designated inmates is such an effective and superior method of newsgathering that its curtailment amounts to unconstitutional state interference with a free press. We do not agree."It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. . . . Despite the fact that news gathering may Page 417 U. S. 834 be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathering in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded."Branzburg v. Hayes, supra, at 408 U. S. 684-685. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally. [Footnote 9] It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources, cf. Branzburg v. Hayes, supra, and that government cannot restrain the publication of news emanating from such sources. Cf. New York Times Co. v. United States, supra. It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision Page 417 U. S. 835 of this Court. Accordingly, since § 415.071 does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protections that the First and Fourteenth Amendments guarantee.For the reasons stated, we reverse the District Court's judgment that § 415.071 infringes the freedom of speech of the prison inmates and affirm its judgment that that regulation does not abridge the constitutional right of a free press. Accordingly, the judgment is vacated, and the cases are remanded to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtPell v. Procunier, 417 U.S. 817 (1974)Pell v. ProcunierNo. 73-918Argued April 117, 1974Decided June 24, 1974*417 U.S. 817SyllabusFour California prison inmates and three professional journalists brought this suit in the District Court challenging the constitutionality of a regulation, § 415.071, of the California Department of Corrections Manual, which provides that "[p]ress and other media interviews with specific individual inmates will not be permitted." That provision was promulgated following a violent prison episode that the correction authorities attributed at least in part to the former policy of free face-to-face prisoner-press interviews, which had resulted in a relatively small number of inmates gaining disproportionate notoriety and influence among their fellow inmates. The District Court granted the inmate appellees' motion for summary judgment, holding that § 415.071, insofar as it prohibited inmates from having face-to-face communication with journalists unconstitutionally infringed the inmates' First and Fourteenth Amendment freedoms. The court granted a motion to dismiss with respect to the claims of the media appellants, holding that their rights were not infringed, in view of their otherwise available rights to enter state institutions and interview inmates at random and the even broader access afforded prisoners by the court's ruling with respect to the inmate appellees. The prison officials (in No. 73-754) and the journalists (in No. 73-918) have appealed.Held:1. In light of the alternative channels of communication that are open to the inmate appellees, § 415.071 does not constitute a violation of their rights of free speech. Pp. 417 U. S. 821-828.(a) A prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, and here the restrictions on inmates' free speech rights must be balanced against the State's legitimate interest in confining prisoners Page 417 U. S. 818 to deter crime, to protect society by quarantining criminal offenders for a period during which rehabilitative procedures can be applied, and to maintain the internal security of penal institutions. Pp. 417 U. S. 822-824.(b) Alternative means of communication remain open to the inmates; they can correspond by mail with persons (including media representatives), Procunier v. Martinez, 416 U. S. 396; they have rights of visitation with family, clergy, attorneys, and friends of prior acquaintance; and they have unrestricted opportunity to communicate with the press or public through their prison visitors. Pp. 417 U. S. 824-828.2. The rights of the media appellants under the First and Fourteenth Amendments are not infringed by § 415.071, which does not deny the press access to information available to the general public. Newsmen, under California policy, are free to visit both maximum security and minimum security sections of California penal institutions and to speak with inmates whom they may encounter, and (unlike members of the general public) are also free to interview inmates selected at random. "[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 684. Pp. 417 U. S. 829-835.364 F. Supp. 196, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined and in Part I of which POWELL, J., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 417 U. S. 835. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 417 U. S. 836. Page 417 U. S. 819

2002_01-618

Syllabusas applied to future copyrights does not automatically cease to be "limited" when applied to existing copyrights. To comprehend the scope of Congress' Copyright Clause power, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U. S. 345, 349. History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. Moreover, because the Clause empowering Congress to confer copyrights also authorizes patents, the Court's inquiry is significantly informed by the fact that early Congresses extended the duration of numerous individual patents as well as copyrights. Lower courts saw no "limited Times" impediment to such extensions. Further, although this Court never before has had occasion to decide whether extending existing copyrights complies with the "limited Times" prescription, the Court has found no constitutional barrier to the legislative expansion of existing patents. See, e. g., McClurg, 1 How., at 206. Congress' consistent historical practice reflects a judgment that an author who sold his work a week before should not be placed in a worse situation than the author who sold his work the day after enactment of a copyright extension. The CTEA follows this historical practice by keeping the 1976 Act's duration provisions largely in place and simply adding 20 years to each of them.The CTEA is a rational exercise of the legislative authority conferred by the Copyright Clause. On this point, the Court defers substantially to Congress. Sony, 464 U. S., at 429. The CTEA reflects judgments of a kind Congress typically makes, judgments the Court cannot dismiss as outside the Legislature's domain. A key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. Additionally, Congress passed the CTEA in light of demographic, economic, and technological changes, and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works. Pp. 199-208.(b) Petitioners' Copyright Clause arguments, which rely on several novel readings of the Clause, are unpersuasive. Pp. 208-218.189(1) Nothing before this Court warrants construction of the CTEA's 20-year term extension as a congressional attempt to evade or override the "limited Times" constraint. Critically, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to "limited Times" that the 1831, 1909, and 1976 Acts did not. Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. Pp. 208-210.(2) Petitioners' dominant series of arguments, premised on the proposition that Congress may not extend an existing copyright absent new consideration from the author, are unavailing. The first such contention, that the CTEA's extension of existing copyrights overlooks the requirement of "originality," incorrectly relies on Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 345, 359. That case did not touch on the duration of copyright protection. Rather, it addressed only the core question of copyright ability. Explaining the originality requirement, Feist trained on the Copyright Clause words "Authors" and "Writings," id., at 346-347, and did not construe the "limited Times" prescription, as to which the originality requirement has no bearing. Also unavailing is petitioners' second argument, that the CTEA's extension of existing copyrights fails to "promote the Progress of Science" because it does not stimulate the creation of new works, but merely adds value to works already created. The justifications that motivated Congress to enact the CTEA, set forth supra, provide a rational basis for concluding that the CTEA "promote[s] the Progress of Science." Moreover, Congress' unbroken practice since the founding generation of applying new definitions or adjustments of the copyright term to both future works and existing works overwhelms petitioners' argument. Also rejected is petitioners' third contention, that the CTEA's extension of existing copyrights without demanding additional consideration ignores copyright's quid pro quo, whereby Congress grants the author of an original work an "exclusive Right" for a "limited Tim[e]" in exchange for a dedication to the public thereafter. Given Congress' consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the protection offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 229, and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 146, both of which involved the federal patent regime, are not to the contrary, since neither concerned the extension of a patent's duration nor suggested that such an extension190Syllabusmight be constitutionally infirm. Furthermore, given crucial distinctions between patents and copyrights, one cannot extract from language in the Court's patent decisions-language not trained on a grant's duration-genuine support for petitioners' quid pro quo argument. Patents and copyrights do not entail the same exchange, since immediate disclosure is not the objective of, but is exacted from, the patentee, whereas disclosure is the desired objective of the author seeking copyright protection. Moreover, while copyright gives the holder no monopoly on any knowledge, fact, or idea, the grant of a patent prevents full use by others of the inventor's knowledge. Pp.210-217.(3) The "congruence and proportionality" standard of review described in cases evaluating exercises of Congress' power under § 5 of the Fourteenth Amendment has never been applied outside the § 5 context. It does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization. Section 5 authorizes Congress to "enforce" commands contained in and incorporated into the Fourteenth Amendment. The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is "but a corollary to the grant to Congress of any Article I power." Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 6. It would be no more appropriate for this Court to subject the CTEA to "congruence and proportionality" review than it would be to hold the Act unconstitutional per se. Pp.217-218.2. The CTEA's extension of existing and future copyrights does not violate the First Amendment. That Amendment and the Copyright Clause were adopted close in time. This proximity indicates the Framers' view that copyright's limited monopolies are compatible with free speech principles. In addition, copyright law contains built-in First Amendment accommodations. See Harper & Row, 471 U. S., at 560. First, 17 U. S. C. § 102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author's expression. Harper & Row, 471 U. S., at 556. Second, the "fair use" defense codified at § 107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes. "Fair use" thereby affords considerable latitude for scholarship and comment, id., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569. The CTEA itself supplements these traditional First Amendment safeguards in two prescriptions: The first allows libraries and similar institutions to reproduce and distribute copies of certain published works for scholarly purposes during the last 20 years of any copyright191term, if the work is not already being exploited commercially and further copies are unavailable at a reasonable price, § 108(h); the second exempts small businesses from having to pay performance royalties on music played from licensed radio, television, and similar facilities, § 1l0(5)(B). Finally, petitioners' reliance on Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641, is misplaced. Turner Broadcasting involved a statute requiring cable television operators to carry and transmit broadcast stations through their proprietary cable systems. The CTEA, in contrast, does not oblige anyone to reproduce another's speech against the carrier's will. Instead, it protects authors' original expression from unrestricted exploitation. The First Amendment securely protects the freedom to make--or decline to make--one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See, e. g., Harper & Row, 471 U. S., at 560. Pp. 218-222.239 F.3d 372, affirmed.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., post, p. 222, and BREYER, J., post, p. 242, filed dissenting opinions.Lawrence Lessig argued the cause for petitioners. With him on the briefs were Kathleen M. Sullivan, Alan B. Morrison, Edward Lee, Charles Fried, Geoffrey S. Stewart, Donald B. Ayer, Robert P. Ducatman, Daniel H. Bromberg, Charles R. Nesson, and Jonathan L. Zittrain.Solicitor General Olson argued the cause for respondent.With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Wallace, Jeffrey A. Lamken, William Kanter, and John S. Koppel.**Briefs of amici curiae urging reversal were filed for the American Association of Law Libraries et al. by Arnold P. Lutzker and Carl H. Settlemyer III; for the College Art Association et al. by Jeffrey P. Cunard and Bruce P. Keller; for the Eagle Forum Education & Legal Defense Fund et al. by Karen Tripp and Phyllis Schlafiy; for the Free Software Foundation by Eben M oglen; for Intellectual Property Law Professors by Jonathan Weinberg; for the Internet Archive et al. by Deirdre K. Mulli-192JUSTICE GINSBURG delivered the opinion of the Court. This case concerns the authority the Constitution assigns to Congress to prescribe the duration of copyrights. The Copyright and Patent Clause of the Constitution, Art. I, § 8, cl. 8, provides as to copyrights: "Congress shall havegan, Mark A. Lemley, and Steven M. Harris; and for Jack M. Balkin et al. by Burt Neuborne.Briefs of amici curiae urging affirmance were filed for the American Intellectual Property Law Association by Baila H. Celedonia, Mark E. Haddad, and Roger W Parkhurst; for the American Society of Composers, Authors and Publishers et al. by Carey R. Ramos, Peter L. Felcher, Drew S. Days III, Beth S. Brinkmann, and Paul Goldstein; for Amsong, Inc., by Dorothy M. Weber; for AOL Time Warner, Inc., by Kenneth W Starr, Richard A. Cordray, Daryl Joseffer, Paul T. Cappuccio, Edward J. Weiss, and Shira Perlmutter; for the Association of American Publishers et al. by Charles S. Sims and Jon A. Baumgarten; for the Bureau of National Mfairs, Inc., et al. by Paul Bender and Michael R. Klipper; for the Directors Guild of America et al. by George H. Cohen, Leon Dayan, and Laurence Gold; for Dr. Seuss Enterprises, L. P., et al. by Karl ZoBell, Nancy O. Dix, Cathy Ann Bencivengo, Randall E. Kay, and Herbert B. Cheyette; for the Intellectual Property Owners Association by Charles D. Ossola and Ronald E. Myrick; for the International Coalition for Copyright Protection by Eric Lieberman; for the Motion Picture Association of America, Inc., by Seth P. Waxman, Randolph D. Moss, Edward C. DuMont, Neil M. Richards, and Simon Barsky; for the Recording Artists Coalition by Thomas G. Corcoran, Jr.; for the Recording Industry Association of America by Donald B. Verrilli, Jr., Thomas J. Perrelli, William M. Hohengarten, Matthew J. Oppenheim, and Stanley Pierre-Louis; for the Songwriters Guild of America by Floyd Abrams and Joel Kurtzberg; for Jack Beeson et al. by I. Fred Koenigsberg and Gaela K. Gehring Flores; for Senator Orrin G. Hatch by Thomas R. Lee; for Edward Samuels, pro se; and for Representative F. James Sensenbrenner, Jr., et al. by Arthur B. Culvahouse, Jr., and Robert M. Schwartz.Briefs of amici curiae were filed for Hal Roach Studios et al. by H.Jefferson Powell and David Lange; for Intel Corp. by James M. Burger; for the Nashville Songwriters Association International by Stephen K. Rush; for the New York Intellectual Property Law Association by Bruce M. Wexler and Peter Saxon; for the National Writers Union et al. by Peter Jaszi; for the Progressive Intellectual Property Law Association et al. by Michael H. Davis; for George A. Akerlof et al. by Roy T. Englert, Jr.; for Tyler T. Ochoa et al. by Mr. Ochoa; and for Malla Pollack, pro se.193Power ... [t]o promote the Progress of Science ... by securing [to Authors] for limited Times ... the exclusive Right to their ... Writings." In 1998, in the measure here under inspection, Congress enlarged the duration of copyrights by 20 years. Copyright Term Extension Act (CTEA), Pub. L. 105-298, §§ 102(b) and (d), 112 Stat. 2827-2828 (amending 17 U. S. C. §§ 302, 304). As in the case of prior extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain. They seek a determination that the CTEA fails constitutional review under both the Copyright Clause's "limited Times" prescription and the First Amendment's free speech guarantee. Under the 1976 Copyright Act, copyright protection generally lasted from the work's creation until 50 years after the author's death. Pub. L. 94553, § 302(a), 90 Stat. 2572 (1976 Act). Under the CTEA, most copyrights now run from creation until 70 years after the author's death. 17 U. S. C. § 302(a). Petitioners do not challenge the "life-plus-70-years" timespan itself. "Whether 50 years is enough, or 70 years too much," they acknowledge, "is not a judgment meet for this Court." Brief for Petitioners 14.1 Congress went awry, petitioners maintain, not with respect to newly created works, but in enlarging the term for published works with existing copyrights. The "limited Tim[e]" in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend. See ibid. As to the First Amendment, petitioners contend that the CTEA is a content-neutral regulation of speech that fails inspectionIJU8TICE BREYER'S dissent is not similarly restrained. He makes no effort meaningfully to distinguish existing copyrights from future grants. See, e. g., post, at 242-243, 254-260, 264-266. Under his reasoning, the CTEA's 20-year extension is globally unconstitutional.194under the heightened judicial scrutiny appropriate for such regulations.In accord with the District Court and the Court of Appeals, we reject petitioners' challenges to the CTEA. In that 1998 legislation, as in all previous copyright term extensions, Congress placed existing and future copyrights in parity. In prescribing that alignment, we hold, Congress acted within its authority and did not transgress constitutional limitations.I AWe evaluate petitioners' challenge to the constitutionality of the CTEA against the backdrop of Congress' previous exercises of its authority under the Copyright Clause. The Nation's first copyright statute, enacted in 1790, provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124 (1790 Act). The 1790 Act's renewable 14-year term applied to existing works (i. e., works already published and works created but not yet published) and future works alike. Ibid. Congress expanded the federal copyright term to 42 years in 1831 (28 years from publication, renewable for an additional 14 years), and to 56 years in 1909 (28 years from publication, renewable for an additional 28 years). Act of Feb. 3, 1831, ch. 16, §§ 1, 16, 4 Stat. 436, 439 (1831 Act); Act of Mar. 4, 1909, ch. 320, §§23-24, 35 Stat. 1080-1081 (1909 Act). Both times, Congress applied the new copyright term to existing and future works, 1831 Act §§ 1, 16; 1909 Act §§ 23-24; to qualify for the 1831 extension, an existing work had to be in its initial copyright term at the time the Act became effective, 1831 Act §§ 1, 16.In 1976, Congress altered the method for computing federal copyright terms. 1976 Act §§ 302-304. For works cre-195ated by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work's creation, not-as in the 1790, 1831, and 1909 Acts-its publication; protection would last until 50 years after the author's death. § 302(a). In these respects, the 1976 Act aligned United States copyright terms with the then-dominant international standard adopted under the Berne Convention for the Protection of Literary and Artistic Works. See H. R. Rep. No. 94-1476, p. 135 (1976). For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a term of 75 years from publication or 100 years from creation, whichever expired first. § 302(c).These new copyright terms, the 1976 Act instructed, governed all works not published by its effective date of January 1, 1978, regardless of when the works were created. §§ 302303. For published works with existing copyrights as of that date, the 1976 Act granted a copyright term of 75 years from the date of publication, §§ 304(a) and (b), a 19-year increase over the 56-year term applicable under the 1909 Act.The measure at issue here, the CTEA, installed the fourth major duration extension of federal copyrights.2 Retaining the general structure of the 1976 Act, the CTEA enlarges the terms of all existing and future copyrights by 20 years. For works created by identified natural persons, the term now lasts from creation until 70 years after the author's2 Asserting that the last several decades have seen a proliferation of copyright legislation in departure from Congress' traditional pace of legislative amendment in this area, petitioners cite nine statutes passed between 1962 and 1974, each of which incrementally extended existing copyrights for brief periods. See Pub. L. 87-668, 76 Stat. 555; Pub. L. 89-142, 79 Stat. 581; Pub. L. 90-141, 81 Stat. 464; Pub. L. 90-416, 82 Stat. 397; Pub. L. 91-147,83 Stat. 360; Pub. L. 91-555,84 Stat. 1441; Pub. L. 92-170, 85 Stat. 490; Pub. L. 92-566, 86 Stat. 1181; Pub. L. 93-573, Title I, 88 Stat. 1873. As respondent (Attorney General Ashcroft) points out, however, these statutes were all temporary placeholders subsumed into the systemic changes effected by the 1976 Act. Brief for Respondent 9.196death. 17 U. S. C. § 302(a). This standard harmonizes the baseline United States copyright term with the term adopted by the European Union in 1993. See Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights, 1993 Official J. Eur. Corns. (L 290), p. 9 (EU Council Directive 93/ 98). For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. 17 U. S. C. § 302(c).Paralleling the 1976 Act, the CTEA applies these new terms to all works not published by January 1, 1978. §§ 302(a), 303(a). For works published before 1978 with existing copyrights as of the CTEA's effective date, the CTEA extends the term to 95 years from publication. §§ 304(a) and (b). Thus, in common with the 1831, 1909, and 1976 Acts, the CTEA's new terms apply to both future and existing copyrights.3BPetitioners' suit challenges the CTEA's constitutionality under both the Copyright Clause and the First Amendment. On cross-motions for judgment on the pleadings, the District Court entered judgment for the Attorney General (respondent here). 74 F. Supp. 2d 1 (DC 1999). The court held that the CTEA does not violate the "limited Times" restriction of the Copyright Clause because the CTEA's terms, though3 Petitioners argue that the 1790 Act must be distinguished from the later Acts on the ground that it covered existing works but did not extend existing copyrights. Reply Brief 3-7. The parties disagree on the question whether the 1790 Act's copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. See Brief for Petitioners 28-30; Brief for Respondent 17, n. 9; Reply Brief 3-7. Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.197longer than the 1976 Act's terms, are still limited, not perpetual, and therefore fit within Congress' discretion. Id., at 3. The court also held that "there are no First Amendment rights to use the copyrighted works of others." Ibid.The Court of Appeals for the District of Columbia Circuit affirmed. 239 F.3d 372 (2001). In that court's unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539 (1985), foreclosed petitioners' First Amendment challenge to the CTEA. 239 F. 3d, at 375. Copyright, the court reasoned, does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for "fair use" even of the expression itself. Id., at 375-376.A majority of the Court of Appeals also upheld the CTEA against petitioners' contention that the measure exceeds Congress' power under the Copyright Clause. Specifically, the court rejected petitioners' plea for interpretation of the "limited Times" prescription not discretely but with a view to the "preambular statement of purpose" contained in the Copyright Clause: "To promote the Progress of Science." Id., at 377-378. Circuit precedent, Schnapper v. Foley, 667 F. 2d 102 (CADC 1981), the court determined, precluded that plea. In this regard, the court took into account petitioners' acknowledgment that the preamble itself places no substantive limit on Congress' legislative power. 239 F. 3d, at 378.The appeals court found nothing in the constitutional text or its history to suggest that "a term of years for a copyright is not a 'limited Time' if it may later be extended for another 'limited Time.'" Id., at 379. The court recounted that "the First Congress made the Copyright Act of 1790 applicable to subsisting copyrights arising under the copyright laws of the several states." Ibid. That construction of Congress' authority under the Copyright Clause "by [those] contemporary with [the Constitution's] formation," the court said, mer-198ited "very great" and in this case "almost conclusive" weight. Ibid. (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884)). As early as McClurg v. Kingsland, 1 How. 202 (1843), the Court of Appeals added, this Court had made it "plain" that the same Clause permits Congress to "amplify the terms of an existing patent." 239 F. 3d, at 380. The appeals court recognized that this Court has been similarly deferential to the judgment of Congress in the realm of copyright. Ibid. (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417 (1984); Stewart v. Abend, 495 U. S. 207 (1990)).Concerning petitioners' assertion that Congress might evade the limitation on its authority by stringing together "an unlimited number of 'limited Times,'" the Court of Appeals stated that such legislative misbehavior "clearly is not the situation before us." 239 F. 3d, at 379. Rather, the court noted, the CTEA "matches" the baseline term for "United States copyrights [with] the terms of copyrights granted by the European Union." Ibid. "[I]n an era of multinational publishers and instantaneous electronic transmission," the court said, "harmonization in this regard has obvious practical benefits" and is "a 'necessary and proper' measure to meet contemporary circumstances rather than a step on the way to making copyrights perpetual." Ibid.Judge Sentelle dissented in part. He concluded that Congress lacks power under the Copyright Clause to expand the copyright terms of existing works. Id., at 380-384. The Court of Appeals subsequently denied rehearing and rehearing en banco 255 F.3d 849 (2001).We granted certiorari to address two questions: whether the CTEA's extension of existing copyrights exceeds Congress' power under the Copyright Clause; and whether the CTEA's extension of existing and future copyrights violates the First Amendment. 534 U. S. 1126 and 1160 (2002). We now answer those two questions in the negative and affirm.199II AWe address first the determination of the courts below that Congress has authority under the Copyright Clause to extend the terms of existing copyrights. Text, history, and precedent, we conclude, confirm that the Copyright Clause empowers Congress to prescribe "limited Times" for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future.The CTEA's baseline term of life plus 70 years, petitioners concede, qualifies as a "limited Tim[e]" as applied to future copyrights.4 Petitioners contend, however, that existing copyrights extended to endure for that same term are not "limited." Petitioners' argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever "fixed" or "inalterable." The word "limited," however, does not convey a meaning so constricted. At the time of the Framing, that word meant what it means today: "confine[d] within certain bounds," "restrain[ed]," or "circumscribe[d]." S. Johnson, A Dictionary of the English Language (7th ed. 1785); see T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) ("confine[d] within certain bounds"); Webster's Third New International Dictionary 1312 (1976) ("confined within limits"; "restricted in extent, number, or duration"). Thus understood, a timespan appropriately "limited" as applied to future copyrights does not automatically cease to be "limited" when applied to existing copyrights. And as we observe, infra, at 209-210, there is no cause to suspect that a4 We note again that JUSTICE BREYER makes no such concession. See supra, at 193, n. 1. He does not train his fire, as petitioners do, on Congress' choice to place existing and future copyrights in parity. Moving beyond the bounds of the parties' presentations, and with abundant policy arguments but precious little support from precedent, he would condemn Congress' entire product as irrational.200purpose to evade the "limited Times" prescription prompted Congress to adopt the CTEA.To comprehend the scope of Congress' power under the Copyright Clause, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (Holmes, J.). History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. As earlier recounted, see supra, at 194, the First Congress accorded the protections of the Nation's first federal copyright statute to existing and future works alike. 1790 Act § 1.5 Since then, Congress has regularly applied5 This approach comported with English practice at the time. The Statute of Anne, 1710,8 Ann. c. 19, provided copyright protection to books not yet composed or published, books already composed but not yet published, and books already composed and published. See ibid. ("[T]he author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer."); ibid. ("[T]he author of any book or books already printed ... or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer.").JUSTICE STEVENS stresses the rejection of a proposed amendment to the Statute of Anne that would have extended the term of existing copyrights, and reports that opponents of the extension feared it would perpetuate the monopoly position enjoyed by English booksellers. Post, at 232233, and n. 9. But the English Parliament confronted a situation that never existed in the United States. Through the late 17th century, a government-sanctioned printing monopoly was held by the Stationers' Company, "the ancient London guild of printers and booksellers." M. Rose, Authors and Owners: The Invention of Copyright 4 (1993); see L. Patterson, Copyright in Historical Perspective ch. 3 (1968). Although201duration extensions to both existing and future copyrights. 1831 Act §§ 1, 16; 1909 Act §§ 23-24; 1976 Act §§ 302-303; 17 U. S. C. § § 302-304.6Because the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry. We count it significant that early Congresses extended the duration of numerous individual patents as well as copyrights. See, e. g., Act of Jan. 7, 1808, ch. 6, 6 Stat. 70 (patent); Act of Mar. 3, 1809, ch. 35, 6 Stat. 80 (patent); Act of Feb. 7, 1815, ch. 36, 6 Stat. 147 (patent); Act of May 24, 1828, ch. 145, 6 Stat. 389 (copyright); Act of Feb. 11, 1830, ch. 13, 6 Stat. 403 (copyright);that legal monopoly ended in 1695, concerns about monopolistic practices remained, and the 18th-century English Parliament was resistant to any enhancement of booksellers' and publishers' entrenched position. See Rose, supra, at 52-56. In this country, in contrast, competition among publishers, printers, and booksellers was "intens[e]" at the time of the founding, and "there was not even a rough analog to the Stationers' Company on the horizon." Nachbar, Constructing Copyright's Mythology, 6 Green Bag 2d 37, 45 (2002). The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in "Authors." JUSTICE STEVENS does not even attempt to explain how Parliament's response to England's experience with a publishing monopoly may be construed to impose a constitutional limitation on Congress' power to extend copyrights granted to "Authors."6 Moreover, the precise duration of a federal copyright has never been fixed at the time of the initial grant. The 1790 Act provided a federal copyright term of 14 years from the work's publication, renewable for an additional 14 years if the author survived and applied for an additional term. § 1. Congress retained that approach in subsequent statutes. See Stewart v. Abend, 495 U. S. 207,217 (1990) ("Since the earliest copyright statute in this country, the copyright term of ownership has been split between an original term and a renewal term."). Similarly, under the method for measuring copyright terms established by the 1976 Act and retained by the CTEA, the baseline copyright term is measured in part by the life of the author, rendering its duration indeterminate at the time of the grant. See 1976 Act § 302(a); 17 U. S. C. § 302(a).202see generally Ochoa, Patent and Copyright Term Extension and the Constitution: A Historical Perspective, 49 J. Copyright Soc. 19 (2001). The courts saw no "limited Times" impediment to such extensions; renewed or extended terms were upheld in the early days, for example, by Chief Justice Marshall and Justice Story sitting as circuit justices. See Evans v. Jordan, 8 F. Cas. 872, 874 (No. 4,564) (CC Va. 1813) (Marshall, J.) ("Th[e] construction of the constitution which admits the renewal of a patent, is not controverted. A renewed patent ... confers the same rights, with an original."), aff'd, 9 Cranch 199 (1815); Blanchard v. Sprague, 3 F. Cas. 648,650 (No. 1,518) (CC Mass. 1839) (Story, J.) ("I never have entertained any doubt of the constitutional authority of congress" to enact a 14-year patent extension that "operates retrospectively"); see also Evans v. Robinson, 8 F. Cas. 886, 888 (No. 4,571) (CC Md. 1813) (Congresses "have the exclusive right ... to limit the times for which a patent right shall be granted, and are not restrained from renewing a patent or prolonging" it.).7Further, although prior to the instant case this Court did not have occasion to decide whether extending the duration of existing copyrights complies with the "limited Times" prescription, the Court has found no constitutional barrier to the legislative expansion of existing patents.8 McClurg v.7 JUSTICE STEVENS would sweep away these decisions, asserting that Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), "flatly contradicts" them. Post, at 237. Nothing but wishful thinking underpins that assertion. The controversy in Graham involved no patent extension. Graham addressed an invention's very eligibility for patent protection, and spent no words on Congress' power to enlarge a patent's duration.8 JUSTICE STEVENS recites words from Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964), supporting the uncontroversial proposition that a State may not "extend the life of a patent beyond its expiration date," id., at 231, then boldly asserts that for the same reasons Congress may not do so either. See post, at 222, 226. But Sears placed no reins on Congress' authority to extend a patent's life. The full sentence in Sears, from which JUSTICE STEVENS extracts words, reads: "Obviously a State could not,203Kingsland, 1 How. 202 (1843), is the pathsetting precedent. The patentee in that case was unprotected under the law in force when the patent issued because he had allowed his employer briefly to practice the invention before he obtained the patent. Only upon enactment, two years later, of an exemption for such allowances did the patent become valid, retroactive to the time it issued. McClurg upheld retroactive application of the new law. The Court explained that the legal regime governing a particular patent "depend[s] on the law as it stood at the emanation of the patent, together with such changes as have been since made; for though they may be retrospective in their operation, that is not a sound objection to their validity." Id., at 206.9 Neither is it a soundconsistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents." 376 U. S., at 231. The point insistently made in Sears is no more and no less than this: States may not enact measures inconsistent with the federal patent laws. Ibid. ("[A] State cannot encroach upon the federal patent laws directly ... [and] cannot ... give protection of a kind that clashes with the objectives of the federal patent laws."). A decision thus rooted in the Supremacy Clause cannot be turned around to shrink congressional choices.Also unavailing is JUSTICE STEVENS' appeal to language found in a private letter written by James Madison. Post, at 230, n. 6; see also dissenting opinion of BREYER, J., post, at 246-247, 260, 261. Respondent points to a better "demonstrat[ion]," post, at 226, n. 3 (STEVENS, J., dissenting), of Madison's and other Framers' understanding of the scope of Congress' power to extend patents: "[T]hen-President Thomas Jefferson-the first administrator of the patent system, and perhaps the Founder with the narrowest view of the copyright and patent powers-signed the 1808 and 1809 patent term extensions into law; ... James Madison, who drafted the Constitution's 'limited Times' language, issued the extended patents under those laws as Secretary of State; and ... Madison as President signed another patent term extension in 1815." Brief for Respondent 15.9JUSTICE STEVENS reads McClurg to convey that "Congress cannot change the bargain between the public and the patentee in a way that disadvantages the patentee." Post, at 239. But McClurg concerned no204objection to the validity of a copyright term extension, enacted pursuant to the same constitutional grant of authority, that the enlarged term covers existing copyrights.Congress' consistent historical practice of applying newly enacted copyright terms to future and existing copyrights reflects a judgment stated concisely by Representative Huntington at the time of the 1831 Act: "[J]ustice, policy, and equity alike forb[id]" that an "author who had sold his [work] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of [the] act." 7 Congo Deb. 424 (1831); accord, Symposium, The Constitutionality of Copyright Term Extension, 18 Cardozo Arts & Ent. L. J. 651, 694 (2000) (Prof. Miller) ("[S]ince 1790, it has indeed been Congress's policy that the author of yesterday's work should not get a lesser reward than the author of tomorrow's work just because Congress passed a statute lengthening the term today."). The CTEA follows this historical practice by keeping the duration provisions of the 1976 Act largely in place and simply adding 20 years to each of them. Guided by text, history, and precedent, we cannot agree with petitioners' submission that extending the duration of existing copyrights is categorically beyond Congress' authority under the Copyright Clause.Satisfied that the CTEA complies with the "limited Times" prescription, we turn now to whether it is a rational exercise of the legislative authority conferred by the Copyright Clause. On that point, we defer substantially to Congress.such change. To the contrary, as JUSTICE STEVENS acknowledges, McClurg held that use of an invention by the patentee's employer did not invalidate the inventor's 1834 patent, "even if it might have had that effect prior to the amendment of the patent statute in 1836." Post, at 239. In other words, McClurg evaluated the patentee's rights not simply in light of the patent law in force at the time the patent issued, but also in light of "such changes as ha[d] been since made." 1 How., at 206. It is thus inescapably plain that McClurg upheld the application of expanded patent protection to an existing patent.205Sony, 464 U. S., at 429 ("[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors ... in order to give the public appropriate access to their work product.").loThe CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain. As respondent describes, see Brief for Respondent 37-38, a key factor in the CTEA's passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years. EU Council Directive 93/98, Art. 1(1), p. 11; see 144 Congo Rec. S12377-S12378 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch). Consistent with the Berne Convention, the EU directed its members to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. See Berne Conv. Art. 7(8); P. Goldstein, International Copyright § 5.3, p. 239 (2001). By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would re-10 JUSTICE BREYER would adopt a heightened, three-part test for the constitutionality of copyright enactments. Post, at 245. He would invalidate the CTEA as irrational in part because, in his view, harmonizing the United States and European Union baseline copyright terms "apparent[ly]" fails to achieve "significant" uniformity. Post, at 264. But see infra this page and 206. The novelty of the "rational basis" approach he presents is plain. Cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 383 (2001) (BREYER, J., dissenting) ("Rational-basis reviewwith its presumptions favoring constitutionality-is 'a paradigm of judicial restraint.''' (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993))). Rather than subjecting Congress' legislative choices in the copyright area to heightened judicial scrutiny, we have stressed that "it is not our role to alter the delicate balance Congress has labored to achieve." Stewart v. Abend, 495 U. S., at 230; see Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984). Congress' exercise of its Copyright Clause authority must be rational, but JUSTICE BREYER'S stringent version of rationality is unknown to our literary property jurisprudence.206ceive the same copyright protection in Europe as their European counterparts.ll The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. See Perlmutter, Participation in the International Copyright System as a Means to Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 330 (2002) ("[M]atching thee] level of [copyright] protection in the United States [to that in the EU] can ensure stronger protection for U. S. works abroad and avoid competitive disadvantages vis-a-vis foreign rightholders."); see also id., at 332 (the United States could not "playa leadership role" in the give-and-take evolution of the international copyright system, indeed it would "lose all flexibility," "if the only way to promote the progress of science were to provide incentives to create new works")PIn addition to international concerns,13 Congress passed the CTEA in light of demographic, economic, and technologi-11 Responding to an inquiry whether copyrights could be extended "forever," Register of Copyrights Marybeth Peters emphasized the dominant reason for the CTEA: "There certainly are proponents of perpetual copyright: We heard that in our proceeding on term extension. The Songwriters Guild suggested a perpetual term. However, our Constitution says limited times, but there really isn't a very good indication on what limited times is. The reason why you're going to life-plus-70 today is because Europe has gone that way .... " Copyright Term, Film Labeling, and Film Preservation Legislation: Hearings on H. R. 989 et al. before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong., 1st Sess., 230 (1995) (hereinafter House Hearings).12 The author of the law review article cited in text, Shira Perlmutter, currently a vice president of AOL Time Warner, was at the time of the CTEA's enactment Associate Register for Policy and International Mfairs, United States Copyright Office.13 See also Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum. J. L. & Arts 17, 59 (2002) (cautioning against "an isolationist reading of the Copyright Clause that is in tension with ... America's international copyright relations over the last hundred or so years").207cal changes, Brief for Respondent 25-26, 33, and nn. 23 and 24,14 and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works, id., at 34-37; see H. R. Rep. No. 105-452, p. 4 (1998) (term extension "provide[s] copyright owners generally with the incentive to restore older works and further disseminate them to the public"). 1514 Members of Congress expressed the view that, as a result of increases in human longevity and in parents' average age when their children are born, the pre-CTEA term did not adequately secure "the right to profit from licensing one's work during one's lifetime and to take pride and comfort in knowing that one's children-and perhaps their children-might also benefit from one's posthumous popularity." 141 Congo Rec. 6553 (1995) (statement of Sen. Feinstein); see 144 Congo Rec. S12377 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch) ("Among the main developments [compelling reconsideration of the 1976 Act's term] is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus-50 term to provide adequate protection for American creators and their heirs."). Also cited was "the failure of the U. S. copyright term to keep pace with the substantially increased commercial life of copyrighted works resulting from the rapid growth in communications media." Ibid. (statement of Sen. Hatch); cf. Sony, 464 U. S., at 430-431 ("From its beginning, the law of copyright has developed in response to significant changes in technology .... [A]s new developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.").15 JUSTICE BREYER urges that the economic incentives accompanying copyright term extension are too insignificant to "mov[e]" any author with a "rational economic perspective." Post, at 255; see post, at 254-257. Calibrating rational economic incentives, however, like "fashion[ing] ... new rules [in light of] new technology," Sony, 464 U. S., at 431, is a task primarily for Congress, not the courts. Congress heard testimony from a number of prominent artists; each expressed the belief that the copyright system's assurance offair compensation for themselves and their heirs was an incentive to create. See, e. g., House Hearings 233-239 (statement of Quincy Jones); Copyright Term Extension Act of 1995: Hearing before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 55-56 (1995)208In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA-which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes-is an impermissible exercise of Congress' power under the Copyright Clause.BPetitioners' Copyright Clause arguments rely on several novel readings of the Clause. We next address these arguments and explain why we find them unpersuasive.1Petitioners contend that even if the CTEA's 20-year term extension is literally a "limited Tim[e]," permitting Congress to extend existing copyrights allows it to evade the "limited Times" constraint by creating effectively perpetual copyrights through repeated extensions. We disagree.(statement of Bob Dylan); id., at 56-57 (statement of Don Henley); id., at 57 (statement of Carlos Santana). We would not take Congress to task for crediting this evidence which, as JUSTICE BREYER acknowledges, reflects general "propositions about the value of incentives" that are "undeniably true." Post, at 255.Congress also heard testimony from Register of Copyrights Marybeth Peters and others regarding the economic incentives created by the CTEA. According to the Register, extending the copyright for existing works "could ... provide additional income that would finance the production and publication of new works." House Hearings 158. "Authors would not be able to continue to create," the Register explained, "unless they earned income on their finished works. The public benefits not only from an author's original work but also from his or her further creations. Although this truism may be illustrated in many ways, one of the best examples is Noah Webster[,] who supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary." Id., at 165.209As the Court of Appeals observed, a regime of perpetual copyrights "clearly is not the situation before us." 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA's 20-year term extension as a congressional attempt to evade or override the "limited Times" constraint.16 Critically, we again emphasize, petitioners fail to16 JUSTICE BREYER agrees that "Congress did not intend to act unconstitutionally" when it enacted the CTEA, post, at 256, yet in his very next breath, he seems to make just that accusation, ibid. What else is one to glean from his selection of scattered statements from individual Members of Congress? He does not identify any statement in the statutory text that installs a perpetual copyright, for there is none. But even if the statutory text were sufficiently ambiguous to warrant recourse to legislative history, JUSTICE BREYER'S selections are not the sort to which this Court accords high value: "In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which 'represen[t] the considered and collective understanding of those [Members of Congress] involved in drafting and studying proposed legislation.''' Garcia v. United States, 469 U. S. 70, 76 (1984) (quoting Zuber v. Allen, 396 U. S. 168,186 (1969)). The House and Senate Reports accompanying the CTEA reflect no purpose to make copyright a forever thing. Notably, the Senate Report expressly acknowledged that the Constitution "clearly precludes Congress from granting unlimited protection for copyrighted works," S. Rep. No. 104-315, p. 11 (1996), and disclaimed any intent to contravene that prohibition, ibid. Members of Congress instrumental in the CTEA's passage spoke to similar effect. See, e. g., 144 Congo Rec. H1458 (daily ed. Mar. 25, 1998) (statement of Rep. Coble) (observing that "copyright protection should be for a limited time only" and that "[p]erpetual protection does not benefit society").JUSTICE BREYER nevertheless insists that the "economic effect" of the CTEA is to make the copyright term "virtually perpetual." Post, at 243. Relying on formulas and assumptions provided in an amicus brief supporting petitioners, he stresses that the CTEA creates a copyright term worth 99.8% of the value of a perpetual copyright. Post, at 254-256. If JUSTICE BREYER'S calculations were a basis for holding the CTEA unconstitutional, then the 1976 Act would surely fall as well, for-under the same assumptions he indulges-the term set by that Act secures 99.4% of the value of a perpetual term. See Brief for George A. Akerlof et al. as Amici Curiae 6, n. 6 (describing the relevant formula). Indeed, on that analysis even the "limited" character of the 1909 (97.7%) and 1831 (94.1%)210show how the CTEA crosses a constitutionally significant threshold with respect to "limited Times" that the 1831, 1909, and 1976 Acts did not. See supra, at 194-196; Austin, supra n. 13, at 56 ("If extending copyright protection to works already in existence is constitutionally suspect," so is "extending the protections of U. S. copyright law to works by foreign authors that had already been created and even first published when the federal rights attached."). Those earlier Acts did not create perpetual copyrights, and neither does the CTEA.172Petitioners dominantly advance a series of arguments all premised on the proposition that Congress may not extend an existing copyright absent new consideration from the author. They pursue this main theme under three headings. Petitioners contend that the CTEA's extension of existing copyrights (1) overlooks the requirement of "originality," (2) fails to "promote the Progress of Science," and (3) ignores copyright's quid pro quo.Acts might be suspect. JUSTICE BREYER several times places the Founding Fathers on his side. See, e. g., post, at 246-247, 260, 261. It is doubtful, however, that those architects of our Nation, in framing the "limited Times" prescription, thought in terms of the calculator rather than the calendar.17 Respondent notes that the CTEA's life-plus-70-years baseline term is expected to produce an average copyright duration of 95 years, and that this term "resembles some other long-accepted durational practices in the law, such as 99-year leases of real property and bequests within the rule against perpetuities." Brieffor Respondent 27, n. 18. Whether such referents mark the outer boundary of "limited Times" is not before us today. JUSTICE BREYER suggests that the CTEA's baseline term extends beyond that typically permitted by the traditional rule against perpetuities. Post, at 256-257. The traditional common-law rule looks to lives in being plus 21 years. Under that rule, the period before a bequest vests could easily equal or exceed the anticipated average copyright term under the CTEA. If, for example, the vesting period on a deed were defined with reference to the life of an infant, the sum of the measuring life plus 21 years could commonly add up to 95 years.211Petitioners' "originality" argument draws on Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340 (1991). In Feist, we observed that "[t]he sine qua non of copyright is originality," id., at 345, and held that copyright protection is unavailable to "a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent," id., at 359. Relying on Feist, petitioners urge that even if a work is sufficiently "original" to qualify for copyright protection in the first instance, any extension of the copyright's duration is impermissible because, once published, a work is no longer original.Feist, however, did not touch on the duration of copyright protection. Rather, the decision addressed the core question of copyrightability, i. e., the "creative spark" a work must have to be eligible for copyright protection at all. Explaining the originality requirement, Feist trained on the Copyright Clause words "Authors" and "Writings." Id., at 346-347. The decision did not construe the "limited Times" for which a work may be protected, and the originality requirement has no bearing on that prescription.More forcibly, petitioners contend that the CTEA's extension of existing copyrights does not "promote the Progress of Science" as contemplated by the preambular language of the Copyright Clause. Art. I, § 8, cl. 8. To sustain this objection, petitioners do not argue that the Clause's preamble is an independently enforceable limit on Congress' power. See 239 F. 3d, at 378 (Petitioners acknowledge that "the preamble of the Copyright Clause is not a substantive limit on Congress' legislative power." (internal quotation marks omitted)). Rather, they maintain that the preambular language identifies the sole end to which Congress may legislate; accordingly, they conclude, the meaning of "limited Times" must be "determined in light of that specified end." Brief for Petitioners 19. The CTEA's extension of existing copyrights categorically fails to "promote the Progress of Science," petitioners argue, because it does not stimulate the212creation of new works but merely adds value to works already created.As petitioners point out, we have described the Copyright Clause as "both a grant of power and a limitation," Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966), and have said that "[t]he primary objective of copyright" is "[t]o promote the Progress of Science," Feist, 499 U. S., at 349. The "constitutional command," we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a "system" that "promote[s] the Progress of Science." Graham, 383 U. S., at 6.18We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives. See Stewart v. Abend, 495 U. S., at 230 ("Th[e] evolution of the duration of copyright protection tellingly illustrates the difficulties Congress faces .... [I]t is not our role to alter the delicate balance18JUSTICE STEVENS' characterization of reward to the author as "a secondary consideration" of copyright law, post, at 227, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the "Progress of Science." As we have explained, "[t]he economic philosophy behind the [Copyright] [C]lause ... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Mazer v. Stein, 347 U. S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge .... The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F.3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing] ... Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides ... with the claims of individuals." The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). JUSTICE BREYER'S assertion that "copyright statutes must serve public, not private, ends," post, at 247, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.213Congress has labored to achieve."); Sony, 464 U. S., at 429 ("[I]t is Congress that has been assigned the task of defining the scope of [rights] that should be granted to authors or to inventors in order to give the public appropriate access to their work product."); Graham, 383 U. S., at 6 ("Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim."). The justifications we earlier set out for Congress' enactment of the CTEA, supra, at 205-207, provide a rational basis for the conclusion that the CTEA "promote[s] the Progress of Science."On the issue of copyright duration, Congress, from the start, has routinely applied new definitions or adjustments of the copyright term to both future works and existing works not yet in the public domain.19 Such consistent congressional practice is entitled to "very great weight, and when it is remembered that the rights thus established have not been disputed during a period of [over two] centur[ies], it is almost conclusive." Burrow-Giles Lithographic Co. v. Sarony, 111 U. S., at 57. Indeed, "[t]his Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution's] provisions." Myers v. United States, 272 U. S. 52, 175 (1926). Congress' unbroken practice since the founding gen-19 As we have noted, see supra, at 196, n. 3, petitioners seek to distinguish the 1790 Act from those that followed. They argue that by requiring authors seeking its protection to surrender whatever rights they had under state law, the 1790 Act enhanced uniformity and certainty and thus "promote[d] ... Progress." See Brief for Petitioners 28-31. This account of the 1790 Act simply confirms, however, that the First Congress understood it could "promote ... Progress" by extending copyright protection to existing works. Every subsequent adjustment of copyright's duration, including the CTEA, reflects a similar understanding.214eration thus overwhelms petitioners' argument that the CTEA's extension of existing copyrights fails per se to "promote the Progress of Science." 20Closely related to petitioners' preambular argument, or a variant of it, is their assertion that the Copyright Clause "imbeds a quid pro quo." Brief for Petitioners 23. They contend, in this regard, that Congress may grant to an "Autho[r]" an "exclusive Right" for a "limited Tim[e]," but only in exchange for a "Writin[g]." Congress' power to confer copyright protection, petitioners argue, is thus contingent upon an exchange: The author of an original work receives an "exclusive Right" for a "limited Tim[e]" in exchange for a dedication to the public thereafter. Extending an existing copyright without demanding additional consideration, petitioners maintain, bestows an unpaid-for benefit on copyright holders and their heirs, in violation of the quid pro quo requirement.We can demur to petitioners' description of the Copyright Clause as a grant of legislative authority empowering Congress "to secure a bargain-this for that." Id., at 16; see Mazer v. Stein, 347 U. S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' "). But the legislative evolution earlier recalled demonstrates what the bargain entails. Given the consistent placement of existing copyright20 JUSTICE STEVENS, post, at 235, refers to the "legislative veto" held unconstitutional in INS v. Chadha, 462 U. S. 919 (1983), and observes that we reached that decision despite its impact on federal laws geared to our "contemporary political system," id., at 967 (White, J., dissenting). Placing existing works in parity with future works for copyright purposes, in contrast, is not a similarly pragmatic endeavor responsive to modern times. It is a measure of the kind Congress has enacted under its Patent and Copyright Clause authority since the founding generation. See supra, at 194-196.215holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the "this" offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time.21 Congress could rationally seek to "promote ... Progress" by including in every copyright statute an express guarantee that authors would receive the benefit of any later legislative extension of the copyright term. Nothing in the Copyright Clause bars Congress from creating the same incentive by adopting the same position as a matter of unbroken practice. See Brief for Respondent 31-32.Neither Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964), nor Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 (1989), is to the contrary. In both cases, we invalidated the application of certain state laws as inconsistent with the federal patent regime. Sears, 376 U. S., at 231233; Bonito, 489 U. S., at 152. Describing Congress' constitutional authority to confer patents, Bonito Boats noted:"The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the 'Progress of Science and useful Arts.'" Id., at 146.21 Standard copyright assignment agreements reflect this expectation.See, e. g., A. Kohn & B. Kohn, Music Licensing 471 (3d ed. 1992-2002) (short form copyright assignment for musical composition, under which assignor conveys all rights to the work, "including the copyrights and proprietary rights therein and in any and all versions of said musical composition(s), and any renewals and extensions thereof (whether presently available or subsequently available as a result of intervening legislation)" (emphasis added)); 5 M. Nimmer & D. Nimmer, Copyright §21.11[B], p. 21-305 (2002) (short form copyright assignment under which assignor conveys all assets relating to the work, "including without limitation, copyrights and renewals and/or extensions thereof"); 6 id., § 30.04[B][1], p. 30-325 (form composer-producer agreement under which composer "assigns to Producer all rights (copyrights, rights under copyright and otherwise, whether now or hereafter known) and all renewals and extensions (as may now or hereafter exist)").216Sears similarly stated that "[p]atents are not given as favors ... but are meant to encourage invention by rewarding the inventor with the right, limited to a term of years fixed by the patent, to exclude others from the use of his invention." 376 U. S., at 229. Neither case concerned the extension of a patent's duration. Nor did either suggest that such an extension might be constitutionally infirm. Rather, Bonito Boats reiterated the Court's unclouded understanding: "It is for Congress to determine if the present system" effectuates the goals of the Copyright and Patent Clause. 489 U. S., at 168. And as we have documented, see supra, at 201-204, Congress has many times sought to effectuate those goals by extending existing patents.We note, furthermore, that patents and copyrights do not entail the same exchange, and that our references to a quid pro quo typically appear in the patent context. See, e. g., J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 U. S. 124, 142 (2001) ("The disclosure required by the Patent Act is 'the quid pro quo of the right to exclude.'" (quoting Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 484 (1974))); Bonito Boats, 489 U. S., at 161 ("the quid pro quo of substantial creative effort required by the federal [patent] statute"); Brenner v. Manson, 383 U. S. 519, 534 (1966) ("The basic quid pro quo ... for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility."); Pennock v. Dialogue, 2 Pet. 1, 23 (1829) (If an invention is already commonly known and used when the patent is sought, "there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right," given the absence of a "quid pro quo."). This is understandable, given that immediate disclosure is not the objective of, but is exacted from, the patentee. It is the price paid for the exclusivity secured. See J. E. M. Ag Supply, 534 U. S., at 142. For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copy-217right. Indeed, since the 1976 Act, copyright has run from creation, not publication. See 1976 Act § 302(a); 17 U. S. C. § 302(a).Further distinguishing the two kinds of intellectual property, copyright gives the holder no monopoly on any knowledge. A reader of an author's writing may make full use of any fact or idea she acquires from her reading. See § 102(b). The grant of a patent, on the other hand, does prevent full use by others of the inventor's knowledge. See Brief for Respondent 22; Alfred Bell & Co. v. Catalda Fine Arts, 191 F. 2d 99, 103, n. 16 (CA2 1951) (The monopoly granted by a copyright "is not a monopoly of knowledge. The grant of a patent does prevent full use being made of knowledge, but the reader of a book is not by the copyright laws prevented from making full use of any information he may acquire from his reading." (quoting W. Copinger, Law of Copyright 2 (7th ed. 1936))). In light of these distinctions, one cannot extract from language in our patent decisions-language not trained on a grant's duration-genuine support for petitioners' bold view. Accordingly, we reject the proposition that a quid pro quo requirement stops Congress from expanding copyright's term in a manner that puts existing and future copyrights in parity.223As an alternative to their various arguments that extending existing copyrights violates the Copyright Clause per se, petitioners urge heightened judicial review of such extensions to ensure that they appropriately pursue the purposes of the Clause. See Brief for Petitioners 31-32. Specifically,22 The fact that patent and copyright involve different exchanges does not, of course, mean that we may not be guided in our "limited Times" analysis by Congress' repeated extensions of existing patents. See supra, at 201-204. If patent's quid pro quo is more exacting than copyright's, then Congress' repeated extension of existing patents without constitutional objection suggests even more strongly that similar legislation with respect to copyrights is constitutionally permissible.218petitioners ask us to apply the "congruence and proportionality" standard described in cases evaluating exercises of Congress' power under § 5 of the Fourteenth Amendment. See, e. g., City of Boerne v. Flores, 521 U. S. 507 (1997). But we have never applied that standard outside the § 5 context; it does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization.Section 5 authorizes Congress to enforce commands contained in and incorporated into the Fourteenth Amendment. Arndt. 14, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." (emphasis added)). The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is "but a corollary to the grant to Congress of any Article I power." Graham, 383 U. S., at 6. It would be no more appropriate for us to subject the CTEA to "congruence and proportionality" review under the Copyright Clause than it would be for us to hold the Act unconstitutional per se.For the several reasons stated, we find no Copyright Clause impediment to the CTEA's extension of existing copyrights.IIIPetitioners separately argue that the CTEA is a contentneutral regulation of speech that fails heightened judicial review under the First Amendment.23 We reject petitioners'23 Petitioners originally framed this argument as implicating the CTEA's extension of both existing and future copyrights. See Pet. for Cert. i. Now, however, they train on the CTEA's extension of existing copyrights and urge against consideration of the CTEA's First Amendment validity as applied to future copyrights. See Brief for Petitioners 39-48; Reply Brief 16-17; Tr. of Oral Arg. 11-13. We therefore consider petitioners' argument as so limited. We note, however, that petitioners do not explain how their First Amendment argument is moored to the prospective/ retrospective line they urge us to draw, nor do they say whether or how their219plea for imposition of uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards. The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers' view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression. As Harper & Row observed: "[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." 471 U. S., at 558.In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id., at 560. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. Specifically, 17 U. S. C. § 102(b) provides: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." As we said in Harper & Row, this "idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression." 471 U. S., at 556 (internal quotation marks omitted). Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. See Feist, 499 U. S., at 349-350.Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U. S. C. § 107, the defense provides: "[T]he fair use of afree speech argument applies to copyright duration but not to other aspects of copyright protection, notably scope.220copyrighted work, including such use by reproduction in copies ... , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The fair use defense affords considerable "latitude for scholarship and comment," Harper & Row, 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group's musical parody of Roy Orbison's "Oh, Pretty Woman" may be fair use).The CTEA itself supplements these traditional First Amendment safeguards. First, it allows libraries, archives, and similar institutions to "reproduce" and "distribute, display, or perform in facsimile or digital form" copies of certain published works "during the last 20 years of any term of copyright ... for purposes of preservation, scholarship, or research" if the work is not already being exploited commercially and further copies are unavailable at a reasonable price. 17 U. S. C. § 108(h); see Brief for Respondent 36. Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities. 17 U. S. C. § 1l0(5)(B); see Brief for Representative F. James Sensenbrenner, Jr., et al. as Amici Curiae 5-6, n. 3.Finally, the case petitioners principally rely upon for their First Amendment argument, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), bears little on copyright. The statute at issue in Turner required cable operators to carry and transmit broadcast stations through their proprietary cable systems. Those "must-carry" provisions, we explained, implicated "the heart of the First Amendment," namely, "the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Id., at 641.221The CTEA, in contrast, does not oblige anyone to reproduce another's speech against the carrier's will. Instead, it protects authors' original expression from unrestricted exploitation. Protection of that order does not raise the free speech concerns present when the government compels or burdens the communication of particular facts or ideas. The First Amendment securely protects the freedom to makeor decline to make-one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See Harper & Row, 471 U. S., at 560; cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522 (1987).24IVIf petitioners' vision of the Copyright Clause held sway, it would do more than render the CTEA's duration extensions unconstitutional as to existing works. Indeed, petitioners' assertion that the provisions of the CTEA are not severable would make the CTEA's enlarged terms invalid even as to24 We are not persuaded by petitioners' attempt to distinguish Harper & Row on the ground that it involved an infringement suit rather than a declaratory action of the kind here presented. As respondent observes, the same legal question can arise in either posture. See Brief for Respondent 42. In both postures, it is appropriate to construe copyright's internal safeguards to accommodate First Amendment concerns. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994) ("It is ... incumbent upon us to read the statute to eliminate [serious constitutional] doubts so long as such a reading is not plainly contrary to the intent of Congress.").222tomorrow's work. The 1976 Act's time extensions, which set the pattern that the CTEA followed, would be vulnerable as well.As we read the Framers' instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body's judgment, will serve the ends of the Clause. See Graham, 383 U. S., at 6 (Congress may "implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim." (emphasis added)). Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA's long terms. The wisdom of Congress' action, however, is not within our province to second-guess. Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals.It is so ordered

OCTOBER TERM, 2002SyllabusELDRED ET AL. v. ASHCROFT, ATTORNEY GENERALCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 01-618. Argued October 9, 2002-Decided January 15,2003The Copyright and Patent Clause, U. S. Const., Art. I, § 8, cl. 8, provides as to copyrights: "Congress shall have Power ... [t]o promote the Progress of Science ... by securing [to Authors] for limited Times ... the exclusive Right to their ... Writings." In the 1998 Copyright Term Extension Act (CTEA), Congress enlarged the duration of copyrights by 20 years: Under the 1976 Copyright Act (1976 Act), copyright protection generally lasted from a work's creation until 50 years after the author's death; under the CTEA, most copyrights now run from creation until 70 years after the author's death, 17 U. S. C. § 302(a). As in the case of prior copyright extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.Petitioners, whose products or services build on copyrighted works that have gone into the public domain, brought this suit seeking a determination that the CTEA fails constitutional review under both the Copyright Clause's "limited Times" prescription and the First Amendment's free speech guarantee. Petitioners do not challenge the CTEA's "life-plus-70-years" timespan itself. They maintain that Congress went awry not with respect to newly created works, but in enlarging the term for published works with existing copyrights. The "limited Tim[e]" in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend. As to the First Amendment, petitioners contend that the CTEA is a content-neutral regulation of speech that fails inspection under the heightened judicial scrutiny appropriate for such regulations. The District Court entered judgment on the pleadings for the Attorney General (respondent here), holding that the CTEA does not violate the Copyright Clause's "limited Times" restriction because the CTEA's terms, though longer than the 1976 Act's terms, are still limited, not perpetual, and therefore fit within Congress' discretion. The court also held that there are no First Amendment rights to use the copyrighted works of others. The District of Columbia Circuit affirmed. In that court's unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, foreclosed petitioners' First Amendment challenge to the CTEA. The appeals court reasoned that copyright does not impermis-187sibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for "fair use" even of the expression itself. A majority of the court also rejected petitioners' Copyright Clause claim. The court ruled that Circuit precedent precluded petitioners' plea for interpretation of the "limited Times" prescription with a view to the Clause's preambular statement of purpose:"To promote the Progress of Science." The court found nothing in the constitutional text or history to suggest that a term of years for a copyright is not a "limited Tim[e]" if it may later be extended for another "limited Tim[e]." Recounting that the First Congress made the 1790 Copyright Act applicable to existing copyrights arising under state copyright laws, the court held that that construction by contemporaries of the Constitution's formation merited almost conclusive weight under Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57. As early as McClurg v. Kingsland, 1 How. 202, the Court of Appeals recognized, this Court made it plain that the Copyright Clause permits Congress to amplify an existing patent's terms. The court added that this Court has been similarly deferential to Congress' judgment regarding copyright. E. g., Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417. Concerning petitioners' assertion that Congress could evade the limitation on its authority by stringing together an unlimited number of "limited Times," the court stated that such legislative misbehavior clearly was not before it. Rather, the court emphasized, the CTEA matched the baseline term for United States copyrights with the European Union term in order to meet contemporary circumstances.Held: In placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress constitutionallimitations. Pp. 199-222.1. The CTEA's extension of existing copyrights does not exceed Congress' power under the Copyright Clause. Pp. 199-218.(a) Guided by text, history, and precedent, this Court cannot agree with petitioners that extending the duration of existing copyrights is categorically beyond Congress' Copyright Clause authority. Although conceding that the CTEA's baseline term of life plus 70 years qualifies as a "limited Tim[e]" as applied to future copyrights, petitioners contend that existing copyrights extended to endure for that same term are not "limited." In petitioners' view, a time prescription, once set, becomes forever "fixed" or "inalterable." The word "limited," however, does not convey a meaning so constricted. At the time of the Framing, "limited" meant what it means today: confined within certain bounds, restrained, or circumscribed. Thus understood, a timespan appropriately "limited"188Full Text of Opinion

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1934, which prohibits using "any manipulative or deceptive device or contrivance" "in connection with the purchase or sale of any security." 48 Stat. 891, 15 U. S. C. § 78j(b); see also 17 CFR § 240.10b-5 (2000). We conclude that it does.IRespondent United International Holdings, Inc., a Colorado-based company, sued petitioner The Wharf (Holdings) Limited, a Hong Kong firm, in Colorado's Federal District Court. United said that in October 1992 Wharf had sold it an option to buy 10% of the stock of a new Hong Kong cable television system. But, United alleged, at the time of the sale Wharf secretly intended not to permit United to exercise the option. United claimed that Wharf's conduct amounted to a fraud "in connection with the ... sale of [a] security," prohibited by § 10(b), and violated numerous state laws as well. A jury found in United's favor. The Court of Appeals for the Tenth Circuit upheld that verdict. 210 F.3d 1207 (2000). And we granted certiorari to consider whether the dispute fell within the scope of § 10(b).The relevant facts, viewed in the light most favorable to the verdict winner, United, are as follows. In 1991, the Hong Kong Government announced that it would accept bids for the award of an exclusive license to operate a cable system in Hong Kong. Wharf decided to prepare a bid. Wharf's chairman, Peter Woo, instructed one of its managing directors, Stephen Ng, to find a business partner with cable system experience. Ng found United. And United sent several employees to Hong Kong to help prepare Wharf's application, negotiate contracts, design the system, and arrange financing.United asked to be paid for its services with a right to invest in the cable system if Wharf should obtain the license. During August and September 1992, while United's employees were at work helping Wharf, Wharf and United negotiated about the details of that payment. Wharf prepared a591draft letter of intent that contemplated giving United the right to become a co-investor, owning 10% of the system. But the parties did not sign the letter of intent. And in September, when Wharf submitted its bid, it told the Hong Kong authorities that Wharf would be the system's initial sole owner, Lodging to App. AY -4, although Wharf would also "consider" allowing United to become an investor, id., at AY-6.In early October 1992, Ng met with a United representative, who told Ng that United would continue to help only if Wharf gave United an enforceable right to invest. Ng then orally granted United an option with the following terms: (1) United had the right to buy 10% of the future system's stock; (2) the price of exercising the option would be 10% of the system's capital requirements minus the value of United's previous services (including expenses); (3) United could exercise the option only if it showed that it could fund its 10% share of the capital required for at least the first 18 months; and (4) the option would expire if not exercised within six months of the date that Wharf received the license. The parties continued to negotiate about how to write documents that would embody these terms, but they never reduced the agreement to writing.In May 1993, Hong Kong awarded the cable franchise to Wharf. United raised $66 million designed to help finance its 10% share. In July or August 1993, United told Wharf that it was ready to exercise its option. But Wharf refused to permit United to buy any of the system's stock. Contemporaneous internal Wharf documents suggested that Wharf had never intended to carry out its promise. For example, a few weeks before the key October 1992 meeting, N g had prepared a memorandum stating that United wanted a right to invest that it could exercise if it was able to raise the necessary capital. A handwritten note by Wharf's Chairman Woo replied, "No, no, no, we don't accept that." App. DT-187; Lodging to App. AI-l. In September 1993, after592meeting with the Wharf board to discuss United's investment in the cable system, Ng wrote to another Wharf executive, "How do we get out?" Id., at CY-l. In December 1993, after United had filed documents with the Securities and Exchange Commission (SEC) representing that United was negotiating the acquisition of a 10% interest in the cable system, an internal Wharf memo stated that "[o]ur next move should be to claim that our directors got quite upset over these representations .... Publicly, we do not acknowledge [United's] opportunity" to acquire the 10% interest. Id., at DF-1 (emphasis in original). In the margin of a December 1993 letter from United discussing its expectation of investing in the cable system, N g wrote, "[B]e careful, must deflect this! [H]ow?" Id., at DI-l. Other Wharf documents referred to the need to "back ped[al]," id., at DG-1, and "stall," id., at DJ-l.These documents, along with other evidence, convinced the jury that Wharf, through Ng, had orally sold United an option to purchase a 10% interest in the future cable system while secretly intending not to permit United to exercise the option, in violation of § 10(b) of the Securities Exchange Act and various state laws. The jury awarded United compensatory damages of $67 million and, in light of "circumstances of fraud, malice, or willful and wanton conduct," App. EM-18, punitive damages of $58.5 million on the state-law claims. As we have said, the Court of Appeals upheld the jury's award. 210 F.3d 1207 (CAlO 2000). And we granted certiorari to determine whether Wharf's oral sale of an option it intended not to honor is prohibited by § 10(b).IISection 10(b) of the Securities Exchange Act makes it "unlawful for any person ... [t]o use or employ, in connection with the purchase or sale of any security ... , any manipulative or deceptive device or contrivance in contravention of593such rules and regulations as the [SEC] may prescribe." 15 U. S. C. § 78j.Pursuant to this provision, the SEC has promulgated Rule 10b-5. That Rule forbids the use, "in connection with the purchase or sale of any security," of (1) "any device, scheme, or artifice to defraud"; (2) "any untrue statement of a material fact"; (3) the omission of "a material fact necessary in order to make the statements made ... not misleading"; or (4) any other "act, practice, or course of business" that "operates ... as a fraud or deceit." 17 CFR § 240.10b-5 (2000).To succeed in a Rule 10b-5 suit, a private plaintiff must show that the defendant used, in connection with the purchase or sale of a security, one of the four kinds of manipulative or deceptive devices to which the Rule refers, and must also satisfy certain other requirements not at issue here. See, e. g., 15 U. S. C. § 78j (requiring the "use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange"); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 193 (1976) (requiring scienter, meaning "intent to deceive, manipulate, or defraud"); Basic Inc. v. Levinson, 485 U. S. 224, 231-232 (1988) (requiring that any misrepresentation be material); id., at 243 (requiring that the plaintiff sustain damages through reliance on the misrepresentation).In deciding whether the Rule covers the circumstances present here, we must assume that the "security" at issue is not the cable system stock, but the option to purchase that stock. That is because the Court of Appeals found that Wharf conceded this point. 210 F. 3d, at 1221 ("Wharf does not contest on appeal the classification of the option as a security"). That concession is consistent with the language of the Securities Exchange Act, which defines "security" to include both "any ... option ... on any security" and "any ... right to ... purchase" stock. 15 U. S. C. § 78c(a)(10) (1994 ed., Supp. V); see also Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 751 (1975) ("[H]olders of ... options,594and other contractual rights or duties to purchase ... securities" are" 'purchasers' ... of securities for purposes of Rule 10b-5"). And Wharf's current effort to deny the concession, by pointing to an ambiguous statement in its Court of Appeals reply brief, comes too late and is unconvincing. See Reply Brief for Petitioners 16, n. 8 (citing Reply Brief for Appellants in Nos. 97-1421, 98-1002 (CAlO), pp. 5-6). Consequently, we must decide whether Wharf's secret intent not to honor the option it sold United amounted to a misrepresentation (or other conduct forbidden by the Rule) in connection with the sale of the option.Wharf argues that its conduct falls outside the Rule's scope for two basic reasons. First, Wharf points out that its agreement to grant United an option to purchase shares in the cable system was an oral agreement. And it says that § 10(b) does not cover oral contracts of sale. Wharf points to Blue Chip Stamps, in which this Court construed the Act's "purchase or sale" language to mean that only "actual purchasers and sellers of securities" have standing to bring a private action for damages. See 421 U. S., at 730-731. Wharf notes that the Court's interpretation of the Act flowed in part from the need to protect defendants against lawsuits that "turn largely on which oral version of a series of occurrences the jury may decide to credit." Id., at 742. And it claims that an oral purchase or sale would pose a similar problem of proof and thus should not satisfy the Rule's "purchase or sale" requirement.Blue Chip Stamps, however, involved the very different question whether the Act protects a person who did not actually buy securities, but who might have done so had the seller told the truth. The Court held that the Act does not cover such a potential buyer, in part for the reason that Wharf states. But United is not a potential buyer; by providing Wharf with its services, it actually bought the option that Wharf sold. And Blue Chip Stamps said nothing to suggest that oral purchases or sales fall outside the scope of595the Act. Rather, the Court's concern was about "the abuse potential and proof problems inherent in suits by investors who neither bought nor sold, but asserted they would have traded absent fraudulent conduct by others." United States v. O'Hagan, 521 U. S. 642, 664 (1997). Such a "potential purchase" claim would rest on facts, including the plaintiff's state of mind, that might be "totally unknown and unknowable to the defendant," depriving the jury of "the benefit of weighing the plaintiff's version against the defendant's version." Blue Chip Stamps, supra, at 746. An actual sale, even if oral, would not create this problem, because both parties would be able to testify as to whether the relevant events had occurred.Neither is there any other convincing reason to interpret the Act to exclude oral contracts as a class. The Act itself says that it applies to "any contract" for the purchase or sale of a security. 15 U. S. C. §§ 78c(a)(13), (14). Oral contracts for the sale of securities are sufficiently common that the Uniform Commercial Code and statutes of frauds in every State now consider them enforceable. See U. C. C. § 8-113 (Supp. 2000) ("A contract ... for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought"); see also 2C U. L. A. 77-81 (Supp. 2000) (table of enactments of U. C. C. Revised Art. 8 (amended 1994)) (noting adoption of § 8-113, with minor variations, by all States except Rhode Island and South Carolina); R. I. Gen. Laws § 6A-8-322 (Supp. 1999) (repealed effective July 1, 2001) (making oral contracts for the sale of securities enforceable); § 6A-8-113 (2000 Cum. Supp.) (effective July 1, 2001) (same); S. C. Code Ann. § 36-8-113 (Supp. 2000) (same); U. C. C. § 8-113 Comment (Supp. 2000) ("[T]he statute of frauds is unsuited to the realities of the securities business"). Any exception for oral sales of securities would significantly limit the Act's coverage, thereby undermining its basic purposes.596Wharf makes a related but narrower argument that the Act does not encompass oral contracts of sale that are unenforceable under state law. But we do not reach that issue. The Court of Appeals held that Wharf's sale of the option was not covered by the then-applicable Colorado statute of frauds, Colo. Rev. Stat. § 4-8-319 (repealed 1996), and hence was enforceable under state law. Though Wharf disputes the correctness of that holding, we ordinarily will not consider such a state-law issue, and we decline to do so here.Second, Wharf argues that a secret reservation not to permit the exercise of an option falls outside § 10(b) because it does not "relat[e] to the value of a security purchase or the consideration paid"; hence it does "not implicate [§ 10(b)'s] policy of full disclosure." Brief for Petitioners 25, 26 (emphasis deleted). But even were it the case that the Act covers only misrepresentations likely to affect the value of securities, Wharf's secret reservation was such a misrepresentation. To sell an option while secretly intending not to permit the option's exercise is misleading, because a buyer normally presumes good faith. Cf., e. g., Restatement (Second) of Torts § 530, Comment c (1976) ("Since a promise necessarily carries with it the implied assertion of an intention to perform[,] it follows that a promise made without such an intention is fraudulent"). For similar reasons, the secret reservation misled United about the option's value. Since Wharf did not intend to honor the option, the option was, unbeknownst to United, valueless.Finally, Wharf supports its claim for an exemption from the statute by characterizing this case as a "disput[e] over the ownership of securities." Brief for Petitioners 24. Wharf expresses concern that interpreting the Act to allow recovery in a case like this one will permit numerous plaintiffs to bring federal securities claims that are in reality no more than ordinary state breach-of-contract claims-actions that lie outside the Act's basic objectives. United's claim, however, is not simply that Wharf failed to carry out a prom-597ise to sell it securities. It is a claim that Wharf sold it a security (the option) while secretly intending from the very beginning not to honor the option. And United proved that secret intent with documentary evidence that went well beyond evidence of a simple failure to perform. Moreover, Wharf has not shown us that its concern has proved serious as a practical matter in the past. Cf. Threadgill v. Black, 730 F.2d 810, 811-812 (CADC) (per curiam) (suggesting in 1984 that contracting to sell securities with the secret reservation not to perform one's obligations under the contract violates § 10(b)). Nor does Wharf persuade us that it is likely to prove serious in the future. Cf. Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, § 21D(b)(2), 109 Stat. 747, codified at 15 U. S. C. § 78u-4(b)(2) (1994 ed., Supp. V) (imposing, beginning in 1995, stricter pleading requirements in private securities fraud actions that, among other things, require that a complaint "state with particularity facts giving rise to a strong inference that the defendant acted with the required [fraudulent] state of mind").For these reasons, the judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 2000SyllabusTHE WHARF (HOLDINGS) LTD. ET AL. v. UNITED INTERNATIONAL HOLDINGS, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo. 00-347. Argued March 21, 200l-Decided May 21, 2001Petitioner The Wharf (Holdings) Limited orally granted respondent United International Holdings, Inc., an option to buy 10% of the stock in Wharf's Hong Kong cable system if United rendered certain services, but internal Wharf documents suggested that Wharf never intended to carry out its promise. United fulfilled its obligation, but Wharf refused to permit it to exercise the option. United sued in Federal District Court, claiming that Wharf's conduct violated, inter alia, § 10(b) of the Securities Exchange Act of 1934, which prohibits using "any manipulative or deceptive device or contrivance" "in connection with the purchase or sale of any security." 15 U. S. C. § 78j(b). A jury found for United, and the Tenth Circuit affirmed.Held: Wharf's secret intent not to honor the option it sold United violates § lO(b). Pp. 592-597.(a) The Court must assume that the "security" at issue is not the cable system stock, but the option to purchase that stock, because Wharf conceded this point below. That concession is consistent with the Act's language defining "security" to include both "any ... option ... on any security" and "any ... right to ... purchase" stock. § 78c(a)(lO). Pp. 593-594.(b) Wharf's claim that § 10(b) does not cover oral contracts of sale is rejected. This Court held in Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, that the Act does not protect a person who did not actually buy securities, but who might have done so had the seller told the truth. But United is not a potential buyer; by providing Wharf with its services, it actually bought the option that Wharf sold. And Blue Chip Stamps did not suggest that oral purchases or sales fall outside the Act's scope. Neither is there any other convincing reason to interpret the Act to exclude oral contracts as a class. The Act itself says that it applies to "any contract" for a security's purchase or sale, §§ 78c(a)(13), (14), and oral contracts for the sale of securities are sufficiently common that the Uniform Commercial Code and statutes of frauds in every State consider them enforceable. Pp. 594-596.(c) Also rejected is Wharf's argument that a secret reservation not to permit the exercise of an option falls outside § 10(b) because it does589not relate to the value of a security purchase or the consideration paid, and hence does not implicate § 10(b)'s full disclosure policy. Even were it the case that the Act covers only misrepresentations likely to affect the value of securities, Wharf's secret reservation was such a misrepresentation. To sell an option while secretly intending not to permit the option's exercise is misleading, because a buyer normally presumes good faith. Similarly, the secret reservation misled United about the option's value, which was, unbeknownst to United, valueless. P. 596.(d) Finally, the Court rejects Wharf's claim that interpreting the Act to allow recovery in a case like this one will permit numerous plaintiffs to bring federal securities claims that are in reality no more than ordinary state breach-of-contract claims lying outside the Act's basic objectives. United's claim is not simply that Wharf failed to carry out a promise to sell it securities, but that Wharf sold it a security (the option) while secretly intending from the very beginning not to honor the option. Moreover, Wharf has not shown that its concern has proved serious as a practical matter in the past or that it is likely to prove serious in the future. Pp. 596-597.210 F.3d 1207, affirmed.BREYER, J., delivered the opinion for a unanimous Court.Paul M. Dodyk argued the cause for petitioners. With him on the briefs was William R. Jentes.Louis R. Cohen argued the cause for respondents. With him on the brief were Jonathan J. Frankel, David B. Wilson, and Jeffrey A. Chase.Matthew D. Roberts argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Underwood, Deputy Solicitor General Kneedler, David M. Becker, Meyer Eisenberg, Jacob H. Stillman, Katharine B. Gresham, and Susan S. McDonald.JUSTICE BREYER delivered the opinion of the Court.This securities fraud action focuses upon a company that sold an option to buy stock while secretly intending never to honor the option. The question before us is whether this conduct violates § lO(b) of the Securities Exchange Act of590Full Text of Opinion

1968_20

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.This case raises the question whether a tenant of a federally assisted housing project can be evicted prior to notification of the reasons for the eviction and without an opportunity to reply to those reasons, when such a Page 393 U. S. 270 procedure is provided for in a Department of Housing and Urban Development (hereinafter HUD) circular issued after eviction proceedings have been initiated.On November 11, 1964, petitioner and her children commenced a month-to-month tenancy in McDougald Terrace, a federally assisted, low-rent housing project owned and operated by the Housing Authority of the City of Durham, North Carolina. Under the lease, petitioner is entitled to an automatic renewal for successive one-month terms, provided that her family composition and income remain unchanged and that she does not violate the terms of the lease. [Footnote 1] The lease also provides, however, that either the tenant or the Authority may terminate the tenancy by giving notice at least 15 days before the end of any monthly term. [Footnote 2] Page 393 U. S. 271On August 10, 1965, petitioner was elected president of a McDougald Terrace tenants' organization called the Parents' Club. On the very next day, without any explanation, the executive director of the Housing Authority notified petitioner that her lease would be canceled as of August 31. [Footnote 3] After receiving notice, petitioner attempted through her attorneys, by phone and by letter, to find out the reasons for her eviction. [Footnote 4] Her inquiries went unanswered, and she refused to vacate.On September 17, 1965, the Housing Authority brought an action for summary eviction in the Durham Justice of the Peace Court, which, three days later, ordered petitioner removed from her apartment. On appeal to the Superior Court of Durham County, petitioner alleged that she was being evicted because of her organizational activities in violation of her First Amendment rights. After a trial de novo, [Footnote 5] the Superior Court affirmed the Page 393 U. S. 272 eviction, and the Supreme Court of North Carolina also affirmed. [Footnote 6] Both appellate courts held that, under the lease, the Authority's reasons for terminating petitioner's tenancy were immaterial. On December 5, 1966, we granted certiorari [Footnote 7] to consider whether petitioner was denied due process by the Housing Authority's refusal to state the reasons for her eviction and to afford her a hearing at which she could contest the sufficiency of those reasons.On February 7, 1967, while petitioner's case was pending in this Court, HUD issued a circular directing that, before instituting an eviction proceeding, local housing authorities operating all federally assisted projects should inform the tenant "in a private conference or other appropriate manner" of the reasons for the eviction, and give him "an opportunity to make such reply or explanation as he may wish." [Footnote 8] Since the application of Page 393 U. S. 273 this directive to petitioner would render a decision on the constitutional issues she raised unnecessary, we vacated the judgment of the Supreme Court of North Carolina and remanded the case"for such further proceedings as may be appropriate in the light of the February 7 circular of the Department of Housing and Urban Development. [Footnote 9]"On remand, the North Carolina Supreme Court refused to apply the February 7 HUD circular and reaffirmed its prior decision upholding petitioner's eviction. Analogizing Page 393 U. S. 274 to the North Carolina rule that statutes are presumed to act prospectively only, the court held that, since "[a]ll critical events" [Footnote 10] had occurred prior to the date on which the circular was issued "[t]he rights of the parties had matured, and had been determined before. . ." that date. [Footnote 11] We again granted certiorari. [Footnote 12] We reverse the judgment of the Supreme Court of North Carolina, and hold that housing authorities of federally assisted public housing projects must apply the February 7, 1967, HUD circular before evicting any tenant still residing in such projects on the date of this decision. [Footnote 13]In support of the North Carolina judgment, the Housing Authority makes three arguments: (1) the HUD circular was intended to be advisory, not mandatory; (2) if the circular is mandatory, it is an unauthorized and unconstitutional impairment of both the Authority's annual contributions contract with HUD [Footnote 14] and the lease agreement between the Authority and petitioner, and (3) even if the circular is mandatory, within HUD's power, and constitutional, it does not apply to eviction proceedings commenced prior to the date the circular was issued. We reject each of these contentions.IPursuant to its general rulemaking power under § 8 of the United States Housing Act of 1937, [Footnote 15] HUD has Page 393 U. S. 275 issued a Low-Rent Management Manual, [Footnote 16] which contains requirements that supplement the provisions of the annual contributions contract applicable to project management. [Footnote 17] According to HUD, these requirements "are the minimum considered consistent with fulfilling Federal responsibilities" under the Act. [Footnote 18] Changes in the manual are initially promulgated as circulars. These circulars, which have not yet been physically incorporated into the manual, are temporary additions or modifications of the manual's requirements, and "have the same effect." [Footnote 19] In contrast, the various "handbooks" and "booklets" issued by HUD contain mere "instructions," "technical suggestions," and "items for consideration." [Footnote 20]Despite the incorporation of the February 7 circular into the Management Manual in October, 1967, the Housing Authority contends that, on its face, the circular purports to be only advisory. The Authority places particular emphasis on the circular's precatory statement that HUD "believes" that its notification procedure should be followed. In addition to overlooking the significance of the subsequent incorporation of the circular into the Management Manual, the Authority's argument is based upon a simple misconstruction of the language actually used. The import of that language, which characterizes the new notification procedure as "essential," becomes apparent when the February 7 circular is contrasted with the one it superseded. The earlier circular, issued on May 31, 1966, stated:"[W]e strongly urge, as a matter of good social policy, that Local Authorities in a Page 393 U. S. 276 private conference inform any tenants who are given . . . [termination] notices of the reasons for this action. [Footnote 21]"(Emphasis added.) This circular was not incorporated into the Management Manual.That HUD intended the February 7 circular to be mandatory has been confirmed unequivocally in letters written by HUD's Assistant Secretary for Renewal and Housing Assistance [Footnote 22] and by its Chief Counsel. [Footnote 23] As we stated in Bowls v. Seminole Rock Co., 325 U. S. 410, 325 U. S. 414 (1945), when construing an administrative regulation,"a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. . . . [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. [Footnote 24]"Thus, when the language and HUD's treatment of the February 7 circular are contrasted with the language and treatment of the superseded circular, there can be no doubt that the more recent circular was intended to be mandatory, not merely advisory, as contended by the Authority. Page 393 U. S. 277IIFinding that the circular was intended to be mandatory does not, of course, determine the validity of the requirements it imposes. [Footnote 25] In our opinion remanding this case to the Supreme Court of North Carolina to consider the HUD circular's applicability, we pointed out that the circular was issued pursuant to HUD's rulemaking power under § 8 of the United States Housing Act of 1937, [Footnote 26] which authorizes HUD [Footnote 27] "from time to time [to] make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act." [Footnote 28] The Housing Authority argues that this authorization is limited by the Act's express policy of"vest[ing] in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of . . . [HUD]), with due consideration to accomplishing the objectives of this Act while effecting economics. [Footnote 29]"But the HUD circular is not inconsistent with this policy. Its minimal effect upon Page 393 U. S. 278 the Authority's "responsibility in the administration" of McDougald Terrace is aptly attested to by the Authority's own description of what the circular does not require:"It does not . . . purport to change the terms of the lease provisions used by Housing Authorities, nor does it purport to take away from the Housing Authority its legal ability to evict by complying with the terms of the lease and the pertinent provisions of the State law relating to evictions. It does not deal with what reasons are acceptable to HUD. . . . Moreover, the Circular clearly does not say that a Housing Authority cannot terminate at the end of any term without cause as is provided in the lease. [Footnote 30]"The circular imposes only one requirement: that the Authority comply with a very simple notification procedure before evicting its tenants. Given the admittedly insubstantial effect this requirement has upon the basic lease agreement under which the Authority discharges its management responsibilities, the contention that the circular violates the congressional policy of allowing local authorities to retain maximum control over the administration of federally financed housing projects is untenable.The Authority also argues that, under the Due Process Clause of the Fifth Amendment, HUD is powerless to impose any obligations except those mutually agreed upon in the annual contributions contract. [Footnote 31] If HUD's Page 393 U. S. 279 power is not so limited, the Authority argues, HUD would be free to impair its contractual obligations to the Authority through unilateral action. Moreover, in this particular case, the Authority contends that HUD has not only impaired its own contract with the Authority, but it has also impaired the contract between petitioner and the Authority. The obligations of each of these contracts, however, can be impaired only"by a law which renders them invalid, or releases or extinguishes them . . . [or by a law] which without destroying [the] contracts derogate[s] from substantial contractual rights. [Footnote 32]"The HUD circular does neither.The respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged. Each provision of that contract is as enforceable now as it was prior to the issuance of the circular. [Footnote 33] Although the circular supplements the contract in the sense that it imposes upon the Authority an additional obligation not contained in the contract, that obligation is imposed under HUD's wholly independent rulemaking power.Likewise, the lease agreement between the Authority and petitioner remains inviolate. Petitioner must still pay her rent and comply with the other terms of the lease; and, as the Authority itself acknowledges, she is still subject to eviction. [Footnote 34] HUD has merely provided for a particular type of notification that must precede Page 393 U. S. 280 eviction, and"[i]n modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right. [Footnote 35]"Since the Authority does not argue that the circular is proscribed by any constitutional provision other than the Due Process Clause, the only remaining inquiry is whether it is reasonably related to the purposes of the Page 393 U. S. 281 enabling legislation under which it was promulgated. [Footnote 36] One of the specific purposes of the federal housing acts is to provide "a decent home and a suitable living environment for every American family" [Footnote 37] that lacks the financial means of providing such a home without governmental aid. A procedure requiring housing authorities to explain why they are evicting a tenant who is apparently among those people in need of such assistance certainly furthers this goal. We therefore cannot hold that the circular's requirements bear no reasonable relationship to the purposes for which HUD's rulemaking power was authorized.IIIThe Housing Authority also urges that petitioner's eviction should be upheld on the theory relied upon by the Supreme Court of North Carolina: the circular does not apply to eviction proceedings commenced prior to its issuance. The general rule, however, is that an appellate court must apply the law in effect at the time it renders its decision. [Footnote 38] Since the law we are concerned with in this case is embodied in a federal administrative regulation, the applicability of this general rule is necessarily Page 393 U. S. 282 governed by federal law. Chief Justice Marshall explained the rule over 150 years ago as follows:"[I]f, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, . . . I know of no court which can contest its obligation. It is true that, in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . , the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside. [Footnote 39]"This same reasoning has been applied where the change was constitutional, [Footnote 40] statutory, [Footnote 41] or judicial. [Footnote 42] Surely it applies with equal force where the change is made by an administrative agency acting pursuant to legislative authorization. Exceptions have been made to prevent manifest injustice, [Footnote 43] but this is not such a case.To the contrary, the general rule is particularly applicable here. The Housing Authority concedes that its power to evict is limited at least to the extent that it may not evict a tenant for engaging in constitutionally Page 393 U. S. 283 protected activity; [Footnote 44] but a tenant would have considerable difficulty effectively defending against such an admittedly illegal eviction if the Authority were under no obligation to disclose its reasons. [Footnote 45] On the other hand, requiring the Authority to apply the circular before evicting petitioner not only does not infringe upon any of its rights, but also does not even constitute an imposition. The Authority admitted during oral argument that it has already begun complying with the circular. [Footnote 46] It refuses to apply it to petitioner simply because it decided to evict her before the circular was issued. Since petitioner has not yet vacated, we fail to see the significance of this distinction. We conclude, therefore, that the circular should be applied to all tenants still residing in McDougald Terrace, including petitioner, not only because it is designed to insure a fairer eviction procedure in general, but also because the prescribed notification is essential to remove a serious impediment to the successful protection of constitutional rightsIVPetitioner argues that, in addition to holding the HUD circular applicable to her case, we must also establish guidelines to insure that she is provided with not only Page 393 U. S. 284 the reasons for her eviction, but also a hearing that comports with the requirements of due process. We do not sit, however,"to decide abstract, hypothetical or contingent questions . . . or to decide any constitutional question in advance of the necessity for its decision. . . . [Footnote 47]"The Authority may be able to provide petitioner with reasons that justify eviction under the express terms of the lease. In that event, she may decide to vacate voluntarily without contesting the Authority's right to have her removed. And if she challenges the reasons offered, the Authority may well decide to afford her the full hearing she insists is essential. [Footnote 48] Moreover, even if the Authority does not provide such a hearing, we have no reason to believe that, once petitioner is told the reasons for her eviction, she cannot effectively challenge their legal sufficiency in whatever eviction proceedings may be brought in the North Carolina courts. Thus, with the case in this posture, a decision on petitioner's constitutional claims would be premature. [Footnote 49]Reversed

U.S. Supreme CourtThorpe v. Housing Auth., 393 U.S. 268 (1969)Thorpe v. Housing Authority of the City of DurhamNo. 20Argued October 23, 1968Decided January 13, 1969393 U.S. 268SyllabusPetitioner had a month-to-month tenancy in a federally assisted public housing project operated by respondent, the lease providing for termination by either party on 15 days' notice. She received a lease cancellation notice, with no reasons being given, the day after being elected president of a tenants' organization. Petitioner, who fruitlessly tried to determine why she was being evicted, refused to vacate. Respondent brought an eviction action, and the State Supreme Court affirmed the lower court's eviction order, which held that the reasons for cancellation were immaterial, notwithstanding petitioner's contention that she was being evicted because of her organizational activities in violation of her First Amendment rights. This Court granted certiorari. Thereafter, on February 7, 1967, the Department of Housing and Urban Development (HUD) issued a circular requiring local housing authorities to give tenants the reasons for eviction and to afford them an opportunity for explanation or reply. Following this Court's remand for further proceedings in the light of the HUD circular (386 U.S. 670), the State Supreme Court upheld petitioner's eviction on the ground that the parties' rights had "matured" before issuance of the circular, which the court held applied only prospectively. The court stayed execution of its judgment pending this Court's decision. Respondent urges that the circular (1) is only advisory; (2) if mandatory, constitutes an unconstitutional impairment of respondent's contract with HUD and its lease agreement with petitioner, and (3) if constitutional, does not apply to eviction proceedings commenced before its issuance.Held:1. Housing authorities of federally assisted public housing projects must follow the requirements of the February 7, 1967, HUD circular before evicting any tenant residing in such projects on the date of this Court's decision herein. Pp. 274-284.(a) The circular, which originally supplemented and later became incorporated in HUD's Low-Rent Management Manual issued under the agency's general rulemaking powers pursuant to § 8 of the United States Housing Act of 1937, was intended by HUD to be mandatory. Pp. 393 U. S. 274-276. Page 393 U. S. 269(b) The simple notification procedure required by the circular, which has only nominal effect on respondent's administration of the housing project, does not violate the congressional policy set forth in the Act for local control of federally financed housing projects. Pp. 393 U. S. 277-278.(c) The respective obligations of HUD and respondent under the annual contributions contract between them, and the lease agreement between petitioner and respondent, remain unchanged by the circular, which therefore does not involve any impairment of contractual obligations in violation of the Due Process Clause of the Fifth Amendment. Pp. 393 U. S. 278-280.(d) The circular furthers the Act's remedial purpose. Pp. 280-281.(e) The circular applies to eviction proceedings commenced before its issuance under the general rule that a court must apply the law (here that of an administrative agency acting pursuant to legislative authorization) in effect at the time it renders decision, and that rule is particularly applicable here, where ascertainment of the reason for eviction is essential to enable a tenant to defend against eviction for activity claimed to be constitutionally protected. Pp. 393 U. S. 281-283.2. It would be premature to decide, as petitioner urges, that this Court must establish guidelines to insure that she is given not only the reasons for her eviction, but also a hearing comporting with due process requirements. Pp. 393 U. S. 283-284.271 N.C. 468, 157 S.E.2d 147, reversed and remanded.

1979_79-509

MR. JUSTICE MARSHALL delivered the opinion of the Court.This case raises three important questions regarding state taxation of the income of a vertically integrated corporation doing business in several States. The first issue is whether the Due Process Clause of the Fourteenth Amendment prevents a State from applying its statutory apportionment formula to the total corporate income of the taxpayer when the taxpayer's functional accounting separates its income into the three distinct categories of marketing, exploration and production, and refining, and when the taxpayer performs only marketing operations within the State. The second issue is whether the Due Process Clause permits a State to subject to taxation under its statutory apportionment formula income derived from the extraction of oil and gas located outside the State which is used by the refining department of the taxpayer, or whether the State is required to allocate such income to the situs State. The third issue is whether the Commerce Clause requires such an allocation to the situs State.IAAppellant Exxon Corp., [Footnote 1] a vertically integrate petroleum company, is organized under the laws of Delaware with its Page 447 U. S. 211 general offices located in Houston, Tex. During the years in question here, 1965 through 1968, appellant's corporate organization structure consisted of three parts: Corporate Management, Coordination and Services Management, and Operations Management.Corporate Management, which was the highest order of management for the entire corporation, consisted of the board of directors, the executive committee, the chairman of the board (who was also the chief executive officer), the president, and various directors-in-charge who were members of the board of directors. Coordination and Services Management was composed of corporate staff departments which provided specialized corporate services. These services included long-range planning for the company, maximization of overall company operations, development of financial policy and procedures, financing of corporate activities, maintenance of the accounting system, legal advice, public relations, labor relations, purchase and sale of raw crude oil and raw materials, and coordination between the refining and other operating functions "so as to obtain an optimum short range operating program." App. 189; id. at 187-192. [Footnote 2]The third level of management within the corporation was Page 447 U. S. 212 Operations Management, which was responsible for directing the operating activities of the functional departments of the company. These functional departments were Exploration and Production, Refining, Marketing, Marine, Coal and Shale Oil, Minerals, and Land Management. Each functional department was organized as a separate unit operating independently of the other operating segments, and each department had its own separate management responsible for the proper conduct of the operation. These departments were treated as separate investment centers by the company, and a profit was determined for each functional department.At all relevant times, each operating department was independently responsible for its performance. This arrangement permitted centralized management to evaluate each operation separately. Each department was therefore required to compete with the other departments for available investment funds, and with other members of the industry performing the same function for the company's raw materials and refined products. There was no requirement that appellant's crude oil go to its own refineries or that the refined products sold through marketing be produced from appellant's crude oil.Transfers of products and raw materials among the three major functional departments -- Exploration and Production, Refining, and Marketing -- were theoretically based on competitive wholesale market prices. For purposes of separate functional accounting, transfers of crude oil from Exploration and Production to Refining were treated as sales at posted industry prices; transfers of products from Refining to Marketing were also based on wholesale market prices. If no readily available wholesale market value existed for a product, then representatives of the two departments involved would negotiate as to the appropriate internal transfer value.Appellant had no exploration and production operations or refining operations in Wisconsin; the only activity carried out Page 447 U. S. 213 in that State was marketing. The Wisconsin marketing district reported administratively to the central region office in Chicago, which in turn was responsible to the Marketing Department headquarters in Houston. App. 217. The motor oils, greases, and other packaged materials sold by appellant in Wisconsin during this period were manufactured outside the State and then shipped into that State from central warehouse facilities in Chicago. Tires, batteries, and accessories were centrally purchased through the Houston office and then shipped into Wisconsin for resale. The gasoline sold in Wisconsin was not produced by Exxon, but rather was obtained from Pure Oil Co. in Illinois under an exchange agreement, permitting Exxon to reduce the cost of transporting the gasoline from its source to the retail outlets. This exchange agreement was negotiated by the Supply and Refining Departments. Additives were put into the Pure Oil gasoline in order to make the final product conform to uniform Exxon standards.Exxon used a nationwide uniform credit card system, which was administered out of the national headquarters in Houston. Uniform packaging and brand names were used, and the overall plan for distribution of products was developed in Houston. Promotional display equipment was designed by the engineering staff at the marketing headquarters.BBecause appellant marketed its products in Wisconsin during the calendar years 1965 through 1968, it was required to file corporate income and franchise tax returns in that State for those years. Exxon prepared the returns based on separate state accounting methods, reflecting only the Wisconsin marketing operation. The returns showed losses in the amounts of $821,320 for 1965, $1,159,830 for 1966, $1,026,224 for 1967, and $919,575 for 1968. Accordingly, no tax was shown as being due for any of those years. Page 447 U. S. 214Appellee Wisconsin Department of Revenue audited Exxon for the years in question, and on June 25, 1971, the Department sent the taxpayer a notice of assessment of additional income and franchise tax. The Department concluded that, pursuant to Wis.Stat. § 71.07(2) (1967), [Footnote 3] the Wisconsin marketing operation was "an integral part of a unitary business," and therefore Exxon's taxable income in Wisconsin must be determined by application of the State's apportionment formula to the taxpayer's total income. The Department's calculation revealed an additional taxable income of $4,532,155 for the period 1965 through 1968. Additional Page 447 U. S. 215 taxes in the amount of $316,470.85 were assessed against appellant. [Footnote 4]Exxon filed an application for abatement in July, 1971, which the Department denied on November 30, 1971. Appellant then filed a petition for review with the Wisconsin Tax Appeals Commission. The Commission agreed with the Department that Exxon's separate geographical accounting did not accurately reflect its Wisconsin income for tax purposes. CCH Wis.Tax Rep. � 201-223, p. 10,410 (1976). However, the Commission concluded that appellant's three main functional operating departments -- Exploration and Production, Refining, and Marketing -- were separate unitary businesses. Id. at 10,409. According to the Commission, Exxon's marketing operation in Wisconsin was an integral part of its overall marketing function, but was not an integral part of its exploration and production function nor its refining function. Id. at 10,411. The Commission found that the statutory apportionment formula as applied by the Department"had the effect of imposing a tax on the [appellant's] exploration and on its refining net income, all of which was derived solely from operations outside the State of Wisconsin and which had no integral relationship to the [appellant's] marketing operations within Wisconsin."Id. at 10,410. The Commission also found that taxation by Wisconsin of Exxon's net income from its exploration and production function and its refining function would subject Page 447 U. S. 216 appellant "to multiple-state taxation as to such income." Ibid. The Commission therefore concluded that the Department had erred in its application of the apportionment formula since it had included "extraterritorial income," but that "apportioning income earned by the [appellant] from its marketing function within and without the State of Wisconsin would be proper. . . ." Id. at 10,411.The Circuit Court for Dane County set aside some of the factual findings and conclusions of law of the Tax Appeals Commission. CCH Wis.Tax Rep. � 201-373, pp. 10,501-10,504 (1977). In particular, the Circuit Court held that the Commission's finding that Exxon's three main functional operating departments were separate unitary businesses was an erroneous conclusion of law. Id. at 10,502. Similarly, the court set aside the findings that there was no economic dependence between the Wisconsin marketing operations and Exxon's exploration and production function or its refining function. Ibid. Instead, the court held that"[t]he Wisconsin operation contributed sales to [Exxon's] business of producing, refining and marketing petroleum products. This contribution was sufficient alone, in the opinion of this Court, to make [Exxon's] business a unitary one."Ibid. Accordingly, appellant's business during the relevant years, "considered as a whole, both within and without Wisconsin, constituted a unitary business" within the meaning of the apportionment statute. Ibid.The Circuit Court concluded, however, that another statute, Wis.Stat. § 71.07(1) (1967), [Footnote 5] excluded from income subject to the apportionment formula all situs income derived Page 447 U. S. 217 from appellant's oil and gas wells. CCH Wis.Tax Rep. � 201-373, at 10,502-10,504. The Department had used a so-called "barrel formula" to separate two sets of income figures: income derived from the sale of crude oil to third parties, and income derived from crude oil produced by Exxon and transferred to its own refineries. The former was allocated to the situs State and excluded from Wisconsin taxable income, and the latter was included in the apportionment formula. A similar division was made of the income derived from appellant's gas production. The Circuit Court held that both sets of income were derived from the oil and gas wells, and should be allocated to the situs State under the statute. The court noted that"there is no question but that the department's inclusion of [Exxon's] income derived from crude oil and gas produced and not sold to third parties by [Exxon's] production department resulted in double taxation of such income. [Footnote 6]"Id. at 10,503.The Wisconsin Supreme Court affirmed in part and reversed in part. 90 Wis.2d 700, 281 N.W.2d 94 (1979). That court concluded that the test for what constituted a unitary business was"'whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such a relationship, the business is unitary.'"Id. at 711, 281 N.W.2d at 100, quoting G. Altman Page 447 U. S. 218 & F. Keesling, Allocation of Income in State Taxation 101 (2d ed.1950). Reviewing the organizational structure and business operations of Exxon, the court reasoned that Exxon's production and refining functions were dependent on its marketing operation to provide an outlet for its products, and Wisconsin was a part of that marketing system. In a high capital investment industry such as the petroleum industry, the court found, the existence of a stable marketing system was important for the full utilization of refining capacity. 90 Wis.2d at 718, 281 N.W.2d at 104. Accordingly, the court concluded that Exxon's Wisconsin marketing operations were an integral part of one unitary business, and therefore its total corporate income was subject to the statutory apportionment formula. Id. at 721-722, 281 N.W.2d at 105-106.The Wisconsin Supreme Court disagreed with the Circuit Court on the issue of situs income. While the extraction and production of oil and gas constituted "mining" within the meaning of Wis.Stat. § 71.07(1) (1967), 90 Wis.2d at 723, 281 N.W.2d at 106, the court agreed with the Department that situs income which is part of the unitary stream of income is nonetheless apportionable under the statute, while situs income which does not enter the unitary stream of income is nonapportionable, and must be excluded from the formula. Id. at 723-724, 281 N.W.2d at 106-107. The Wisconsin Supreme Court rejected appellant's contention that its separate functional accounting proved that its exploration and production income was earned totally outside Wisconsin, noting that"the idea of separate functional accounting seems to be incompatible with the 'very essence of formulary apportionment, namely, that where there are integrated interdependent steps in the economic process carried on by a business enterprise, there is no logical or viable method for accurately separating out the profit attributable to one step in the economic process from other steps.'"Id. at 726, 281 N.W.2d at 109, quoting J. Hellerstein, State and Local Taxation 400 (3d ed.1969). The court concluded that the Page 447 U. S. 219 State was acting within constitutional limitations despite appellant's evidence based on separate functional accounting.The court also rejected Exxon's argument that the sources of income derived from exploration and production were all outside of Wisconsin, and therefore could not be taxed in that State without impermissibly burdening interstate commerce. According to the court, Wisconsin was taxing only its "fair share" of appellant's income, there was a substantial nexus between appellant and the State, the tax was not claimed to discriminate between interstate and intrastate commerce, and the tax was fairly related to services provided by Wisconsin. 90 Wis.2d at 729-731, 281 N.W.2d at 110-111.Because of the importance of the issues raised, we noted probable jurisdiction, 444 U.S. 961 (1979). We now affirm.IIWe recently set forth at some length the basic principles for state taxation of the income of a business operating in interstate commerce, see Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425, 445 U. S. 436-442 (1980), and need not repeat them here in great detail. It has long been settled that"the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs."Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 358 U. S. 460 (1959); Mobil Oil Corp. v. Commissioner of Taxes, supra at 445 U. S. 436. See generally Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920); Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283 U. S. 123 (1931); Butler Bros. v. McColgan, 315 U. S. 501 (1942); Moorman Mfg. Co. v. Bair, 437 U. S. 267 (1978). See also Bass, Ratcli & Gretton, Ltd. v. State Tax Comm'n, 266 U. S. 271 (1924). The Due Process Clause of the Fourteenth Amendment imposes two requirements for such state taxation: a "minimal connection" or "nexus" between the interstate activities and the taxing State, and "a Page 447 U. S. 220 rational relationship between the income attributed to the State and the intrastate values of the enterprise." Mobil Oil Corp. v. Commissioner of Taxes, supra, at 445 U. S. 436, 445 U. S. 437. See Moorman Mfg. Co. v. Bair, supra at 437 U. S. 272-273; National Bellas Hess, Inc. v. Department of Revenue, 386 U. S. 753, 386 U. S. 756 (1967); Norfolk & Western R. Co. v. State Tax Comm'n, 390 U. S. 317, 390 U. S. 325 (1968). The tax cannot be "out of all appropriate proportion to the business transacted by the appellant in that State." Hans Rees' Sons v. North Carolina ex rel. Maxwell, supra at 283 U. S. 135.The nexus is established if the corporation "avails itself of the substantial privilege of carrying on business' within the State." Mobil Oil Corp. v. Commissioner of Taxes, supra at 445 U. S. 437, quoting Wisconsin v. J. C. Penney Co., 311 U. S. 435, 311 U. S. 444-445 (1940). In the present case, Exxon does not dispute that it avails itself of that privilege through its marketing operations within Wisconsin. Appellant contends, however, that this nexus is insufficient to permit inclusion of all of Exxon's corporate income within the apportionment formula. While appellant appears to concede that Wisconsin may properly apply its apportionment statute to Exxon's Marketing Department income as established by its separate functional accounting, see Brief for Appellant 18, 29, 33; Reply Brief for Appellant 2-3, it argues that it has demonstrated through its accounting method what portion of its income is derived from exploration and production and from refining -- functions which do not occur in Wisconsin and of which the marketing operation in that State is not an integral part.Appellant relies heavily on Moorman Mfg. Co. v. Bair, supra. The principal issue in that case was whether the single-factor sales formula used by Iowa to apportion for income tax purposes the income of an interstate business was prohibited by either the Due Process Clause or the Commerce Clause. In the course of that decision, we noted that"[a]ppellant does not suggest that it has shown that a significant portion of the income attributed to Iowa in fact was generated Page 447 U. S. 221 by its Illinois operations; the record does not contain any separate accounting analysis showing what portion of appellant's profits was attributable to sales, to manufacturing, or to any other phase of the company's operations."437 U.S. at 437 U. S. 272. See also id. at 437 U. S. 275, n. 9. Exxon contends that Moorman sanctions the use of separate functional accounting in order to prove the extraterritorial reach of a state tax statute, and that its accounting in this case demonstrates that the Wisconsin Supreme Court's application of the state apportionment statute violates the Due Process Clause.We cannot agree. As this Court has on several occasions recognized, a company's internal accounting techniques are not binding on a State for tax purposes. For example, in Butler Bros. v. McColgan, supra, an interstate business challenged the application of the California apportionment statute. The company was engaged in the wholesale dry goods and general merchandise business as a middleman, and it had distributing houses in seven States, including one in California. Each house maintained stocks of goods, had a cognizable territory, had its own sales force, did its own solicitation of sales, made its own credit and collection arrangements, and kept its own books. There was, however, a central buying division that was able to purchase goods for resale at a lower price. The company used "recognized accounting principles," 315 U.S. at 315 U. S. 505, to allocate all costs and charges to each house, with certain centralized expenses allocated among the houses. Based on that "separate accounting system," id. at 315 U. S. 507, the business asserted there was no net income in California.We concluded that California could constitutionally apply its apportionment formula to the company's total net income to establish taxable income, rather than being limited to the income shown by the taxpayer's accounting methods to be attributable to the one house in that State. The company had the "distinct burden of showing by clear and cogent evidence' that it results in extraterritorial values being taxed," Page 447 U. S. 222 ibid., quoting Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, 297 U. S. 682, 297 U. S. 688 (1936), and the taxpayer's accounting evidence was insufficient to meet that burden."[W]e need not impeach the integrity of that accounting system to say that it does not prove appellant's assertion that extraterritorial values are being taxed. Accounting practices for income statements may vary considerably according to the problem at hand. . . . A particular accounting system, though useful or necessary as a business aid, may not fit the different requirements when a State seeks to tax values created by business within its borders. . . That may be due to the fact, as stated by Mr. Justice Brandeis in Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 254 U. S. 121, that a State in attempting to place upon a business extending into several States 'its fair share of the burden of taxation' is 'faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders.' Furthermore, the particular system used may not reveal the facts basic to the State's determination. Bass, Ratcli Gretton, Ltd. v. Tax Commission, supra, p. 266 U. S. 283. In either aspect of the matter, the results of the accounting system employed by appellant do not impeach the validity or propriety of the formula which California has applied here."315 U.S. at 315 U. S. 507-508.Similarly, in Mobil Oil Corp. v. Commissioner of Taxes, we noted that"separate accounting, while it purports to isolate portions of income received in various States, may fail to account for contributions to income resulting from functional integration, centralization of management, and economies of scale."445 U.S. at 445 U. S. 438. Since such factors arise,"from the operation of the business as a whole, it becomes misleading to characterize the income of the business as having a single identifiable 'source.' Although separate geographical Page 447 U. S. 223 accounting may be useful for internal auditing, for purposes of state taxation, it is not constitutionally required."Ibid. [Footnote 7]The dicta in Moorman upon which appellant relies are not incompatible with these principles. In Moorman, we simply noted that the taxpayer had made no showing that its Illinois operations were responsible for profits from sales in Iowa. This hardly leads to the conclusion, urged by Exxon here, that a taxpayer's separate functional accounting, if it purports to separate out income from various aspects of the business, must be accepted as a matter of constitutional law for state tax purposes. Such evidence may be helpful, but Moorman in no sense renders such accounting conclusive. [Footnote 8]The "linchpin of apportionability" for state income taxation of an interstate enterprise is the "unitary business principle." Mobil Oil Corp. v. Commissioner of Taxes, supra at 445 U. S. 439. If a company is a unitary business, then a State may apply an apportionment formula to the taxpayer's total income in order to obtain a "rough approximation" of the corporate income that is "reasonably related to the activities conducted within the taxing State." Moorman Mfg. Co. v. Bair, 437 U.S. at 437 U. S. 273. See also Underwood Typewriter Co. v. Chamberlain, 254 U.S. at 254 U. S. 120. In order to exclude certain income from the apportionment formula, the company must prove that "the income was earned in the course of activities unrelated to the sale of petroleum products in that State." Mobil Oil Corp. v. Commissioner of Taxes, supra at 445 U. S. 439. The court looks to the "underlying economic realities of a Page 447 U. S. 224 unitary business," and the income must derive from "unrelated business activity" which constitutes a "discrete business enterprise," 445 U.S. at 445 U. S. 441, 445 U. S. 442, 445 U. S. 439.We agree with the Wisconsin Supreme Court that Exxon is such a unitary business, and that Exxon has not carried its burden of showing that its functional departments are "discrete business enterprises" whose income is beyond the apportionment statute of the State. While Exxon may treat its operational departments as independent profit centers, it is nonetheless true that this case involves a highly integrated business which benefits from an umbrella of centralized management and controlled interactionAs has already been noted, Exxon's Coordination and Services Management provided many essential corporate services for the entire company, including the coordination of the refining and other operational functions "to obtain an optimum short range operating program." App. 189. Many of the items sold by appellant in Wisconsin were obtained through a centralized purchasing office in Houston whose obvious purpose was to increase overall corporate profits through bulk purchases and efficient allocation of supplies among retailers. Cf. Butler Bros v. McColgan, 315 U.S. at 315 U. S. 508 ("the operation of the central buying division alone demonstrates that functionally the various branches are closely integrated"). Even the gasoline sold in Wisconsin was available only because of an exchange agreement with another company arranged by the Supply Department, part of Coordination and Services Management, and the Refining Department. Similarly, sales were facilitated through the use of a uniform credit card system, uniform packaging, brand names, and promotional displays, all run from the national headquarters.The important link among the three main operating departments of appellant was stated most clearly in the Page 447 U. S. 225 testimony of an Exxon senior vice-president. This official testified:"[I]n any industry which is highly capital intensive, such as the petroleum industry, the fixed operating costs are highly relative to total operating costs, and for this reason the profitability of such an industry is very sensitive and directly related to the full utilization of the capacity of the facilities.""So, in the case of the petroleum industry it is -- where you have high capital investments in refineries, the existence of an assured supply of raw materials and crude is important and the assured and stable outlet for products is important, and therefore when there are -- when these segments are under a single corporate entity, it provides for some assurance that the risk of disruptions in refining operations are minimized due to supply and demand imbalances that may occur from time to time.""* * * *" "[T]he placing individual segments under one corporate entity does provide greater profits stability for the reason that . . . nonparallel and nonmutual economic factors which may affect one department may be offset by the factors existing in another department."App. 224-225.The evidence fully supports the conclusion of the court below that appellant's marketing operation in Wisconsin is an integral part of a unitary business. Exxon's use of separate functional accounting, and its decision for purposes of corporate accountability to assign wholesale market values to interdepartmental transfers of products and supplies, does not defeat the clear and sufficient nexus between appellant's interstate activities and the taxing State.The same analysis disposes of the other prong of Exxon's Due Process Clause attack on the Wisconsin statute. Appellant contends that at least the income derived from exploration Page 447 U. S. 226 and production must be treated as situs income and allocated to the situs State, rather than included in the apportionment statute. [Footnote 9] Appellee did, in fact, exclude. that income derived from the sale of crude oil and gas at the wellhead to third parties. However, the Department of Revenue concluded that the income characterized through appellant's separate functional accounting as income derived from intracorporate transfer of crude oil and gas for refining was part of the "unitary stream" of Exxon's income, and apportionable.We agree with appellee. As previously noted, appellant's internal accounting system is not binding on the State for tax purposes. The decision to assign wholesale market values to internal transfers of raw materials for corporate accountability does not change the unitary nature of appellant's business. An effective marketing operation is important to assure full or nearly full use of the refining capacities. Obviously, the quality of the refined product affects the marketing operation. And the success of the Exploration and Production Department helps to keep the refineries operating at a capacity which is cost-efficient. There is indeed a unitary stream of income, of which the income derived from internal transfers of raw materials from exploration and production to refining is a part. [Footnote 10] There is a sufficient nexus to satisfy the Due Process Clause.There is also the necessary "rational relationship" between the income attributed to the State by the apportionment formula Page 447 U. S. 227 and the intrastate value of the business. Exxon had a total of $60,073,293 in sales income from its Wisconsin operation in the years 1965 through 1968. App. 799. The Wisconsin assessed taxable income for the four years in question represented 0.22 percent of total company net income adjusted to the Wisconsin basis, and Exxon's Wisconsin sales for those years represented 0.41 percent of total company sales. 90 Wis.2d at 729, 281 N.W.2d at 110. This is hardly a case where the State has used its formula to attribute income "out of all appropriate proportion to the business transacted . . . in that State," Hans Rees' Sons v. North Carolina ex rel. Maxwell, 283 U.S. at 283 U. S. 135, and application of the formula has not "led to a grossly distorted result," Norfolk & Western R. Co. v. State Tax Comm'n, 390 U.S. at 390 U. S. 326. See also Moorman Mfg. Co. v. Bair, 437 U.S. at 437 U. S. 274. That Exxon's Wisconsin marketing operation, through the use of separate geographic accounting, failed to show a net profit for the years in question does not change this rational relationship. Butler Bros. v. McColgan, 315 U.S. at 315 U. S. 507-508; Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm'n, 266 U.S. at 266 U. S. 284. Cf. Underwood Typewriter Co. v. Chamberlain, 254 U.S. at 254 U. S. 120. The Wisconsin Supreme Court's application of Wis.Stat. §§ 71.07(1) and(2) (1967) in this case does not violate the Due Process Clause of the Fourteenth Amendment.IIIAppellant also contends that the Commerce Clause requires allocation of all income derived from its exploration and production function to the situs State, rather than inclusion of such income in the apportionment formula. [Footnote 11] The Court must therefore examine the "practical effect" of the tax to Page 447 U. S. 228 determine whether it"'is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.'"Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. at 445 U. S. 443, quoting Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 430 U. S. 279 (1977). See also Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 441 U. S. 145 (1979); Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U. S. 734, 435 U. S. 750 (1978). It has already been demonstrated that the necessary nexus is present and that the tax is fairly apportioned. Similarly, appellant does not contest the conclusion that the tax is fairly related to the services rendered by Wisconsin, which include police and fire protection, the benefit of a trained workforce, and "the advantages of a civilized society." Japan Line, Ltd. v. County of Los Angeles, supra, at 441 U. S. 445. Exxon asserts, however, that Wisconsin's taxing statute, as applied, subjects interstate business to an unfair burden of multiple taxation. We were faced with a very similar argument in Mobil Oil Corp. v. Commissioner of Taxes, supra, and we reject it now for the same reasons we rejected it in that case. Here, as in that prior case, the State seeks to tax income, not property ownership. Similarly, it is the risk of multiple taxation that is being asserted; actual multiple taxation has not been shown. [Footnote 12] While, of course, "the constitutionality of a [Wisconsin] Page 447 U. S. 229 tax should not depend on the vagaries of [another State's] tax policy," nonetheless "the absence of any existing duplicative tax does alter the nature of appellant's claim." Id. at 441 U. S. 444. Exxon asserts, in essence, that the Commerce Clause requires allocation of exploration and production income to the situs State, rather than apportionment among the States, regardless of the situs State's actual tax policy. Cf. ibid. (dividend income).We do not agree. As was the case with income from intangibles, there is nothing "talismanic" about the concept of situs for income from exploration and production of crude oil and gas. Id. at 441 U. S. 445. Presumably, the States in which appellant's crude oil and gas production is located are permitted to tax in some manner the income derived from that production, there being an obvious nexus between the taxpayer and those States. However,"there is no reason in theory why that power should be exclusive when the [exploration and production income as distinguished through separate functional accounting] reflect[s] income from a unitary business, part of which is conducted in other States. In that situation, the income bears relation to benefits and privileges conferred by several States. These are the circumstances in which apportionment is ordinarily the accepted method."Id. at 441 U. S. 445-446.In short, the Commerce Clause does not require that any income which a taxpayer is able to separate through accounting Page 447 U. S. 230 methods and attribute to exploration and production of crude oil and gas be allocated to the States in which those production centers are located. The geographic location of such raw materials does not alter the fact that such income is part of the unitary business of the interstate enterprise, and is subject to fair apportionment among all States to which there is a sufficient nexus with the interstate activities of the business.The judgment of the Supreme Court of Wisconsin isAffirmed

U.S. Supreme CourtExxon Corp. v. Department of Rev. of Wisconsin, 447 U.S. 207 (1980)Exxon Corp. v. Department of Rev. of WisconsinNo. 79-509Argued March 18, 1980Decided June 10, 1980447 U.S. 207SyllabusAppellant, a vertically integrated petroleum company doing business in several States, was organized, during the years in question in this case, into three levels of management, one of which was responsible for directing the operating activities of the company's functional departments. Transfers of products and supplies among the three major functional departments -- Exploration and Production, Refining, and Marketing -- were theoretically based on competitive wholesale prices. Appellant had no exploration and production or refining operations in Wisconsin and carried out only marketing in that State. During the years in question, appellant filed income tax returns in Wisconsin using a separate geographical system of accounting which reflected only the Wisconsin marketing operations and showed a loss for each year, thus resulting in no taxes being due, but appellee Wisconsin Department of Revenue, upon auditing the returns, assessed taxes, based on appellant's total income, pursuant to Wisconsin's tax apportionment statute. Ultimately, after appellant's application for abatement had proceeded through administrative and judicial review, the Wisconsin Supreme Court held that appellant's Wisconsin marketing operations were an integral part of one unitary business, and that therefore its total corporate income was subject to the statutory apportionment formula. The court further held that situs income derived from crude oil produced by appellant outside Wisconsin and transferred to its own refineries, and thus part of the unitary stream of income, was apportionable under the Wisconsin statute despite appellant's separate functional accounting system, and that taxation of such situs income did not impermissibly burden interstate commerce.Held:1. The Due Process Clause of the Fourteenth Amendment did not prevent Wisconsin from applying its statutory apportionment formula to appellant's total income. Pp. 447 U. S. 219-225.(a) The Due Process Clause imposes two requirements for state taxation of the income of a corporation operating in interstate commerce: a "minimal connection" or "nexus" between the corporation's interstate activities and the taxing State, and "a rational relationship between the Page 447 U. S. 208 income attributed to the State and the intrastate values of the enterprise." Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425, 445 U. S. 436-437. Such a nexus is established if the corporation "avails itself of the substantial privilege of carrying on business' within the State." Id. at 445 U. S. 437. Here, appellant concededly avails itself of that privilege through its marketing operations within Wisconsin. Pp. 447 U. S. 219-220.(b) Appellant's use of separate functional accounting by which it shows what portion of its income is derived from exploration and production and from refining -- functions occurring outside Wisconsin -- does not demonstrate that application of the Wisconsin apportionment statute violated the Due Process Clause. A company's internal accounting techniques are not binding on a State for tax purposes, and are not required to be accepted as a matter of constitutional law for such purposes. Pp. 447 U. S. 220-223.(c) The "linchpin of apportionability" for state income taxation of an interstate enterprise is the "unitary business principle." Mobil Oil Corp. v. Commissioner of Taxes, supra at 445 U. S. 439. If a company is a unitary business, then a State may apply an apportionment formula to the taxpayer's total income in order to obtain a "rough approximation" of the corporate income that is "reasonably related to the activities conducted within the taxing State." Moorman Mfg. Co. v. Bair, 437 U. S. 267, 437 U. S. 273. Here, the evidence fully supports the conclusion that appellant's marketing operations in Wisconsin were an integral part of such a unitary business. And appellant's use of separate functional accounting, and its decision for purposes of corporate accountability to assign wholesale market values to interdepartmental transfers of products and supplies, do not defeat the clear and sufficient nexus between appellant's interstate activities and the taxing State. Pp. 447 U. S. 223-225.2. Similarly, the Due Process Clause did not preclude Wisconsin from subjecting to taxation under its statutory apportionment formula appellant's income derived from extraction of oil and gas located outside the State which was used by the Refining Department, and the State was not required to allocate such income to the situs State. There was a unitary stream of income, of which the income derived from internal transfers of raw materials from exploration and production to refining was a part. This was a sufficient nexus to satisfy the Due Process Clause, and there was also the necessary "rational relationship" between the income attributed to the State by the apportionment formula and the intrastate value of the business. Pp. 447 U. S. 225-227.3. The Commerce Clause did not require Wisconsin to allocate all income derived from appellant's exploration and production function to the situs State, rather than include such income in the apportionment Page 447 U. S. 209 formula. The Wisconsin taxing statute, as applied, did not subject interstate business to an unfair burden of multiple taxation. Mobil Oil Corp. v. Commissioner of Taxes, supra. The State sought to tax income, not property ownership, and it was the risk of multiple taxation that was being asserted, actual multiple taxation not having been shown. The Commerce Clause did not require that any income which appellant was able to separate through accounting methods and attribute to exploration and production of crude oil and gas be allocated to the States in which those production centers were located. The geographic location of such raw materials did not alter the fact that such income was part of the unitary business of appellant's interstate enterprise and was subject to fair apportionment among all States to which there was a sufficient nexus with the interstate activities. Pp. 447 U. S. 227-230.90 Wis.2d 700, 281 N.W.2d 94, affirmed.MARSHALL, J., delivered the opinion of the Court, in which all other Members joined except STEWART, J., who took no part in the consideration or decision of the case. Page 447 U. S. 210

1963_102

MR. JUSTICE HARLAN delivered the opinion of the Court.This case, which was brought here from the Supreme Court of Iowa, 374 U.S. 826, presents a problem concerning the relationship between an arbitration clause and a no-strike clause in a collective bargaining agreement.Although this case comes to us on the pleadings, and some disputed questions of fact are still to be resolved, we accept as true the following facts for the purposes of our decision. The petitioner, Local Union No. 721, United Packinghouse, Food and Allied Workers, AFL-CIO, and the respondent, Needham Packing Co., had an agreement which included provisions of both kinds, set out hereafter. On May 11, 1961, Needham discharged Anton Stamoulis, an employee represented by the union. In response, on the same day, about 190 other employees left work. During the next few days, Needham advised the employees to return to work, stating that if they did not, their employment would be regarded as terminated, and that the discharge of Stamoulis would be treated under the grievance procedures of the collective bargaining agreement. The employees did not return to work.On July 5, 1961, the union presented to Needham written grievances on behalf of Stamoulis and the other employees, asserting that they had been "improperly discharged" and requesting their reinstatement with full seniority rights and pay for lost time. By letter dated July 11, 1961, Needham refused to process the grievances. The letter stated that the union and its members had, by their conduct, "repudiated and terminated the labor agreement" with the company. In addition, Needham stated that it would not have further dealings with the union, and did not recognize the union as majority representative of Needham employees.This suit by the union under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), to Page 376 U. S. 249 compel arbitration of the two grievances followed. Needham alleged as a defense that the union and its members had struck on May 11, 1961, and that this breach of the no-strike clause of the collective bargaining agreement had been and was treated by Needham as having terminated its obligations under the agreement. In addition, Needham filed a counterclaim, alleging that it had been damaged in the amount of $150,000 by the union's breach of the no-strike clause. The union denied such breach. At the close of the pleadings, in accordance with Iowa procedure, Needham moved for a ruling on points of law and a final order denying the union's petition to compel arbitration. [Footnote 1] Deciding solely on the basis of matters raised in the pleadings as to which there was no dispute, the trial court ruled in Needham's favor and issued an order against the union. The union obtained an appeal. The Supreme Court of Iowa affirmed the holding below that "the Union had waived its right to arbitrate the grievances filed by its walkout." 254 Iowa 882, 887, 119 N.W.2d 141, 143. [Footnote 2]In the present posture of this case, we must answer the question whether acts of the union relieved Needham of Page 376 U. S. 250 its contractual obligation to arbitrate almost entirely on the basis of the agreement itself. We think it plain that, seen from that perspective, the judgment below must be reversed.The two controlling provisions of the collective bargaining agreement are written in comprehensive terms. The no-strike clause provides:"It is agreed that, during the period of this agreement, the employees shall not engage in and the Union shall not call or sanction any slow down, work stoppage or strike. . . ."The grievance provisions include typical procedures for the resolution of a dispute preliminary to arbitration. They then provide:"In the event a dispute shall arise between the Company and the Union with reference to the proper interpretation or application of the provisions of this contract and such dispute cannot be settled by mutual agreement of the parties, such dispute shall be referred to a board of arbitration upon the request of the Union."It is evident from the above as well as other provisions of the agreement [Footnote 3] that the grievance procedures were intended largely, if not wholly, for the benefit of the union.A state court exercising its concurrent jurisdiction over suits under § 301(a) applies federal substantive law. Charles Dowd Box Co., Inc. v. Courtney, 368 U. S. 502. The law which controls the disposition of this case is stated in Drake Bakeries Inc. v. Local 50, American Bakery & Confectionery Workers International, AFL-CIO, Page 376 U. S. 251 370 U. S. 254. In that case, the employer had filed an action for damages under § 301(a), alleging that the union had "instigated and encouraged its members to strike or not to report for work," in violation of a no-strike clause. Id. at 370 U. S. 256. The collective bargaining agreement contained a broad arbitration clause covering"all complaints, disputes or grievances arising between . . . [the parties] involving questions of interpretation or application of any clause or matter covered by this contract or any act or conduct or relation between the parties hereto, directly or indirectly."Id. at 370 U. S. 257.The employer argued that the promise not to strike was so basic to the collective bargain, and breach of the no-strike clause so completely inconsistent with the provision for arbitration, that the employer's duty to arbitrate was excused by the union's breach. This argument, which is essentially that of Needham here, was rejected on grounds fully applicable to this case. Although the Court relied in part on the employer's apparent intention not to terminate the contract altogether, more central to its conclusion was the view that there was no "inflexible rule rigidly linking no-strike and arbitration clauses of every collective bargaining contract in every situation." Id. at 370 U. S. 261. (Footnote omitted.) We said:"[U]nder this contract, by agreeing to arbitrate all claims without excluding the case where the union struck over an arbitrable matter, the parties have negatived any intention to condition the duty to arbitrate upon the absence of strikes. They have thus cut the ground from under the argument that an alleged strike, automatically and regardless of the circumstances, is such a breach or repudiation of the arbitration clause by the union that the company is excused from arbitrating, upon theories of waiver, estoppel, or otherwise. Arbitration provisions, which themselves have not been repudiated, are meant to Page 376 U. S. 252 survive breaches of contract, in many contexts, even total breach; and in determining whether one party has so repudiated his promise to arbitrate that the other party is excused the circumstances of the claimed repudiation are critically important. In this case, the union denies having repudiated in any respect its promise to arbitrate, denies that there was a strike, denies that the employees were bound to work on January 2, and asserts that it was the company itself which ignored the adjustment and arbitration provisions by scheduling holiday work."Id. at 370 U. S. 262-263. (Footnotes omitted.)Continuance of the duty to arbitrate is, if anything, clearer here than it was in Drake Bakeries, where one of the issues was whether an alleged strike was within the intended scope of the arbitration clause. There is no question in this case that the union's claim of wrongful discharge is one which Needham agreed to arbitrate. [Footnote 4] Nothing in the agreement indicates an intention to except from Needham's agreement to arbitrate disputes concerning the "interpretation or application" of the agreement any dispute which involves or follows an alleged breach of the no-strike clause. That the no-strike clause does not itself carry such an implication is the holding of Drake Bakeries.The fact that the collective bargaining agreement does not require Needham to submit its claim to arbitration, as the employer was required to do in Drake Bakeries, and indeed appears to confine the grievance procedures to grievances of the union, does not indicate a different result. Needham's claim is the subject of a counterclaim in the Iowa courts; nothing we have said here precludes Page 376 U. S. 253 it from prosecuting that claim and recovering damages. [Footnote 5] That Needham asserts by way of defense to the union's action to compel arbitration the same alleged breach of the no-strike clause which is the subject of the counterclaim does not convert the union's grievance into Needham's different one. [Footnote 6]Nor do we believe that this case can be distinguished from Drake Bakeries on the ground that that case involved only a "one-day strike," id. at 370 U. S. 265. Whether a fundamental and long- lasting change in the relationship of the parties prior to the demand for arbitration would be a circumstance which, alone or among others, would release an employer from his promise to arbitrate we need not decide, since the undeveloped record before us reveals no such circumstance. Compare Drake Bakeries, supra, at 370 U. S. 265. The passage of time resulting from Needham's refusal to arbitrate cannot, of course, be a basis for releasing it from its duty to arbitrate.Needham's allegations by way of defense and counterclaim that the union breached the no-strike clause, supported by such facts as were undisputed on the pleadings, did not release Needham from its duty to arbitrate the union's claim that employees had been wrongfully discharged. On that basis, we reverse and remand to the Iowa Supreme Court for further proceedings.It is so ordered

U.S. Supreme CourtPackinghouse Workers v. Needham, 376 U.S. 247 (1964)Local Union No. 721, United Packinghouse, Food &Allied Workers, AFL-CIO v. Needham Packing Co.No. 102Argued February 20, 1964Decided March 9, 1964376 U.S. 247SyllabusUnder § 301(a) of the Labor Management Relations Act, petitioner labor union sued in a state court to compel arbitration of the claimed wrongful discharge of employees, the action being based on a collective bargaining agreement providing for arbitration at the union's request of disputes which the parties could not settle. Respondent employer contended that the union had struck in violation of a no-strike clause in that agreement, thereby terminating the employer's obligations thereunder, and it counterclaimed for damages for breach of the no-strike clause. The State Supreme Court affirmed a lower court ruling that the union, by its walkout, had waived its right to arbitrate the grievances.Held: The union's alleged breach of its promise in the collective bargaining agreement not to strike did not relieve the employer of its duty under such agreement to arbitrate, there being no inflexible rule that the duty to arbitrate depends upon observance of the promise not to strike. Drake Bakeries, Inc. v. Bakery Workers, 370 U. S. 254, followed. Pp. 376 U. S. 248-253.(a) A state court exercising its concurrent jurisdiction over suits under § 301(a) applies federal substantive law. P. 376 U. S. 250.(b) Though the employer is obliged to arbitrate the union's grievances, it can pursue its claim for damages in the state court for the alleged breach of the no-strike clause. Pp. 376 U. S. 252-253.(c) The employer is not released from its duty to arbitrate by the passage of time resulting from its refusal to do so. P. 376 U. S. 253.254 Iowa 882, 119 N.W.2d 141, reversed and remanded. Page 376 U. S. 248

1989_89-742

Chief Justice REHNQUIST delivered the opinion of the Court.The question presented in this case is whether the application of a Texas statute, which was passed after respondent's crime and which allowed the reformation of an improper jury verdict in respondent's case, violates the Ex Post Facto Clause of Art. I, § 10. We hold that it does not.Respondent Carroll Youngblood was convicted in a Texas court of aggravated sexual abuse. The jury imposed punishment of life imprisonment and a fine of $10,000. After his conviction and sentence were affirmed by the Texas Court of Criminal Appeals, Youngblood applied for a writ of habeas corpus in the State District Court. He argued that Texas Code of Criminal Procedure did not authorize a fine in addition to a term of imprisonment for his offense, and, thus, under the decision of the Court of Criminal Appeals in Bogany v. State, 661 S.W.2d 957 (Tex.Crim.App.1983), the judgment and sentence were void, and he was entitled to a new trial. [Footnote 1] In April, 1985, the District Court, feeling bound by Bogany, recommended that the writ be granted.Before the habeas application was considered by the Texas Court of Criminal Appeals, which has the exclusive power under Texas law to grant writs of habeas corpus, see Tex.Code Crim.Proc.Ann., Art. 11.07 (Vernon 1977 and Supp.1990), a new Texas statute designed to modify the Bogany Page 497 U. S. 40 decision became effective. Article 37.10(b), as of June 11, 1985, allows an appellate court to reform an improper verdict that assesses a punishment not authorized by law. Tex.Code Crim.Proc.Ann., Art. 37-10(b) (Vernon Supp.1990); see Ex parte Johnson, 697 S.W.2d 605 (Tex.Crim.App.1985). Relying on that statute, the Court of Criminal Appeals reformed the verdict in Youngblood's case by ordering deletion of the $10,000 fine, and denied his request for a new trial.Youngblood then sought a writ of habeas corpus from the United States District Court for the Eastern District of Texas, arguing that the retroactive application of Article 37.10(b) violated the Ex Post Facto Clause of Art. I, § 10. The District Court concluded that, since Youngblood's"punishment . . . was not increased (but actually decreased), and the elements of the offense or the ultimate facts necessary to establish guilt were not changed,"there was no ex post facto violation. App. to Pet. for Cert. C-6.The Court of Appeals reversed. Youngblood v. Lynaugh, 882 F.2d 956 (CA5 1989). It relied on the statement in this Court's decision in Thompson v. Utah, 170 U. S. 343 (1898), the retroactive procedural statutes violate the Ex Post Facto Clause unless they"'leave untouched all the substantial protections with which existing law surrounds the person accused of crime,'"Lynaugh, supra, at 959 (quoting 170 U.S. at 170 U. S. 352). It held that Youngblood's right to a new trial under the Bogany decision was such a "substantial protection," and therefore ordered that a writ of habeas corpus be issued. We granted certiorari. 493 U.S. 1001 (1989).Because respondent is before us on collateral review, we are faced with a threshold question whether the relief sought by Youngblood would constitute a "new rule," which would not apply retroactively under our decisions in Teague v. Lane, 489 U. S. 288 (1989), and Butler v. McKellar, 494 U. S. 407 (1990). Generally speaking,"[r]etroactivity is Page 497 U. S. 41 properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, even-handed justice requires that it be applied retroactively to all who are similarly situated."Teague, supra, 489 U.S. at 489 U. S. 300. The State of Texas, however, did not address retroactivity in its petition for certiorari or its briefs on the merits, and, when asked about the issue at oral argument, counsel answered that the State had chosen not to rely on Teague. Tr. of Oral Arg. 4-5. Although the Teague rule is grounded in important considerations of federal-state relations, we think it is not "jurisdictional" in the sense that this Court, despite a limited grant of certiorari, must raise and decide the issue sua sponte. Cf. Patsy v. Board of Regents of Fla., 457 U. S. 496, 457 U. S. 515, n. 19 (1982) (Eleventh Amendment defense need not be raised and decided by the Court on its own motion). We granted certiorari to consider the merits of respondent's ex post facto claim, and we proceed to do so.Although the Latin phrase "ex post facto" literally encompasses any law passed "after the fact," it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applied only to penal statutes which disadvantage the offender affected by them. Calder v. Bull, 3 Dall. 386, 3 U. S. 390-392 (1798) (opinion of Paterson, J.); id. at 3 U. S. 400 (opinion of Iredell, J.). See Miller v. Florida, 482 U. S. 423, 482 U. S. 430 (1987). [Footnote 2] As early opinions in this Court explained, "ex post facto law" was a term of art with an established meaning at the time of the framing of the Constitution. Calder, 3 Dall. at 3 U. S. 391 (opinion of Chase, J.); id. at 3 U. S. 396 (opinion of Paterson, J.). Justice Chase's now familiar opinion in Calder expounded those legislative Page 497 U. S. 42 acts which in his view implicated the core concern of the Ex Post Facto Clauses:"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender."Id. at 3 U. S. 390 (emphasis in original).Early opinions of the Court portrayed this as an exclusive definition of ex post facto laws. Fletcher v. Peck, 6 Cranch 87, 10 U. S. 138 (1810); Cummings v. Missouri, 4 Wall. 277, 71 U. S. 325-326, (1867); id. at 71 U. S. 391 (Miller, J., dissenting) ("This exposition of the nature of ex post facto laws has never been denied, nor has any court or any commentator on the Constitution added to the classes of laws here set forth as coming within that clause"); Gut v. State, 9 Wall. 35, 76 U. S. 38 (1870). So well accepted were these principles that the Court, in Beazell v. Ohio, 269 U. S. 167 (1925), was able to confidently summarize the meaning of the Clause as follows:"It is settled, by decisions of this Court so well known that their citation may be dispensed with that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."Id. at 269 U. S. 169-170. Page 497 U. S. 43 See also Dobbert v. Florida, 432 U. S. 282, 432 U. S. 292 (1977). [Footnote 3]The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts. Several early state constitutions employed this definition of the term, and they appear to have been a basis for the Framers' understanding of the provision. See The Federalist No. 44, p. 301 (J. Cooke ed. 1961) (J. Madison); 2 Records of the Federal Convention of 1787, p. 376 (M. Farrand ed. 1966); (Calder, 3 Dall. at 3 U. S. 391-392 (opinion of Chase, J.)); id. at 3 U. S. 396-397 (opinion of Paterson, J.). The Constitutions of Maryland and North Carolina, for example, declared that"retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made."See Constitution of Maryland, Declaration of Rights, Art. XV (1776); Constitution of North Carolina, Declaration of Rights, Art. XXIV (1776). Other state constitutions, though not using the phrase "ex post facto," included similar articles. See Declaration of Rights and Fundamental Rules of the Delaware State, § 11 (1776); Constitution or Form of Government for the Commonwealth of Massachusetts, Declaration of Rights, Art. XXIV (1780). Page 497 U. S. 44Another historical reference, Blackstone's Commentaries, which was discussed by the Framers during debates on the Ex Post Facto Clause, see 2 Records of the Federal Convention of 1787, pp. 448-449 (M. Farrand ed. 1966), and deemed an authoritative source of the technical meaning of the term in Calder, see 3 Dall. at 3 U. S. 391 (opinion of Chase, J.); id. at 3 U. S. 396 (opinion of Paterson, J.), buttresses this understanding. According to Blackstone, a law is ex post facto"when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it."1 W. Blackstone, Commentaries *46. Although increased punishments are not mentioned explicitly in the historical sources, the Court has never questioned their prohibition, apparently on the theory that "[t]he enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty." Calder, supra, at 3 U. S. 397 (opinion of Paterson, J.). The Beazell definition, then, is faithful to the use of the term "ex post facto law" at the time the Constitution was adopted.Respondent concedes that Art. 37.10(b) of the Texas Code of Criminal Procedure does not fall within any of the Beazell categories and, under that definition, would not constitute an ex post facto law as applied to him. The new statute is a procedural change that allows reformation of improper verdicts. It does not alter the definition of the crime of aggravated sexual abuse, of which Youngblood was convicted, nor does it increase the punishment for which he is eligible as a result of that conviction. Nevertheless, respondent maintains that this Court's decisions have not limited the scope of the Ex Post Facto Clause to the finite Beazell categories, but have stated more broadly that retroactive legislation contravenes Art. I, § 10 if it deprives an accused of a "substantial protection" under law existing at the time of the crime. He argues that the new trial guaranteed him by former Texas law is such a protection. Page 497 U. S. 45Several of our cases have described as "procedural" those changes which, even though they work to the disadvantage of the accused, do not violate the Ex Post Facto Clause. Dobbert v. Florida, supra, 432 U.S. at 432 U. S. 292-293, and n. 6; Beazell v. Ohio, 269 U.S. at 269 U. S. 171; Mallett v. North Carolina, 181 U. S. 589, 181 U. S. 597 (1901). While these cases do not explicitly define what they mean by the word "procedural," it is logical to think that the term refers to changes in the procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes. Respondent correctly notes, however, that we have said a procedural change may constitute an ex post facto violation if it "affect[s] matters of substance," Beazell, supra, 269 U.S. at 269 U. S. 171, by depriving a defendant of "substantial protections with which the existing law surrounds the person accused of crime," Duncan v. Missouri, 152 U. S. 377, 152 U. S. 382-383 (1894), or arbitrarily infringing upon "substantial personal rights." Malloy v. South Carolina, 237 U. S. 180, 237 U. S. 183 (1915); Beazell, supra, 269 U.S. at 269 U. S. 171.We think this language from the cases cited has imported confusion into the interpretation of the Ex Post Facto Clause. The origin of the rather amorphous phrase "substantial protections" appears to lie in a nineteenth century treatise on constitutional law by Professor Thomas Cooley. T. Cooley, Constitutional Limitations *272. According to Cooley, who notably assumed the Calder construction of the Ex Post Facto Clause to be correct, Constitutional Limitations *265, a legislature"may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime."Id. at *272.This Court's decision in Duncan v. Missouri, supra, subsequently adopted that phraseology:"[A]n ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then Page 497 U. S. 46 prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offence or its consequences, alters the situation of a party to his disadvantage; but the prescribing of different modes or procedure and the abolition of courts and creation of new ones, leaving untouched all the substantial protections with which the existing law surrounds the person accused of crime, are not considered within the constitutional inhibition. Cooley Const.Lim. (5th ed.) 329."Id. at 152 U. S. 382-383 (other citations omitted) (emphasis added). Later, in Malloy v. South Carolina, supra, we stated that, even with regard to procedural changes. the Ex Post Facto Clause was "intended to secure substantial personal rights against arbitrary and oppressive legislative action." Id. 237 U.S. at 237 U. S. 183. We repeated that recognition in Beazell itself, while also emphasizing that the provision was "not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Beazell, supra, 269 U.S. at 269 U. S. 171.We think the best way to make sense out of this discussion in the cases is to say that, by simply labeling a law "procedural," a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause. See Gibson v. Mississippi, 162 U. S. 565, 162 U. S. 590 (1896). Subtle ex post facto violations are no more permissible than overt ones. In Beazell, supra, we said that the constitutional prohibition is addressed to laws, "whatever their form," which make innocent acts criminal, alter the nature of the offense, or increase the punishment. 269 U.S. at 269 U. S. 170. But the prohibition which may not be evaded is the one defined by the Calder categories. See Duncan, supra, 152 U.S. at 152 U. S. 382; Malloy, supra, 237 U.S. at 237 U. S. 183-184. The references in Duncan and Malloy to "substantial protections" and "personal rights" should not be read to adopt without explanation an undefined enlargement of the Ex Post Facto Clause. Page 497 U. S. 47Two decisions of this Court, relied upon by respondent, do not fit into this analytical framework. In Kring v. Missouri, 107 U. S. 221 (1883), the Court said"it is not to be supposed that the opinion in [Calder v. Bull] undertook to define, by way of exclusion, all the cases to which the constitutional provision would be applicable."Id. at 107 U. S. 228. It defined an ex post facto law, inter alia, as one which, "in relation to the offence or its consequences, alters the situation of a party to his disadvantage.'" Id. at 107 U. S. 228-229 (quoting United States v. Hall, 26 F. Cas. 84, 86 (No. 15,285) (D. Pa.1809)) (emphasis deleted). And in Thompson v. Utah, 170 U. S. 343 (1898), the Court held that a change in Utah law reducing the size of juries in criminal cases from 12 persons to 8 deprived Thompson of "a substantial right involved in his liberty," and violated the Ex Post Facto Clause. Id. at 170 U. S. 352.Neither of these decisions, in our view, is consistent with the understanding of the term "ex post facto law" at the time the Constitution was adopted. Nor has their reasoning been followed by this Court since Thompson was decided in 1898. These cases have caused confusion in state and lower federal courts about the scope of the Ex Post Facto Clause, as exemplified by the opinions of the District Court and Court of Appeals in this case. See also Murphy v. Kentucky, 465 U. S. 1072, 1073 (1984) (WHITE, J., dissenting from denial of certiorari) (noting "the evident confusion among lower courts concerning the application of the Ex Post Facto Clause to changes in rules of evidence and procedure"); United States v. Kowal, 596 F. Supp. 375, 377 (Conn.1984) (Supreme Court jurisprudence applying ex post facto prohibition to retroactive procedural changes "is not all of one piece"); L. Tribe, American Constitutional Law 638 (2d ed. 1988) (procedural changes upheld by the Court "can hardly be distinguished in any functional way from those invalidated").The earlier decision, Kring v. Missouri, was a capital case with a lengthy procedural history. Kring was charged with first-degree murder, but, pursuant to a plea agreement, he Page 497 U. S. 48 pleaded guilty to second-degree murder. The plea was accepted by the prosecutor and the trial court, and he was sentenced to 25 years in prison. He appealed the judgment, however, on the ground that his plea agreement provided for a sentence of no more than 10 years. The State Supreme Court reversed the judgment and remanded for further proceedings. In the trial court, Kring refused to withdraw his guilty plea to second-degree murder and refused to renew his plea of not guilty to first-degree murder, insisting instead that the acceptance of his earlier plea constituted an acquittal on the greater charge. The trial court, over Kring's objection, directed a general plea of not guilty to be entered, and, upon retrial, he was convicted of first-degree murder and sentenced to death.At the time the crime was committed, Missouri law provided that a defendant's plea of guilty to second-degree murder, if accepted by the prosecutor and the court, served as an acquittal of the charge of first-degree murder. After the crime, but before Kring made his plea, a new Missouri Constitution abrogated that rule. The State was thus free, as a matter of Missouri law, to retry Kring for first-degree murder after his conviction and the 25-year sentence for second-degree murder were vacated. The Supreme Court of Missouri held that the new law did not violate the Ex Post Facto Clause, because it effected only a change in criminal procedure.This Court reversed by a vote of 5 to 4. As support for the view that Calder did not define an exclusive list of legislative acts falling within the constitutional prohibition, Justice Miller's opinion for the Court quoted a jury charge given by Justice Washington sitting in the District Court:"'[A]n ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed; or which increases the punishment, or, in short, which, in relation to the offence or its consequences, alters the situation of a party to his disadvantage.'"Kring, 107 U.S. at 107 U. S. 228-229 Page 497 U. S. 49 (quoting United States v. Hall, supra, at 86) (emphasis in original). Applying that test, the Court concluded that, because the new Missouri Constitution denied Kring the benefit of an implied acquittal which the previous law provided, it "altered the situation to his disadvantage," and his conviction for first-degree murder was void. Kring, supra, 107 U.S. at 107 U. S. 235-236.The Court's departure from Calder's explanation of the original understanding of the Ex Post Facto Clause was, we think, unjustified. The language in the Hall case, heavily relied upon in Kring and repeated in other decisions thereafter, does not support a more expansive definition of ex post facto laws.In Hall, a vessel owner was sued by the United States for forfeiture of an embargo bond obliging him to deliver certain cargo to Portland. As a legal excuse, the defendant argued that a severe storm had disabled his vessel and forced him to land in Puerto Rico, where he was forced by the Puerto Rican government to sell the cargo. In dicta, Justice Washington hypothesized that, according to the law in effect at the time Hall forfeited the cargo, an "unavoidable accident" was an affirmative defense to a charge of failing to deliver cargo. His jury instruction then explained that a subsequent law imposing an additional requirement for the affirmative defense -- that the vessel or cargo actually be lost at sea as a result of the unavoidable accident -- would deprive Hall of a defense of his actions available at the time he sold the cargo, and thus be an invalid ex post facto law.This analysis is consistent with the Beazell framework. A law that abolishes an affirmative defense of justification or excuse contravenes Art. I, § 10, because it expands the scope of a criminal prohibition after the act is done. It appears, therefore, that Justice Washington's reference to laws "relat[ing] to the offence, or its consequences," was simply shorthand for legal changes altering the definition of an offense or increasing a punishment. His jury charge should not be read to mean that the Constitution prohibits retrospective Page 497 U. S. 50 laws, other than those encompassed by the Calder categories, which "alter the situation of a party to his disadvantage." Nothing in the Hall case supports the broad construction of the ex post facto provision given by the Court in Kring.It is possible to reconcile Kring with the numerous cases which have held that "procedural" changes do not result in ex post facto violations by saying that the change in Missouri law did not take away a "defense" available to the defendant under the old procedure. But this use of the word "defense" carries a meaning quite different from that which appears in the quoted language from Beazell, where the term was linked to the prohibition on alterations in "the legal definition of the offense" or "the nature or amount of the punishment imposed for its commission." Beazell, 269 U.S. at 269 U. S. 169-170. The "defense" available to Kring under earlier Missouri law was not one related to the definition of the crime, but was based on the law regulating the effect of guilty pleas. Missouri had not changed any of the elements of the crime of murder, or the matters which might be pleaded as an excuse or justification for the conduct underlying such a charge; it had changed its law respecting the effect of a guilty plea to a lesser included offense. The holding in Kring can only be justified if the Ex Post Facto Clause is thought to include not merely the Calder categories but any change which "alters the situation of a party to his disadvantage." We think such a reading of the Clause departs from the meaning of the Clause as it was understood at the time of the adoption of the Constitution, and is not supported by later cases. We accordingly overrule Kring.The second case, Thompson v. Utah, must be viewed in historical context. Thompson was initially charged with his crime -- grand larceny committed by stealing a calf -- in 1895, when Utah was a Territory. He was tried by a jury of 12 persons and convicted. A new trial was subsequently granted, however, and in the meantime Utah was admitted Page 497 U. S. 51 into the Union as a State. The Constitution of the State of Utah provided that juries in noncapital cases would consist of eight persons, not twelve, and Thompson was retried and convicted by a panel of eight.This Court reversed the conviction. It reasoned first that while Utah was a Territory, the Sixth Amendment applied to actions of the territorial government and guaranteed Thompson a right to a 12-person jury. 170 U.S. at 170 U. S. 349-360. The Court then held that"the State did not acquire upon its admission into the Union the power to provide, in respect of felonies committed within its limits while it was a Territory, that they should be tried otherwise than by a jury such as is provided by the Constitution of the United States."Id. at 170 U. S. 350-351. Because the State Constitution "deprive[d] him of a substantial right involved in his liberty" and "materially alter[ed] the situation to his disadvantage," the Court concluded that Thompson's conviction was prohibited by the Ex Post Facto Clause. Id. at 170 U. S. 352-353.The result in Thompson v. Utah foreshadowed our decision in Duncan v. Louisiana, 391 U. S. 145 (1968), which held that the Sixth Amendment right to trial by jury -- then believed to mean a jury of 12, see, e.g., Patton v. United States, 281 U. S. 276, 281 U. S. 288-289 (1930) -- was incorporated and made applicable by the Fourteenth Amendment against the states. The Court held that, since Utah was a territory when Thompson's crime was committed, and therefore obligated to provide a twelve-person jury by the Sixth Amendment, the Ex Post Facto Clause prevented the State from taking away that substantial right from him when it became a State and was no longer bound by the Sixth Amendment as then interpreted. The right to jury trial provided by the Sixth Amendment is obviously a "substantial" one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause. To the extent that Thompson v. Utah Page 497 U. S. 52 rested on the Ex Post Facto Clause and not the Sixth Amendment, we overrule it. [Footnote 4]The Texas statute allowing reformation of improper verdicts does not punish as a crime an act previously committed which was innocent when done, nor make more burdensome the punishment for a crime after its commission, nor deprive one charged with crime of any defense available according to law at the time when the act was committed. Its application to respondent therefore is not prohibited by the Ex Post Facto Clause of Art. I, § 10.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtCollins v. Youngblood, 497 U.S. 37 (1990)Collins v. YoungbloodNo. 89-742Argued March 19, 1990Decided June 21, 1990497 U.S. 37SyllabusRespondent was convicted in a Texas state court of aggravated sexual assault and sentenced to life imprisonment and a $10,000 fine. After his conviction and sentence were affirmed on direct appeal, he applied for a writ of habeas corpus in state court, arguing that Texas law did not authorize both a fine and prison term for his offense, and thus that his judgment and sentence were void and he was entitled to a new trial. The court, bound by a State Court of Criminal Appeals' decision, recommended that the writ be granted. Before the writ was considered by the Court of Criminal Appeals, however, a new statute was passed allowing an appellate court to reform an improper verdict assessing a punishment not authorized by law. Thus, the Court of Criminal Appeals reformed the verdict by ordering that the fine be deleted and denied the request for a new trial. Arguing that the new Texas law's retroactive application violated the Ex Post Facto Clause of Art. 1, § 10, respondent filed a writ of habeas corpus in Federal District Court, which was denied. The Court of Appeals reversed. Relying on the statement in Thompson v. Utah, 170 U. S. 343, that retroactive procedural statutes violate the Ex Post Facto Clause unless they "leave untouched all the substantial protections with which existing law surrounds the . . . accused," the court held that respondent's right to a new trial under former Texas law was a "substantial protection."Held:1. Although the rule of Teague v. Lane, 489 U. S. 288 -- which prohibits the retroactive application of new rules to cases on collateral review -- is grounded in important considerations of federal-state relations, it is not jurisdictional in the sense that this Court, despite a limited grant of certiorari, must raise and decide the issue sua sponte. Since Texas has chosen not to rely on Teague, the merits of respondent's claim will be considered. Pp. 497 U. S. 40-41.2. The application of the Texas statute to respondent is not prohibited by the Ex Post Facto Clause. Pp. 497 U. S. 41-52.(a) The definition of an ex post facto law as one that (1) punishes as a crime an act previously committed which was innocent when done, (2) Page 497 U. S. 38 makes more burdensome the punishment for a crime after its commission, or (3) deprives one charged with a crime of any defense available according to law at the time when the act was committed, Beazell v. Ohio, 269 U. S. 167, is faithful to this Court's best knowledge of the original understanding of the Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts. Respondent concedes that Texas' statute does not fall within the Beazell categories, since it is a procedural change in the law. However, he errs in arguing that this Court's decisions have not limited the Clause's scope to those categories, but have stated more broadly that retroactive legislation contravenes the Clause if it deprives an accused of a "substantial protection" under law existing at the time of the crime, and that the new trial guaranteed by Texas law is such a protection. When cases have described as "procedural" those changes that do not violate the Clause even though they work to the accused's disadvantage, see, e.g., Beazell, supra at 269 U. S. 171, it is logical to presume that "procedural" refers to changes in the procedures by which a criminal case is adjudicated, as opposed to substantive changes in the law. The "substantial protection" discussion in Beazell, Duncan v. Missouri, 152 U. S. 377, 152 U. S. 382-383, and Malloy v. South Carolina, 237 U. S. 180, 237 U. S. 183, has imported confusion into the Clause's interpretation, and should be read to mean that a legislature does not immunize a law from scrutiny under the Clause simply by labeling the law "procedural." It should not be read to adopt without explanation an undefined enlargement of the Clause. Pp. 497 U. S. 41-46.(b) Kring v. Missouri, 107 U. S. 221, and Thompson v. Utah, supra, are inconsistent with the understanding of the term "ex post facto law" at the time the Constitution was adopted, rely on reasoning that this Court has not followed since Thompson was decided, and have caused confusion in state and lower federal courts about the Clause's scope. Kring and Thompson are therefore overruled. Pp. 497 U. S. 47-52.882 F.2d 956 (Ca 5 1989), reversed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 497 U. S. 52. Page 497 U. S. 39

1983_83-724

JUSTICE BRENNAN delivered the opinion of the Court.This case requires us to address a conflict between a State's efforts to eliminate gender-based discrimination against its citizens and the constitutional freedom of association asserted by members of a private organization. In the decision under review, the Court of Appeals for the Eighth Circuit concluded that, by requiring the United States Jaycees to admit women as full voting members, the Minnesota Human Rights Act violates the First and Fourteenth Amendment rights of the organization's members. We noted probable jurisdiction, Gomez-Bethke v. United States Jaycees, 464 U.S. 1037 (1984), and now reverse.IAThe United States Jaycees (Jaycees), founded in 1920 as the Junior Chamber of Commerce, is a nonprofit membership corporation, incorporated in Missouri with national headquarters in Tulsa, Okla. The objective of the Jaycees, as set out in its bylaws, is to pursue"such educational and charitable purposes as will promote and foster the growth and development of young men's civic organizations in the United States, designed to inculcate in the individual membership of such organization a spirit of genuine Americanism and civic interest, Page 468 U. S. 613 and as a supplementary education institution to provide them with opportunity for personal development and achievement and an avenue for intelligent participation by young men in the affairs of their community, state and nation, and to develop true friendship and understanding among young men of all nations."Quoted in Brief for Appellee 2. The organization's bylaws establish seven classes of membership, including individual or regular members, associate individual members, and local chapters. Regular membership is limited to young men between the ages of 18 and 35, while associate membership is available to individuals or groups ineligible for regular membership, principally women and older men. An associate member, whose dues are somewhat lower than those charged regular members, may not vote, hold local or national office, or participate in certain leadership training and awards programs. The bylaws define a local chapter as"[a]ny young men's organization of good repute existing in any community within the United States, organized for purposes similar to and consistent with those"of the national organization. App. to Juris. Statement A98. The ultimate policymaking authority of the Jaycees rests with an annual national convention, consisting of delegates from each local chapter, with a national president and board of directors. At the time of trial in August, 1981, the Jaycees had approximately 295,000 members in 7,400 local chapters affiliated with 51 state organizations. There were at that time about 11,915 associate members. The national organization's executive vice-president estimated at trial that women associate members make up about two percent of the Jaycees' total membership. Tr. 56.New members are recruited to the Jaycees through the local chapters, although the state and national organizations are also actively involved in recruitment through a variety of promotional activities. A new regular member pays an initial fee followed by annual dues; in exchange, he is entitled Page 468 U. S. 614 to participate in all of the activities of the local, state, and national organizations. The national headquarters employs a staff to develop "program kits" for use by local chapters that are designed to enhance individual development, community development, and members' management skills. These materials include courses in public speaking and personal finances as well as community programs related to charity, sports, and public health. The national office also makes available to members a range of personal products, including travel accessories, casual wear, pins, awards, and other gifts. The programs, products, and other activities of the organization are all regularly featured in publications made available to the membership, including a magazine entitled "Future."BIn 1974 and 1975, respectively, the Minneapolis and St. Paul chapters of the Jaycees began admitting women as regular members. Currently, the memberships and boards of directors of both chapters include a substantial proportion of women. As a result, the two chapters have been in violation of the national organization's bylaws for about 10 years. The national organization has imposed a number of sanctions on the Minneapolis and St. Paul chapters for violating the bylaws, including denying their members eligibility for state or national office or awards programs, and refusing to count their membership in computing votes at national conventions.In December, 1978, the president of the national organization advised both chapters that a motion to revoke their charters would be considered at a forthcoming meeting of the national board of directors in Tulsa. Shortly after receiving this notification, members of both chapters filed charges of discrimination with the Minnesota Department of Human Rights. The complaints alleged that the exclusion of women from full membership required by the national organization's bylaws violated the Minnesota Human Rights Act (Act), which provides in part: Page 468 U. S. 615"It is an unfair discriminatory practice:""To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.."Minn.Stat. § 363.03, subd. 3 (1982). The term "place of public accommodation" is defined in the Act as"a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public."§ 363.01, subd. 18.After an investigation, the Commissioner of the Minnesota Department of Human Rights found probable cause to believe that the sanctions imposed on the local chapters by the national organization violated the statute, and ordered that an evidentiary hearing be held before a state hearing examiner. Before that hearing took place, however, the national organization brought suit against various state officials, appellants here, in the United States District Court for the District of Minnesota, seeking declaratory and injunctive relief to prevent enforcement of the Act. The complaint alleged that, by requiring the organization to accept women as regular members, application of the Act would violate the male members' constitutional rights of free speech and association. With the agreement of the parties, the District Court dismissed the suit without prejudice, stating that it could be renewed in the event the state administrative proceeding resulted in a ruling adverse to the Jaycees.The proceeding before the Minnesota Human Rights Department hearing examiner then went forward and, upon its completion, the examiner filed findings of fact and conclusions of law. The examiner concluded that the Jaycees organization is a "place of public accommodation" within the Act, and that it had engaged in an unfair discriminatory practice Page 468 U. S. 616 by excluding women from regular membership. He ordered the national organization to cease and desist from discriminating against any member or applicant for membership on the basis of sex and from imposing sanctions on any Minnesota affiliate for admitting women. Minnesota v. United States Jaycees, No. HR-79-014-GB (Minn. Office of Hearing Examiners for the Dept. of Human Rights, Oct. 9, 1979) (hereinafter Report), App. to Juris. Statement A107-A109. The Jaycees then filed a renewed complaint in the District Court, which, in turn, certified to the Minnesota Supreme Court the question whether the Jaycees organization is a "place of public accommodation" within the meaning of the State's Human Rights Act. See App. 32.With the record of the administrative hearing before it, the Minnesota Supreme Court answered that question in the affirmative. United States Jaycees v. McClure, 305 N.W.2d 764 (1981). Based on the Act's legislative history, the court determined that the statute is applicable to any "public business facility." Id. at 768. It then concluded that the Jaycees organization (a) is a "business" in that it sells goods and extends privileges in exchange for annual membership dues; (b) is a "public" business in that it solicits and recruits dues-paying members based on unselective criteria; and (c) is a public business "facility" in that it conducts its activities at fixed and mobile sites within the State of Minnesota. Id. at 768-774.Subsequently, the Jaycees amended its complaint in the District Court to add a claim that the Minnesota Supreme Court's interpretation of the Act rendered it unconstitutionally vague and overbroad. The federal suit then proceeded to trial, after which the District Court entered judgment in favor of the state officials. United States Jaycees v. McClure, 534 F. Supp. 766 (1982). On appeal, a divided Court of Appeals for the Eighth Circuit reversed. United States Jaycees v. McClure, 709 F.2d 1560 (1983). The Court of Appeals determined that, because "the advocacy of political Page 468 U. S. 617 and public causes, selected by the membership, is a not insubstantial part of what [the Jaycees] does," the organization's right to select its members is protected by the freedom of association guaranteed by the First Amendment. Id. at 1570. It further decided that application of the Minnesota statute to the Jaycees' membership policies would produce a "direct and substantial" interference with that freedom, id. at 1572, because it would necessarily result in "some change in the Jaycees' philosophical cast," id. at 1571, and would attach penal sanctions to those responsible for maintaining the policy, id. at 1572. The court concluded that the State's interest in eradicating discrimination is not sufficiently compelling to outweigh this interference with the Jaycees' constitutional rights, because the organization is not wholly "public," id. at 1571-1572, 1573, the state interest had been asserted selectively, id. at 1573, and the antidiscrimination policy could be served in a number of ways less intrusive of First Amendment freedoms, id. at 1573-1574.Finally, the court held, in the alternative, that the Minnesota statute is vague as construed and applied, and therefore unconstitutional under the Due Process Clause of the Fourteenth Amendment. In support of this conclusion, the court relied on a statement in the opinion of the Minnesota Supreme Court suggesting that, unlike the Jaycees, the Kiwanis Club is "private," and therefore not subject to the Act. By failing to provide any criteria that distinguish such "private" organizations from the "public accommodations" covered by the statute, the Court of Appeals reasoned, the Minnesota Supreme Court's interpretation rendered the Act unconstitutionally vague. Id. at 1576-1578.IIOur decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must Page 468 U. S. 618 be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment -- speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties. The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In particular, when the State interferes with individuals' selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms may be implicated. The Jaycees contend that this is such a case. Still, the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case. We therefore find it useful to consider separately the effect of applying the Minnesota statute to the Jaycees on what could be called its members' freedom of intimate association and their freedom of expressive association.AThe Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. E.g., Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399 (1923). Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture Page 468 U. S. 619 and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. See, e.g., Zablocki v. Redhail, 434 U. S. 374, 434 U. S. 383-386 (1978); Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 503-504 (1977) (plurality opinion); Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 232 (1972); Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 482-485 (1965); Pierce v. Society of Sisters, supra, at 268 U. S. 535. See also Gilmore v. City of Montgomery, 417 U. S. 556, 417 U. S. 575 (1974); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 460-462 (1958); Poe v. Ullman, 367 U. S. 497, 367 U. S. 542-545 (1961) (Harlan, J., dissenting). Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty. See, e.g., Quilloin v. Walcott, 434 U. S. 246, 434 U. S. 255 (1978); Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 844 (1977); Carey v. Population Services International, 431 U. S. 678, 431 U. S. 684-686 (1977); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 414 U. S. 639-640 (1974); Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651-652 (1972); Stanley v. Georgia, 394 U. S. 557, 394 U. S. 564 (1969); Olmstead v. United States, 277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting).The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family -- marriage, e.g., Zablocki v. Redhail, supra; childbirth, e.g., Carey v. Population Services International, supra; the raising and education of children, e.g., Smith v. Organization of Foster Families, supra; and cohabitation with one's relatives, e.g., Moore v. East Cleveland, supra. Family relationships, by their nature, involve Page 468 U. S. 620 deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities -- such as a large business enterprise -- seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees. Compare Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (1967), with Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 93-94 (1945).Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual's freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship's objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. See generally Runyon v. McCrary, 427 U. S. 160, 427 U. S. 187-189 (1976) (POWELL, J., concurring). We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that, in a particular case, may be pertinent. In this case, however, several features of the Jaycees clearly place the organization outside of the category of relationships worthy of this kind of constitutional protection. Page 468 U. S. 621The undisputed facts reveal that the local chapters of the Jaycees are large and basically unselective groups. At the time of the state administrative hearing, the Minneapolis chapter had approximately 430 members, while the St. Paul chapter had about 400. Report, App. to Juris.Statement A-99, A-100. Apart from age and sex, neither the national organization nor the local chapters employ any criteria for judging applicants for membership, and new members are routinely recruited and admitted with no inquiry into their backgrounds. See 1 Tr. of State Administrative Hearing 124-132, 135-136, 174-176. In fact, a local officer testified that he could recall no instance in which an applicant had been denied membership on any basis other than age or sex. Id. at 135. Cf. Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431, 410 U. S. 438 (1973) (organization whose only selection criterion is race has "no plan or purpose of exclusiveness" that might make it a private club exempt from federal civil rights statute); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 396 U. S. 236 (1969) (same); Daniel v. Paul, 395 U. S. 298, 395 U. S. 302 (1969) (same). Furthermore, despite their inability to vote, hold office, or receive certain awards, women affiliated with the Jaycees attend various meetings, participate in selected projects, and engage in many of the organization's social functions. See Tr. 58. Indeed, numerous nonmembers of both genders regularly participate in a substantial portion of activities central to the decision of many members to associate with one another, including many of the organization's various community programs, awards ceremonies, and recruitment meetings. See, e.g., 305 N.W.2d at 772; Report, App. to Juris.Statement A102, A103.In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women. We turn Page 468 U. S. 622 therefore to consider the extent to which application of the Minnesota statute to compel the Jaycees to accept women infringes the group's freedom of expressive association.BAn individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. See, e.g., Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 454 U. S. 294 (1981). According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity, and in shielding dissident expression from suppression by the majority. See, e.g., Gilmore v. City of Montgomery, 417 U.S. at 417 U. S. 575; Griswold v. Connecticut, 381 U.S. at 381 U. S. 482-485; NAACP v. Button, 371 U. S. 415, 371 U. S. 431 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. at 357 U. S. 462. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. See, e.g., NAACP v. Claiborne Hardware Co., 458 U. S. 886, 458 U. S. 907-909, 458 U. S. 932-933 (1982); Larson v. Valente, 456 U. S. 228, 456 U. S. 244-246 (1982); In re Primus, 436 U. S. 412, 436 U. S. 426 (1978); Abood v. Detroit Board of Education, 431 U. S. 209, 431 U. S. 231 (1977). In view of the various protected activities in which the Jaycees engages, see infra at 468 U. S. 626-627, that right is plainly implicated in this case.Government actions that may unconstitutionally infringe upon this freedom can take a number of forms. Among other things, government may seek to impose penalties or withhold benefits from individuals because of their membership in a disfavored group, e.g., Healy v. James, 408 U. S. 169, 408 U. S. 180-184 (1972); it may attempt to require disclosure of Page 468 U. S. 623 the fact of membership in a group seeking anonymity, e.g., Brown v. Socialist Workers '74 Campaign Committee, 459 U. S. 87, 459 U. S. 91-92 (1982); and it may try to interfere with the internal organization or affairs of the group, e.g., Cousins v. Wigoda, 419 U. S. 477, 419 U. S. 487-488 (1975). By requiring the Jaycees to admit women as full voting members, the Minnesota Act works an infringement of the last type. There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate. See Abood v. Detroit Board of Education, supra, at 431 U. S. 234-235.The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. E.g., Brown v. Socialist Workers '74 Campaign Committee, supra, at 459 U. S. 91-92; Democratic Party of United States v. Wisconsin, 450 U. S. 107, 450 U. S. 124 (1981); Buckley v. Valeo, 424 U. S. 1, 424 U. S. 25 (1976) (per curiam); Cousins v. Wigoda, supra, at 419 U. S. 489; American Party of Texas v. White, 415 U. S. 767, 415 U. S. 780-781 (1974); NAACP v. Button, supra, at 371 U. S. 438; Shelton v. Tucker, 364 U. S. 479, 364 U. S. 486, 488 (1960). We are persuaded that Minnesota's compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members' associational freedoms.On its face, the Minnesota Act does not aim at the suppression of speech, does not distinguish between prohibited and permitted activity on the basis of viewpoint, and does not license enforcement authorities to administer the statute on the basis of such constitutionally impermissible criteria. See Page 468 U. S. 624 also infra at 468 U. S. 629-631. Nor does the Jaycees contend that the Act has been applied in this case for the purpose of hampering the organization's ability to express its views. Instead, as the Minnesota Supreme Court explained, the Act reflects the State's strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services. See 305 N.W.2d at 766-768. That goal, which is unrelated to the suppression of expression, plainly serves compelling state interests of the highest order.The Minnesota Human Rights Act at issue here is an example of public accommodations laws that were adopted by some States beginning a decade before enactment of their federal counterpart, the Civil Rights Act of 1875, ch. 114, 18 Stat. 335. See Discrimination in Access to Public Places: A Survey of State and Federal Accommodations Laws, 7 N.Y.U. Rev.L. & Soc.Change 215, 238 (1978) (hereinafter NYU Survey). Indeed, when this Court invalidated that federal statute in the Civil Rights Cases, 109 U. S. 3 (1883), it emphasized the fact that state laws imposed a variety of equal access obligations on public accommodations. Id. at 109 U. S. 19, 109 U. S. 25. In response to that decision, many more States, including Minnesota, adopted statutes prohibiting racial discrimination in public accommodations. These laws provided the primary means for protecting the civil rights of historically disadvantaged groups until the Federal Government reentered the field in 1957. See NYU Survey 239; Brief for State of New York et al. as Amici Curiae 1. Like many other States, Minnesota has progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden. See 305 N.W.2d at 766-768. In 1973, the Minnesota Legislature added discrimination on the basis of sex to the types of conduct prohibited by the statute. Act of May 24, 1973, ch. 729, § 3, 1973 Minn. Laws 2164. Page 468 U. S. 625By prohibiting gender discrimination in places of public accommodation, the Minnesota Act protects the State's citizenry from a number of serious social and personal harms. In the context of reviewing state actions under the Equal Protection Clause, this Court has frequently noted that discrimination based on archaic and overbroad assumptions about the relative needs and capacities of the sexes forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities. It thereby both deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic, and cultural life. See, e.g., Heckler v. Mathews, 465 U. S. 728, 465 U. S. 744-745 (1984); Mississippi University for Women v. Hogan, 458 U. S. 718, 458 U. S. 723-726 (1982); Frontiero v. Richardson, 411 U. S. 677, 411 U. S. 684-687 (1973) (plurality opinion). These concerns are strongly implicated with respect to gender discrimination in the allocation of publicly available goods and services. Thus, in upholding Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a, which forbids race discrimination in public accommodations, we emphasized that its"fundamental object . . . was to vindicate 'the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.'"Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 379 U. S. 250 (1964). That stigmatizing injury, and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.Nor is the state interest in assuring equal access limited to the provision of purely tangible goods and services. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 458 U. S. 609 (1982). A State enjoys broad authority to create rights of public access on behalf of its citizens. PruneYard Shopping Center v. Robins, 447 U. S. 74, 447 U. S. 81-88 (1980). Like many States and municipalities, Minnesota has adopted a functional definition of public accommodations that reaches various forms of public, quasi-commercial conduct. Page 468 U. S. 626 See 305 N.W.2d at 768; Brief for National League of Cities et al. as Amici Curiae 15-16. This expansive definition reflects a recognition of the changing nature of the American economy and of the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women. See Califano v. Webster, 430 U. S. 313, 430 U. S. 317 (1977) (per curiam); Frontiero v. Richardson, supra, at 411 U. S. 684-686. Thus, in explaining its conclusion that the Jaycees local chapters are "place[s] of public accommodations" within the meaning of the Act, the Minnesota court noted the various commercial programs and benefits offered to members, and stated that "[l]eadership skills are goods,' [and] business contacts and employment promotions are `privileges' and `advantages'. . . ." 305 N.W.2d at 772. Assuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests.In applying the Act to the Jaycees, the State has advanced those interests through the least restrictive means of achieving its ends. Indeed, the Jaycees has failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association. See Hishon v. King & Spalding, 467 U. S. 69, 467 U. S. 78 (1984) (law firm "has not shown how its ability to fulfill [protected] function[s] would be inhibited by a requirement that it consider [a woman lawyer] for partnership on her merits"); id. at 467 U. S. 81 (POWELL, J., concurring); see also Buckley v. Valeo, 424 U.S. at 424 U. S. 71-74; American Party of Texas v. White, 415 U.S. at 415 U. S. 790. To be sure, as the Court of Appeals noted, a "not insubstantial part" of the Jaycees' activities constitutes protected expression on political, economic, cultural, and social affairs. 709 F.2d at 1570. Over the years, the national and local levels of the organization have taken public positions on a number of diverse issues, see id. at 1569-1570; Brief for Appellee 4-5, and members of the Jaycees regularly engage in a variety of Page 468 U. S. 627 civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment, ibid., see, e.g., Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 632 (1980). There is, however, no basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views. The Act requires no change in the Jaycees' creed of promoting the interests of young men, and it imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members. Cf. Democratic Party of United States v. Wisconsin, 450 U.S. at 450 U. S. 122 (recognizing the right of political parties to "protect themselves from intrusion by those with adverse political principles'"). Moreover, the Jaycees already invites women to share the group's views and philosophy and to participate in much of its training and community activities. Accordingly, any claim that admission of women as full voting members will impair a symbolic message conveyed by the very fact that women are not permitted to vote is attenuated, at best. Cf. Spence v. Washington, 418 U. S. 405 (1974); Griswold v. Connecticut, 381 U.S. at 381 U. S. 483.While acknowledging that "the specific content of most of the resolutions adopted over the years by the Jaycees has nothing to do with sex," 709 F.2d at 1571, the Court of Appeals nonetheless entertained the hypothesis that women members might have a different view or agenda with respect to these matters so that, if they are allowed to vote, "some change in the Jaycees' philosophical cast can reasonably be expected," ibid. It is similarly arguable that, insofar as the Jaycees is organized to promote the views of young men whatever those views happen to be, admission of women as voting members will change the message communicated by the group's speech because of the gender-based assumptions of the audience. Neither supposition, however, is supported by the record. In claiming that women might have a different Page 468 U. S. 628 attitude about such issues as the federal budget, school prayer, voting rights, and foreign relations, see id. at 1570, or that the organization's public positions would have a different effect if the group were not "a purely young men's association," the Jaycees relies solely on unsupported generalizations about the relative interests and perspectives of men and women. See Brief for Appellee 20-22, and n. 3. Although such generalizations may or may not have a statistical basis in fact with respect to particular positions adopted by the Jaycees, we have repeatedly condemned legal decisionmaking that relies uncritically on such assumptions. See, e.g., Palmore v. Sidoti, 466 U. S. 429, 466 U. S. 433-434 (1984); Heckler v. Mathews, 465 U.S. at 465 U. S. 745. In the absence of a showing far more substantial than that attempted by the Jaycees, we decline to indulge in the sexual stereotyping that underlies appellee's contention that, by allowing women to vote, application of the Minnesota Act will change the content or impact of the organization's speech. Compare Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142, 446 U. S. 151-152 (1980), with Schlesinger v. Ballard, 419 U. S. 498, 419 U. S. 508 (1975).In any event, even if enforcement of the Act causes some incidental abridgment of the Jaycees' protected speech, that effect is no greater than is necessary to accomplish the State's legitimate purposes. As we have explained, acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent -- wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection. Runyon v. McCrary, 427 U.S. at 427 U. S. 175-176. Compare NAACP v. Claiborne Hardware Co., 458 U.S. at 458 U. S. 907-909 (peaceful picketing), with id. at 458 U. S. 916 (violence). In prohibiting such practices, the Minnesota Act Page 468 U. S. 629 therefore "responds precisely to the substantive problem which legitimately concerns" the State, and abridges no more speech or associational freedom than is necessary to accomplish that purpose. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 466 U. S. 810 (1984).IIIWe turn finally to appellee's contentions that the Minnesota Act, as interpreted by the State's highest court, is unconstitutionally vague and overbroad. The void-for-vagueness doctrine reflects the principle that"a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391 (1926). The requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the requirements of law, and permits meaningful judicial review. See, e.g., Kolender v. Lawson, 461 U. S. 352, 461 U. S. 357-358 (1983); Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 108-109 (1972); Giaccio v. Pennsylvania, 382 U. S. 399, 382 U. S. 402-404 (1966).We have little trouble concluding that these concerns are not seriously implicated by the Minnesota Act, either on its face or as construed in this case. In deciding that the Act reaches the Jaycees, the Minnesota Supreme Court used a number of specific and objective criteria -- regarding the organization's size, selectivity, commercial nature, and use of public facilities -- typically employed in determining the applicability of state and federal antidiscrimination statutes to the membership policies of assertedly private clubs. See, e.g., Nesmith v. Young Men's Christian Assn., 397 F.2d 96 Page 468 U. S. 630 (CA4 1968); National Organization for Women v. Little League Baseball, Inc., 127 N.J.Super. 522, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974). See generally NYU Survey 223-224, 250-252. The Court of Appeals seemingly acknowledged that the Minnesota court's construction of the Act by use of these familiar standards ensures that the reach of the statute is readily ascertainable. It nevertheless concluded that the Minnesota court introduced a constitutionally fatal element of uncertainty into the statute by suggesting that the Kiwanis Club might be sufficiently "private" to be outside the scope of the Act. See 709 F.2d at 1577. Like the dissenting judge in the Court of Appeals, however, we read the illustrative reference to the Kiwanis Club, which the record indicates has a formal procedure for choosing members on the basis of specific and selective criteria, as simply providing a further refinement of the standards used to determine whether an organization is "public" or "private." See id. at 1582 (Lay, C.J., dissenting). By offering this counter-example, the Minnesota Supreme Court's opinion provided the statute with more, rather than less, definite content.The contrast between the Jaycees and the Kiwanis Club drawn by the Minnesota court also disposes of appellee's contention that the Act is unconstitutionally overbroad. The Jaycees argues that the statute is "susceptible of sweeping and improper application," NAACP v. Button, 371 U.S. at 371 U. S. 433, because it could be used to restrict the membership decisions of wholly private groups organized for a wide variety of political, religious, cultural, or social purposes. Without considering the extent to which such groups may be entitled to constitutional protection from the operation of the Minnesota Act, we need only note that the Minnesota Supreme Court expressly rejected the contention that the Jaycees should "be viewed analogously to private organizations such as the Kiwanis International Organization." 305 N.W.2d at 771. The state court's articulated willingness to adopt Page 468 U. S. 631 limiting constructions that would exclude private groups from the statute's reach, together with the commonly used and sufficiently precise standards it employed to determine that the Jaycees is not such a group, establish that the Act, as currently construed, does not create an unacceptable risk of application to a substantial amount of protected conduct. Cf. Erznoznik v. City of Jacksonville, 422 U. S. 205, 422 U. S. 216-217 (1975); NAACP v. Button, supra, at 371 U. S. 434. See New York v. Ferber, 458 U. S. 747, 458 U. S. 769, n. 24 (1982).IVThe judgment of the Court of Appeals isReversed

U.S. Supreme CourtRoberts v. United States Jaycees, 468 U.S. 609 (1984)Roberts v. United States JayceesNo. 83-724Argued April 18, 1984Decided July 3, 1984468 U.S. 609SyllabusAppellee United States Jaycees is a nonprofit national membership corporation whose objective, as stated in its bylaws, is to pursue such educational and charitable purposes as will promote and foster the growth and development of young men's civic organizations. The bylaws establish several classes of membership, including individual regular and associate members and local chapters. Regular membership is limited to young men between the ages of 18 and 35, while associate membership is available to persons ineligible for regular membership, principally women and older men. An associate member may not vote or hold local or national office. Two local chapters in Minnesota have been violating the bylaws for several years by admitting women as regular members, and, as a result, have had a number of sanctions imposed on them by appellee, including denying their members eligibility for state or national office. When these chapters were notified by appellee that revocation of their charters was to be considered, members of both chapters filed discrimination charges with the Minnesota Department of Human Rights, alleging that the exclusion of women from full membership violated the Minnesota Human Rights Act (Act), which makes it"an unfair discriminatory practice . . . [t]o deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex."Before a hearing took place on the state charges, appellee brought suit against appellant state officials to prevent enforcement of the Act, alleging that, by requiring appellee to accept women as regular members, application of the Act would violate the male members' constitutional rights of free speech and association. Ultimately, a state hearing officer decided against appellee, and the District Court certified to the Minnesota Supreme Court the question whether appellee is "a place of public accommodation" within the meaning of the Act. That court answered the question in the affirmative, and, in the course of its holding, suggested that, unlike appellee, the Kiwanis Club might be sufficiently "private" to be outside the Act's scope. Appellee then amended its federal complaint to claim that the Page 468 U. S. 610 Minnesota Supreme Court's interpretation of the Act rendered it unconstitutionally vague and overbroad. After trial, the District Court entered judgment in appellants' favor. The Court of Appeals reversed, holding that application of the Act to appellee's membership policies would produce a "direct and substantial" interference with appellee's freedom of association guaranteed by the First Amendment. and, in the alternative, that the Act was vague as construed and applied, and hence unconstitutional under the Due Process Clause of the Fourteenth Amendment.Held:1. Application of the Act to appellee to compel it to accept women as regular members does not abridge either the male members' freedom of intimate association or their freedom of expressive association. Pp. 468 U. S. 617-629.(a) Several features of appellee's organization place it outside the category of highly personal relationships entitled to constitutional protection against unjustified interference by the State. Local chapters are neither small nor selective, no criteria being employed for judging applicants for membership. Moreover, many of the activities central to the formation and maintenance of the association of members with one another involve the participation of strangers to that relationship, numerous nonmembers of both genders regularly participating in a substantial portion of the activities. Accordingly, local chapters lack the distinctive characteristics that might afford constitutional protection to their members' decision to exclude women. Pp. 468 U. S. 618-622.(b) Minnesota's compelling interest in eradicating discrimination against its female citizens, an interest unrelated to the suppression of expression, justifies the impact that application of the Act to appellee may have on its male members' freedom of expressive association. By prohibiting gender discrimination in places of public accommodation, the Act protects the State's citizenry from a number of serious social and personal harms. Assuring women equal access to the goods, privileges, and advantages of a place of public accommodation clearly furthers compelling state interests. In applying the Act to appellee, the State has advanced those interests through the least restrictive means of achieving its ends. There is no basis in the record for concluding that admission of women as full voting members will impede appellee's ability to engage in its constitutionally protected civic, charitable, lobbying, fundraising, and other activities, or to disseminate its preferred views. In any event, even if enforcement of the Act causes some incidental abridgment of appellee's protected speech, that effect is not greater than necessary to accomplish the State's legitimate purposes. Pp. 468 U. S. 622-629. Page 468 U. S. 6112. The Act is not unconstitutionally vague and overbroad. The due process concerns of the void-for-vagueness doctrine are not seriously implicated by the Act, either on its face or as construed in this case. The Minnesota Supreme Court's construction of the Act by use of objective criteria typically employed in determining the applicability of antidiscrimination statutes to the membership policies of assertedly private clubs ensures that the Act's reach is readily ascertainable. The contrast that court drew between appellee and the Kiwanis Club also disposes of appellee's contention that the Act is unconstitutionally overbroad. That court's articulated willingness to adopt limiting constructions that would exclude private groups from the Act's reach, together with the commonly used and sufficiently precise standards it employed to determine that appellee is not such a group, establishes that the Act, as construed, does not create an unacceptable risk of application to a substantial amount of protected conduct. Pp. 629-631.709 F.2d 1560, reversed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined, and in Parts I and III of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468 U. S. 631. REHNQUIST, J., concurred in the judgment. BURGER, C.J., and BLACKMUN, J., took no part in the decision of the case. Page 468 U. S. 612

1975_74-687

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.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.(1)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.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 Page 423 U. S. 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.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:"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."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."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 Page 423 U. S. 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.(2)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. Page 423 U. S. 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, 269 U. S. 499-500 (1926); United States v. State Bank of North Carolina, 6 Pet. 29, 31 U. S. 35 (1832).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.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).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 Page 423 U. S. 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 34 U. S. 35. For nearly two centuries, this Court has applied the statute with this policy in mind. In State Bank itself, 6 Pet. at 34 U. S. 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:"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."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 Page 423 U. S. 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 314 U. S. 433.(3)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.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.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 Page 423 U. S. 84 law pleading should be read into the statute. [Footnote 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 314 U. S. 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.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. [Footnote 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. [Footnote 3] The current Bankruptcy Page 423 U. S. 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). [Footnote 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 269 U. S. 500, and to give "debts" a meaning more restrictive than the bankruptcy statutes have given it over 175 years would do just that.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, 333 U. S. 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. [Footnote 5] Page 423 U. S. 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 31 U. S. 390, are particularly appropriate:"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."For these reasons, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Moore, 423 U.S. 77 (1975)United States v. MooreNo. 74-687Argued October 15, 1975Decided December 2, 1975423 U.S. 77SyllabusObligations 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. 423 U. S. 80-86.(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. 423 U. S. 83.(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. 423 U. S. 83-85.(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. 423 U. S. 85-86.497 F.2d 976, reversed and remanded.BURGER, C.J., delivered the opinion for a unanimous Court. Page 423 U. S. 78

1982_81-1617

JUSTICE O'CONNOR delivered the opinion of the Court.This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily Page 462 U. S. 698 detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage.IRespondent Raymond J. Place's behavior aroused the suspicions of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York's La Guardia Airport. As Place proceeded to the gate for his flight, the agents approached him and requested his airline ticket and some identification. Place complied with the request and consented to a search of the two suitcases he had checked. Because his flight was about to depart, however, the agents decided not to search the luggage.Prompted by Place's parting remark that he had recognized that they were police, the agents inspected the address tags on the checked luggage and noted discrepancies in the two street addresses. Further investigation revealed that neither address existed, and that the telephone number Place had given the airline belonged to a third address on the same street. On the basis of their encounter with Place and this information, the Miami agents called Drug Enforcement Administration (DEA) authorities in New York to relay their information about Place.Two DEA agents waited for Place at the arrival gate at La Guardia Airport in New York. There again, his behavior aroused the suspicion of the agents. After he had claimed his two bags and called a limousine, the agents decided to approach him. They identified themselves as federal narcotics agents, to which Place responded that he knew they were "cops" and had spotted them as soon as he had deplaned. Page 462 U. S. 699 One of the agents informed Place that, based on their own observations and information obtained from the Miami authorities, they believed that he might be carrying narcotics. After identifying the bags as belonging to him, Place stated that a number of police at the Miami Airport had surrounded him and searched his baggage. The agents responded that their information was to the contrary. The agents requested and received identification from Place -- a New Jersey driver's license, on which the agents later ran a computer check that disclosed no offenses, and his airline ticket receipt. When Place refused to consent to a search of his luggage, one of the agents told him that they were going to take the luggage to a federal judge to try to obtain a search warrant, and that Place was free to accompany them. Place declined, but obtained from one of the agents telephone numbers at which the agents could be reached.The agents then took the bags to Kennedy Airport, where they subjected the bags to a "sniff test" by a trained narcotics detection dog. The dog reacted positively to the smaller of the two bags but ambiguously to the larger bag. Approximately 90 minutes had elapsed since the seizure of respondent's luggage. Because it was late on a Friday afternoon, the agents retained the luggage until Monday morning, when they secured a search warrant from a Magistrate for the smaller bag. Upon opening that bag, the agents discovered 1,125 grams of cocaine.Place was indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In the District Court, Place moved to suppress the contents of the luggage seized from him at La Guardia Airport, claiming that the warrantless seizure of the luggage violated his Fourth Amendment rights. [Footnote 1] The District Court denied the motion. Page 462 U. S. 700 Applying the standard of Terry v. Ohio, 392 U. S. 1 (1968), to the detention of personal property, it concluded that detention of the bags could be justified if based on reasonable suspicion to believe that the bags contained narcotics. Finding reasonable suspicion, the District Court held that Place's Fourth Amendment rights were not violated by seizure of the bags by the DEA agents. 498 F. Supp. 1217, 1228 (EDNY 1980). Place pleaded guilty to the possession charge, reserving the right to appeal the denial of his motion to suppress.On appeal of the conviction, the United States Court of Appeals for the Second Circuit reversed. 660 F.2d 44 (1981). The majority assumed both that Terry principles could be applied to justify a warrantless seizure of baggage on less than probable cause, and that reasonable suspicion existed to justify the investigatory stop of Place. The majority concluded, however, that the prolonged seizure of Place's baggage exceeded the permissible limits of a Terry-type investigative stop, and consequently amounted to a seizure without probable cause in violation of the Fourth Amendment.We granted certiorari, 457 U.S. 1104 (1982), and now affirm.IIThe Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) Although, in the context of personal property, and particularly containers, the Fourth Amendment challenge is Page 462 U. S. 701 typically to the subsequent search of the container, rather than to its initial seizure by the authorities, our cases reveal some general principles regarding seizures. In the ordinary case, the Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. [Footnote 2] See, e.g., Marron v. United States, 275 U. S. 192, 275 U. S. 196 (1927). Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present. See, e.g., Arkansas v. Sanders, 442 U. S. 753, 442 U. S. 761 (1979); United States v. Chadwick, 433 U. S. 1 (1977); Coolidge v. New Hampshire, 403 U. S. 443 (1971). [Footnote 3] For example, "objects such as weapons or contraband found in a public place may be seized by the police without a warrant," Payton v. New York, 445 U. S. 573, 445 U. S. 587 (1980), because, under these circumstances, the risk of the item's disappearance or use for its intended purpose before a Page 462 U. S. 702 warrant may be obtained outweighs the interest in possession. See also G. M. Leasing Corp. v. United States, 429 U. S. 338, 429 U. S. 354 (1977).In this case, the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion. Specifically, we are asked to apply the principles of Terry v. Ohio, supra, to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate.In Terry, the Court first recognized"the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause."Michigan v. Summers, 452 U. S. 692, 452 U. S. 698 (1981). In approving the limited search for weapons, or "frisk," of an individual the police reasonably believed to be armed and dangerous, the Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. 392 U.S. at 392 U. S. 22. [Footnote 4] That implicit proposition was embraced openly in Adams v. Williams, 407 U. S. 143, 407 U. S. 146 (1972), where the Court relied on Terry to hold that the police officer lawfully made a forcible stop of the suspect to investigate an informant's tip that the suspect was carrying Page 462 U. S. 703 narcotics and a concealed weapon. See also Michigan v. Summers, supra, (limited detention of occupants while authorities search premises pursuant to valid search warrant); United States v. Cortez, 449 U. S. 411 (1981) (stop near border of vehicle suspected of transporting illegal aliens); United States v. Brignoni-Ponce, 422 U. S. 873 (1975) (brief investigative stop near border for questioning about citizenship and immigration status).The exception to the probable cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of "the Fourth Amendment's general proscription against unreasonable searches and seizures." 392 U.S. at 392 U. S. 20. We must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.We examine first the governmental interest offered as a justification for a brief seizure of luggage from the suspect's custody for the purpose of pursuing a limited course of investigation. The Government contends that, where the authorities possess specific and articulable facts warranting a reasonable belief that a traveler's luggage contains narcotics, the governmental interest in seizing the luggage briefly to pursue further investigation is substantial. We agree. As observed in United States v. Mendenhall, 446 U. S. 544, 446 U. S. 561 (1980) (opinion of POWELL, J.), "[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit."Respondent suggests that, absent some special law enforcement interest such as officer safety, a generalized interest in law enforcement cannot justify an intrusion on an individual's Fourth Amendment interests in the absence of Page 462 U. S. 704 probable cause. Our prior cases, however, do not support this proposition. In Terry, we described the governmental interests supporting the initial seizure of the person as"effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."392 U.S. at 392 U. S. 22. Similarly, in Michigan v. Summers, we identified three law enforcement interests that justified limited detention of the occupants of the premises during execution of a valid search warrant: "preventing flight in the event that incriminating evidence is found," "minimizing the risk of harm" both to the officers and the occupants, and "orderly completion of the search." 452 U.S. at 452 U. S. 702-703. Cf. Florida v. Royer, 460 U. S. 491, 460 U. S. 500 (1983) (plurality opinion) ("The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect"). The test is whether those interests are sufficiently "substantial," 452 U.S. at 452 U. S. 699, not whether they are independent of the interest in investigating crimes effectively and apprehending suspects. The context of a particular law enforcement practice, of course, may affect the determination whether a brief intrusion on Fourth Amendment interests on less than probable cause is essential to effective criminal investigation. Because of the inherently transient nature of drug courier activity at airports, allowing police to make brief investigative stops of persons at airports on reasonable suspicion of drug-trafficking substantially enhances the likelihood that police will be able to prevent the flow of narcotics into distribution channels. [Footnote 5] Page 462 U. S. 705Against this strong governmental interest, we must weigh the nature and extent of the intrusion upon the individual's Fourth Amendment rights when the police briefly detain luggage for limited investigative purposes. On this point, respondent Place urges that the rationale for a Terry stop of the person is wholly inapplicable to investigative detentions of personalty. Specifically, the Terry exception to the probable cause requirement is premised on the notion that a Terry-type stop of the person is substantially less intrusive of a person's liberty interests than a formal arrest. In the property context, however, Place urges, there are no degrees of intrusion. Once the owner's property is seized, the dispossession is absolute.We disagree. The intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent. The seizure may be made after the owner has relinquished control of the property to a third party or, as here, from the immediate custody and control of the owner. [Footnote 6] Moreover, the police may confine their investigation Page 462 U. S. 706 to an on-the-spot inquiry -- for example, immediate exposure of the luggage to a trained narcotics detection dog [Footnote 7] -- or transport the property to another location. Given the fact that seizures of property can vary in intrusiveness, some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime.In sum, we conclude that, when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.The purpose for which respondent's luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent's luggage for the purpose of subjecting it to the sniff test -- no matter how brief -- could not be justified on less than probable cause. See Terry v. Ohio, 392 U.S. at 392 U. S. 20; United States v. Cortez, 449 U.S. at 449 U. S. 421; United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 881-882; Adams v. Williams, 407 U.S. at 407 U. S. 146.The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations Page 462 U. S. 707 of privacy." United States v. Chadwick, 433 U.S. at 433 U. S. 7. We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. Id. at 433 U. S. 13. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here -- exposure of respondent's luggage, which was located in a public place, to a trained canine -- did not constitute a "search" within the meaning of the Fourth Amendment.IIIThere is no doubt that the agents made a "seizure" of Place's luggage for purposes of the Fourth Amendment when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant. As we observed in Terry,"[t]he manner in which the seizure . . . [was] conducted Page 462 U. S. 708 is, of course, as vital a part of the inquiry as whether [it was] warranted at all."392 U.S. at 392 U. S. 28. We therefore examine whether the agents' conduct in this case was such as to place the seizure within the general rule requiring probable cause for a seizure or within Terry's exception to that rule.At the outset, we must reject the Government's suggestion that the point at which probable cause for seizure of luggage from the person's presence becomes necessary is more distant than in the case of a Terry stop of the person himself. The premise of the Government's argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts we address in this case. The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person, since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return. [Footnote 8] Therefore, when the police seize luggage from the Page 462 U. S. 709 suspect's custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause. Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry-type investigative stop.The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. Although we have recognized the reasonableness of seizures longer than the momentary ones involved in Terry, Adams, and Brignoni-Ponce, see Michigan v. Summers, 452 U. S. 692 (1981), the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation. We note that here the New York agents knew the time of Place's scheduled arrival at La Guardia, had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on respondent's Fourth Amendment interests. [Footnote 9] Thus, although we decline to adopt any outside time limitation for a permissible Terry stop, [Footnote 10] we have never Page 462 U. S. 710 approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case. See Dunaway v. New York, 442 U. S. 200 (1979)Although the 90-minute detention of respondent's luggage is sufficient to render the seizure unreasonable, the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. In short, we hold that the detention of respondent's luggage in this case went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.IVWe conclude that, under all of the circumstances of this case, the seizure of respondent's luggage was unreasonable under the Fourth Amendment. Consequently, the evidence obtained from the subsequent search of his luggage was inadmissible, and Place's conviction must be reversed. The judgment of the Court of Appeals, accordingly, is affirmed.It is so ordered

U.S. Supreme CourtUnited States v. Place, 462 U.S. 696 (1983)United States v. PlaceNo. 81-1617Argued March 2, 1983Decided June 20, 1983462 U.S. 696SyllabusWhen respondent's behavior aroused the suspicion of law enforcement officers as he waited in line at the Miami International Airport to purchase a ticket to New York's La Guardia Airport, the officers approached respondent and requested and received identification. Respondent consented to a search of the two suitcases he had checked, but, because his flight was about to depart, the officers decided not to search the luggage. The officers then found some discrepancies in the address tags on the luggage and called Drug Enforcement Administration (DEA) authorities in New York to relay this information. Upon respondent's arrival at La Guardia Airport, two DEA agents approached him, said that they believed he might be carrying narcotics, and asked for and received identification. When respondent refused to consent to a search of his luggage, one of the agents told him that they were going to take it to a federal judge to obtain a search warrant. The agents then took the luggage to Kennedy Airport where it was subjected to a "sniff test" by a trained narcotics detection dog which reacted positively to one of the suitcases. At this point, 90 minutes had elapsed since the seizure of the luggage. Thereafter, the agents obtained a search warrant for that suitcase and, upon opening it, discovered cocaine. Respondent was indicted for possession of cocaine with intent to distribute, and the District Court denied his motion to suppress the contents of the suitcase. He pleaded guilty to the charge and was convicted, but reserved the right to appeal the denial of his motion to suppress. The Court of Appeals reversed, holding that the prolonged seizure of respondent's luggage exceeded the limits of the type of investigative stop permitted by Terry v. Ohio, 392 U. S. 1, and hence amounted to a seizure without probable cause in violation of the Fourth Amendment.Held: Under the circumstances, the seizure of respondent's luggage violated the Fourth Amendment. Accordingly, the evidence obtained from the subsequent search of the luggage was inadmissible, and respondent's conviction must be reversed. Pp. 462 U. S. 700-710.(a) When an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny permit the officer to detain the luggage temporarily to investigate the circumstances that aroused the officer's suspicion, Page 462 U. S. 697 provided that the investigative detention is properly limited in scope. Pp. 462 U. S. 700-706.(b) The investigative procedure of subjecting luggage to a "sniff test" by a well-trained narcotics detection dog does not constitute a "search" within the meaning of the Fourth Amendment. Pp. 462 U. S. 706-707.(c) When the police seize luggage from the suspect's custody, the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the luggage on less than probable cause. Under this standard, the police conduct here exceeded the permissible limits of a Terry-type investigative stop. The length of the detention of respondent's luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause. This Fourth Amendment violation was exacerbated by the DEA agents' failure to inform respondent accurately of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion. Pp. 462 U. S. 707-710.660 F.2d 44, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in the result, in which MARSHALL, J., joined, post, p. 462 U. S. 710. BLACKMUN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 462 U. S. 720.

1964_482

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.At issue in this case are the extent of the Federal Communications Commission's authority to promulgate procedural standards for determining whether testimony Page 381 U. S. 281 taken and documents produced during an investigatory proceeding should be accorded confidential treatment, and the scope of judicial review of determinations made pursuant to such standards.This case had its origin in a subpoena and various orders issued during the course of an investigatory proceeding conducted by the Federal Communications Commission pursuant to § 403 of the Communications Act of 1934, as amended, 48 Stat. 1094, 47 U.S.C. § 403 (1958 ed.). [Footnote 1] The proceeding, financed by specific congressional appropriation, [Footnote 2] was initiated on February 26, 1959, and had as its objective the gathering of"comprehensive information concerning the respective roles played by the networks, advertisers, agencies, talent, film producers and distributors, and other major elements in the television industry. [Footnote 3] "Page 381 U. S. 282As an initial step in the investigation, the Commission ordered that an"inquiry be made to determine the policies and practices pursued by the networks and others in the acquisition, ownership, production, distribution, selection, sale and licensing of programs for television exhibition, and the reasons and necessity in the public interest for said policies and practices. . . . [Footnote 4]"The Commission authorized its chief hearing examiner to conduct the investigation. He was empowered, inter alia, to subpoena witnesses, compel their attendance, Page 381 U. S. 283 and require the production of any records or documents deemed relevant to the inquiry. [Footnote 5] The Commission ordered that"said investigatory proceeding shall be a public proceeding except that the said presiding officer may order non-public sessions of the said investigatory proceeding where and to the extent that the public interest, the proper dispatch of the business of said proceeding, or the ends of justice will be served thereby. [Footnote 6]"In October, 1960, public sessions were held in Los Angeles, California, at which time evidence was received concerning the functions, policies and practices of television companies, talent agencies and representatives, program "packagers," [Footnote 7] sales representatives, and others. On October 17, 1960, the Presiding Officer issued a subpoena duces tecum to respondent Schreiber, a Vice President of respondent Music Corporation of America, Inc. (MCA) -- one of the largest packagers and producers of network television programs, [Footnote 8] directing him to appear at Page 381 U. S. 284 the hearing and to produce certain documents described in the annexes to the subpoena. Respondent Schreiber appeared and produced the material specified in Annex A. [Footnote 9] He refused, however, to submit without qualification the material called for in Annex B, [Footnote 10] which included a list of the programs packaged by MCA. Respondent Schreiber stated that he would produce the subpoenaed materials only"if the Commission will take this information and assure us that it will be held in confidence, will not be published, and will not be made available to other people, other than those on the Commission, and that serve the Commission."As grounds for confidential treatment, he asserted that the information sought might disclose trade secrets and confidential data, and that the information was outside the scope of the hearing. He Page 381 U. S. 285 also objected generally to the procedures governing the hearing on the ground that they would require"public disclosure of trade secrets and confidential data of my company which might be of aid to its many competitors in this highly competitive television industry."The Presiding Officer found "no doubt" as to the relevance of the material and rejected, as "without merit," the claim that the information should be received in confidence.Respondents then petitioned the Commission for review. On January 25, 1961, the Commission affirmed the Presiding Officer and ordered respondents to appear, testify and produce the material subpoenaed at a reconvened hearing. In its opinion, the Commission stressed the importance of publicizing the information gathered during the course of the investigation [Footnote 11] and reaffirmed its resolve to permit in camera sessions only in extraordinary situations:"[W]e determined that public proceedings should be the rule herein, and that non-public procedures should be used only in those extraordinary instances where disclosure would irreparably damage private, competitive interests and where such interests could be found by the Presiding Officer to outweigh the paramount interest of the public and the Commission in full public disclosure."The Commission noted that the Presiding Officer and Commission counsel had made"every effort to avoid public disclosure of detailed internal financial information or detailed contractual arrangements which might in fact irreparably harm private interests without sufficient compensating benefit to the public,"and found that they had not departed from this standard in rejecting respondents' claim of likely competitive harm which, the Commission held, was, "totally unsupported by their pleadings and Page 381 U. S. 286 contrary to the record." Accordingly, the Commission ordered respondents "to testify . . . regarding all matters deemed relevant by said Presiding Officer," and to produce the information required by the subpoena and "such other information and data as may be deemed relevant and ordered or directed to be produced by the said Presiding Officer." On remand, a broader claim for confidentiality was made by respondents. They requested that all testimony and documentary evidence to be elicited from them be received in nonpublic sessions, and disclosed only if a court, in subsequent litigation, should authorize its public disclosure. The contention was rejected by the Presiding Officer, but respondent Schreiber persisted in his refusal to comply with subpoena and the Commission's orders. [Footnote 12]The Commission thereupon petitioned the United States District Court for the Southern District of California for the enforcement of its subpoena and orders. The District Court found that the investigation was statutorily authorized, that the information requested in Annex B was relevant to the inquiry, and that respondents had disobeyed valid orders and a valid subpoena. [Footnote 13] Accordingly, the District Court ordered respondents to appear at a reconvened hearing and to comply with the Commission's subpoena and orders. However, the court, in order to protect "respondents' rights and to preclude disclosure of trade secrets of which competitors might Page 381 U. S. 287 take advantage," ordered that all testimony given and documents produced by respondents be received and held in confidence. [Footnote 14] The court's order further provided that, after the investigation of respondents had been completed, the Commission could move the court for an order, "should good cause exist therefor," permitting such testimony and documents to be made public. 201 F. Supp. 421.On appeal, a divided Court of Appeals for the Ninth Circuit affirmed that portion of the District Court's order which pertains to the questions now before this Court. [Footnote 15] Page 381 U. S. 288 The Court of Appeals held that the District Court had not abused its discretion in conditioning its order to require confidential treatment of the information sought. 329 F.2d 517. In dissent, Judge Browning stated that the Commission's procedural rule, requiring public hearings unless in camera proceedings could be justified by those from whom the information was sought, was well within the Commission's power. It was Judge Browning's view that the District Court could require confidential treatment only if the Commission's application of its procedural rule and consequent refusal to accord confidential treatment were found to be arbitrary or an abuse of the Commission's discretion. Id. at 528-534. Because this case presents important questions concerning the respective roles to be performed by federal courts and the Federal Communications Commission in the administration of the Communications Act of 1934, we granted certiorari. 379 U.S. 927.We hold that the Commission's rule -- requiring public disclosure except where the proponents of a request for confidential treatment have demonstrated that the public interest, proper dispatch of business, or the ends of justice would be served by nonpublic sessions -- was well within the Commission's statutory authority. We further find that the Commission did not abuse its discretion in applying this rule. Accordingly, we modify the decision below insofar as it affirms the District Court's imposition of conditions upon the enforcement of the subpoena and orders issued by the Commission. Page 381 U. S. 289ISection 4(j) of the Communications Act of 1934, as amended, 48 Stat. 1068, 47 U.S.C. § 154(j) (1958 ed.), empowers the Federal Communications Commission to "conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice." This Court has interpreted that provision as "explicitly and by implication" delegating to the Commission power to resolve"subordinate questions of procedure . . . [such as] the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another's proceedings, and similar questions."Federal Communications Comm'n v. Pottsville Broadcasting Co., 309 U. S. 134, 309 U. S. 138. The statute does not merely confer power to promulgate rules generally applicable to all Commission proceedings, cf. Federal Communications Comm'n v. WJR, 337 U. S. 265, 337 U. S. 282; it also delegates broad discretion to prescribe rules for specific investigations, cf. Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 288 U. S. 321-322, and to make ad hoc procedural rulings in specific instances, Federal Communications Comm'n v. Pottsville Broadcasting Co., supra. Congress has"left largely to its judgment the determination of the manner of conducting its business which would most fairly and reasonably accommodate"the proper dispatch of its business and the ends of justice. Federal Communications Comm'n v. WJR, supra. [Footnote 16] Page 381 U. S. 290In the Pottsville Broadcasting case, this Court stressed, in upholding this delegation of broad procedural authority, the established principle that administrative agencies"should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties."309 U.S. at 309 U. S. 143. This principle, which has been upheld in a variety of applications, [Footnote 17] is an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved. Thus, underlying the broad delegation in § 4(j) of procedural rulemaking power to the Federal Communications Commission is a"recognition of the rapidly fluctuating factors characteristic of the evolution of broadcasting and of the corresponding requirement that the administrative process possess sufficient flexibility to adjust itself to these factors."Federal Communications Comm'n v. Pottsville Broadcasting Co., supra, at 309 U. S. 138.To permit federal district courts to establish administrative procedures de novo would, of course, render nugatory Congress' effort to insure that administrative procedures be designed by those most familiar with the regulatory problems involved. Thus, in providing for judicial review of administrative procedural rulemaking, Congress has not empowered district courts to substitute Page 381 U. S. 291 their judgment for that of the agency. Instead, it has limited judicial responsibility to insuring consistency with governing statutes and the demands of the Constitution. Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 327 U. S. 214-218; Federal Communications Comm'n v. Pottsville Broadcasting Co., supra, at 309 U. S. 144-145; Federal Radio Comm'n v. Nelson Bros. Co., 289 U. S. 266, 289 U. S. 276-277.It is apparent that the courts below did not respect this congressional distribution of authority. The Commission promulgated a rule governing disclosure in this investigation. Yet, neither the District Court nor the Court of Appeals inquired into the validity of the Commission's exercise of its rulemaking authority. Instead, the District Court devised procedures to be followed by the Commission on the basis of the court's conception of how the public and private interests involved could best be served. In reviewing this determination, the Court of Appeals found that the District Judge had not abused his discretion,"but, on the contrary, established a fair and just procedure whereby a most important investigation could proceed without being unduly disrupted, obstructed or prolonged, and at the same time afford [respondents] protection against the improvident disclosure of possible valuable trade secrets."329 F.2d at 524. In so doing, the Court of Appeals erred. The question for decision was whether the exercise of discretion by the Commission was within permissible limits, not whether the District Judge's substituted judgment was reasonable.It is also evident that the Commission's procedural rule -- requiring public proceedings except where it is shown that the public interest, the dispatch of business, or the ends of justice would be served by nonpublic sessions -- was well within the Commission's power. Grants of agency authority comparable in scope to § 4(j) have Page 381 U. S. 292 been held to authorize public disclosure of information, [Footnote 18] or receipt of data in confidence, [Footnote 19] as the agency may determine to be proper upon a balancing of the public and private interests involved. That § 4(j) is broad enough to empower the Commission to establish standards for determining whether to conduct an investigation publicly or in private is demonstrated by this Court's decision in Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294. There, the Court pointed out that a similar grant of rulemaking authority -- § 315(c) of the Tariff Act of 1922, 42 Stat. 941, 942-943 -- which authorizes the Tariff Commission "to adopt such reasonable procedure, rules, and regulations as it may deem necessary," empowered the Commission"to shape its course within reasonable limits by its own conception of the promptings of policy and fairness. It would have kept within the statute even though it had made the hearings private and had refrained from the publication of anything, either the records of its agents or the testimony of witnesses. . . . Instead, it made the hearing public, and exposed everything to view except only when publication was likely in its judgment to result in hardship or injustice."288 U.S. at 288 U. S. 321-322.The delegated power, of course, may not be exercised arbitrarily, but its exercise may not be impeached merely because reasonably minds might differ on the wisdom thereof. Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 327 U. S. 215-218; Isbrandtsen-Moller Co. v. United States, 300 U. S. 139, 300 U. S. 146; Norwegian Nitrogen Products Co. v. United States, supra, at 288 U. S. 321-322. It is apparent, however, that Page 381 U. S. 293 the Commission's determination in the present case that "public proceedings should be the rule," with exceptions granted"only in those extraordinary instances where disclosure would irreparably damage private, competitive interests and where such interests could be found by the Presiding Officer to outweigh the paramount interest of the public and the Commission in full public disclosure"was not an arbitrary exercise of the Commission's authority. The procedural rule, establishing a presumption in favor of public proceedings, accords with the general policy favoring disclosure of administrative agency proceedings. [Footnote 20] Moreover, the reasons advanced by the Commission in support of its determination to make public hearings the norm and to place the burden of justifying confidential treatment upon those from whom information is sought amply demonstrate that the Commission's exercise of its delegated powers may not be successfully attacked as arbitrary or capricious. The investigative inquiry was designed to secure information to aid the Commission in the discharge of its many functions. The Commission stated that the subject matter of the inquiry is "complex and generally unknown" involving "many-sided transaction[s]" among "networks, advertising Page 381 U. S. 294 agencies, program producers, program packagers, talent agencies," and others. Therefore, the Commission determined, in order"to obtain a full and rounded picture of such transactions, it is highly desirable that the facts, information, data and opinion supplied by one group or individual be known to other groups and individuals involved, so that they may verify, refute, explain, amplify or supplement the record from their own diverse points of view."The Commission observed that, in addition to stimulating the flow of information, public hearings serve to inform those segments of the public primarily affected by the agency's regulatory policies and those likely to be affected by subsequent administrative or legislative action of the factual basis for any action ultimately taken -- a practical inducement to public acceptance of the results of the investigation. [Footnote 21] Also implicit in the Commission's discourse is a recognition that publicity tends to stimulate the flow of information and public preferences which may significantly influence administrative and legislative views as to the necessity and character of prospective action. The Commission further pointed out that public disclosure is necessary to the execution of its duty under § 4(k) of the Communications Act of 1934, as amended, 48 Stat. 1068 47 U.S.C. § 154(k) (1958 ed.), to make annual reports to Congress. Significantly, this investigation was specifically authorized by Congress so that Congress might "draw upon the facts which are obtained." [Footnote 22]We hold, therefore, that the Commission's adoption of the procedural rule favoring public disclosure and placing upon those from whom information is sought the burden of demonstrating the need for in camera proceedings is statutorily authorized. Page 381 U. S. 295IIRemaining for determination is whether the Commission's application of its disclosure rule and the consequent rejection of respondents' requests for confidential treatment were so arbitrary or unreasonable as to warrant the imposition by the District Court of conditions upon enforcement of the Commission's subpoena and orders. [Footnote 23]Upon remand from the Commission, respondents moved that all testimony and documents to be elicited from them -- not merely Annex B -- should be received in camera. Respondents asserted that, in light of the announced scope of the inquiry, the Commission's order to produce documents upon request and to testify "regarding all matters deemed relevant" would require MCA "to disclose all of its business information to its many competitors and to make a public record of all of its activities," and that such a disclosure, if demanded, would necessarily include confidential business secrets. No factual showing was made; there was only the argument.The District Court accepted the argument, finding"well grounded [the] fears of the respondents that the testimony to be given might result in disclosure of trade secrets, of which competitors might take advantage."201 F. Supp. at 425. Accordingly, the court ordered that all testimony and documents adduced by respondents be received in confidence. In so doing the District Court erred, for it is clear that the Presiding Officer did not abuse his discretion in rejecting this request for blanket nondisclosure.The Presiding Officer did not know what information would actually be sought, what questions asked. Indeed, he could only speculate as to whether the Commission would seek to elicit any data which, if disclosed to MCA's Page 381 U. S. 296 competitors, would work competitive harm. He could not ascertain the likelihood of irreparable damage to private competitive interests, nor could be discern whether the private interest outweighed the public interest in disclosure. If and when information was demanded which, if disclosed, might in fact injure MCA competitively, there would be ample opportunity to request that it be received in confidence, and to seek judicial protection if the request were denied. Cf. Reisman v. Caplin, 375 U. S. 440. The Presiding Officer would have abused his discretion in denying the request only if it were shown that no information could have been elicited from respondents which could be publicly disclosed. The record affords no justification for such a proposition.The only other possible basis for the District Court's order would be an assumption that the Presiding Officer would consistently require disclosure even if a balancing of public and private interests compelled secrecy. There is no support for such an assumption in the record, and it runs contrary to the presumption to which administrative agencies are entitled -- that they will act properly and according to law.Nor can the District Court's order be saved on the ground that it did not direct that all information be held in confidence, but merely deferred the determination of whether the information was entitled to confidential treatment until after the inquiry of respondents had been completed. The order directs that there be no disclosure until the court so orders, "should good cause exist therefor." Not only does this order seem to shift the burden of proof to the Commission to justify publication, despite the valid rule to the contrary, but it also permits respondents to avoid submitting the issue of disclosure to the Presiding Officer despite the"long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed Page 381 U. S. 297 administrative remedy has been exhausted."Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 303 U. S. 50-51; Reisman v. Caplin, supra. Moreover, the District Court's order forbids disclosure until completion of the investigation of respondents without any showing that secrecy is justified. During this period, the Commission could not make the information available to Congress, and the Commission would be denied the benefit of other evidence stimulated by disclosure. And the period during which the benefits of disclosure would be denied would inevitably be long. Respondent first appeared before the Presiding Officer on October 21, 1960, and resolution of the issues then raised has caused a delay of more than four and one-half years.We do not find forceful respondents' contention that the District Court's order was necessary to protect against the discriminatory treatment of MCA by the Commission. The allegations finds little support in the record; moreover, no reference is made to this factor in the District Court's opinion or findings of fact. Respondents' assertions that "the Commission's interest in MCA was deep" and that "concentration upon MCA was unique," even if true, would not demonstrate the need for secrecy. Instead, such assertions merely lend credence to the Commission's unchallenged finding that, because of the importance of MCA in the industry, the failure to explore fully the policies and practices of MCA"would seriously impair, if not render nugatory, any attempt on the Commission's part to understand and delineate the policies, practices and activities involved in the creation, production, sale and licensing of television filmed programs."Furthermore, it is clear that respondents are adequately protected against improvident disclosure, even if the Commission should unfairly seek disclosure of information which would be competitively disastrous to respondents. Not only does the administrative remedy exist, but judicial Page 381 U. S. 298 protection against Commission overreaching also remains available with respect to any requests for information made in the future.We conclude, therefore, that the Commission did not abuse its discretion in rejecting respondents' requests for blanket nondisclosure, and accordingly hold that the District Court erred in ordering the Commission to afford confidential treatment to all information elicited from respondents.Respondents also moved the confidential treatment be accorded Annex B, which called for the production of a list of programs as to which MCA served as a "packager" and those in which MCA had a financial interest. Respondent Schreiber testified that the information sought would disclose MCA's confidential agency relationships with clients, "might be used detrimentally," and "would be possibly advantageous to our competitors."We find that the Commission's affirmance of the Presiding Officer's determination that the material sought in Annex B should be received in public session was clearly proper. Certainly private agreements between MCA and its clients not to disclose facts without the client's consent could not affect the Commission in the discharge of its public duties. See 8 Wigmore, Evidence § 2286 (McNaughton rev. 1961). And the naked assertion of possible competitive injury does not establish that the Presiding Officer abused his discretion in declining to accord confidential treatment. Moreover, there is nothing in the District Court's opinion, findings or conclusions of law which indicates the likelihood, or even the possibility, of competitive harm from public disclosure of the Annex B information. MCA's competitors and others engaged in similar businesses had furnished publicly the same type of information without objection. Respondents did not attempt before the Commission or on review to distinguish the information furnished by MCA's competitors or the Page 381 U. S. 299 list of programs produced by MCA (subpoenaed in Annex A) which was introduced without objection by respondent Schreiber. Nor did respondents file affidavits in support of their position. But, even if it were conceded that disclosure of Annex B might have some competitive impact, there is no warrant for concluding that the Presiding Officer abused his discretion in finding that respondents had not sustained their burden of demonstrating that the private interest involved outweighed the public interest in disclosure.One further point should be discussed. During oral argument, counsel for respondents suggested that his clients were prejudiced in their efforts to demonstrate the need for confidential treatment of the information contained in Annex B by restrictions imposed upon the participation of counsel by the then-prevailing Commission rules. [Footnote 24] We do not find this contention persuasive. Respondents filed a petition, prepared and signed by counsel, seeking review before the full Commission of the Presiding Officer's rejection of their confidentiality request. Subsequently, they filed a second motion for confidential treatment with the Presiding Officer, and respondents' counsel was afforded an opportunity to argue orally in support of the motion. Thus, it is evident that the then-existing Commission rules restricting the rights of counsel did not prejudice respondents in their efforts to secure in camera proceedings with regard to Annex B, [Footnote 25] and hence Page 381 U. S. 300 there is no occasion to order that respondents be afforded an additional opportunity to present objections to the disclosure of the information subpoenaed in Annex B.The judgment of the Court of Appeals is modified so as to strike paragraph 2 of the District Court's order, and the cause is remanded to the District Court with directions to enforce the Commission's orders and subpoena without qualification.It is so ordered

U.S. Supreme CourtFCC v. Schreiber, 381 U.S. 279 (1965)Federal Communications Commission v. SchreiberNo. 482Argued April 27, 1965Decided May 24, 1965381 U.S. 279SyllabusTo secure comprehensive information about various practices in the television industry, the Federal Communications Commission initiated an investigatory proceeding pursuant to § 403 of the Communications Act. The Presiding Officer, assigned to conduct the proceeding, was authorized by the Commission to subpoena witnesses and to compel the production of any records or documents deemed relevant. The proceedings were to be public unless the Presiding Officer found that "the public interest, the proper dispatch of the business . . . , or the ends of justice" would be served by nonpublic sessions. The Presiding Officer issued a subpoena duces tecum directing respondent Schreiber, an executive of respondent Music Corporation of America, Inc. (MCA), to produce lists of network programs which MCA had produced (Annex A to subpoena) or packaged (Annex B). Respondent Schreiber produced the material called for in Annex A, but, claiming that public disclosure of the Annex B information might reveal trade secrets and confidential data, refused to produce said information unless assured that it would be received and held in confidence. The Presiding Officer rejected the demand. The full Commission upheld the Presiding Officer and reaffirmed its resolve to permit nonpublic sessions only in extraordinary situations where it was shown that irreparable damage to private competitive interests outweighed the public interest in disclosure. The Commission noted that the Presiding Officer had acted consistently with that standard, and held that respondents' claim of likely competitive injury was unsupported by the pleadings and contrary to the record. Upon remand, the Presiding Officer rejected respondents' broadened claim for confidential treatment of all information to be elicited from them, but respondent Schreiber persisted in his refusal to comply with the Commission's orders and subpoena. The District Court granted the Commission's petition for enforcement, but, "to preclude disclosure of trade secrets of which (MCA's) competitors might take advantage," ordered that the material be received and held in confidence. The court's order further provided Page 381 U. S. 280 that, after the investigation of respondents had been completed, the Commission could move the court, upon good cause, for an order permitting such testimony and documents to be made public. The Court of Appeals affirmed, holding that the District Court had not abused its discretion in conditioning the enforcement of the Commission's subpoena and orders.Held:1. Under the broad delegation of procedural rulemaking authority in § 4(j) of the Communications Act, which authorizes the Commission to "conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice," the Commission was empowered to promulgate the procedural rule requiring public proceedings except where the proponents of a request for in camera treatment have demonstrated the need therefor. Pp. 381 U. S. 289-294.2. In providing for judicial review of administrative rulemaking, Congress has not empowered district courts to substitute their judgment for that of the agency; instead, judicial responsibility is limited to insuring consistency with governing statutes and the demands of the Constitution. Pp. 381 U. S. 290-291.3. The Commission did not abuse its discretion in applying its procedural rule and in rejecting respondents' requests for confidential treatment of all material to be elicited in the future, pp. 381 U. S. 295-298, and for confidential treatment of the Annex B information, pp. 381 U. S. 298-300.329 F.2d 517 modified and remanded.

1982_81-773

JUSTICE BLACKMUN delivered the opinion of the Court.Under the federal Migratory Bird Hunting Stamp Act, the Secretary of the Interior is authorized to acquire easements over small wetland areas suitable for migratory waterfowl breeding and nesting grounds. Although the State of North Dakota initially consented to the Secretary's acquisition of easements over certain wetlands, the State now seeks to withdraw its consent and to impose conditions on any future acquisitions. This has led to the present litigation, for the State's present posture raises the question whether the Secretary may proceed to acquire easements pursuant to North Dakota's prior consent. Page 460 U. S. 302IAIn 1929, the Migratory Bird Conservation Act (Conservation Act), 45 Stat. 1222, ch. 257, 16 U.S.C. § 715 et seq., became law. By § 5 of that Act, 45 Stat. 1223, the Secretary of the Interior was authorized to acquire land "for use as inviolate sanctuaries for migratory birds." [Footnote 1] Land acquisitions under the Conservation Act are subject to certain conditions: they must be approved in advance by the Migratory Bird Conservation Commission, §§ 2 and 5, 16 U.S.C. §§ 715a and 715d, and the State in which the land is located must "have consented by law to the acquisition," § 7, 16 U.S.C. § 715f.In 1934, in order to provide funding for land acquisitions under the Conservation Act, the Migratory Bird Hunting Stamp Act (Stamp Act), 48 Stat. 451, 16 U.S.C. § 718 et seq., was enacted. Section 1 of the Stamp Act, 16 U.S.C. § 718a, required waterfowl hunters to purchase migratory bird hunting stamps, commonly known as duck stamps. By § 4, 16 U.S.C. § 718d, the proceeds from the sale of the stamps were to form a special "migratory bird conservation fund" (conservation fund) to be used primarily to pay for "the location, ascertainment, acquisition, administration, maintenance, and development" of bird sanctuaries pursuant to the Conservation Act.To hasten the acquisition of land suitable for waterfowl habitats, Congress amended the Stamp Act in 1958. The price of a duck stamp was increased, and, most important for our present purposes, the Secretary of the Interior was authorized to expend money from the conservation fund for a new type of property: "small wetland and pothole areas, interests therein, and rights-of-way to provide access thereto," Page 460 U. S. 303 the small areas "to be designated as Waterfowl Production Areas.'" Pub.L. 85-585, § 3, 72 Stat. 487, 16 U.S.C. § 718d(c). Such waterfowl production areas could be "acquired without regard to the limitations and requirements of the Migratory Bird Conservation Act." Ibid. Because these waterfowl production areas did not have to be maintained as sanctuaries, there was no need for them to be purchased outright; the Secretary was authorized to acquire easements prohibiting fee owners from draining their wetlands or otherwise destroying the wetlands' suitability as breeding grounds.Despite the 1958 amendments, however, the proceeds from duck stamp sales proved insufficient to acquire land at the rate Congress deemed necessary. Accordingly, a new source of income was provided through the Wetlands Act of 1961 (Loan Act), Pub.L. 87-383, 75 Stat. 813. Section 1 of this new Act originally authorized sums for appropriation not to exceed $105 million for a 7-year period. [Footnote 2] These sums were to be added to the conservation fund in the form of interest-free loans that were to be repaid out of duck stamp proceeds. In addition, § 3 of the Loan Act provided that no land could be acquired with money from the conservation fund unless consent had been obtained from the Governor or an appropriate agency of the State in which the land was located. [Footnote 3] Page 460 U. S. 304BThe principal waterfowl breeding grounds in the continental United States are located in four States of the northern Great Plains -- North Dakota, South Dakota, Minnesota, and Montana. [Footnote 4] North Dakota, in particular, is rich in wetlands suitable for waterfowl breeding, and the Government's acquisition of North Dakota land has been given high priority. See, e.g., H.R.Rep. No. 95-1518, p. 5 (1978); S.Rep. No. 94-594, p. 3 (1976).For the most part, North Dakota has cooperated with federal efforts to preserve waterfowl habitats. Two years after the Conservation Act went into effect, the State, pursuant to § 7 of that Act, 45 Stat. 1223, 16 U.S.C. § 715f, gave its consent to the"acquisition by the United States . . . of such areas of land or water, or of land and water, in the State of North Dakota, as the United States may deem necessary for Page 460 U. S. 305 the establishment of migratory bird reservations."1931 N.D. Laws, ch. 207, p. 360. By 1958, the United States had acquired more than 276,000 acres of North Dakota land for use as migratory bird refuges. Hearings on S. 2447 et al. before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess., 79-81 (1958).When the Loan Act was passed in 1961, the United States, through its Fish and Wildlife Service, promptly sought the necessary gubernatorial consent from Governor Guy of North Dakota. Between 1961 and 1977, Governor Guy and his successor, Governor Link, consented to the acquisition of easements covering approximately 1.5 million acres of wetlands. The consents specified the maximum acreage to be acquired within each county in the State, but did not list particular parcels. [Footnote 5] By 1977, the Fish and Wildlife Service had obtained easements covering about half of the total wetlands acreage authorized by the consents. [Footnote 6] Page 460 U. S. 306In the mid-1970's, cooperation between North Dakota and the United States began to break down. The sources of the dispute are not altogether clear; the State accuses the United States of misleading landowners from whom it purchased easements, and of reneging on some unrelated agreements relating to flood-control projects. See Record 19-20, 40; Brief for Appellant 30-33. In any event, North Dakota enacted legislation in 1977 restricting the United States' ability to acquire easements over wetlands. 1977 N.D. Laws, ch. 204, p. 461, and ch. 426, p. 923.The 1977 legislation affects the acquisition of wetlands easements in three major ways. First, § 2 of ch. 204, codified as N.D.Cent.Code § 20.1-02-18.1 (Supp.1981), as amended by 1979 N.D. Laws, ch. 553, § 11, p. 1412, [Footnote 7] requires Page 460 U. S. 307 the Governor to submit proposed wetlands acquisitions for approval by the board of county commissioners of the county in which the land is located. The "federal agency involved" -- here, the United States Fish and Wildlife Service -- must provide the county with a "detailed impact analysis," and the county, as well, is directed to prepare an impact analysis at federal expense. If the county does not recommend the acquisition, the Governor may not approve it. Next, § 3 of ch. 204, codified as § 20.1-02-18.2, as amended by 1981 N.D. Laws, ch. 258, p. 654, [Footnote 8] authorizes the landowner Page 460 U. S. 308 to negotiate the terms and time period of the easement acquired by the United States, to restrict the easement "by legal description to the land, wetland, or water areas being sought," and to "drain any after-expanded wetland or water area in excess of the legal description." Finally, § 1 of ch. 426, codified as N.D.Cent.Code § 47-05-02.1 (1978), [Footnote 9] restricts all easements to a maximum duration of 99 years. Because these restrictions have cast doubt upon the sufficiency of its title, the United States has acquired no easement over North Dakota wetlands since 1977. [Footnote 10] Page 460 U. S. 309In 1979, the United States brought suit in the United States District Court for the District of North Dakota, seeking a declaratory judgment that the 1977 state statutes were hostile to federal law in certain respects, and could not be applied; that any easement acquired in violation of the 1977 statutes would nevertheless be valid; and that the legislative consent provision of the Conservation Act, § 7, 45 Stat. 1223, 16 U.S.C. § 715f, did not apply to the acquisition of waterfowl production areas under the Stamp Act. The District Court granted summary judgment for the United States, App. to Juris.Statement 16a, and the United States Court of Appeals for the Eighth Circuit affirmed. 650 F.2d 911 (1981). [Footnote 11] We noted probable jurisdiction over North Dakota's appeal. 455 U.S. 987 (1982).IIThe protection of migratory birds has long been recognized as "a national interest of very nearly the first magnitude." Missouri v. Holland, 252 U. S. 416, 252 U. S. 435 (1920). Since the turn of the century, the Secretaries of Agriculture and of the Interior successively have been charged with responsibility for "the preservation, distribution, introduction, and restoration of game birds and other wild birds." Act of May 25, 1900, 31 Stat. 187, 16 U.S.C. § 701. A series of treaties dating back to 1916 obligates the United States to preserve and protect migratory birds through the regulation of hunting, Page 460 U. S. 310 the establishment of refuges, and the protection of bird habitats. [Footnote 12] By providing for the acquisition of sanctuaries and waterfowl production areas, the Conservation Act and the Stamp Act play a central role in assuring that our Nation's migratory birds will continue to flourish.In the absence of federal legislation to the contrary, the United States unquestionably has the power to acquire wetlands for waterfowl production areas, by purchase or condemnation, without state consent. Paul v. United States, 371 U. S. 245, 371 U. S. 264 (1963); Kohl v. United States, 91 U. S. 367, 91 U. S. 371-372 (1876). Here, however, Congress has conditioned any such acquisition upon the United States' obtaining the consent of the Governor of the State in which the land is located. [Footnote 13] North Dakota concedes that its Governors, at various Page 460 U. S. 311 times since 1961, have consented to the acquisition of easements over 1.5 million acres of North Dakota wetlands. The issue before us is whether North Dakota may revoke its consent to the acquisition of further easements in the State, and whether North Dakota, by statute, may impose conditions and restrictions on the United States' power to acquire easements. [Footnote 14] Page 460 U. S. 312ANorth Dakota's central argument is that the gubernatorial consent required by 16 U.S.C. § 715k-5, once given, may be revoked by the State at will. North Dakota reads § 715k-5 to require not only that the Governor have consented to the acquisition of land for waterfowl production areas, but also that the Governor (and his successors in office) must continue to consent until the moment the land is actually acquired. Thus, although the United States has acquired easements over only half the acreage authorized by Governors Guy and Link, North Dakota asserts that it can terminate the United States' power to acquire the remainder. [Footnote 15] The United States takes the position that § 715k-5 does not permit a State to revoke its consent at will; once consent has been given, "the role assigned to the state by Congress has been exhausted." Brief for United States 24.As with any case involving statutory interpretation, "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." Dickerson v. New Banner Institute, Inc., ante at 460 U. S. 110. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 444 U. S. 19 (1979). "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980). The language of § 715k-5 is uncomplicated; it provides that money from the conservation fund shall not be used to acquire land "unless the acquisition thereof has been approved" by the Governor or the appropriate state agency. In this case, the Page 460 U. S. 313 acquisition of approximately 1.5 million acres of wetlands clearly "has been approved" by North Dakota's Governors. Nothing in the statute authorizes the withdrawal of approval previously given. [Footnote 16]Nor does the legislative history of § 715k-5 suggest that Congress intended to permit Governors to revoke their consent. Before 1961, neither legislative nor gubernatorial consent was required prior to the acquisition of wetlands for waterfowl production areas. State legislative consent was a prerequisite to the acquisition of bird sanctuaries, § 715f, but waterfowl production areas were expressly exempted from this requirement, § 718d(c). Nonetheless, the United States followed an informal practice of obtaining agreement from the Governor or appropriate state agency before acquisition. The gubernatorial consent provision was intended simply to incorporate this practice. 107 Cong.Rec. 17171 (1961) (remarks of Sen. Magnuson); id. at 17172 (remarks of Sen. Hruska). There is no indication in the legislative history or elsewhere that, under this prior practice, a Governor could withdraw consent already given. [Footnote 17] Page 460 U. S. 314In the absence of any evidence to the contrary, we must conclude that the consent required by § 715k-5 cannot be revoked at the will of an incumbent Governor. To hold otherwise would be inconsistent with the very purpose behind the Loan Act of which § 715k-5 is a part. The Loan Act was expressly intended to facilitate the acquisition of wetlands by making available an additional source of funds. The legislative history is replete with references to the need to preserve the Nation's wetlands by bringing four to five million additional acres under federal control. See Hearings on S. 2187 et al. before the Merchant Marine and Fisheries Subcommittee of the Senate Committee on Commerce, 87th Cong., 1st Sess., 14-19, 23-24, 28-31, 33-39 (1961); S.Rep. No. 705, 87th Cong., 1st Sess., 2 (1961); H.R.Rep. No. 545, 87th Cong., 1st Sess., 1-2 (1961). Obviously, this acquisition could not take place overnight; careful planning over many years was anticipated. See S.Rep. No. 705, supra, at 2. If consent under § 715k-5 were revocable, the United States' ability to engage in such planning would be severely hampered. A detailed federal program involving the estimate of needs, setting of priorities, allocation of funds, and negotiations with landowners could be negated in an instant by a Governor's decision that the politics of the moment made further federal acquisitions undesirable.Our conclusion in this regard is strengthened by the fact that, at the time of its enactment, the gubernatorial consent provision was not at all controversial. It was added by the Senate Committee on Commerce without explanation, see S.Rep. No. 705, supra, at 3, and was accepted by the House of Representatives without explanation or discussion, see H.R.Conf.Rep. No. 1184, 87th Cong., 1st Sess., 1 (1961); 107 Cong.Rec. 21184 (1961). The only discussion of the provision Page 460 U. S. 315 came on the Senate floor, when that body was assured that it did no more than formalize the existing practice of gaining state approval prior to acquiring land. We are unwilling to assume that Congress, while expressing its firm belief in the need to preserve additional wetlands, so casually would have undercut the United States' ability to plan for their preservation. Clearly, Congress intended the States to play an important role in the planning process. But once plans have been made and the Governor's approval has been freely given, the role of the State indeed is at an end. It is then up to the United States to choose how best to use its resources in putting its acquisition plans into effect.Although it has been intimated that a Governor's consent might become revocable if the United States were to delay unreasonably its land acquisitions pursuant to the consent, see Brief for United States 26; Tr. of Oral Arg. 35, we need not reach that issue here. In this case, there has been no unreasonable delay. Until North Dakota's legislation interfered in 1977, the United States had pursued diligently its program of acquiring wetlands easements in North Dakota. The acreage fluctuated somewhat from year to year, but the acquisitions each year were substantial. [Footnote 18] In 1958, when Congress first authorized the Secretary of the Interior to acquire waterfowl production areas, it was generally anticipated that the United States' acquisition program would take a minimum of 20 to 25 years to complete. [Footnote 19] The acquisition Page 460 U. S. 316 program had been underway for only 16 years in 1977, a timespan well within the limits contemplated by Congress.BWe next consider North Dakota's 1977 legislation, which purports to impose conditions on the United States' power to acquire further wetlands easements. Because the statutes at issue raise somewhat different concerns, we discuss each in turn.1. N.D.Cent.Code § 20.1-0218.1 (Supp.1981). This statute sets out certain conditions that must be met "prior to final approval" of the acquisition of wetlands easements. The only sanction provided in § 20.1-02-18.1 for failure to comply with its conditions is that consent for the acquisitions will be refused. North Dakota explains that this represents the State's decision "to qualify or condition any consent to future acquisitions." Brief for Appellant 33; see id. at 35.We thus need not consider in this case whether the gubernatorial consent provision, 16 U.S.C. § 715k-5, permits North Dakota to impose these conditions on any consent it chooses to give in the future. [Footnote 20] At issue here is the status of Page 460 U. S. 317 acquisitions authorized by consents already given. We do not understand the State to argue that § 20.1-02-18.1 imposes retroactive conditions on these prior consents. By its terms, the statute has no application to the acquisition of easements for which consent previously has been given, because nothing in the statute purports to limit the United States' power to acquire land once "final approval" has been obtained. Moreover, any attempt to impose retroactive conditions clearly would be unavailing. We have ruled above that once the requisite gubernatorial consent has been obtained, it may not be revoked. Since 16 U.S.C. § 715k-5 does not permit North Dakota to revoke its consent outright, North Dakota may not revoke its consent based on noncompliance with the conditions set forth in N.D.Cent.Code § 20.1-02-18. 1 (Supp.1981).2. N.D.Cent.Code § 20.1-02-18.2 (Supp.1981). The United States does not challenge those portions of § 20.102-18.2 that permit a landowner to negotiate the conditions of an easement and restrict the scope of the easement to a particular legal description. The United States does object, however, to that part of § 20.1-02-18.2(2) that permits a landowner to "drain any after-expanded wetland or water area in excess of the legal description in the . . . easement. . . ." The United States' standard easement agreement contains a clause prohibiting the draining of after-expanded wetlands, see n 6, supra, and § 20.1-02-18.2(2) might be read to void such clauses even when agreed to by the landowner.This Court addressed a similar situation in United States v. Little Lake Misere Land Co., 412 U. S. 580 (1973). In that case, the United States had exercised its authority under the Conservation Act to acquire land in Louisiana for use as a wildlife refuge. Mineral rights were reserved to the prior Page 460 U. S. 318 landowners for a period of 10 years, subject to extensions under certain conditions. A Louisiana statute barred the reversion of the mineral rights to the United States, and thus in effect extended the prior landowners' mineral rights indefinitely.Applying Clearfield Trust Co. v. United States, 318 U. S. 363 (1943), this Court concluded that, because the United States' acquisition of land under the Conservation Act "is one arising from and bearing heavily upon a federal regulatory program . . . , the choice-of-law task is a federal task for federal courts." 412 U.S. at 412 U. S. 592. The key factors in Little Lake Misere were that"[w]e deal[t] with the interpretation of a land acquisition agreement (a) explicitly authorized, though not precisely governed, by the Migratory Bird Conservation Act and (b) to which the United States itself [was] a party."Id. at 412 U. S. 594. Although the present case involves acquisitions under the Stamp Act, rather than the Conservation Act, the federal interests at stake are the same. Thus, the choice of applicable law presents a federal question. Although state law may be borrowed if appropriate, "specific aberrant or hostile state rules do not provide appropriate standards for federal law." Id. at 412 U. S. 596.Because the Louisiana statute at issue in Little Lake Misere was "plainly hostile to the interests of the United States," id. at 412 U. S. 597, the Court refused to apply it. In language equally applicable to the present case, the Court said:"To permit state abrogation of the explicit terms of a federal land acquisition would deal a serious blow to the congressional scheme contemplated by the Migratory Bird Conservation Act, and indeed all other federal land acquisition programs. These programs are national in scope. They anticipate acute and active bargaining by officials of the United States charged with making the best possible use of limited federal conservation appropriations. Certainty and finality are indispensable in Page 460 U. S. 319 any land transaction, but they are especially critical when, as here, the federal officials carrying out the mandate of Congress irrevocably commit scarce funds."Ibid.To the extent that § 20.1-02-18.2(2) authorizes landowners to drain after-expanded wetlands contrary to the terms of their easement agreements, we must conclude that it is equally hostile to federal interests, and may not be applied to easements acquired under previously given consents. [Footnote 21] The United States is authorized to incorporate into easement agreements such rules and regulations as the Secretary of the Interior deems necessary for the protection of wildlife, 16 U.S.C. § 715e, and these rules and regulations may include restrictions on land outside the legal description of the easement. See Kleppe v. New Mexico, 426 U. S. 529, 426 U. S. 546 (1976); Canfield v. United States, 167 U. S. 518, 167 U. S. 525-526 (1897). To respond to the inherently fluctuating nature of wetlands, the Secretary has chosen to negotiate easement agreements imposing restrictions on after-expanded wetlands as well as those described in the easement itself. As long as North Dakota landowners are willing to negotiate such agreements, the agreements may not be abrogated by state law. [Footnote 22]3. N.D.Cent.Code § 47-05-02.1 (1978). Much the same analysis persuades us that this statute, which limits nonappurtenant Page 460 U. S. 320 easements to a maximum term of 99 years, may not be applied to wetlands easements acquired by the United States under consents previously given pursuant to the Stamp Act. [Footnote 23] The United States' commitment to the protection of migratory birds will not cease after 99 years have passed. This commitment has been incorporated into law for over 80 years and has been expressed in treaties since 1916, and the need to preserve migratory bird habitats is now no less than before.To ensure that essential habitats will remain protected, the United States has adopted the practice of acquiring permanent easements whenever possible. Permanent easements are authorized by the gubernatorial consents given from 1961 to 1977, [Footnote 24] and the United States apparently has had no difficulty in negotiating permanent easements with North Dakota landowners. The automatic termination of federal wetlands easements after 99 years would make impossible the "[c]ertainty and finality" that we have regarded as "critical when . . . federal officials carrying out the mandate of Congress irrevocably commit scarce funds." United States v. Little Lake Misere Land Co., 412 U.S. at 412 U. S. 597. We conclude that § 47-05-02.1 is hostile to federal interests, and may not be applied. See 412 U.S. at 412 U. S. 596; United States v. Albrecht, 496 F.2d 906, 911 (CA8 1974).IIIThe District Court and the Court of Appeals held that gubernatorial consent was not required prior to federal acquisition Page 460 U. S. 321 of wetlands easements, and that North Dakota's 1977 legislation could not be applied to any easements acquired under the Stamp Act. We conclude that, although gubernatorial consent is required, it has been given here, and cannot be revoked. We also conclude that North Dakota's 1977 legislation cannot restrict the United States' ability to acquire easements pursuant to consent previously given. To this extent, we affirm the judgment below.It is so ordered

U.S. Supreme CourtNorth Dakota v. United States, 460 U.S. 300 (1983)North Dakota v. United StatesNo. 81-773Argued November 2, 1982Decided March 7, 1983460 U.S. 300SyllabusThe federal Migratory Bird Hunting Stamp Act authorizes the Secretary of the Interior to acquire easements over wetland areas suitable for migratory waterfowl breeding and nesting grounds. Section 3 of the Wetlands Act of 1961 (Loan Act) provides that no land suitable for waterfowl habitats can be acquired with money from the fund established for such acquisitions unless the acquisition "has been approved" by the Governor or an appropriate agency of the State in which the land is located. Between 1961 and 1977, successive Governors of North Dakota consented to the acquisition of easements covering approximately 1.6 million acres of wetlands in that State. By 1977, the United States had obtained easements covering about half of this acreage. In the 1970's, however, cooperation between North Dakota and the United States began to break down, and in 1977, North Dakota enacted statutes restricting the United States' ability to acquire easements over wetlands. These statutes set out certain conditions that must be met "prior to final approval" of the acquisition of the easements, permitted a landowner to drain any after-expanded wetland in excess of the legal description in the easement, and limited all easements to a maximum term of 99 years. The United States brought suit in Federal District Court, seeking a declaratory judgment that, inter alia, the 1977 North Dakota statutes were hostile to federal law and could not be applied, and any easement acquired in violation of such statutes would nevertheless be valid. The District Court granted summary judgment for the United States, and the Court of Appeals affirmed.Held:1. The consent required by § 3 of the Loan Act cannot be revoked at the will of an incumbent Governor. To hold otherwise would be inconsistent with the Loan Act's purpose of facilitating the acquisition of wetlands. Here, the acquisition in question clearly "has been approved" by North Dakota's Governors as § 3's language provides. Nothing in the statute authorizes the withdrawal of approval previously given. Nor does § 3's legislative history suggest that Congress intended to permit Governors to revoke their consent. Pp. 312-316.2. Since § 3 of the Loan Act does not permit North Dakota to revoke its consent outright, the State may not revoke its consent based on noncompliance Page 460 U. S. 301 with the conditions set forth in the 1977 legislation. And to the extent that such legislation authorizes landowners to drain after-expanded wetlands contrary to the terms of their easement agreements, it is hostile to federal interests, and may not be applied. For the same reason, the statute limiting easements to a maximum term of 99 years may not be applied to wetlands acquired by the United States pursuant to previously given consents. Pp. 460 U. S. 316-320.650 F.2d 911, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, J., joined, post, p. 460 U. S. 321.

1997_97-873

Syllabuscontention, general personal testimonial integrity or privacy is not a reliable guide to the Clause's scope of protection. Fifth Amendment tradition offers, in practice, a conditional protection of testimonial privacy. Since the judiciary could not recognize fear of foreign prosecution and at the same time preserve the Government's existing rights to seek testimony in exchange for immunity (because domestic courts could not enforce the immunity abroad), extending the privilege would change the balance of private and governmental interests that has been accepted for as long as there has been Fifth Amendment doctrine. Balsys also argues that Murphy's policy catalog supports application of the privilege in order to prevent the Government from overreaching to facilitate foreign criminal prosecutions in a spirit of "cooperative internationalism." Murphy recognized "cooperative federalism"-the teamwork of state and national officials to fight interstate crime-but only to underscore the significance of the Court's holding that a federal court could no longer ignore fear of state prosecution when ruling on a privilege claim. Since in this case there is no counterpart to Malloy, imposing the Fifth Amendment beyond the National Government, there is no premise in Murphy for appealing to "cooperative internationalism" by analogy to "cooperative federalism." The analogy must, instead, be to the pre-Murphy era when the States were not bound by the privilege. Even if "cooperative federalism" and "cooperative internationalism" did support expanding the privilege's scope, Balsys has not shown that the likely costs and benefits justify such expansion. Cooperative conduct between the United States and foreign nations may one day develop to a point at which fear of foreign prosecution could be recognized under the Clause as traditionally understood, but Balsys has presented no interest rising to such a level of cooperative prosecution. Pp. 690-700.119 F.3d 122, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in which SCALIA and THOMAS, JJ., joined as to Parts I, II, and III. STEVENS, J., filed a concurring opinion, post, p. 700. GINSBURG, J., filed a dissenting opinion, post, p. 701. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 702.Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Barbara McDowell, and Joseph C. Wyderko.669Ivars Berzins argued the cause and filed a brief for respondent. *JUSTICE SOUTER delivered the opinion of the Court.tBy administrative subpoena, the Office of Special Investigations of the Criminal Division of the United States Department of Justice (OSI) sought testimony from the respondent, Aloyzas Balsys, about his wartime activities between 1940 and 1944 and his immigration to the United States in 1961. Balsys declined to answer such questions, claiming the Fifth Amendment privilege against self-incrimination, based on his fear of prosecution by a foreign nation. We hold that concern with foreign prosecution is beyond the scope of the Self- Incrimination Clause.IRespondent Aloyzas Balsys is a resident alien living in Woodhaven, New York, having obtained admission to this country in 1961 under the Immigration and Nationality Act, 8 U. S. C. § 1201, on an immigrant visa and alien registration issued at the American Consulate in Liverpool. In his application, he said that he had served in the Lithuanian army between 1934 and 1940, and had lived in hiding in Plateliai, Lithuania, between 1940 and 1944. Balsys swore that the information was true, and signed a statement of understanding that if his application contained any false information or materially misleading statements, or concealed any material fact, he would be subject to criminal prosecution and deportation.*Elizabeth Holtzman and Sanford Hausler filed a brief for the World Jewish Congress et al. as amici curiae urging reversal.John D. Cline, Barbara E. Bergman, and John L. Pollok filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.tJUSTICE SCALIA and JUSTICE THOMAS join only Parts I, II, and III of this opinion.670OSI, which was created to institute denaturalization and deportation proceedings against suspected Nazi war criminals, is now investigating whether, contrary to his representations, Balsys participated in Nazi persecution during World War II. Such activity would subject him to deportation for persecuting persons because of their race, religion, national origin, or political opinion under §§ 1182(a)(3)(E) and 1251(a)(4)(D), as well as for lying on his visa application under §§ 1182(a)(6)(C)(i) and 1251(a)(1)(A).When OSI issued a subpoena requiring Balsys to testify at a deposition, he appeared and gave his name and address, but he refused to answer any other questions, such as those directed to his wartime activities in Europe between 19401945 and his immigration to the United States in 1961. In response to all such questions, Balsys invoked the Fifth Amendment privilege against compelled self-incrimination, claiming that his answers could subject him to criminal prosecution. He did not contend that he would incriminate himself under domestic law,l but claimed the privilege because his responses could subject him to criminal prosecution by Lithuania, Israel, and Germany.OSI responded with a petition in Federal District Court to enforce the subpoena under § 1225(a). Although the District Court found that if Balsys were to provide the information requested, he would face a real and substantial danger of prosecution by Lithuania and Israel (but not by Germany), it granted OS1's enforcement petition and ordered Balsys to testify, treating the Fifth Amendment as inapplicable to a claim of incrimination solely under foreign law. 918 F. Supp. 588 (EDNY 1996). Balsys appealed, and the Court of Appeals for the Second Circuit vacated the District Court's order, holding that a witness with a real and substantial fear of prosecution by a foreign country may assert the Fifth Amendment privilege to avoid giving testimony in a domes-1 The Government advises us that the statute of limitation bars criminal prosecution for any misrepresentation. Tr. of Oral Arg. 4.671tic proceeding, even if the witness has no valid fear of a criminal prosecution in this country. 119 F.3d 122 (1997). We granted certiorari, 522 U. S. 1072 (1998), to resolve a conflict among the Circuits on this issue 2 and now reverse.IIThe Self-Incrimination Clause of the Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U. S. Const., Arndt. 5. Resident aliens such as Balsys are considered "persons" for purposes of the Fifth Amendment and are entitled to the same protections under the Clause as citizens. See Kwong Hai Ghew v. Golding, 344 U. S. 590, 596 (1953). The parties do not dispute that the Government seeks to "compel" testimony from Balsys that would make him "a witness against himself." The question is whether there is a risk that Balsys's testimony will be used in a proceeding that is a "criminal case."Balsys agrees that the risk that his testimony might subject him to deportation is not a sufficient ground for asserting the privilege, given the civil character of a deportation proceeding. See INS v. Lopez-Mendoza, 468 U. S. 1032, 1038-1039 (1984). If, however, Balsys could demonstrate2 See United States v. Gecas, 120 F.3d 1419 (CAll 1997) (en bane) (holding that the privilege cannot be invoked based on fear of prosecution abroad); United States v. (Under Seal), 794 F.2d 920 (CA4) (same), cert. denied sub nom. Araneta v. United States, 479 U. S. 924 (1986); In re Parker, 411 F.2d 1067 (CAW 1969) (same), vacated as moot, 397 U. S. 96 (1970).We have granted certiorari in cases raising this question twice before but did not reach its merits in either case. See Zicarelli v. New Jersey Comm'n of Investigation, 406 U. S. 472 (1972) (finding that because the petitioner did not face a "real and substantial" risk of foreign prosecution, it was unnecessary to decide whether the privilege can be asserted based on fear of foreign prosecution); Parker v. United States, 397 U. S. 96 (1970) (per curiam) (vacating and remanding with instructions to dismiss as moot).672that any testimony he might give in the deportation investigation could be used in a criminal proceeding against him brought by the Government of either the United States or one of the States, he would be entitled to invoke the privilege. It "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory," in which the witness reasonably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent state or federal criminal proceeding. Kastigar v. United States, 406 U. S. 441, 444-445 (1972); see also McCarthy v. Arndstein, 266 U. S. 34, 40 (1924) (the privilege "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it"). But Balsys makes no such claim, contending rather that his entitlement to invoke the privilege arises because of a real and substantial fear that his testimony could be used against him by Lithuania or Israel in a criminal prosecution. The reasonableness of his fear is not challenged by the Government, and we thus squarely face the question whether a criminal prosecution by a foreign government not subject to our constitutional guarantees presents a "criminal case" for purposes of the privilege against self-incrimination.IIIBalsys relies in the first instance on the textual contrast between the Sixth Amendment, which clearly applies only to domestic criminal proceedings, and the Compelled SelfIncrimination Clause, with its facially broader reference to "any criminal case." The same point is developed by Balsys's amici,3 who argue that "any criminal case" means exactly that, regardless of the prosecuting authority. According to the argument, the Framers' use of the adjective "any" precludes recognition of the distinction raised by the3 See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 5.673Government, between prosecution by a jurisdiction that is itself bound to recognize the privilege and prosecution by a foreign jurisdiction that is not. But the argument overlooks the cardinal rule to construe provisions in context. See King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991). In the Fifth Amendment context, the Clause in question occurs in the company of guarantees of grand jury proceedings, defense against double jeopardy, due process, and compensation for property taking. Because none of these provisions is implicated except by action of the government that it binds, it would have been strange to choose such associates for a Clause meant to take a broader view, and it would be strange to find such a sweep in the Clause now. See Wharton v. Wise, 153 U. S. 155, 169-170 (1894) (noscitur a sociis); see also Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995) (same). The oddity of such a reading would be especially stark if the expansive language in question is open to another reasonable interpretation, as we think it is. Because the Fifth Amendment opens by requiring a grand jury indictment or presentment "for a capital, or otherwise infamous crime,"4 the phrase beginning with "any" in the subsequent Self- Incrimination Clause may sensibly be read as making it clear that the privilege it provides is not so categorically limited. It is plausible to suppose the adjective was inserted only for that purpose, not as taking the further step of defining the relevant prosecutorial jurisdiction internationally. We therefore take this to be the fair reading of the adjective "any," and we read the Clause contextually as4 As a whole, the Amendment reads as follows: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, 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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."674apparently providing a witness with the right against compelled self-incrimination when reasonably fearing prosecution by the government whose power the Clause limits, but not otherwise. Since there is no helpful legislative history,5 and because there was no different common law practice at the time of the framing, see Part III-C, infra; cf. Counselman v. Hitchcock, 142 U. S. 547, 563-564 (1892) (listing a sample of cases, including preframing cases, in which the privilege was asserted, none of which involve fear of foreign prosecution), there is no reason to disregard the contextual reading. This Court's precedent has indeed adopted that so-called same-sovereign interpretation.AThe currently received understanding of the Bill of Rights as instituted "to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches" of the National Government defined in the original constitutional articles, New York Times Co. v. United5 See Gecas, 120 F. 3d, at 1435 (noting that the Clause has "virtually no legislative history"); 5 The Founders' Constitution 262 (P. Kurland & R. Lerner eds. 1987) (indicating that the Clause as originally drafted and introduced in the First Congress lacked the phrase "any criminal case," which was added at the behest of Representative Lawrence on the ground that the Clause would otherwise be "in some degree contrary to laws passed").In recent years, scholarly attention has refined our knowledge of the previous manifestations of the privilege against self-incrimination, the present culmination of such scholarship being R. Helmholz et al., The Privilege Against Self-Incrimination (1997). What we know of the circumstances surrounding the adoption of the Fifth Amendment, however, gives no indication that the Framers had any sense of a privilege more comprehensive than common law practice then revealed. See Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 Mich. L. Rev. 1086, 1123 (1994) ("[T]he legislative history of the Fifth Amendment adds little to our understanding of the history of the privilege"). As to the common law practice, see Part III-C, infra.675States, 403 U. S. 713, 716 (1971) (per curiam) (Black, J., concurring) (emphasis deleted), was expressed early on in Chief Justice Marshall's opinion for the Court in the leading case of Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247 (1833): the Constitution's "limitations on power ... are naturally, and, we think, necessarily applicable to the government created by the instrument," and not to "distinct [state] governments, framed by different persons and for different purposes."To be sure, it would have been logically possible to decide (as in Barron) that the "distinct [state] governments ... framed ... for different purposes" were beyond the ambit of the Fifth Amendment, and at the same time to hold that the self-incrimination privilege, good against the National Government, was implicated by fear of prosecution in another jurisdiction. But after Barron and before the era of Fourteenth Amendment incorporation, that would have been an unlikely doctrinal combination, and no such improbable development occurred.The precursors of to day's case were those raising the question of the significance for the federal privilege of possible use of testimony in state prosecution. Only a handful of early cases even touched on the problem. In Brown v. Walker, 161 U. S. 591 (1896), a witness raised the issue, claiming the privilege in a federal proceeding based on his fear of prosecution by a State, but we found that a statute under which immunity from federal prosecution had been conferred provided for immunity from state prosecution as well, obviating any need to reach the issue raised. Id., at 606-608. In Jack v. Kansas, 199 U. S. 372 (1905), a Fourteenth Amendment case, we affirmed a sentence for contempt imposed on a witness in a state proceeding who had received immunity from state prosecution but refused to answer questions based on a fear that they would subject him to federal prosecution. Although there was no reasonable fear of a prosecution by the National Government in that676case, we addressed the question whether a self-incrimination privilege could be invoked in the one jurisdiction based on fear of prosecution by the other, saying that "[w]e think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given it is enough." Id., at 382. A year later, in the course of considering whether a federal witness, immunized from federal prosecution, could invoke the privilege based on fear of state prosecution, we adopted the general proposition that "the possibility that information given by the witness might be used" by the other government is, as a matter of law, "a danger so unsubstantial and remote" that it fails to trigger the right to invoke the privilege. Hale v. Henkel, 201 U. S. 43, 69 (1906)."[I]f the argument were a sound one it might be carried still further and held to apply not only to state prosecutions within the same jurisdiction, but to prosecutions under the criminal laws of other States to which the witness might have subjected himself. The question has been fully considered in England, and the conclusion reached by the courts of that country [is] that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 B. & S. 311[, 121 Eng. Rep. 730]; King of the Two Sicilies v. Willcox, 7 State Trials (N. S.), 1049, 1068; State v. March, 1 Jones (N. Car.), 526; State v. Thomas, 98 N. Car. 599." Ibid.A holding to this effect came when United States v. Murdock, 284 U. S. 141 (1931), "definitely settled" the question whether in a federal proceeding the privilege applied on account of fear of state prosecution, concluding "that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law." United States v. Murdock, 290 U. S. 389, 396 (1933)."The English rule of evidence against compulsory selfincrimination, on which historically that contained in677the Fifth Amendment rests, does not protect witnesses against disclosing offenses in violation of the laws of another country. King of the Two Sicilies v. Willcox, 7 State Trials (N. S.) 1049, 1068. Queen v. Boyes, 1 B. & S., at 330[, 121 Eng. Rep., at 738]. This court has held that immunity against state prosecution is not essential to the validity of federal statutes declaring that a witness shall not be excused from giving evidence on the ground that it will incriminate him, and also that the lack of state power to give witnesses protection against federal prosecution does not defeat a state immunity statute. The principle established is that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination. Counselman v. Hitchcock, 142 U. S. 547. Brown v. Walker, 161 U. S. 591, 606. Jack v. Kansas, 199 U. S. 372, 381. Hale v. Henkel, 201 U. S. 43, 68. As appellee at the hearing did not invoke protection against federal prosecution, his plea is without merit and the government's demurrer should have been sustained." Murdock, 284 U. S., at 149.Murdock's resolution of the question received a subsequent complement when we affirmed again that a State could compel a witness to give testimony that might incriminate him under federal law, see Knapp v. Schweitzer, 357 U. S. 371 (1958), overruled by Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U. S. 52 (1964), testimony that we had previously held to be admissible into evidence in the federal courts, see Feldman v. United States, 322 U. S. 487 (1944), overruled by Murphy, supra, at 80.BIt has been suggested here that our precedent addressing fear of prosecution by a government other than the compelling authority fails to reflect the Murdock rule uniformly.678In 1927 (prior to our decision in Murdock), in a case involving a request for habeas relief from a deportation order, we declined to resolve whether "the Fifth Amendment guarantees immunity from self-incrimination under state statutes." United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927). Although we found that the witness had waived his claim to the privilege, our decision might be read to suggest that there was some tension between the reasoning of two of the cases discussed above, Hale v. Henkel and Brown v. Walker, and the analyses contained in two others, United States v. Saline Bank of Va., 1 Pet. 100 (1828), and BaUmann v. Fagin, 200 U. S. 186 (1906). 273 U. S., at 113. These last two cases have in fact been cited here for the claim that prior to due process incorporation, the privilege could be asserted in a federal proceeding based on fear of prosecution by a State.6 Saline Bank and BaUmann are not, however, inconsistent with Murdock.In Saline Bank, we permitted the defendants to refuse discovery sought by the United States in federal court, where the defendants claimed that their responses would result in incrimination under the laws of Virginia. "The rule clearly is, that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it." 1 Pet., at 104. But, for all the sweep of this statement, the opinion makes no mention of the Fifth Amendment, and in Hale v. Henkel, we explained that "the prosecution [in Saline Bank] was under a state law which imposed the penalty, and ... the Federal court was simply6 The language in Vajtauer that has been cited in support of this suggestion says only that our conclusion that the witness waived his claim of privilege "makes it unnecessary for us to consider the extent to which the Fifth Amendment guarantees immunity from self-incrimination under state statutes or whether this case is to be controlled by Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. S. 591, 608; compare United States v. Saline Bank, 1 Pet. 100; BaUmann v. Fagin, 200 U. S. 186, 195." 273 U. S., at 113.679administering the state law." 201 U. S., at 69. The state law, which addresses prosecutions brought by the State, suggested the rule that the Saline Bank Court applied to the case before it; the law provided that "no disclosure made by any party defendant to such suit in equity, and no books or papers exhibited by him in answer to the bill, or under the order of the Court, shall be used as evidence against him in any ... prosecution under this law," quoted in 1 Pet., at 104. Saline Bank, then, may have turned on a reading of state statutory law. Cf. McNaughton, Self-Incrimination Under Foreign Law, 45 Va. L. Rev. 1299, 1305-1306 (1959) (suggesting that Saline Bank represents "an application not of the privilege against self-incrimination ... but of the principle that equity will not aid a forfeiture"). But see BaUmann, supra, at 195 (Holmes, J.) (suggesting that Saline Bank is a Fifth Amendment case, though this view was soon repudiated by the Court in Hale, as just noted).Where Saline Bank is laconic, BaUmann is equivocal.While Ballmann specifically argued only the danger of incriminating himself under state law as his basis for invoking the privilege in a federal proceeding, and we upheld his claim of privilege, our opinion indicates that we concluded that Ballmann might have had a fear of incrimination under federal law as well as under state law. While we did suggest, contrary to the Murdock rule, that Ballmann might have been able to invoke the privilege based on a fear of state prosecution, the opinion says only that "[o]ne way or the other [due to the risk of incrimination under federal or state law] we are of opinion that Ballmann could not be required to produce his cash book if he set up that it would tend to criminate him." 200 U. S., at 195-196. At its equivocal worst, BaUmann reigned for only two months. Hale v. Henkel explained that "the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty," 201 U. S., at 69, and BaUmann and Saline680Bank were later, of course, superseded by Murdock with its unequivocal holding that prosecution in a state jurisdiction not bound by the Clause is beyond the purview of the privilege.CIn 1964, our precedent took a turn away from the unqualified proposition that fear of prosecution outside the jurisdiction seeking to compel testimony did not implicate a Fifth or Fourteenth Amendment privilege, as the case might be. In Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U. S. 52 (1964), we reconsidered the converse of the situation in Murdock, whether a witness in a state proceeding who had been granted immunity from state prosecution could invoke the privilege based on fear of prosecution on federal charges. In the course of enquiring into a work stoppage at several New Jersey piers, the Waterfront Commission of New York Harbor subpoenaed the defendants, who were given immunity from prosecution under the laws of New Jersey and New York. When the witnesses persisted in refusing to testify based on their fear of federal prosecution, they were held in civil contempt, and the order was affirmed by New Jersey's highest court. In re Application of the Waterfront Comm'n of N. Y. Harbor, 39 N. J. 436, 449, 189 A. 2d 36, 44 (1963). This Court held the defendants could be forced to testify not because fear of federal prosecution was irrelevant but because the Self-Incrimination Clause barred the National Government from using their state testimony or its fruits to obtain a federal conviction. We explained that "the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law." 378 U. S., at 77-78.Murphy is a case invested with two alternative rationales.Under the first, the result reached in Murphy was undoubtedly correct, given the decision rendered that very same day in Malloy v. Hogan, 378 U. S. 1 (1964), which applied the681doctrine of Fourteenth Amendment due process incorporation to the Self-Incrimination Clause, so as to bind the States as well as the National Government to recognize the privilege. Id., at 3. Prior to Malloy, the Court had refused to impose the privilege against self-incrimination against the States through the Fourteenth Amendment, see Twining v. New Jersey, 211 U. S. 78 (1908), thus leaving state-court witnesses seeking exemption from compulsion to testify to their rights under state law, as supplemented by the Fourteenth Amendment's limitations on coerced confessions. Malloy, however, established that "[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement-the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence." 378 U. S., at 8.As the Court immediately thereafter said in Murphy, Malloy "necessitate[d] a reconsideration" of the unqualified Murdock rule that a witness subject to testimonial compulsion in one jurisdiction, state or federal, could not plead fear of prosecution in the other. 378 U. S., at 57. After Malloy, the Fifth Amendment limitation could no longer be seen as framed for one jurisdiction alone, each jurisdiction having instead become subject to the same claim of privilege flowing from the one limitation. Since fear of prosecution in the one jurisdiction bound by the Clause now implicated the very privilege binding upon the other, the Murphy opinion sensibly recognized that if a witness could not assert the privilege in such circumstances, the witness could be "whipsawed into incriminating himself under both state and federal law even though the constitutional privilege against self-incrimination is applicable to each." 378 U. S., at 55 (internal quotation marks omitted).7 The whipsawing was possible owing to a7 Prior to Murphy, such "whipsawing" efforts had been permissible, but arguably less outrageous since, as the opinion notes, "either the 'compelling' government or the 'using' government [was] a State, and, until today,682feature unique to the guarantee against self-incrimination among the several Fifth Amendment privileges. In the absence of waiver, the other such guarantees are purely and simply binding on the government. But under the SelfIncrimination Clause, the government has an option to exchange the stated privilege for an immunity to prosecutorial use of any compelled inculpatory testimony. Kastigar v. United States, 406 U. S., at 448-449. The only condition on the government when it decides to offer immunity in place of the privilege to stay silent is the requirement to provide an immunity as broad as the privilege itself. Id., at 449. After Malloy had held the privilege binding on the state jurisdictions as well as the National Government, it would therefore have been intolerable to allow a prosecutor in one or the other jurisdiction to eliminate the privilege by offering immunity less complete than the privilege's dual jurisdictional reach. Murphy accordingly held that a federal court could not receive testimony compelled by a State in the absence of a statute effectively providing for federal immunity, and it did this by imposing an exclusionary rule prohibiting the National Government "from making any such use of compelled testimony and its fruits," 378 U. S., at 79 (footnote omitted).This view of Murphy as necessitated by Malloy was adopted in the subsequent case of Kastigar v. United States, supra, at 456, n. 42 ("Reconsideration of the rule that the Fifth Amendment privilege does not protect a witness in one jurisdiction against being compelled to give testimony that could be used to convict him in another jurisdiction was made necessary by the decision in Malloy v. Hogan"). Read this way, Murphy rests upon the same understanding of the Self- Incrimination Clause that Murdock recognized and to which the earlier cases had pointed. Although the Clause serves a variety of interests in one degree or another, seethe States were not deemed fully bound by the privilege against selfincrimination." 378 U. S., at 57, n. 6.683Part IV, infra, at its heart lies the principle that the courts of a government from which a witness may reasonably fear prosecution may not in fairness compel the witness to furnish testimonial evidence that may be used to prove his guilt. After Murphy, the immunity option open to the Executive Branch could be exercised only on the understanding that the state and federal jurisdictions were as one, with a federally mandated exclusionary rule filling the space between the limits of state immunity statutes and the scope of the privilege.8 As so understood, Murphy stands at odds with Balsys's claim.There is, however, a competing rationale in Murphy, investing the Clause with a more expansive promise. The Murphy majority opened the door to this view by rejecting this Court's previous understanding of the English common-law evidentiary privilege against compelled selfincrimination, which could have informed the Framers' understanding of the Fifth Amendment privilege. See, e. g., Murphy, 378 U. S., at 67 (rejecting Murdock's analysis of the scope of the privilege under English common law). Having removed what it saw as an unjustified, historically derived8 Of course, the judicial exclusion of compelled testimony functions as a fail-safe to ensure that compelled testimony is not admitted in a criminal proceeding. The general rule requires a grant of immunity prior to the compelling of any testimony. We have said that the prediction that a court in a future criminal prosecution would be obligated to protect against the evidentiary use of compelled testimony is not enough to satisfy the privilege against compelled self-incrimination. Pillsbury Co. v. Conboy, 459 U. S. 248, 261 (1983). The suggestion that a witness should rely on a subsequent motion to suppress rather than a prior grant of immunity "would [not] afford adequate protection. Without something more, [the witness] would be compelled to surrender the very protection which the privilege is designed to guarantee." Maness v. Meyers, 419 U. S. 449, 462 (1975) (footnote and internal quotation marks omitted). This general rule ensures that we do not "let the cat out with no assurance whatever of putting it back," id., at 463 (internal quotation marks omitted), and leaves the decision whether to grant immunity to the Executive in accord with congressional policy, see Pillsbury, supra, at 262.684limitation on the privilege, the Murphy Court expressed a comparatively ambitious conceptualization of personal privacy underlying the Clause, one capable of supporting, if not demanding, the scope of protection that Balsys claims. As the Court of Appeals recognized, if we take the Murphy opinion at face value, the expansive rationale can be claimed quite as legitimately as the Murdock-Malloy-Kastigar understanding of Murphy's result, and Balsys's claim accordingly requires us to decide whether Murphy's innovative side is as sound as its traditional one. We conclude that it is not.As support for the view that the Court had previously misunderstood the English rule, Murphy relied, first, on two preconstitutional English cases, East India Co. v. Campbell, 1 Yes. sen. 246, 27 Eng. Rep. 1010 (Ex. 1749), and Brownsword v. Edwards, 2 Yes. sen. 243, 28 Eng. Rep. 157 (Ch. 1750), for the proposition that a witness in an English court was permitted to invoke the privilege based on fear of prosecution in a foreign jurisdiction. See 378 U. S., at 5859. Neither of these cases is on point as holding that proposition, however. In East India Co., a defendant before the Court of Exchequer, seeking to avoid giving an explanation for his possession of certain goods, claimed the privilege on the ground that his testimony might subject him to a fine or corporal punishment. The Court of Exchequer found that the defendant would be punishable in Calcutta, then an English Colony, and said it would "not oblige one to discover that, which, if he answers in the affirmative, will subject him to the punishment of a crime." 1 Yes. sen., at 247, 27 Eng. Rep., at 1011. In Brownsword, a defendant before the Court of Chancery claimed the privilege on the ground that her testimony could render her liable to prosecution in an English ecclesiastical court. "The general rule," the court said, "is that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law of the land." 2 Yes. sen., at 245, 28 Eng.685Rep., at 158. Although this statement, like its counterpart in East India Co., is unqualified, neither case is authority for the proposition that fear of prosecution in foreign courts implicates the privilege. For in each of these cases, the judicial system to which the witness's fears related was subject to the same legislative sovereignty that had created the courts in which the privilege was claimed.9 In fact, when these cases were decided, and for years after adoption of the Fifth Amendment, English authority was silent on whether fear of prosecution by a foreign nation implicated the privilege, and the Vice-Chancellor so stated in 1851. See King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 331, 61 Eng. Rep. 116, 128 (Ch. 1851) (observing, in the course of an opinion that clearly involved a claim of privilege based on the fear of prosecution by another sovereign, that there is an "absence of all authority on the point").Murphy, in fact, went on to discuss the case last cited, as well as a subsequent one. The Murphy majority began by acknowledging that King of the Two Sicilies was not authority for attacking this Court's prior view of English law. 378 U. S., at 60. In an opinion by Lord Cranworth, the Court of Chancery declined to allow defendants to assert the privilege9 Further, the courts of both jurisdictions, at least in some cases, recognized the privilege against self-incrimination. East India Co. makes specific reference to the fact that the witness's testimony might be incriminating under the laws of Calcutta. 1 Yes. sen., at 247, 27 Eng. Rep., at 1011 ("[T]hat he is punishable appears from the case of Omichund v. Barker [1 Atk. 21, 26 Eng. Rep. 15 (1744)], as a jurisdiction is erected in Calcutta for criminal facts"). As of 1726, Calcutta was a "presidency town," which was subject to the civil jurisdiction of a "mayor's court." The mayor's court followed the English Rules of Evidence, which would have included the rule against self-incrimination. 1 Woodroffe & Ameer Ali's Law of Evidence in India 13 (P. Ramaswami & S. Rajagopalan eds., 11th ed. 1962). The ecclesiastical courts of England also recognized something akin to the privilege at this time in some cases. See Helmholz, Origins of the Privilege Against Self-Incrimination: The Role of the European Ius Commune, 65 N. Y. U. L. Rev. 962, 969-974 (1990) (citing cases heard in ecclesiastical courts in which the privilege was recognized).686based on their fear of prosecution in Sicily, for two reasons. 1 Sim. (N. S.), at 329, 61 Eng. Rep., at 128. The first was the court's belief that the privilege speaks only to matters that might be criminal under the laws of England: "The rule relied on by the Defendants, is one which exists merely by virtue of our own municipal law, and must, I think, have reference, exclusively, to matters penal by that law: to matters as to which, if disclosed, the Judge would be able to say, as matter of law, whether it could or could not entail penal consequences." For the second, the court relied on the unlikelihood that the defendants would ever leave England and be subject to Sicilian prosecution.The Murphy majority nonetheless understood this rule to have been undermined by the subsequent case of United States of America v. McRae, 3 L. R. Ch. 79 (1867). See 378 U. S., at 61. In that suit brought by the United States against McRae in England to recover funds that he had collected there as a Confederate agent during the Civil War, the court recognized the privilege based on McRae's claim that his testimony would incriminate him in the United States. The court distinguished the litigation then before it from King of the Two Sicilies, indicating that though it agreed with the general principles stated by Lord Cranworth, see 3 L. R. Ch., at 84, he had not needed to lay down the broad proposition that invocation of the privilege was appropriate only with regard to matters penal under England's own law, see id., at 85. The court did not say that the privilege could be invoked in any case involving fear of prosecution under foreign law, however. Instead it noted two distinctions from King of the Two Sicilies, the first being that the "presumed ignorance of the Judge as to foreign law" on which King of the Two Sicilies rested has been "completely removed by the admitted statements upon the pleadings," 3 L. R. Ch., at 85; the second being that McRae presented the unusual circumstance that the party seeking to compel the testimony, the United States, was also the party687that would prosecute any crime under its laws that might thereby be revealed, id., at 87. The court's holding that the privilege could be invoked in such circumstances does not, however, support a general application of the privilege in any case in which a witness fears prosecution under foreign law by a party not before the court. Thus, Murphy went too far in saying that McRae overruled King of the Two Sicilies.lO See Murphy, 378 U. S., at 71. What is of more fundamental importance, however, is that even if McRae had announced a new development in English law going to the heart of King of the Two Sicilies, it would have been irrelevant to Fifth Amendment interpretation. The presumed influence of English law on the intentions of the Framers hardly invests the Framers with clairvoyance, and subsequent English developments are not attributable to the Framers by some rule of renvoi. Cf. Brown, 161 U. S., at 600 (citing Cathcart v. Robinson, 5 Pet. 264, 280 (1831)). Since McRae neither stated nor implied any disagreement with Lord Cranworth's 1857 statement in King of the Two Sicilies that there was no clear prior authority on the question, the Murphy Court had no authority showing that Murdock rested on unsound historical assumptions contradicted by opinions of the English courts.10 Murphy also cites Heriz v. Riera, 11 Sim. 318, 59 Eng. Rep. 896 (1840), as support for the claim that the English rule allowed invocation of the privilege based on fear of prosecution abroad. See 378 U. S., at 63. In that case two Spanish women brought suit in England alleging that the defendant had violated a contract that he entered into with their brother and to which they were entitled to the proceeds as his heirs. The contract provided that the plaintiffs' brother (and they as his heirs) were entitled to a share of the proceeds from a mercantile contract with the Spanish Government. The defendant responded that the contract was illegal under the laws of Spain and hence unenforceable and resisted discovery because his answers might incriminate him under the Spanish code. The court accepted the defendant's plea, though it is unclear whether the court ruled on the merits of the plaintiffs' claim or the self-incrimination issue. See Grant, Federalism and Self-Incrimination, 5 UCLA L. Rev. 1,2 (1958).688In sum, to the extent that the Murphy majority went beyond its response to Malloy and undercut Murdock's rationale on historical grounds, its reasoning cannot be accepted now. Long before today, indeed, Murphy's history was shown to be fatally flawed.ll11 Murphy, 378 U. S., at 81, n. 1 (Harlan, J., concurring in judgment) ("The English rule is not clear"); United States v. (Under Seal), 794 F. 2d, at 927 ("The Court's scholarship with respect to English law in this regard has been attacked, see Note, 69 Va. L. Rev. at 893-94 .... We do not enter the dispute as to whether Murphy represents a correct statement of the English rule at a particular time because we do not think that the Murphy holding depended upon the correctness of the Court's understanding of the state of English law and reliance thereon as the sole basis for decision. Rather, Murphy proceeds as a logical consequence to the holding in Malloy v. Hogan ... "); Note, Fifth Amendment Privilege Against Self-Incrimination and Fear of Foreign Prosecution, 96 Colum. L. Rev. 1940, 1944-1946, 1949, and nn. 79-81 (1996) ("The uncertainty of English law on [the question whether the privilege can be invoked based on fear of prosecution] casts doubt on the Supreme Court's holding in Murphy, which was based on the assertion that McRae 'represents the settled "English rule" regarding self-incrimination under foreign law.' Indeed, the Murphy Court's reliance on its idea of the 'true' English rule has been criticized by commentators, and its reading of British law was essentially overruled by the British Parliament. Murphy's reliance on mistaken interpretation and application of English law weakens its precedential value" (footnotes omitted)); Note, The Reach of the Fifth Amendment Privilege When Domestically Compelled Testimony May Be Used in a Foreign Country's Court, 69 Va. L. Rev. 875, 893-895 (1983) ("[T]he English rule argument has three fatal flaws. First, the so-called English rule, decided in 1867, never was the English rule despite overstatements by several American commentators and the Murphy Court. British commentators remained uncertain for nearly a century about the extent to which, if at all, their privilege protected against foreign incrimination .... Second, the English courts had not decided a case involving incrimination under the criminal laws of independent foreign sovereigns by the time our Constitution was framed. The only English cases involving independent sovereigns were decided more than sixty years later. Thus, even if the fifth amendment embodied the English common law at the time it was framed, the privilege did not incorporate any rule concerning foreign incrimination. Finally, even if the English rule protected against foreign incrimination, the Supreme Court in Zicarelli indicated that it had not689DAlthough the Court and JUSTICE BREYER'S dissent differ on details, including some considerations of policy addressed in Part IV, infra, our basic disagreement with that dissent turns on three points. First, we start with what we think is the most probable reading of the Clause in its Fifth Amendment context, as limiting its principle to concern with prosecution by a sovereign that is itself bound by the Clause; the dissent instead emphasizes the Clause's facial breadth as consistent with a broader principle. Second, we rely on the force of our precedent, notably Murdock, as confirming this same-sovereign principle, as adapted to reflect the postMalloy requirement of immunity effective against both sovereigns subject to the one privilege under the National Constitution; the dissent attributes less force to Murdock, giving weight to its tension with the Saline Bank language, among other things. Third, we reject Murphy's restatement of the common-law background and read none of the common-law cases as authority inconsistent with our contextual reading of the Clause, later confirmed by precedent such as Murdock; the dissent finds support in the common-law cases for Murphy's historical reexamination and the broader reading of the Clause. In the end, our contextual reading of the Clause, combined with the Murdock holding, places a burden on any-formally adopted the rule in Murphy" (footnotes omitted)); Capra, The Fifth Amendment and the Risk of Foreign Prosecution, N. Y. L. J., Mar. 8, 1991, p. 3 ("[D]espite Justice Goldberg's assertions in Murphy, it is clear that there was never a 'true' or uniform English rule .... [T]o the extent that the English rule would be pertinent to the Fifth Amendment privilege, it would have had to exist at the time the Fifth Amendment was adopted. Yet, as even Justice Goldberg admitted in Murphy, the English cases involving independent sovereigns were decided more than 60 years after the Fifth Amendment was adopted"); see also Law Reform Committee, Sixteenth Report, 1967, Cmnd. 3472, U1, p. 7 (explaining that English common law on the question is not "wholly consistent").Murphy's reexamination of history also adopted the illegitimate reading of Saline Bank, rejected supra, at 678-679.690one who contests the basic same-sovereign principle, a burden that only clear, contrary, preframing common law might carry; since the dissent starts with a broader reading of the Clause and a less potent view of Murdock, it does not require Murphy and the common-law cases to satisfy such a burden before definitively finding that a more expansive principle underlies the Clause.IVThere remains, at least on the face of the Murphy majority's opinion, a further invitation to revise the principle of the Clause from what Murdock recognized. The Murphy majority opens its discussion with a catalog of "Policies of the Privilege," 378 U. S., at 55 (citations and internal quotation marks omitted):"It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of selfaccusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life, our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent."Some of the policies listed would seem to point no further than domestic arrangements and so raise no basis for any privilege looking beyond fear of domestic prosecution. Oth-691ers, however, might suggest a concern broad enough to encompass foreign prosecutions and accordingly to support a more expansive theory of the privilege than the Murdock understanding would allow.The adoption of any such revised theory would, however, necessarily rest on Murphy's reading of preconstitutional common-law cases as support for (or at least as opening the door to) the expansive view of the Framers' intent, which we and the commentators since Murphy have found to be unsupported. Once the Murphy majority's treatment of the English cases is rejected as an indication of the meaning intended for the Clause, Murdock must be seen as precedent at odds with Balsys's claim. That precedent aside, however, we think there would be sound reasons to stop short of resting an expansion of the Clause's scope on the highly general statements of policy expressed in the foregoing quotation from Murphy. While its list does indeed catalog aspirations furthered by the Clause, its discussion does not even purport to weigh the host of competing policy concerns that would be raised in a legitimate reconsideration of the Clause's scope.AThe most general of Murphy's policy items ostensibly suggesting protection as comprehensive as that sought by Balsys is listed in the opinion as "the inviolability of the human personality and ... the right of each individual to a private enclave where he may lead a private life." 378 U. S., at 55 (internal quotation marks omitted). Whatever else those terms might cover, protection of personal inviolability and the privacy of a testimonial enclave would necessarily seem to include protection against the Government's very intrusion through involuntary interrogation.12 If in fact12We are assuming, arguendo, that the intrusion is a subject of the Clause's protection. See Murphy, 378 U. S., at 57, n. 6; Gecas, 120 F. 3d, at 1462 (Birch, J., dissenting); cf. United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990) ("The privilege against self-incrimination guaranteed692these values were reliable guides to the actual scope of protection under the Clause, they would be seen to demand a very high degree of protection indeed: "inviolability" is, after all, an uncompromising term, and we know as well from Fourth Amendment law as from a layman's common sense that breaches of privacy are complete at the moment of illicit intrusion, whatever use mayor may not later be made of their fruits. See United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990) (citing United States v. Calandra, 414 U. S. 338, 354 (1974); United States v. Leon, 468 U. S. 897, 906 (1984)).The Fifth Amendment tradition, however, offers no such degree of protection. If the Government is ready to provide the requisite use and derivative use immunity, see Kastigar, 406 U. S., at 453; see also Lefkowitz v. Turley, 414 U. S. 70, 84 (1973), the protection goes no further: no violation of personality is recognized and no claim of privilege will availY One might reply that the choice of the word "inviolability" was just unfortunate; while testimonial integrity may not be inviolable, it is sufficiently served by requiring the Government to pay a price in the form of use (and derivative use) immunity before a refusal to testify will be overruled. But that answer overlooks the fact that when a witness's response will raise no fear of criminal penalty, there is no protection for testimonial privacy at all. See United States v. Ward, 448 U. S. 242, 248-255 (1980).Thus, what we find in practice is not the protection of personal testimonial inviolability, but a conditional protection of testimonial privacy subject to basic limits recognized beforeby the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial" (citation omitted)).13 The practice of exchanging silence for immunity is unchallenged here and presumably invulnerable, being apparently as old as the Fifth Amendment itself. See Kastigar, 406 U. S., at 445, and n. 13.693the framing 14 and refined through immunity doctrine in the intervening years. Since the Judiciary could not recognize fear of foreign prosecution and at the same time preserve the Government's existing rights to seek testimony in exchange for immunity (because domestic courts could not enforce the immunity abroad), it follows that extending protection as Balsys requests would change the balance of private and governmental interests that has seemingly been accepted for as long as there has been Fifth Amendment doctrine. The upshot is that accepting personal testimonial integrity or privacy as a prima facie justification for the development Balsys seeks would threaten a significant change in the scope of traditional domestic protection; to the extent, on the other hand, that the domestic tradition is thought worthy of preservation, an appeal to a general personal testimonial integrity or privacy is not helpful. See Doe v. United States, 487 U. S. 201, 213, n. 11 (1988) (finding no violation of the privilege "[d]espite the impact upon the inviolability of the human personality"); Schmerber v. California, 384 U. S. 757, 762 (1966) (holding that a witness cannot rely on the privilege to decline to provide blood samples); ibid. ("[T]he privilege has never been given the full scope which the values that it helps to protect suggest").BMurphy's policy catalog would provide support, at a rather more concrete level, for Balsys's argument that application of the privilege in situations like his would promote the purpose of preventing government overreaching, which on anyone's view lies at the core of the Clause's purposes. This argument begins with the premise that "cooperative internationalism" creates new incentives for the Government to facilitate foreign criminal prosecutions. Because crime, like legitimate trade, is increasingly international, a correspond-14 See n. 13, supra.694ing degree of international cooperation is coming to characterize the enterprise of criminal prosecution.15 The mission of the OS1 as shown in this case exemplifies the international cooperation that is said to undermine the legitimacy of treating separate governmental authorities as separate for purposes of liberty protection in domestic courts. Because the Government now has a significant interest in seeing individuals convicted abroad for their crimes, it is subject to the same incentive to overreach that has required application of the privilege in the domestic context. Balsys says that this argument is nothing more than the reasoning of the Murphy Court when it justified its recognition of a fear of state prosecution by looking to the significance of" 'cooperative federalism,'" the teamwork of state and national officials to fight interstate crime. 378 U. S., at 55-56.But Balsys invests Murphy's "cooperative federalism" with a significance unsupported by that opinion. We have already pointed out that Murphy's expansion upon Murdock is not supported by Murphy's unsound historical reexamination, but must rest on Murphy's other rationale, under which its holding is a consequence of Malloy. That latter reading is essential to an understanding of "cooperative federalism." For the Murphy majority, "cooperative federalism" was not important standing alone, but simply because it underscored the significance of the Court's holding that after Malloy it would be unjustifiably formalistic for a federal court to ignore fear of state prosecution when ruling on a privilege claim. Thus, the Court described the "whipsaw" effect that the decision in Malloy would have created if fear of state prosecution were not cognizable in a federal proceeding:"[The] policies and purposes [of the privilege] are defeated when a witness can be whipsawed into incriminating himself under both state and federal law15 The Court of Appeals cited a considerable number of studies in the growing literature on the subject. 119 F.3d 122, 130-131 (CA2 1997).695even though the constitutional privilege against selfincrimination is applicable to each. This has become especially true in our age of 'cooperative federalism,' where the Federal and State Governments are waging a united front against many types of criminal activity." 378 U. S., at 55-56 (citation and internal quotation marks omitted).Since in this case there is no analog of Malloy, imposing the Fifth Amendment beyond the National Government, there is no premise in Murphy for appealing to "cooperative internationalism" by analogy to "cooperative federalism." 16 Any analogy must, instead, be to the pre-Murphy era when the States were not bound by the privilege. Then, testimony compelled in a federal proceeding was admissible in a state prosecution, despite the fact that shared values and similar criminal statutes of the state and national jurisdictions presumably furnished incentive for overreaching by the Government to facilitate criminal prosecutions in the States.But even if Murphy were authority for considering "cooperative federalism" and "cooperative internationalism" as reasons supporting expansion of the scope of the privilege,16 There is indeed nothing comparable to the Fifth Amendment privilege in any supranational prohibition against compelled self-incrimination derived from any source, the privilege being "at best an emerging principle of international law." See Amann, A Whipsaw Cuts Both Ways, 45 UCLA L. Rev. 1201, 1259 (1998) (hereinafter Amann).In the course of discussing the Eleventh Circuit case raising the same issue as this one, Amann suggests nonetheless that the whipsaw rationale has particular salience on these facts because along with the United States, Lithuania and Israel are signatories to the International Covenant on Civil and Political Rights, Dec. 16, 1966, G. A. Res. 2200, which recognizes something akin to the privilege. See Amann 1233, n. 206. The significance of being bound by the Covenant, however, is limited by its provision that the privilege is derogable and accordingly may be infringed if public emergency necessitates. Id., at 1259, n. 354. In any event, Balsys has made no claim under the Covenant, and its current enforceability in the courts of the signatories is an issue that is not before us.696any extension would depend ultimately on an analysis of the likely costs and benefits of extending the privilege as Balsys requests. If such analysis were dispositive for us, we would conclude that Balsys has not shown that extension of the protection would produce a benefit justifying the rule he seeks.The Court of Appeals directed careful attention to an evaluation of what would be gained and lost on Balsys's view. It concluded, for example, that few domestic cases would be adversely affected by recognizing the privilege based upon fear of foreign prosecution, 119 F. 3d, at 135-137; 17 that American contempt sanctions for refusal to testify are so lenient in comparison to the likely consequences of foreign prosecution that a witness would probably refuse to testify even if the privilege were unavailable to him, id., at 142 (Block, J., concurring); that by statute and treaty the United States could limit the occasions on which a reasonable fear of foreign prosecution could be shown, as by modifying extradition and deportation standards in cases involving the privilege, id., at 138-139; and that because a witness's refusal to testify may be used as evidence in a civil proceeding, deportation of people in Balsys's position would not necessarily be thwarted by recognizing the privilege as he claims it, id., at 136.The Court of Appeals accordingly thought the net burden of the expanded privilege too negligible to justify denying its expansion. We remain skeptical, however. While we will not attempt to comment on every element of the Court of Appeals's calculation, two of the points just noted would present difficulty. First, there is a question about the standard that should govern any decision to justify a truly discretionary ruling by making the assumption that it will induce the Government to adopt legislation with international implications or to seek international agreements, in order to17The assessment was, of course, necessarily based on experience under the same-sovereign view of the privilege.697mitigate the burdens that the ruling would otherwise impose. Because foreign relations are specifically committed by the Constitution to the political branches, Art. II, § 2, cl. 2, we would not make a discretionary judgment premised on inducing them to adopt policies in relation to other nations without squarely confronting the propriety of grounding judicial action on such a premise.Second, the very assumption that a witness's silence may be used against him in a deportation or extradition proceeding due to its civil nature, 119 F. 3d, at 136 (citing LopezMendoza, 468 U. S., at 1038-1039), raises serious questions about the likely gain from recognizing fear of foreign prosecution. For if a witness claiming the privilege ended up in a foreign jurisdiction that, for whatever reason, recognized no privilege under its criminal law, the recognition of the privilege in the American courts would have gained nothing for the witness. This possibility, of course, presents a sharp contrast with the consequences of recognizing the privilege based on fear of domestic prosecution. If testimony is compelled, Murphy itself illustrates that domestic courts are not even wholly dependent on immunity statutes to see that no use will be made against the witness; the exclusionary principle will guarantee that. See Murphy, 378 U. S., at 79. Whatever the cost to the Government may be, the benefit to the individual is not in doubt in a domestic proceeding.Since the likely gain to the witness fearing foreign prosecution is thus uncertain, the countervailing uncertainty about the loss of testimony to the United States cannot be dismissed as comparatively unimportant. That some testimony will be lost is highly probable, since the United States will not be able to guarantee immunity if testimony is compelled (absent some sort of cooperative international arrangement that we cannot assume will occur). While the Court of Appeals is doubtless correct that the expected consequences of some foreign prosecutions may be so severe that a witness will refuse to testify no matter what, not698every foreign prosecution may measure up so harshly as against the expectable domestic consequences of contempt for refusing to testify. We therefore must suppose that on Balsys's view some evidence will in fact be lost to the domestic courts, and we are accordingly unable to dismiss the position of the United States in this case, that domestic law enforcement would suffer serious consequences if fear of foreign prosecution were recognized as sufficient to invoke the privilege.In sum, the most we would feel able to conclude about the net result of the benefits and burdens that would follow from Balsys's view would be a Scotch verdict. If, then, precedent for the traditional view of the scope of the Clause were not dispositive of the issue before us, if extending the scope of the privilege were open to consideration, we still would not find that Balsys had shown that recognizing his claim would be a sound resolution of the competing interests involved.vThis is not to say that cooperative conduct between the United States and foreign nations could not develop to a point at which a claim could be made for recognizing fear of foreign prosecution under the Self-Incrimination Clause as traditionally understood. If it could be said that the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and if it could be shown that the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries, then an argument could be made that the Fifth Amendment should apply based on fear of foreign prosecution simply because that prosecution was not fairly characterized as distinctly "foreign." The point would be that the prosecution was as much on behalf of the United States as of the prosecuting nation, so that the division of labor between evidence gath-699erer and prosecutor made one nation the agent of the other, rendering fear of foreign prosecution tantamount to fear of a criminal case brought by the Government itself.Whether such an argument should be sustained may be left at the least for another day, since its premises do not fit this case. It is true that Balsys has shown that the United States has assumed an interest in foreign prosecution, as demonstrated by OS1's mandate 18 and American treaty agreements 19 requiring the Government to give to Lithuania and Israel any evidence provided by Balsys. But this interest does not rise to the level of cooperative prosecution. There is no system of complementary substantive offenses18 According to Order No. 851-79, reprinted in App. 15-17, the OSI shall "[m]aintain liaison with foreign prosecution, investigation and intelligence offices; [u]se appropriate Government agency resources and personnel for investigations, guidance, information, and analysis; and [d]irect and coordinate the investigation, prosecution, and any other legal actions instituted in these cases with the Immigration and Naturalization Service, the Federal Bureau of Investigation, the United States Attorneys Offices, and other relevant Federal agencies."19 The United States and Lithuania have entered into an agreement that provides that the two governments "agree to cooperate in prosecution of persons who are alleged to have committed war crimes ... agree to provide mutual legal assistance concerning the prosecution of persons suspected of having committed war crimes ... will assist each other in the location of witnesses believed to possess relevant information about criminal actions ... during World War II, and agree to intermediate and endeavor to make these witnesses available for the purpose of giving testimony in accordance with the laws of the Republic of Lithuania to authorized representatives of the United States Department of Justice." Memorandum of Understanding Between the United States Department of Justice and the Office of the Procurator General of the Republic of Lithuania Concerning Cooperation in the Pursuit of War Criminals, Aug. 3, 1992, reprinted in App. in No. 96-6144 (CA2), pp. 396-397.The District Court found that though it had not been made aware of a treaty between the United States and Israel requiring disclosure of information related to war crimes, OSI had shared such information in the past and that it would be consistent with OSI's mandate from the Attorney General for OSI to do so again. 918 F. Supp. 588, 596 (EDNY 1996).700at issue here, and the mere support of one nation for the prosecutorial efforts of another does not transform the prosecution of the one into the prosecution of the other. Cf. Bartkus v. Illinois, 359 U. S. 121, 122-124 (1959) (rejecting double jeopardy claim where federal officials turned over all evidence they had gathered in connection with federal prosecution of defendant for use in subsequent state prosecution of defendant). In this case there is no basis for concluding that the privilege will lose its meaning without a rule precluding compelled testimony when there is a real and substantial risk that such testimony will be used in a criminal prosecution abroad.***Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusUNITED STATES v. BALSYSCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 97-873. Argued April 20, 1998-Decided June 25,1998When the Office of Special Investigations of the Department of Justice's Criminal Division (OSI) subpoenaed respondent Balsys, a resident alien, to testify about his wartime activities between 1940 and 1944 and his immigration to the United States, he claimed the Fifth Amendment privilege against self-incrimination, based on his fear of prosecution by a foreign nation. The Federal District Court granted OSI's petition to enforce the subpoena, but the Second Circuit vacated the order, holding that a witness with a real and substantial fear of prosecution by a foreign country may assert the privilege to avoid giving testimony in a domestic proceeding, even if the witness has no valid fear of a criminal prosecution in this country.Held: Concern with foreign prosecution is beyond the scope of the SelfIncrimination Clause. Pp. 671-700.(a) As a resident alien, Balsys is a "person" who, under that Clause, cannot "be compelled in any criminal case to be a witness against himself." See Kwong Hai Ghew v. Golding, 344 U. S. 590, 596. However, the question here is whether a criminal prosecution by a foreign government not subject to this country's constitutional guarantees presents a "criminal case" for purposes of the privilege. Pp. 671-672.(b) Balsys initially relies on the textual contrast between the Sixth Amendment, which clearly applies only to domestic criminal proceedings, and the Fifth, with its broader reference to "any criminal case," to argue that "any criminal case" means exactly that, regardless of the prosecuting authority. But the argument overlooks the cardinal rule to construe provisions in context. See King v. St. Vincent's Hospital, 502 U. S. 215, 221. Because none of the other provisions of the Fifth Amendment is implicated except by action of the government that it binds, it would have been strange to choose such associates for a Clause meant to take a broader view. Further, a more modest understanding, that "any criminal case" distinguishes the Fifth Amendment's SelfIncrimination Clause from its Clause limiting grand jury indictments to "capital, or otherwise infamous crime[s]," provides an explanation for the text of the privilege. Indeed, there is no known clear common-law precedent or practice, contemporaneous with the framing, for looking to667the possibility offoreign prosecution as a premise for claiming the privilege. Pp. 672-674.(c) In the precursors of this case, the Court concluded that prosecution in a state jurisdiction not bound by the Self-Incrimination Clause is beyond the purview of the privilege. United States v. Murdock, 284 U. S. 141. United States v. Saline Bank of Va., 1 Pet. 100, and Ballmann v. Fagin, 200 U. S. 186, distinguished. The Court's precedent turned away from this proposition once, in Malloy v. Hogan, 378 U. S. 1, 3, where it applied the Fourteenth Amendment due process incorporation to the Self-Incrimination Clause, so as to bind the States as well as the National Government by its terms. It immediately said, in Murphy v. Waterfront Comm'n of N. Y. Harbor, 378 U. S. 52, 57, that Malloy necessitated a reconsideration of Murdock's rule. After Malloy, the Fifth Amendment limitation was no longer framed for one jurisdiction alone, each jurisdiction having instead become subject to the same privilege claim flowing from the same source. Since fear of prosecution in the one jurisdiction now implicated the very privilege binding upon the other, the Murphy opinion sensibly recognized that if a witness could not assert the privilege in such circumstances, the witness could be "whipsawed" into incriminating himself under both state and federal law, even though the privilege was applicable to each. Such whipsawing is possible because the privilege against self-incrimination can be exchanged by the government for an immunity to prosecutorial use of any compelled inculpatory testimony. Kastigar v. United States, 406 U. S. 441, 448-449. Such an exchange by the government is permissible only when it provides immunity as broad as the privilege. After Malloy had held the privilege binding on the state jurisdictions as well as the National Government, it would have been intolerable to allow a prosecutor in one or the other jurisdiction to eliminate the privilege by offering immunity less complete than the privilege's dual jurisdictional reach. To the extent that the Murphy Court undercut Murdock's rationale on historical grounds, its reasoning that English cases supported a more expansive reading of the Clause is flawed and cannot be accepted now. Pp.674-690.(d) Murphy discusses a catalog of "Policies of the Privilege," which could suggest a concern broad enough to encompass foreign prosecutions. However, the adoption of such a revised theory would rest on Murphy's treatment of English cases, which has been rejected as an indication of the Clause's meaning. Moreover, although Murphy catalogs aspirations furthered by the Clause, its discussion does not weigh the host of competing policy concerns that would be raised in a legitimate reconsideration of the Clause's scope. Contrary to Balsys's668Full Text of Opinion

1998_97-7541

is a product not only of Griffin but also of Estelle's conclusion that there is no basis for distinguishing between a criminal case's guilt and sentencing phases so far as the protection of the Fifth Amendment privilege is concerned. There is little doubt that the rule against adverse inferences has become an essential feature of the Nation's legal tradition, teaching that the Government must prove its allegations while respecting the defendant's individual rights. The Court expresses no opinion on the questions whether silence bears upon the determination of lack of remorse, or upon acceptance of responsibility for the offense for purposes of a downward adjustment under the United States Sentencing Guidelines. Pp. 327-330.122 F.3d 185, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and THOMAS, JJ., joined, post, p. 331. THOMAS, J., filed a dissenting opinion, post, p. 341.Steven A. Morley, by appointment of the Court, 525 U. S. 806, argued the cause for petitioner. With him on the briefs was Jeffrey T. Green.Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Barbara McDowell, and Joel M. Gershowitz. *JUSTICE KENNEDY delivered the opinion of the Court. Two questions relating to a criminal defendant's Fifth Amendment privilege against self-incrimination are presented to us. The first is whether, in the federal criminal system, a guilty plea waives the privilege in the sentencing phase of the case, either as a result of the colloquy preceding the plea or by operation of law when the plea is entered. We hold the plea is not a waiver of the privilege at sentencing. The second question is whether, in determining facts*Peter Goldberger, Lisa Bondareff Kemler, and Kyle O'Dowd filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.317about the crime which bear upon the severity of the sentence, a trial court may draw an adverse inference from the defendant's silence. We hold a sentencing court may not draw the adverse inference.IPetitioner Amanda Mitchell and 22 other defendants were indicted for offenses arising from a conspiracy to distribute cocaine in Allentown, Pennsylvania, from 1989 to 1994. According to the indictment, the leader of the conspiracy, Harry Riddick, obtained large quantities of cocaine and resold the drug through couriers and street sellers, including petitioner. Petitioner was charged with one count of conspiring to distribute five or more kilograms of cocaine, in violation of 21 U. S. C. § 846, and with three counts of distributing cocaine within 1,000 feet of a school or playground, in violation of § 860(a). In 1995, without any plea agreement, petitioner pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count, and the District Court advised her the drug quantity would be determined at her sentencing hearing.Before accepting the plea, the District Court made the inquiries required by Rule 11 of the Federal Rules of Criminal Procedure. Informing petitioner of the penalties for her offenses, the District Judge advised her, "the range of punishment here is very complex because we don't know how much cocaine the Government's going to be able to show you were involved in." App. 39. The judge told petitioner she faced a mandatory minimum of one year in prison under § 860 for distributing cocaine near a school or playground. She also faced "serious punishment depending on the quantity involved" for the conspiracy, with a mandatory minimum of 10 years in prison under § 841 if she could be held responsible for at least 5 kilograms but less than 15 kilograms of cocaine. I d., at 42. By pleading guilty, the District Court explained,318petitioner would waive various rights, including "the right at trial to remain silent under the Fifth Amendment." Id., at 45.After the Government explained the factual basis for the charges, the judge, having put petitioner under oath, asked her, "Did you do that?" Petitioner answered, "Some of it." Id., at 47. She indicated that, although present for one of the transactions charged as a substantive cocaine distribution count, she had not herself delivered the cocaine to the customer. The Government maintained she was liable nevertheless as an aider and abettor of the delivery by another courier. After discussion with her counsel, petitioner reaffirmed her intention to plead guilty to all the charges. The District Court noted she might have a defense to one count on the theory that she was present but did not aid or abet the transaction. Petitioner again confirmed her intention to plead guilty, and the District Court accepted the plea.In 1996, 9 of petitioner's original 22 codefendants went to trial. Three other codefendants had pleaded guilty and agreed to cooperate with the Government. They testified petitioner was a regular seller for ringleader Riddick. At petitioner's sentencing hearing, the three adopted their trial testimony, and one of them furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling 1% to 2 ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. On cross-examination, the codefendant conceded he had not seen petitioner on a regular basis during the relevant period.Both petitioner and the Government referred to trial testimony by one Alvitta Mack, who had made a series of drug buys under the supervision of law enforcement agents, including three purchases from petitioner totaling two ounces319of cocaine in 1992. Petitioner put on no evidence at sentencing, nor did she testify to rebut the Government's evidence about drug quantity. Her counsel argued, however, that the three documented sales to Mack constituted the only evidence of sufficient reliability to be credited in determining the quantity of cocaine attributable to her for sentencing purposes.After this testimony at the sentencing hearing the District Court ruled that, as a consequence of her guilty plea, petitioner had no right to remain silent with respect to the details of her crimes. The court found credible the testimony indicating petitioner had been a drug courier on a regular basis. Sales of llh to 2 ounces twice a week for a year and a half put her over the 5-kilogram threshold, thus mandating a minimum sentence of 10 years. "One of the things" persuading the court to rely on the testimony of the codefendants was petitioner's "not testifying to the contrary." Id., at 95.The District Judge told petitioner:"'I held it against you that you didn't come forward today and tell me that you really only did this a couple of times .... I'm taking the position that you should come forward and explain your side of this issue."'Your counsel's taking the position that you have a Fifth Amendment right not to .... If he's-if it's determined by a higher Court that he's right in that regard, I would be willing to bring you back for resentencing. And if you-if-and then I might take a closer look at the [codefendants'] testimony.'" Id., at 98-99.The District Court sentenced petitioner to the statutory minimum of 10 years of imprisonment, 6 years of supervised release, and a special assessment of $200.The Court of Appeals for the Third Circuit affirmed the sentence. 122 F.3d 185 (1997). According to the Court of Appeals: "By voluntarily and knowingly pleading guilty to320the offense Mitchell waived her Fifth Amendment privilege." Id., at 189. The court acknowledged other Circuits have held a witness can "claim the Fifth Amendment privilege if his or her testimony might be used to enhance his or her sentence," id., at 190 (citing United States v. Garcia, 78 F.3d 1457, 1463, and n. 8 (CAlO), cert. denied, 517 U. S. 1239 (1996)), but it said this rule "does not withstand analysis," 122 F. 3d, at 191. The court thought it would be illogical to "fragment the sentencing process," retaining the privilege against self-incrimination as to one or more components of the crime while waiving it as to others. Ibid. Petitioner's reservation of the right to contest the amount of drugs attributable to her did not change the court's analysis. In the Court of Appeals' view:"Mitchell opened herself up to the full range of possible sentences for distributing cocaine when she was told during her plea colloquy that the penalty for conspiring to distribute cocaine had a maximum of life imprisonment. While her reservation may have put the government to its proof as to the amount of drugs, her declination to testify on that issue could properly be held against her." Ibid.The court acknowledged a defendant may plead guilty and retain the privilege with respect to other crimes, but it observed: "Mitchell does not claim that she could be implicated in other crimes by testifying at her sentencing hearing, nor could she be retried by the state for the same offense." Ibid. (citing 18 Pa. Cons. Stat. § 111 (1998), a statute that bars, with certain exceptions, a state prosecution following a federal conviction based on the same conduct).Judge Michel concurred, reasoning that any error by the District Court in drawing an adverse factual inference from petitioner's silence was harmless because "the evidence amply supported [the judge's] finding on quantity" even with-321out consideration of petitioner's failure to testify. 122 F. 3d, at 192.Other Circuits to have confronted the issue have held that a defendant retains the privilege at sentencing. See, e. g., United States v. Kuku, 129 F.3d 1435, 1437-1438 (CAll 1997); United States v. Garcia, 78 F.3d 1457, 1463 (CAlO 1996); United States v. De La Cruz, 996 F.2d 1307, 1312-1313 (CAl1993); United States v. Hernandez, 962 F.2d 1152, 1161 (CA5 1992); Bank One of Cleveland, N. A. v. Abbe, 916 F.2d 1067, 1075-1076 (CA6 1990); United States v. Lugg, 892 F.2d 101, 102-103 (CADC 1989); United States v. Paris, 827 F.2d 395, 398-399 (CA9 1987). We granted certiorari to resolve the apparent Circuit conflict created by the Court of Appeals' decision, 524 U. S. 925 (1998), and we now reverse.IIThe Government maintains that petitioner's guilty plea was a waiver of the privilege against compelled selfincrimination with respect to all the crimes comprehended in the plea. We hold otherwise and rule that petitioner retained the privilege at her sentencing hearing.AIt is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U. S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the "waiver is determined by the scope of relevant cross-examination," Brown v. United States, 356 U. S. 148, 154-155 (1958). "The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry," id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are compre-322hended within its scope, but for now it suffices to note the general rule.The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry. As noted in Rogers, a contrary rule "would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony," 340 U. S., at 371. It would, as we said in Brown, "make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell," 356 U. S., at 156. The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing crossexamination when testimony is given without invoking the privilege.We may assume for purposes of this opinion, then, that if petitioner had pleaded not guilty and, having taken the stand at a trial, testified she did "some of it," she could have been cross-examined on the frequency of her drug deliveries and the quantity of cocaine involved. The concerns which justify the cross-examination when the defendant testifies are absent at a plea colloquy, however. The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. The Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled selfincrimination upon entry of a guilty plea, including the right to remain silent at sentencing.There is no convincing reason why the narrow inquiry at the plea colloquy should entail such an extensive waiver of the privilege. Unlike the defendant taking the stand, who "cannot reasonably claim that the Fifth Amendment gives him ... an immunity from cross-examination on the matters323he has himself put in dispute," id., at 155-156, the defendant who pleads guilty puts nothing in dispute regarding the essentials of the offense. Rather, the defendant takes those matters out of dispute, often by making a joint statement with the prosecution or confirming the prosecution's version of the facts. Under these circumstances, there is little danger that the court will be misled by selective disclosure. In this respect a guilty plea is more like an offer to stipulate than a decision to take the stand. Here, petitioner's statement that she had done "some of" the proffered conduct did not pose a threat to the integrity of factfinding proceedings, for the purpose of the District Court's inquiry was simply to ensure that petitioner understood the charges and that there was a factual basis for the Government's case.Nor does Federal Rule of Criminal Procedure 11, which governs pleas, contemplate the broad waiver the Government envisions. Rule 11 directs the district court, before accepting a guilty plea, to ascertain the defendant understands he or she is giving up "the right to be tried by a jury and at that trial ... the right against compelled selfincrimination." Rule 11(c)(3). The transcript of the plea colloquy in this case discloses that the District Court took care to comply with this and the other provisions of Rule 11. The District Court correctly instructed petitioner: "You have the right at trial to remain silent under the Fifth Amendment, or at your option, you can take the stand and tell the jury your side of this controversy .... If you plead guilty, all of those rights are gone." App. 45.Neither the Rule itself nor the District Court's explication of it indicates that the defendant consents to take the stand in the sentencing phase or to suffer adverse consequences from declining to do so. Both the Rule and the District Court's admonition were to the effect that by entry of the plea petitioner would surrender the right "at trial" to invoke the privilege. As there was to be no trial, the warning would not have brought home to petitioner that she was also324waiving the right to self-incrimination at sentencing. The purpose of Rule 11 is to inform the defendant of what she loses by forgoing the trial, not to elicit a waiver of the privilege for proceedings still to follow. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial.Of course, a court may discharge its duty of ensuring a factual basis for a plea by "question[ing] the defendant under oath, on the record, and in the presence of counsel about the offense to which the defendant has pleaded." Rule 11(c)(5). We do not question the authority of a district court to make whatever inquiry it deems necessary in its sound discretion to assure itself the defendant is not being pressured to offer a plea for which there is no factual basis. A defendant who withholds information by invoking the privilege against self-incrimination at a plea colloquy runs the risk the district court will find the factual basis inadequate. At least once the plea has been accepted, statements or admissions made during the preceding plea colloquy are later admissible against the defendant, as is the plea itself. A statement admissible against a defendant, however, is not necessarily a waiver of the privilege against self-incrimination. Rule 11 does not prevent the defendant from relying upon the privilege at sentencing.Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants. At oral argument, we asked counsel for the United States whether, on the facts of this case, if the Government had no reliable evidence of the amount of drugs involved, the prosecutor "could say, well, we can't prove it, but we'd like to put her on the stand and cross-examine her and see if we can't get her to admit it." Tr. of Oral Arg. 45. Counsel answered: "[T]he waiver analysis that we have put forward suggests that at least as to the facts surrounding the conspiracy to which she admitted, the Government could do that." Ibid. Over 90% of federal criminal defendants325whose cases are not dismissed enter pleas of guilty or nolo contendere. U. S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996, p. 448 (24th ed. 1997). Were we to accept the Government's position, prosecutors could indict without specifying the quantity of drugs involved, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the drug quantity. The result would be to enlist the defendant as an instrument in his or her own condemnation, undermining the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power. Rogers v. Richmond, 365 U. S. 534, 541 (1961) ("[O]urs is an accusatorial and not an inquisitorial system").We reject the position that either petitioner's guilty plea or her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing.BThe centerpiece of the Third Circuit's opinion is the idea that the entry of the guilty plea completes the incrimination of the defendant, thus extinguishing the privilege. Where a sentence has yet to be imposed, however, this Court has already rejected the proposition that" 'incrimination is complete once guilt has been adjudicated,'" Estelle v. Smith, 451 U. S. 454, 462 (1981), and we reject it again today.The Court of Appeals cited Wigmore on Evidence for the proposition that upon conviction "'criminality ceases; and with criminality the privilege.'" 122 F. 3d, at 191 (citing 8 J. Wigmore, Evidence § 2279, p. 481 (J. McNaughton rev. 1961)). The passage relied upon does not support the Third Circuit's narrow view of the privilege. The full passage is as follows: "Legal criminality consists in liability to the law's punishment. When that liability is removed, criminality ceases; and with the criminality the privilege." Ibid. It could be argued that liability for punishment continues until326sentence has been imposed, and so does the privilege. Even if the Court of Appeals' interpretation of the treatise were correct, however, and it means the privilege ceases upon conviction but before sentencing, we would respond that the suggested rule is simply wrong. A later supplement to the treatise, indeed, states the proper rule that, "[a]lthough the witness has pleaded guilty to a crime charged but has not been sentenced, his constitutional privilege remains unimpaired." J. Wigmore, Evidence § 2279, p. 991, n. 1 (A. Best ed. Supp. 1998).It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final. See, e. g., Reina v. United States, 364 U. S. 507, 513 (1960). If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared.Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony. As the Court stated in Estelle: "Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." 451 U. S., at 463. Estelle was a capital case, but we find no reason not to apply the principle to noncapital sentencing hearings as well. "The essence of this basic constitutional principle is 'the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.'" Id., at 462 (emphasis in original) (quoting Culombe v. Connecticut, 367 U. S. 568, 581-582 (1961)). The Government itself makes the implicit concession that the acceptance of a guilty plea does not eliminate the possibility of further incrimination. In its brief to the Court, the Gov-327ernment acknowledges that a defendant who awaits sentencing after having pleaded guilty may assert the privilege against self-incrimination if called as a witness in the trial of a codefendant, in part because of the danger of responding "to questions that might have an adverse impact on his sentence or on his prosecution for other crimes." Brief for United States 31.The Fifth Amendment by its terms prevents a person from being "compelled in any criminal case to be a witness against himself." U. S. Const., Arndt. 5. To maintain that sentencing proceedings are not part of "any criminal case" is contrary to the law and to common sense. As to the law, under the Federal Rules of Criminal Procedure, a court must impose sentence before a judgment of conviction can issue. See Rule 32(d)(1) ("A judgment of conviction must set forth the plea ... and the sentence"); cf. Mempa v. Rhay, 389 U. S. 128, 134 (1967). As to common sense, it appears that in this case, as is often true in the criminal justice system, the defendant was less concerned with the proof of her guilt or innocence than with the severity of her punishment. Petitioner faced imprisonment from one year upwards to life, depending on the circumstances of the crime. To say that she had no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of view, it was most important. Our rule is applicable whether or not the sentencing hearing is deemed a proceeding separate from the Rule 11 hearing, an issue we need not resolve.IIIThe Government suggests in a footnote that even if petitioner retained an unwaived privilege against selfincrimination in the sentencing phase of her case, the District Court was entitled, based on her silence, to draw an adverse inference with regard to the amount of drugs attributable to her. Brief for United States 31-32, n. 18. The328normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted. Griffin v. California, 380 U. S. 609, 614 (1965). We decline to adopt an exception for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime.This Court has recognized "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them," Baxter v. Palmigiano, 425 U. S. 308, 318 (1976), at least where refusal to waive the privilege does not lead "automatically and without more to [the] imposition of sanctions," Lefkowitz v. Cunningham, 431 U. S. 801, 808, n. 5 (1977). In ordinary civil cases, the party confronted with the invocation of the privilege by the opposing side has no capacity to avoid it, say, by offering immunity from prosecution. The rule allowing invocation of the privilege, though at the risk of suffering an adverse inference or even a default, accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed. Another reason for treating civil and criminal cases differently is that "the stakes are higher" in criminal cases, where liberty or even life may be at stake, and where the government's "sole interest is to convict." Baxter, 425 U. S., at 318-319.Baxter itself involved state prison disciplinary proceedings which, as the Court noted, "are not criminal proceedings" and "involve the correctional process and important state interests other than conviction for crime." Id., at 316, 319. Cf. Ohio Adult Parole Authority v. Woodard, 523 U. S. 272 (1998) (adverse inference permissible from silence in clemency proceeding, a nonjudicial postconviction process which is not part of the criminal case). Unlike a prison disciplinary proceeding, a sentencing hearing is part of the criminal case-the explicit concern of the self-incrimination privilege. In accordance with the text of the Fifth Amendment, we329must accord the privilege the same protection in the sentencing phase of "any criminal case" as that which is due in the trial phase of the same case, see Griffin, supra.The concerns which mandate the rule against negative inferences at a criminal trial apply with equal force at sentencing. Without question, the stakes are high: Here, the inference drawn by the District Court from petitioner's silence may have resulted in decades of added imprisonment. The Government often has a motive to demand a severe sentence, so the central purpose of the privilege-to protect a defendant from being the unwilling instrument of his or her own condemnation-remains of vital importance.Our holding today is a product of existing precedent, not only Griffin but also by Estelle v. Smith, in which the Court could "discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned." 451 U. S., at 462-463. Although Estelle was a capital case, its reasoning applies with full force here, where the Government seeks to use petitioner's silence to infer commission of disputed criminal acts. See supra, at 326. To say that an adverse factual inference may be drawn from silence at a sentencing hearing held to determine the specifics of the crime is to confine Griffin by ignoring Estelle. We are unwilling to truncate our precedents in this way.The rule against adverse inferences from a defendant's silence in criminal proceedings, including sentencing, is of proven utility. Some years ago the Court expressed concern that "[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege." Ullmann v. United States, 350 U. S. 422, 426 (1956). Later, it quoted with apparent approval Wigmore's observation that "'[t]he layman's natural first suggestion would probably be that the resort to privilege in each instance is a clear confes-330sion of crime,'" Lakeside v. Oregon, 435 U. S. 333, 340, n. 10 (1978) (quoting 8 Wigmore, Evidence § 2272, at 426). It is far from clear that citizens, and jurors, remain today so skeptical of the principle or are often willing to ignore the prohibition against adverse inferences from silence. Principles once unsettled can find general and wide acceptance in the legal culture, and there can be little doubt that the rule prohibiting an inference of guilt from a defendant's rightful silence has become an essential feature of our legal tradition. This process began even before Griffin. When Griffin was being considered by this Court, some 44 States did not allow a prosecutor to invite the jury to make an adverse inference from the defendant's refusal to testify at trial. See Griffin, supra, at 611, n. 3. The rule against adverse inferences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights. The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege. Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in § 3E 1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it.By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled selfincrimination. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusMITCHELL v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 97-7541. Argued December 9, 1998-Decided April 5, 1999Petitioner pleaded guilty to federal charges of conspiring to distribute five or more kilograms of cocaine and of distributing cocaine, but reserved the right to contest at sentencing the drug quantity attributable under the conspiracy count. Before accepting her plea, the District Court made the inquiries required by Federal Rule of Criminal Procedure 11; told petitioner that she faced a mandatory minimum of 1 year in prison for distributing cocaine, but a lO-year minimum for conspiracy if the Government could show the required five kilograms; and explained that by pleading guilty she would be waiving, inter alia, her right "at trial to remain silent." Indicating that she had done "some of" the proffered conduct, petitioner confirmed her guilty plea. At her sentencing hearing, three codefendants testified that she had sold 1 Y2 to 2 ounces of cocaine twice a week for 1 Y2 years, and another person testified that petitioner had sold her two ounces of cocaine. Petitioner put on no evidence and argued that the only reliable evidence showed that she had sold only two ounces of cocaine. The District Court ruled that as a consequence of petitioner's guilty plea, she had no right to remain silent about her crime's details; found that the codefendants' testimony put her over the 5-kilogram threshold, thus mandating the lO-year minimum; and noted that her failure to testify was a factor in persuading the court to rely on the codefendants' testimony. The Third Circuit affirmed.Held:1. In the federal criminal system, a guilty plea does not waive the self-incrimination privilege at sentencing. Pp. 321-327.(a) The well-established rule that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details is justified by the fact that a witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the statements' trustworthiness and diminishing the factual inquiry's integrity. The privilege is waived for matters to which the witness testifies, and the waiver's scope is determined by the scope of relevant cross-examination. Brown v. United States, 356 U. S. 148, 154. The concerns justifying cross-examination at trial are absent at a plea colloquy, which protects315the defendant from an unintelligent or involuntary plea. There is no convincing reason why the narrow inquiry at this stage should entail an extensive waiver of the privilege. A defendant who takes the stand cannot reasonably claim immunity on the matter he has himself put in dispute, but the defendant who pleads guilty takes matters out of dispute, leaving little danger that the court will be misled by selective disclosure. Here, petitioner's "some of" statement did not pose a threat to the factfinding proceeding's integrity, for the purpose of the District Court's inquiry was simply to ensure that she understood the charges and there was a factual basis for the Government's case. Nor does Rule 11 contemplate a broad waiver. Its purpose is to inform the defendant of what she loses by forgoing a trial, not to elicit a waiver of privileges that exist beyond the trial's confines. Treating a guilty plea as a waiver of the privilege would be a grave encroachment on defendants' rights. It would allow prosecutors to indict without specifying a drug quantity, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the quantity. To enlist a defendant as an instrument of his or her own condemnation would undermine the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power. Rogers v. Richmond, 365 U. S. 534, 541. Pp. 321-325.(b) Where a sentence has yet to be imposed, this Court has already rejected the proposition that incrimination is complete once guilt has been adjudicated. See Estelle v. Smith, 451 U. S. 454, 462. That proposition applies only to cases in which the sentence has been fixed and the judgment of conviction has become final. See, e. g., Reina v. United States, 364 U. S. 507, 513. Before sentencing a defendant may have a legitimate fear of adverse consequences from further testimony, and any effort to compel that testimony at sentencing "clearly would contravene the Fifth Amendment," Estelle, supra, at 463. Estelle was a capital case, but there is no reason not to apply its principle to noncapital sentencing hearings. The Fifth Amendment prevents a person from being compelled in any criminal case to be a witness against himself. To maintain that sentencing proceedings are not part of "any criminal case" is contrary to the Federal Rules of Criminal Procedure and to common sense. Pp. 325-327.2. A sentencing court may not draw an adverse inference from a defendant's silence in determining facts relating to the circumstances and details of the crime. The normal rule in a criminal case permits no negative inference from a defendant's failure to testify. See Griffin v. California, 380 U. S. 609, 614. A sentencing hearing is part of the criminal case, and the concerns mandating the rule against negative inferences at trial apply with equal force at sentencing. This holding316Full Text of Opinion

1979_78-952

MR. JUSTICE MARSHALL delivered the opinion of the Court.This appeal presents the question whether a State may constitutionally exercise quasi in rem jurisdiction over a defendant who has no forum contacts by attaching the contractual obligation of an insurer licensed to do business in the State to defend and indemnify him in connection with the suit.IOn January 13, 1972, two Indiana residents were involved in a single-car accident in Elkhart, Ind. Appellee Savchuk, who was a passenger in the car driven by appellant Rush, was injured. The car, owned by Rush's father, was insured by appellant State Farm Mutual Automobile Insurance Co. (State Farm) under a liability insurance policy issued in Indiana. Indiana's guest statute would have barred a claim by Savchuk. Ind.Code § 9-3-3-1 (1976).Savchuk moved with his parents to Minnesota in June, 1973. [Footnote 1] On May 28, 1974, he commenced an action against Rush in the Minnesota state courts. [Footnote 2] As Rush had no contacts with Minnesota that would support in personam jurisdiction, Savchuk attempted to obtain quasi in rem jurisdiction by garnishing State Farm's obligation under the insurance policy to defend and indemnify Rush in connection with such a suit. [Footnote 3] State Farm does business in Minnesota. [Footnote 4] Rush was Page 444 U. S. 323 personally served in Indiana. The complaint alleged negligence and sought $125,000 in damages. [Footnote 5]As provided by the state garnishment statute, Savchuk moved the trial court for permission to file a supplemental complaint making the garnishee, State Farm, a party to the action after State Farm's response to the garnishment summons asserted that it owed the defendant nothing. [Footnote 6] Rush and State Page 444 U. S. 324 Farm moved to dismiss the complaint for lack of jurisdiction over the defendant. [Footnote 7] The trial court denied the motion to dismiss and granted the motion for leave to file the supplemental complaint.On appeal, the Minnesota Supreme Court affirmed the trial court's decision. 311 Minn. 480, 245 N.W.2d 624 (1976) (Savchuk I). It held, first, that the obligation of an insurance company to defend and indemnify a nonresident insured under an automobile liability insurance policy is a garnishable res in Minnesota for the purpose of obtaining quasi in rem jurisdiction when the incident giving rise to the action occurs outside Minnesota but the plaintiff is a Minnesota resident when the suit is filed. Second, the court held that the assertion of jurisdiction over Rush was constitutional because he had notice of the suit and an opportunity to defend, his liability was limited to the amount of the policy, and the garnishment procedure may be used only by Minnesota residents. The court expressly recognized that Rush had engaged in no voluntary activity that would justify the exercise of in personam jurisdiction. The court found, however, that considerations of fairness supported the exercise of quasi in rem jurisdiction because in accident litigation the insurer controls the defense of the case, State Farm does business in and is regulated by the State, and the State has an interest in protecting its residents and providing them with a forum in which to litigate their claims.Rush appealed to this Court. We vacated the judgment and remanded the cause for further consideration in light of Page 444 U. S. 325 Shaffer v. Heitner, 433 U. S. 186 (1977). 433 U.S. 902 (1977).On remand, the Minnesota Supreme Court held that the assertion of quasi in rem jurisdiction through garnishment of an insurer's obligation to an insured complied with the due process standards enunciated in Shaffer. 272 N.W.2d 888 (1978) (Savchuk II). The court found that the garnishment statute differed from the Delaware stock sequestration procedure held unconstitutional in Shaffer because the garnished property was intimately related to the litigation and the garnishment procedure paralleled the asserted state interest in "facilitating recoveries for resident plaintiffs." 272 N.W.2d at 891. [Footnote 8] This appeal followed.IIThe Minnesota Supreme Court held that the Minnesota garnishment statute embodies the rule stated in Seider v. Roth, 17 N.Y.2d 111, 216 N.E.2d 312 (1966), that the contractual obligation of an insurance company to its insured under a liability insurance policy is a debt subject to attachment under state law if the insurer does business in the State. [Footnote 9] Seider jurisdiction was upheld against a due process challenge in Simpson v. Loehmann, 21 N.Y.2d 305, 234 N.E.2d 669 (1967), reargument denied, 21 N.Y.2d 990, 238 N.E.2d 319 (1968). The New York court relied on Harris v. Balk, 198 U. S. 215 (1905), in holding that the presence of the debt Page 444 U. S. 326 in the State was sufficient to permit quasi in rem jurisdiction over the absent defendant. The court also concluded that the exercise of jurisdiction was permissible under the Due Process Clause because, "[v]iewed realistically, the insurer in a case such as the present is in full control of the litigation" and,"where the plaintiff is a resident of the forum state and the insurer is present in and regulated by it, the State has a substantial and continuing relation with the controversy."Simpson v. Loehmann, supra at 311, 234 N.E.2d at 672.The United States Court of Appeals for the Second Circuit gave its approval to Seider in Minichiello v. Rosenberg, 410 F.2d 106, adhered to en banc, 410 F.2d 117 (1968), cert. denied, 396 U.S. 844 (1969), although on a slightly different rationale. Judge Friendly construed Seider as,"in effect, a judicially created direct action statute. The insurer doing business in New York is considered the real party in interest, and the nonresident insured is viewed simply as a conduit, who has to be named as a defendant in order to provide a conceptual basis for getting at the insurer."410 F.2d at 109; see Donawitz v. Danek, 42 N.Y.2d 138, 142, 366 N.E.2d 253, 255 (1977). The court held that New York could constitutionally enact a direct action statute, and that the restriction of liability to the amount of the policy coverage made the policyholder's personal stake in the litigation so slight that the exercise of jurisdiction did not offend due process.New York has continued to adhere to Seider. [Footnote 10] New Hampshire has followed Seider if the defendant resides in a Seider jurisdiction, [Footnote 11] but not in other cases. [Footnote 12] Minnesota is the only Page 444 U. S. 327 other State that has adopted Seider-type jurisdiction. [Footnote 13] The Second Circuit recently reaffirmed its conclusion that Seider does not violate due process after reconsidering the doctrine in light of Shaffer v. Heitner. O'Conner v. Lee-Hy Paving Corp., 579 F.2d 194, cert. denied, 439 U. S. 1034 (1978).IIIIn Shaffer v. Heitner, we held that "all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." 433 U.S. at 433 U. S. 212. That is, a State may exercise jurisdiction over an absent defendant only if the defendant has"certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions' of fair play and substantial justice."International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316 (1945). In determining whether a particular exercise of state court jurisdiction is consistent with due process, the inquiry must focus on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, supra, at 433 U. S. 204.It is conceded that Rush has never had any contacts with Minnesota, and that the auto accident that is the subject of Page 444 U. S. 328 this action occurred in Indiana and also had no connection to Minnesota. The only affiliating circumstance offered to show a relationship among Rush, Minnesota, and this lawsuit is that Rush's insurance company does business in the State. Seider constructed an ingenious jurisdictional theory to permit a State to command a defendant to appear in its courts on the basis of this factor alone. State Farm's contractual obligation to defend and indemnify Rush in connection with liability claims is treated as a debt owed by State Farm to Rush. The legal fiction that assigns a situs to a debt, for garnishment purposes, wherever the debtor is found is combined with the legal fiction that a corporation is "present," for jurisdictional purposes, wherever it does business to yield the conclusion that the obligation to defend and indemnify is located in the forum for purposes of the garnishment statute. The fictional presence of the policy obligation is deemed to give the State the power to determine the policyholder's liability for the out-of-state accident. [Footnote 14]We held in Shaffer that the mere presence of property in a State does not establish a sufficient relationship between the owner of the property and the State to support the exercise of jurisdiction over an unrelated cause of action. The ownership of property in the State is a contact between the defendant and the forum, and it may suggest the presence of other ties. 433 U.S. at 433 U. S. 209. Jurisdiction is lacking, however, unless there are sufficient contacts to satisfy the fairness standard of International Shoe.Here, the fact that the defendant's insurer does business in the forum State suggests no further contacts between the defendant and the forum, and the record supplies no evidence of any. State Farm's decision to do business in Minnesota Page 444 U. S. 329 was completely adventitious as far as Rush was concerned. He had no control over that decision, and it is unlikely that he would have expected that, by buying insurance in Indiana, he had subjected himself to suit in any State to which a potential future plaintiff might decide to move. In short, it cannot be said that the defendant engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just, or reasonable, see Kulko v. California Superior Court, 436 U. S. 84, 436 U. S. 93-94 (1978); Hanson v. Denckla, 357 U. S. 235, 357 U.S. 253 (1958), merely because his insurer does business there.Nor are there significant contacts between the litigation and the forum. The Minnesota Supreme Court was of the view that the insurance policy was so important to the litigation that it provided contacts sufficient to satisfy due process. [Footnote 15] The insurance policy is not the subject matter of the case, however, nor is it related to the operative facts of the negligence action. The contractual arrangements between the defendant and the insurer pertain only to the conduct, not the substance, of the litigation, and accordingly do not affect the court's jurisdiction unless they demonstrate ties between the defendant and the forum.In fact, the fictitious presence of the insurer's obligation in Minnesota does not, without more, provide a basis for concluding that there is any contact in the International Shoe sense Page 444 U. S. 330 between Minnesota and the insured. To say that "a debt follows the debtor" is simply to say that intangible property has no actual situs, and a debt may be sued on wherever there is jurisdiction over the debtor. State Farm is "found," in the sense of doing business, in all 50 States and the District of Columbia. Under appellee's theory, the "debt" owed to Rush would be "present" in each of those jurisdictions simultaneously. It is apparent that such a "contact" can have no jurisdictional significance.An alternative approach for finding minimum contacts in Seider-type cases, referred to with approval by the Minnesota Supreme Court, [Footnote 16] is to attribute the insurer's forum contacts to the defendant by treating the attachment procedure as the functional equivalent of a direct action against the insurer. This approach views Seider jurisdiction as fair both to the insurer, whose forum contacts would support in personam jurisdiction even for an unrelated cause of action, and to the "nominal defendant." Because liability is limited to the policy amount, the defendant incurs no personal liability, [Footnote 17] and the judgment is satisfied from the policy proceeds which are not available to the insured for any purpose other than paying accident claims, the insured is said to have such a slight stake in the litigation as a practical matter that it is not unfair to make him a "nominal defendant" in order to obtain jurisdiction over the insurance company.Seider actions are not equivalent to direct actions, however. [Footnote 18] The State's ability to exert its power over the "nominal Page 444 U. S. 331 defendant" is analytically prerequisite to the insurer's entry into the case as a garnishee. If the Constitution forbids the assertion of jurisdiction over the insured based on the policy, then there is no conceptual basis for bringing the "garnishee" into the action. Because the party with forum contacts can only be reached through the out-of-state party, the question of jurisdiction over the nonresident cannot be ignored. [Footnote 19] Moreover, the assumption that the defendant has no real stake in the litigation is far from self-evident. [Footnote 20]The Minnesota court also attempted to attribute State Farm's contacts to Rush by considering the "defending parties" together and aggregating their forum contacts in determining whether it had jurisdiction. [Footnote 21] The result was the Page 444 U. S. 332 assertion of jurisdiction over Rush based solely on the activities of State Farm. Such a result is plainly unconstitutional. Naturally, the parties' relationships with each other may be significant in evaluating their ties to the forum. The requirements of International Shoe, however, must be met as to each defendant over whom a state court exercises jurisdiction.The justifications offered in support of Seider jurisdiction share a common characteristic: they shift the focus of the inquiry from the relationship among the defendant, the forum, and the litigation to that among the plaintiff, the forum, the insurer, and the litigation. The insurer's contacts with the forum are attributed to the defendant because the policy was taken out in anticipation of such litigation. The State's interests in providing a forum for its residents and in regulating the activities of insurance companies are substituted for its contacts with the defendant and the cause of action. This subtle shift in focus from the defendant to the plaintiff is most evident in the decisions limiting Seider jurisdiction to actions by forum residents on the ground that permitting nonresidents to avail themselves of the procedure would be unconstitutional. [Footnote 22] In other words, the plaintiff's contacts with the forum are decisive in determining whether the defendant's due process rights are violated.Such an approach is forbidden by International Shoe and its progeny. If a defendant has certain judicially cognizable ties with a State, a variety of factors relating to the particular cause of action may be relevant to the determination whether the exercise of jurisdiction would comport with "traditional notions of fair play and substantial justice." See McGee v. International Life Ins. Co., 355 U. S. 220 (1957); cf. Kulko v. California Superior Court, 436 U.S. at 436 U. S. 98-101. Here, however, the defendant has no contacts with the forum, and the Page 444 U. S. 333 Due Process Clause"does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations."International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319. The judgment of the Minnesota Supreme Court is, therefore,Reversed

U.S. Supreme CourtRush v. Savchuk, 444 U.S. 320 (1980)Rush v. SavchukNo. 78-952Argued October 3, 1979Decided January 21, 1980444 U.S. 320SyllabusWhile a resident of Indiana, appellee was injured in an accident in Indiana while riding as a passenger in a car driven by appellant Rush, also an Indiana resident. After moving to Minnesota, appellee commenced this action against Rush in a Minnesota state court, alleging negligence and seeking damages. As Rush had no contacts with Minnesota that would support in personam jurisdiction, appellee attempted to obtain quasi in rem jurisdiction by garnishing the contractual obligation of State Farm Mutual Automobile Insurance Co. (State Farm) to defend and indemnify Rush in connection with such a suit. State Farm, which does business in Minnesota, had insured the car, owned by Rush's father, under a liability insurance policy issued in Indiana. Rush was personally served in Indiana, and after State Farm's response to the garnishment summons asserted that it owed the defendant nothing, appellee moved the trial court for permission to file a supplemental complaint making the garnishee, State Farm, a party to the action. Rush and State Farm moved to dismiss the complaint for lack of jurisdiction over the defendant. The trial court denied the motion to dismiss and granted the motion for leave to file the supplemental complaint. The Minnesota Supreme Court affirmed, ultimately holding that the assertion of quasi in rem jurisdiction under the Minnesota garnishment statute complied with the due process standards enunciated in Shaffer v. Heitner, 433 U. S. 186.Held: A State may not constitutionally exercise quasi in rem jurisdiction over a defendant who has no forum contacts by attaching the contractual obligation of an insurer licensed to do business in the State to defend and indemnify him in connection with the suit. Pp. 444 U. S. 327-333.(a) A State may exercise jurisdiction over an absent defendant only if the defendant has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U. S. 310. In determining whether a particular exercise of state court jurisdiction is consistent with due process, the inquiry must focus on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner, supra at 433 U. S. 204. P. 327.(b) Here, the only affiliating circumstance offered to show a relationship among Rush, Minnesota, and this lawsuit is that Rush's insurance Page 444 U. S. 321 company does business in the State. However, the fictional presence in Minnesota of State Farm's policy obligation to defend and indemnify Rush -- derived from combining the legal fiction that assigns a situs to a debt, for garnishment purposes, wherever the debtor is found with the legal fiction that a corporation is "present," for jurisdictional purposes, wherever it does business -- cannot be deemed to give the State the power to determine Rush's liability for the out-of-state accident. The mere presence of property in a State does not establish a sufficient relationship between the owner of the property and the State to support the exercise of jurisdiction over an unrelated cause of action, and it cannot be said that the defendant engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just, or reasonable merely because his insurer does business there. Nor does the policy provide significant contacts between the litigation and the forum, for the policy obligations pertain only to the conduct, not the substance, of the litigation. Pp. 444 U. S. 327-330.(c) Moreover, the requisite minimum contacts with the forum cannot be established under an alternative approach attributing the insurer's forum contacts to the defendant by treating the attachment procedure as the functional equivalent of a direct action against the insurer, and considering the insured a "nominal defendant" in order to obtain jurisdiction over the insurer. The State's ability to exert its power over the "nominal defendant" is analytically prerequisite to the insurer's entry into the case as a garnishee, and if the Constitution forbids the assertion of jurisdiction over the insured based on the policy, then there is no conceptual basis for bringing the "garnishee" into the action. Nor may the Minnesota court attribute State Farm's contacts to Rush by considering the "defending parties" together and aggregating their forum contacts in determining whether it has jurisdiction. The parties' relationships with each other may be significant in evaluating their ties to the forum, but the requirements of International Shoe must be met as to each defendant over whom a state court exercises jurisdiction. Pp. 444 U. S. 330-332.272 N.W.2d 888, reversed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., ante p. 444 U. S. 299, and STEVENS, J., post, p. 444 U. S. 333, filed dissenting opinions. Page 444 U. S. 322

1966_642

MR. JUSTICE CLARK delivered the opinion of the Court.These six appeals involve the validity of an order of the Interstate Commerce Commission permitting the merger of the Pennsylvania Railroad Company and the Page 386 U. S. 375 New York Central Railroad Company (Penn-Central) pursuant to § 5(2) of the Interstate Commerce Act, as amended, 41 Stat. 481, 49 U.S.C. § 5(2). In its original order of April 6, 1966, the Commission found that the merger might divert a substantial amount of traffic from the Erie-Lackawanna Railroad Company (E-L), the Delaware and Hudson Railroad Company (D & H) and the Boston and Maine Corporation (B & M), three smaller competing carriers designated as the "protected railroads" by the Commission. These protected railroads had filed under § 5(2)(d) of the Act applications for inclusion in both this merger and in Norfolk & W. Ry. Co. and New York, C. & St. L.R. Co. -- Merger, 324 I.C.C. 1. In the latter case, inclusion of E-L and D & H has been recommended, and, together with B & M, is pending before the Commission. The applications of the protected roads in the Penn-Central proceeding have been held in abeyance pending decision in the Norfolk proceeding.On the merits of the Penn-Central merger, the Commission found that the service the protected railroads "render their shippers is essential, and the public interest dictates that [such service] be preserved." The Commission concluded"that immediate consummation of the proposed merger would be consistent with the public interest if conditions are imposed to obviate impairment or serious weakening"of the three lines. Without such conditions or the inclusion of the protected roads in a major system, the Commission further found, it would be doubtful if the"three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger."327 I.C.C. 475, 532. It therefore applied, sua sponte, certain conditions to the immediate consummation of the merger which were"designed to prevent any loss of revenue over the Page 386 U. S. 376 three railroads [the protected railroads] as a direct result of immediate consummation of this merger."Its "approval of the merger for undelayed consummation" was made "subject . . . to the conditions specifically described in appendix G," ibid., which was attached as an appendix to the April 6, 1966, order, and which we likewise attach as an 386 U.S. 372app|>Appendix here. The Commission, apparently because of the necessity for the conditions and the urgency of the merger, required compliance with Appendix G even though it had neither the benefit of a report from a Hearing Examiner thereon nor the advantage of a hearing before the Commission itself. These conditions detailed the protection which must be given the protected railroads, and made them a prerequisite to the consummation of the merger.The Commission, therefore, not only found that protection of the three railroads was necessary, but fixed the terms thereof and required compliance prior to permitting the merger. There was nothing tentative about Appendix G. The conditions were divided into two general categories, and provided that: (1) On traffic for which the protected railroads are "competitive factors" [Footnote 1] the merged company shall not, pending final determination of the inclusion proceedings, provide any new or changed routing practice, freight rates, or service which would divert or tend to divert traffic from routes in which the protected railroads, or any of them, participate or participated at the time of the merger. And (2) the protected railroads would be indemnified by the merged company against revenue losses by reason of the merger. Appendix G to the order detailed the manner in which Page 386 U. S. 377 such indemnity would be calculated and provided for the accelerated processing of complaints as to new or changed routes, practices, rates, or services. Section 7 of Appendix G provided that, if the merged company did not accede to all of the conditions, the merger would be deferred for two years or "such time as the Commission may determine to be necessary to protect the interests of D & H, B & M and E-L." And § 8 provided that the conditions"shall be construed, administered and enforced with the view to protecting the E-L, D & H and B & M and the shipping public which depends upon them for transportation, against the effects of the merger for the period and purposes set forth above."Thereafter, and without a hearing, but apparently on the objection of most of the parties, the Commission, on September 16, 1966, modified its April 6 order and reopened the hearing. 328 I.C.C. 304. The objectors, among other things, pointed to the fact that the conditions of Appendix G were made without any notice or hearing, and would create irreconcilable conflicts between the protected carriers and others adversely affected by the merger. In reopening the hearing, the Commission limited it to the conditions imposed in Appendix G, the prevention of possible manipulation of such conditions, and the enlargement of the indemnity provision to include capital loss. In the reopening order of September 16, 1966, the Commission left intact its order of April 6, 1966, as to the undelayed consummation of the merger, continued in effect the ban on new or changed routes, practices, and rates as to traffic in which any of the protected railroads participated, but lifted the indemnification condition until further order, at which time any such provision found necessary could be made retroactive to the date of the merger. None of the previous findings, as to the necessity for the immediate imposition of the conditions included in the original order, were Page 386 U. S. 378 amended or withdrawn. The traffic conditions alone were left in effect.This suit was filed on September 7, 1966, and arose upon the complaint of E-L and other railroads seeking an interlocutory injunction to restrain the consummation of the merger. A three-judge court was convened, 28 U.S.C. § 2284, and thereafter it declined, by a divided vote, to grant the interlocutory injunction. Erie-Lackawanna Railroad Co. v. United States, 259 F. Supp. 964. The appellants sought a stay from MR. JUSTICE HARLAN, who referred the application to the Court, and it was granted on October 18, 1966. At the same time, we expedited the case for consideration. 385 U. S. 914. The sole question before us is whether, in light of the findings as to the necessity for interim protection for the so-called protected railroads, the Commission erred in permitting the consummation of the merger prior to, and without awaiting determination of, the inclusion proceedings. We believe that the Commission erred in approving the immediate consummation of the merger without determining the ultimate fate of the protected roads. We therefore reverse the judgment and remand the case to the District Court with instructions to remand the matter to the Commission for further proceedings in accordance with this opinion.IQuestions not here decided.At the outset, we make it clear that we do not pass on the validity of the merger, the special conditions of Appendix G, the modified order of the Commission, or the peripheral points posed by the various parties. We hold only that, under the uncontradicted findings of the Commission, it was necessary for it to conclude the inclusion proceedings, as to the protected railroads, prior to permitting consummation of the merger. Page 386 U. S. 379IIThe merger, its background, its participants and relative position.The Penn-Central merger has been under study and discussion by the Commission for some 10 years. After the initial study was completed in 1959, Central withdrew from the plan and began negotiations for a merger with the Chesapeake and Ohio Railway Company (C & O) for joint control of the Baltimore and Ohio Railroad Company (B & O). However, when, at a later date, C & O had contracted for the purchase of some 61% of B & O stock, Central gave up its plan and renewed negotiations with Penn. The two roads signed an agreement of merger in 1962. The New York, New Haven and Hartford Railroad Company (NH) approached Penn and Central for inclusion in the plan, but was given a deaf ear. The merger agreement provided that all properties, franchises, etc. (permitted by respective state law), would be transferred to the merged company, and appropriate stock exchange, debt arrangements, etc., effected.As the Commission found, the merger would"create an hour-glass shaped system flared on the east from Montreal, Canada, through Boston, Mass. to Norfolk, Va., and, on the west, from Mackinaw City, Mich. through Chicago, Ill., to St. Louis, Mo."327 I.C.C. at 489. It would operate some 19,600 miles of road in 14 States between the Great Lakes, with a splash in Canada on the north and the Ohio and Potomac Rivers on the south. After the two systems are connected as planned and new and expanded yards are provided, the merger will consolidate trains now moving separately between the same points. The combined systems will have a substantial amount of parallel trackage and routes, with 160 common points or junctions. Terminals will be consolidated, present interchanges between Page 386 U. S. 380 the two systems will be eliminated, and only the most efficient yards and facilities of the respective systems will be utilized. The merger plan calls for 98 projects that will intermesh their long-haul traffic at key points, creating a nonstop service between the principal cities, with "locals" covering the multiple-stop routes and branch lines. It is estimated that enormous savings in transit time can be effected. Certain chosen yards -- such as Selkirk -- will be remodeled and modernized into electronically operated yards with capacities of from 5,000 to 10,000 cars per day. The through trains to the West will be formed at Selkirk, and those from the West broken up for dispatch to terminals or consignees in New England, New York, and northern New Jersey. The plan calls for some New York City traffic to be routed over Central's Hudson River East Shore line to lessen cost. By consolidating traffic on fast through lines, filling out trains, re-routing over the most efficient routes, eliminating some interchanges, and effecting other improvements, the merged company will reduce by 6,000,000 the number of train miles operated. A single-line service will be operated between more points, with less circuity and less switching. The plan also calls for 31 daily trains to be withdrawn from the Pennsylvania, with seven new ones added, leaving a total of 319 trains daily.The Pennsylvania is the largest, and Central the third largest, railroad in the Northeastern Region. Together, the operating revenue of the two roads was over $1,500,000,000 in 1965. Their net income in 1964 totaled almost $57,000,000, and, in 1965, ran in excess of $75,000,000. In 1963, the total net was barely $16,000,000. The cost of operation of the two systems runs $90,000,000 a month, and their working capital was some $72,000,000 in 1965. As of December 31, 1963, their combined investments were $1,242,000,000. The Pennsylvania and Central systems are each made up of underlying corporations. Page 386 U. S. 381 As of the date of the Examiners' Report, the merged company would have ownership interest in 182 corporations, and 10 railroads under lease. Thirty-six of the corporations are rail carriers, in six of which the merged company would have a voting control. All six are Class I railroads. It would likewise control six Class II railroads, five switching and terminal railroads, a holding company, five car leasing companies, four common carriers and 34 noncarrier corporations.The NH [Footnote 2] is the sixth largest railroad in the Northeastern Region, and the largest in New England. On a national basis, it ranks fourth among passenger-carrying railroads, and is one of the largest non-trunkline freight roads. It has some 1,500 miles of railroad in four States -- Massachusetts, Rhode Island, Connecticut, and part of New York. NH has been in reorganization under § 77 of the Bankruptcy Act, 47 Stat. 1474, as amended, 11 U.S.C. § 205, since 1961. [Footnote 3] While its gross revenues have run in excess of $120,000,000, it has run deficits since 1958. During the trusteeship, its deficits have run from $12,700,000 in 1962 to $15,100,000 in 1965.III.The protesting parties, their setting in the Northeastern Region, and their position on the merger.Altogether some 200 parties participated in the proceedings before the Commission, some in support of and others in opposition to the merger. None of the appellant railroads challenges the merits of the merger; however, appellants Milton J. Shapp and the City of Scranton both attack the merger on its merits. Aside from Penn Page 386 U. S. 382 Central and NH, there are 10 other carriers involved in this proceeding.Three of these are the protected carriers -- B & M, D & H and E-L. B & M operates a freight and passenger service in Maine, New Hampshire, Vermont, Massachusetts and New York over some 1,500 miles of road. It has suffered consecutive deficits in net income for some years, and has not appealed from the decision of the District Court. D & H operates about 750 miles of road, with some 600 in New York, less than 50 in Vermont, and the balance in Pennsylvania. Its net income in 1965 was $5,000,000, its highest year since 1960. E-L operates some 3,000 miles of railroad located in New Jersey, New York, Pennsylvania, Ohio, Indiana and Illinois. Its net income was over $3,000,000 in 1965, but it suffered heavy deficits in the seven preceding years. As we have previously noted, these three railroads have filed applications for inclusion in both this case and in Norfolk & W. Ry. Co. and New York, C. & S. L.R. Co. -- Merger, 324 I.C.C. 1. [Footnote 4] The Commission has withheld action on the inclusion of E-L, B & M and D & H, in Penn-Central until there is a final determination of their inclusion proceeding with Norfolk and Western (N & W). In the latter proceeding, Commissioner Webb filed his report on December 22, 1966, recommending the inclusion of E-L and D & H in the N & W system, but was unable to prescribe terms for inclusion of B & M -- this was left to private negotiation between the railroads. On argument here, the Commission has indicated that it anticipated Page 386 U. S. 383 entering a final order in the matter by July or August, 1967. If this is favorable, these three roads would be included in the N & W system, which has indicated its acquiescence in such a plan.Six additional railroads involved here are the C & O, B & O, the Central of New Jersey (CNJ), the Reading Company, the Norfolk and Western, and the Western Maryland Company (WM). The C & O-B & O system is the result of a control proceeding in 1962. See Chesapeake & O. Ry. Co. -- Control -- Baltimore & O. R. Co., 317 I.C.C. 261, sustained, sub nom. Brotherhood of Maintenance of Way Employees v. United States, 221 F. Supp. 19, aff'd per curiam, 375 U. S. 216 (1963). Together, these two roads operate some 10,000 miles of railroad. Their lines extend from Michigan through Ohio and West Virginia to Virginia, and from Chicago, Ill., and St. Louis, Mo., to Rochester, N.Y. and Washington, D.C. Their net operating income in 1965 totaled over $80,000,000. In addition, B & O owns 38% voting control of Reading, which, in turn, controls CNJ. Reading has 1,200 miles of railroad in eastern Pennsylvania, with net operating revenue of some $8,000,000 in 1965. CNJ has 514 miles of railroad extending from Scranton, Pa. to Jersey City. N.J. In 1965 it had a net operating deficit in excess of $3,000,000. C & O-B & O also own jointly 65% of the voting stock of WM. The latter has 741 miles of railroad extending from Connellsville, Pa., and Webster Springs, W.Va., to Baltimore, Md. In 1965, its net operating income was nearly $8,500,000.N & W has 7,000 miles of railroad extending in a double prong from Des Moines, Iowa, and Kansas City, Mo., on the west to Buffalo, N.Y. and Pittsburgh, Pa., on the east, and from Cincinnati, Ohio, and Bristol, Va., on the west to Hagerstown, Md., and Norfolk, Va., on the east. Its net operating income for 1965 was approximately $118,000,000. As we have noted, an inclusion proceeding Page 386 U. S. 384 is now pending under which B & M, D & H and E-L seek inclusion in the N & W system.On October 11, 1965, C & O-B &.0 and N & W filed an application with the Commission asking approval of their merger into a single system and offering to include B & M, D & H, E-L, the Reading, and CNJ therein, subject to various conditions. If this were effected and the Penn-Central-NH merger were effected, the Northeastern Region would then have two giant systems, i.e., Penn-Central and C & O-B & O-N & W.Only one additional railroad remains a party here, the Chicago and Eastern Illinois Railroad Company (C & E I). It has approximately 750 miles of railroad operating between Chicago, Ill., St. Louis, Mo., and Evansville, Ind., with a net operating income of nearly $3,500,000 in 1965. The Missouri Pacific Railroad Company has already been authorized by the Commission to make C & E I a part of its system. The fear of C & E I here was that the Penn and Central merged would be a more formidable competitor than the Central alone, and it, accordingly, sought the imposition here of special routing and traffic conditions.The only other appellants are the City of Scranton, Pa., and Milton J. Shapp. Scranton is served by E-L, D & H and CNJ. It fears that the merger will have adverse effects upon the city, and therefore opposes the merger. Shapp sues as a citizen and stockholder of Penn, and is likewise in opposition to the merger.The United States has filed a memorandum in which it does not "quarrel with the merits of the Penn-Central merger proposal itself." The agencies of the Executive Branch, the Solicitor General reports, "believe that the merger is in the public interest, and that its consummation should be promptly effected." This view, however, is based on the assumption"that a place in the emerging pattern of consolidation in the Northeast can be found Page 386 U. S. 385 for the lesser roads of the region."It is the Commission's approval of the immediate consummation of the merger prior to the completion of the proceedings to determine the place of the lesser roads to which the United States objects. It contends that, since the very survival of the three protected railroads is threatened by the Penn-Central merger, the Commission must first provide protection for them until their absorption by "a major system like Norfolk and Western." To this end, the United States suggests that we hold the case to enable the Commission to conclude the related proceedings which it now has under consideration. The United States concludes that:"Only if the Commission is unable to promptly resolve the problems resulting from the merger would we deem it appropriate to urge this Court to reach the merits of the appeals and reverse the judgment below."The appellant railroads take varying positions, all short of attacking the merits of the merger. The three protected railroads contend that the merger should not be consummated prior to the final determination of their inclusion in some major system or the enforcement of effective protective conditions in the interim. Judicial review, they say, of the protective conditions would otherwise be illusory. The C & O-B & O group and the N & W system maintain that the conditions of the April 6, 1966, order give the protected railroads a vested interest in the Penn-Central merger which would result in the protected railroads diverting traffic to Penn-Central which would normally have gone to them. They say, as does the United States, that the conditions were drawn without the benefit of notice and hearing, are deficient, and enforcement thereof would be to their detriment. C & E I points to what it calls inconsistent findings as to the benefits it will have "of intensified competitive efforts" by its connecting carriers on routes in competition with Page 386 U. S. 386 Penn-Central. It contends that the indemnity conditions would "compound the economic injury" which would befall the C & E I as a result of the merger and which prompted it to request protective measures.IVThe national transportation policy and practices of the Commission thereunder.This Court has often pointed out that the national transportation policy "is the product of a long history of trial and error by Congress. . . ." McLean Trucking Co. v. United States, 321 U. S. 67, 321 U. S. 80 (1944). In that case, it found that the Transportation Act of 1920 "marked a sharp change in the policies and objectives embodied in those efforts." Ibid. In that Act, the Congress directed the Commission to adopt a plan for consolidation of the railroads of the United States into "a limited number of systems." 41 Stat. 481 (1920). Consolidation would be approved by the Commission upon a finding that the transaction was in harmony with and in furtherance of the complete plan of consolidation, and that the public interest would be promoted. But the Commission was warned that "competition shall be preserved as fully as possible." Ibid. The initiation of this unification, however, the Congress left wholly with the carriers. The Commission was given no power to compel mergers. This pattern was carried forward in the Transportation Act of 1940, 54 Stat. 898; however, § 5 of the former Act was amended to authorize the Commission to approve carrier-initiated proposals which it found to be consistent with the public interest and upon just and reasonable conditions. Under § 5(2)(d), additional power was given the Commission to condition its approval of a merger upon the inclusion, upon request, of other railroads operating in the territory involved. As we said in County of Marin v. United States, 356 U.S. Page 386 U. S. 387 412 (1958),"the result of the [1940] Act was a change in the means, while the end remained the same. The very language of the amended 'unification section' expresses clearly the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification."Id. at 356 U. S. 417-418. The Commission has, therefore, not proceeded by or under "a master plan" for consolidation in the various regions. Following this procedure, the Commission has refused to consolidate the Northeastern Region railroad merger or control proceedings into one case. See Chesapeake & O. Ry. Co. -- Control -- Baltimore & O. R. Co., supra, at 265-266, and Norfolk & W. Ry. Co. and New York, C. & St. L.R. Co. -- Merger, supra, at 18. Also Brotherhood of Maintenance of Way Employees v. United States, 221 F. Supp. 19, at 29-31; aff'd per curiam, 375 U. S. 216 (1963).It is contended that the order here is fatally defective for failure to comply with § 5(2)(b) of the Act, which requires the Commission to"enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable."The claim is that, by leaving the indemnity provisions open for future determination, the Commission did not meet the requirements of the section. Once a valid order is entered by the Commission, it, of course, has the power to retain jurisdiction for the purpose of making modifications that it finds necessary in the light of subsequent circumstances or to assist in compliance with prior conditions previously required, or, of course, to correct any errors. The Commission also has power under § 5(9) of the Act to make certain supplemental orders and under § 17(3) may correct clerical errors in certificates. We do not find it necessary to pass upon the question of naked power in the Commission to Page 386 U. S. 388 do what has been done here. Even assuming that it does have that power, we find that its order approving immediate consummation of the merger is insupportable on its findings.VConclusionsThe Commission found in its April 6, 1966, order that the protected railroads would be adversely affected to a "serious degree" by the Penn-Central merger; that they would be "severely handicapped" in providing required transportation to the highly industrialized areas that they serve, which service is "essential" and "the public service dictates that it be preserved." It then held that immediate consummation of the merger would be consistent with the public interest only if the conditions of Appendix G were immediately imposed. And, significantly, it concluded that, even though it approved the merger, consummation of it would not be permitted unless the protected railroads "are protected during the period necessary to determine their future. . . ." 327 I.C.C. at 529, 532. But after this suit was brought and strong opposition to Appendix G was voiced, the Commission, on September 16, 1966, withdrew all of the conditions of Appendix G save the traffic ones. This left the protected railroads without sufficient protection according to the Commission's own findings. This was done apparently because of the vehement objections of the appellant railroads that Appendix G would cause havoc, rather than give shelter. We cannot say, as did the District Court, that the September 16, 1966, order meant nothing more than that the traffic conditions left imposed by it were, in themselves, sufficient to protect the three protected railroads during the interim between the merger and the decision as to their future in one of the major railroad systems. This interpretation runs in the face of not only the prior findings enumerated above, but the specific terms and conditions of Appendix G found Page 386 U. S. 389 to be necessary to prevent "impairment or serious weakening" of the three carriers. Id. at 532. Indeed, rather than being tentative, the requirements of Appendix G were rigidly fixed and established for the entire period preceding inclusion of the protected roads in some major system. The finding of consistency with the public interest was predicated entirely upon the unqualified acceptance of Appendix G by Penn-Central. Otherwise, the merger would be put off for two years. In its effort to expedite the merger, the Commission failed to provide the very protection that it at the same time declared indispensable to the three roads. This leaves the ultimate conclusion -- that prompt consummation of the Penn-Central merger clearly would be in the public interest -- without support, and it falls under the Commission's own findings.In view of these facts, and since none of the findings of the Commission was disturbed, attacked, or amended, we believe it was error to permit the merger to be effected. And we also note that, even in the ultimate order of approval dated September 16, 1966, the Commission pointed out that its"finding [as to the merger's being consistent with the public interest] was that, if the immediate consummation were to be authorized, E-L, D & H and B & M would require special protection during the pendency of their petitions for inclusion in a major system."Nevertheless, in spite of this confirmation of its finding, the Commission ordered the merger immediately consummated without the "special protection" afforded by Appendix G. Having found that the finding of consistency with the public interest could only be sustained by the imposition of the Appendix G "special protection," the Commission failed to meet its statutory obligation when it arbitrarily removed the special conditions of Appendix G while leaving the prior finding standing. Page 386 U. S. 390In view of the patent invalidity of the order permitting immediate consummation of the merger, and in light of the present status of the proceeding before the Commission, we can only conclude that it is necessary that the decision as to the future of the protected railroads and their inclusion in a major system be decided prior to consummation of the Penn-Central merger. This is especially true since the findings and recommendations of Commissioner Webb as to the inclusion of the three protected railroads are now under submission to the full Commission. and a decision should be reached thereon by July or August, 1967, we are advised by counsel. This short time would have little effect upon the ultimate consummation of the merger -- which has been in the making for some 10 years now -- and if it resulted in the future of the protected railroads being finally decided, serious losses to them would be obviated. Furthermore, there would be no occasion for the conditions of Appendix G to be imposed, and hearing and decision on this highly controversial matter would not be necessary insofar as the three protected railroads are concerned. Finally, such action would provide the solution to the problem of the necessary and indispensable protection to the three railroads that the Commission found prerequisite to the merger.Furthermore, the serious charge that the conditions of Appendix G were imposed without notice and hearing would, in a large part, be dissipated by this course of action. As to the three protected roads, it would be entirely obviated if and when their fate is determined. As to the other railroads affected, the Commission could more quickly conclude its present hearing and make a decision as to the effect of the merger upon them and the protection, if any, required. [Footnote 5] Page 386 U. S. 391This disposition is also buttressed by the fact that, should the immediate consummation of the merger be permitted, and, at a later date, neither the interim conditions nor the inclusion proceedings be disposed of favorably to the continued existence of the merger, the only remedy remaining would be to set it aside and unscramble the consolidation. It is said that this does not follow, since only the indemnity terms are at issue, and they involve only money. This is blinking at reality. The fact is that traffic, trackage, terminals, etc., as well as financial and corporate structures, can and will, beyond doubt, be quickly combined, changed, abandoned, or consolidated. The only condition now imposed for the maintenance of the status quo is the provision against any change of routes, traffic, rates, etc., as to business in which the three protected roads participate. They are comparatively small lines, located for the most part in northeastern coastal States, and would, percentage-wise, be a small part of the total routes, traffic, rates, etc., of the whole Penn-Central system. There would be no restriction as to other routes, traffic, rates, etc., as well as all other operations of the merged company, including terminals, warehouses, etc., financial and corporate structures. The plan that the Penn-Central proposes to follow, as we have briefly sketched it, indicates not only Page 386 U. S. 392 major changes, but quick action. Our experience with other mergers, and common sense as well, indicate that the "scrambling" goes fast, but the unscrambling is interminable, and seldom effectively accomplished.The Penn-Central merger has been studied for a decade. Indeed, the parties to the merger agreed to it over five years ago, and it has been under Commission consideration ever since that time. This is, of course, the more reason for expedition. We note and give weight to the estimates of the Commission that the inclusion proceedings of the three roads in the N & W should be concluded in "a relatively short time." Our remand should, therefore, entail only a very short delay before the Commission. If its order is attacked in court, the hearing there can be expedited, as was this one, and an early determination made. We do not believe that this is too high a price to pay to make, as certain as human ingenuity can devise, a just and reasonable disposition of this matter for all of the parties. After all, it is the largest railroad merger in our history, and, if not handled properly, could seriously disrupt and irreparably injure the entire railroad system in the northeastern section of the country -- to the great detriment not only of the parties here, but to the public convenience and necessity of the entire Nation.The judgment of the District Court is reversed, and the cause is remanded with instructions that it be remanded to the Commission for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtBaltimore & Ohio R. Co. v. United States, 386 U.S. 372 (1967)Baltimore & Ohio Railroad Co. v. United StatesNo. 642Argued January 9-10, 1967Decided March 27, 1967*386 U.S. 372SyllabusBy order of April 6, 1966, the ICC permitted the merger of the Pennsylvania and the New York Central railroads, the largest and third largest railroads in the Northeast, pursuant to § 5(2) of the Interstate Commerce Act. The ICC found that the merger might divert substantial traffic from the Erie-Lackawanna, Delaware and Hudson, and Boston and Maine railroads, three smaller carriers designated as "protected railroads." These protected lines had filed applications for inclusion not only in the Penn-Central merger, but also in the Norfolk & Western-Nickel Plate merger, which the ICC had previously approved. In the latter case, the ICC retained jurisdiction to consider inclusion of the three lines upon equitable terms if "found consistent with the public interest," and it provided that consummation of the merger would constitute "irrevocable assent" by Norfolk & Western to such inclusion. The applications for inclusion in the Penn-Central system have been held in abeyance pending decision on inclusion in Norfolk & Western-Nickel Plate, presently under consideration by the ICC. On the merits of the Penn-Central merger, the ICC found that the protected railroads rendered essential service which required preservation, and concluded that immediate consummation of the merger would be consistent with the public interest if "conditions are imposed to obviate impairment or serious weakening" of the three lines. Without such conditions or the inclusion of the protected roads in one of the major rail systems, the ICC found that it was doubtful if the"three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, Page 386 U. S. 373 even though approving the merger."The ICC, sua sponte, specified in Appendix G certain conditions to the immediate consummation of the merger "to prevent any loss of revenue over the three [protected] railroads." These conditions concerned traffic practices and indemnification for loss of income. On September 16, 1966, the ICC modified its order, apparently on the objection of most of the parties, and, though retaining the traffic practices condition, it lifted the revenue indemnification condition until further order. Erie-Lackawanna and other railroads filed suit seeking an interlocutory injunction restraining the consummation of the merger. A three-judge court declined to grant the injunction.Held: In the light of its findings as to the necessity for interim protection for the three "protected railroads," the ICC erred in withdrawing all of the protective conditions of Appendix G save the traffic ones, and permitting immediate consummation of the Penn-Central merger without determining the ultimate fate of the three protected roads. P. 386 U. S. 378-392.259 F. Supp. 964, reversed and remanded. Page 386 U. S. 374

1964_7

MR. JUSTICE BRENNAN delivered the opinion of the Court.The respondents, who are members of a multiemployer bargaining group, locked out their employees in response Page 380 U. S. 280 to a whipsaw strike against another member of the group. They and the struck employer continued operations with temporary replacements. The National Labor Relations Board found that the struck employer's use of temporary replacements was lawful under Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, but that the respondents had violated § 8(a)(1) and (3) of the National Labor Relations Act [Footnote 1] by locking out their regular employees and using temporary replacements to carry on business. 137 N.L.R.B. 73. The Court of Appeals for the Tenth Circuit disagreed, and refused to enforce the Board's order. 319 F.2d 7. We granted certiorari, 375 U.S. 962. We affirm the Court of Appeals.Five operators of six retail food stores in Carlsbad, New Mexico, make up the employer group. The stores had bargained successfully on a group basis for many years with Local 462 of the Retail Clerks International Association. Negotiations for a new collective bargaining agreement to replace the expiring one began in January, 1960. Agreement was reached by mid-February on all Page 380 U. S. 281 terms except the amount and effective date of a wage increase. Bargaining continued without result, and, on March 2, the Local informed the employers that a strike had been authorized. The employers responded that a strike against any member of the employer group would be regarded as a strike against all. On March 16, the union struck Food Jet, Inc., one of the group. The four respondents, operating five stores, immediately locked out all employees represented by the Local, telling them and the Local that they would be recalled to work when the strike against Food Jet ended. The stores, including Food Jet, continued to carry on business by using management personnel, relatives of such personnel, and a few temporary employees; all of the temporary replacements were expressly told that the arrangement would be discontinued when the whipsaw strike ended. [Footnote 2] Bargaining continued until April 22, when an agreement was reached. The employers immediately released the temporary replacements and restored the strikers and the locked-out employees to their jobs.The Board and the Court of Appeals agreed that the case was to be decided in light of our decision in the so-called Buffalo Linen case, Labor Board v. Truck Drivers Union, 353 U. S. 87. There, we sustained the Board's finding that, in the absence of specific proof of unlawful motivation, the use of a lockout by members of a multiemployer bargaining unit in response to a whipsaw strike did Page 380 U. S. 282 not violate either § 8(a)(1) or § 8(a)(3). We held that, although the lockout tended to impair the effectiveness of the whipsaw strike, the right to strike"is not so absolute as to deny self-help by employers when legitimate interests of employees and employers collide. . . . The ultimate problem is the balancing of the conflicting legitimate interests."353 U.S. at 353 U. S. 96. We concluded that the Board correctly balanced those interests in upholding the lockout, since it found that the nonstruck employers resorted to the lockout to preserve the multiemployer bargaining unit from the disintegration threatened by the whipsaw strike. But, in the present case, the Board held, two members dissenting, that the respondents' continued operations with temporary replacements constituted a "critical difference" from Buffalo Linen -- where all members of the employer group shut down operations -- and that, in this circumstance, it was reasonable to infer that the respondents did not act to protect the multiemployer group, but "for the purpose of inhibiting a lawful strike." 137 N.L.R.B. at 76. Thus, the respondents' act was both a coercive practice condemned by § 8(a)(1) and discriminatory conduct in violation of § 8(a)(3).The Board's decision does not rest upon independent evidence that the respondents acted either out of hostility toward the Local or in reprisal for the whipsaw strike. It rests upon the Board's appraisal that the respondents' conduct carried its own indicia of unlawful intent, thereby establishing, without more, that the conduct constituted an unfair labor practice. It was disagreement with this appraisal, which we share, that led the Court of Appeals to refuse to enforce the Board's order.It is true that the Board need not inquire into employer motivation to support a finding of an unfair labor practice where the employer conduct is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends. See, e.g., 373 U. S. S. 283� Board v. Erie Resistor Corp., 373 U. S. 221; Labor Board v.Burnup & Sims, Inc.,@ 379 U. S. 21. We agree with the Court of Appeals that, in the setting of this whipsaw strike and Food Jet's continued operations, the respondents' lockout and their continued operations with the use of temporary replacements, viewed separately or as a single act, do not constitute such conduct.We begin with the proposition that the Act does not constitute the Board as an "arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands." Labor Board v.Insurance Agents, 361 U. S. 477, 361 U. S. 497. In the absence of proof of unlawful motivation, there are many economic weapons which an employer may use that either interfere in some measure with concerted employee activities or which are in some degree discriminatory and discourage union membership, and yet the use of such economic weapons does not constitute conduct that is within the prohibition of either § 8(a)(1) or § 8(a)(3). See, e.g., Labor Board v.Mackay Radio & Telegraph Co., supra; Labor Board v.Dalton Brick & Tile Co., 301 F.2d 886, 896. Even the Board concedes that an employer may legitimately blunt the effectiveness of an anticipated strike by stockpiling inventories, readjusting contract schedules, or transferring work from one plant to another, even if he thereby makes himself "virtually strike-proof." [Footnote 3] As a general matter, he may completely liquidate his business without violating either § 8(a)(1) or § 8(a)(3), whatever the impact of his action on concerted employee activities. Textile Workers v. Darlington Mfg. Co., Nos. 37 and 41, decided today, ante, p. 380 U. S. 263. Specifically, he may, in various circumstances, use the lockout as a legitimate economic weapon. See, e.g., Labor Board v.Truck Page 380 U. S. 284 Drivers Union, supra; Labor Board v.Dalton Brick & Tile Corp., supra; Leonard v. Labor Board, 205 F.2d 355; Betts Cadillac Olds, Inc., 96 N.L.R.B. 268; International Shoe Co., 93 N.L.R.B. 907; Pepsi-Cola Bottling Co., 72 N.L.R.B. 601, 602; Duluth Bottling Assn., 48 N.L.R.B. 1335; Link-Belt Co., 26 N.L.R.B. 227. And, in American Ship Building Co. v. Labor Board, 380 U. S. 300, we hold that a lockout is not an unfair labor practice simply because used by an employer to bring pressure to bear in support of his bargaining position after an impasse in bargaining negotiations has been reached.In the circumstances of this case, we do not see how the continued operations of respondents and their use of temporary replacements imply hostile motivation any more than the lockout itself; nor do we see how they are inherently more destructive of employee rights. Rather, the compelling inference is that that was all part and parcel of respondents' defensive measure to preserve the multiemployer group in the face of the whipsaw strike. Since Food Jet legitimately continued business operations, it is only reasonable to regard respondents' action as evincing concern that the integrity of the employer group was threatened unless they also managed to stay open for business during the lockout. For, with Food Jet open for business and respondents' stores closed, the prospect that the whipsaw strike would succeed in breaking up the employer association was not at all fanciful. The retail food industry is very competitive, and repetitive patronage is highly important. Faced with the prospect of a loss of patronage to Food Jet, it is logical that respondents should have been concerned that one or more of their number might bolt the group and come to terms with the Local, thus destroying the common front essential to multiemployer bargaining. The Court of Appeals correctly pictured the respondents' dilemma in saying, Page 380 U. S. 285"If . . . the struck employer does choose to operate with replacements, and the other employers cannot replace after lockout, the economic advantage passes to the struck member, the nonstruck members are deterred in exercising the defensive lockout, and the whipsaw strike . . . enjoys an almost inescapable prospect of success."319 F.2d at 11. Clearly, respondents' continued operations with the use of temporary replacements following the lockout were wholly consistent with a legitimate business purpose.Nor are we persuaded by the Board's argument that justification for the inference of hostile motivation appears in the respondents' use of temporary employees, rather than some of the regular employees. It is not common sense, we think, to say that the regular employees were "willing to work at the employers' terms." 137 N.L.R.B. at 76. It seems probable that this "willingness" was motivated as much by their understandable desire to further the objective of the whipsaw strike -- to break through the employers' united front by forcing Food Jet to accept the Local's terms -- as it was by a desire to work for the employers under the existing unacceptable terms. As the Board's dissenting members put it,"These employees are willing only to receive wages while their brethren in the rest of the association-wide unit are exerting whipsaw pressure on one employer to gain benefits that will ultimately accrue to all employees in the association-wide unit, including those here locked out."137 N.L.R.B. at 78. Moreover, the course of action to which the Board would limit the respondents would force them into the position of aiding and abetting the success of the whipsaw strike, and consequently would render "largely illusory," 137 N.L.R.B. at 78-79, the right of lockout recognized by Buffalo Linen; the right would be meaningless if barred to nonstruck stores that find it necessary to operate because the struck store does so. Page 380 U. S. 286The Board's finding of a § 8(a)(1) violation emphasized the impact of respondents' conduct upon the effectiveness of the whipsaw strike. It is no doubt true that the collective strength of the stores to resist that strike is maintained, and even increased, when all stores stay open with temporary replacements. The pressures on the employee are necessarily greater when none of the union employees is working and the stores remain open. But these pressures are no more than the result of the Local's inability to make effective use of the whipsaw tactic. Moreover, these effects are no different from those that result from the legitimate use of any economic weapon by an employer. Continued operations with the use of temporary replacements may result in the failure of the whipsaw strike, but this does not mean that the employers' conduct is demonstrably so destructive of employee rights and so devoid of significant service to any legitimate business end that it cannot be tolerated consistently with the Act. Certainly then, in the absence of evidentiary findings of hostile motive, there is no support for the conclusion that respondents violated § 8(a)(1).Nor does the record show any basis for concluding that respondents violated § 8(a)(3). Under that section, both discrimination and a resulting discouragement of union membership are necessary, but the added element of unlawful intent is also required. In Buffalo Linen itself, the employers treated the locked-out employees less favorably because of their union membership, and this may have tended to discourage continued membership, but we rejected the notion that the use of the lockout violated the statute. The discriminatory act is not, by itself, unlawful unless intended to prejudice the employees' position because of their membership in the union; some element of anti-union animus is necessary. See Radio Officers' Union v. Labor Board, 347 U. S. 17, 347 U. S. 42-44; Labor Board v. Jones & Laughlin Steel Corp., 301 Page 380 U. S. 287 U.S. 1 at 301 U. S. 46. We have determined that the "real motive" of the employer in an alleged § 8(a)(3) violation is decisive, Associated Press v. Labor Board, 301 U. S. 103, 301 U. S. 132; if any doubt still persisted, we laid it to rest in Radio Officers' Union v. Labor Board, supra, where we reviewed the legislative history of the provision and concluded that Congress clearly intended the employer's purpose in discriminating to be controlling. Id. at 347 U. S. 44. See also Textile Workers v. Darlington Mfg. Co., ante at 380 U. S. 275-276; American Ship Building Co. v. Labor Board, post at 380 U. S. 311-313; Local 357, International Brotherhood of Teamsters v. Labor Board, 365 U. S. 667, 365 U. S. 674-676.We recognize that, analogous to the determination of unfair practices under § 8(a)(1), when an employer practice is inherently destructive of employee rights and is not justified by the service of important business ends, no specific evidence of intent to discourage union membership is necessary to establish a violation of § 8(a)(3). This principle, we have said, is "but an application of the common law rule that a man is held to intend the foreseeable consequences of his conduct." Radio Officers' Union v. Labor Board, supra, at 347 U. S. 45. For example, in Labor Board v.Erie Resistor Corp., supra, we held that an employer's action in awarding superseniority to employees who worked during a strike was discriminatory conduct that carried with it its own indicia of improper intent. The only reasonable inference that could be drawn by the Board from the award of superseniority -- balancing the prejudicial effect upon the employees against any asserted business purpose -- was that it was directed against the striking employees because of their union membership; conduct so inherently destructive of employee interests could not be saved from illegality by an asserted overriding business purpose pursued in good faith. But where, as here, the tendency to discourage union membership is comparatively slight, and the employers' Page 380 U. S. 288 conduct is reasonably adopted to achieve legitimate business ends or to deal with business exigencies, we enter into an area where the improper motivation of the employers must be established by independent evidence. When so established, anti-union motivation will convert an otherwise ordinary business act into an unfair labor practice. Labor Board v.Erie Resistor Corp., supra, at 373 U. S. 227, and cases there cited.We agree with the Court of Appeals that respondents' conduct here clearly fits into the latter category, where actual subjective intent is determinative and where the Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an anti-union animus. While the use of temporary nonunion personnel in preference to the locked-out union members is discriminatory, we think that any resulting tendency to discourage union membership is comparatively remote, and that this use of temporary personnel constitutes a measure reasonably adapted to the effectuation of a legitimate business end. Here, discontent on the part of the Local's membership in all likelihood is attributable largely to the fact that the membership was locked out as the result of the Local's whipsaw strategem. But the lockout itself is concededly within the rule of Buffalo Linen. We think that the added dissatisfaction, with its resultant pressure on membership, attributable to the fact that the nonstruck employers remain in business with temporary replacements is comparatively insubstantial. First, the replacements were expressly used for the duration of the labor dispute only; thus, the displaced employee could not have looked upon the replacements as threatening their jobs. At most, the union would be forced to capitulate and return its members to work on terms which, while not as desirable as hoped for, were still better than under the old contract. Page 380 U. S. 289 Second, the membership, through its control of union policy, could end the dispute and terminate the lockout at any time simply by agreeing to the employers' terms and returning to work on a regular basis. Third, in light of the union shop provision that has been carried forward into the new contract from the old collective bargaining agreement, it would appear that a union member would have nothing to gain, and much to lose, by quitting the union. Under all these circumstances, we cannot say that the employers' conduct had any great tendency to discourage union membership. Not only was the prospect of discouragement of membership comparatively remote, but the respondents' attempt to remain open for business with the help of temporary replacements was a measure reasonably adapted to the achievement of a legitimate end -- preserving the integrity of the multiemployer bargaining unit. [Footnote 4]When the resulting harm to employee rights is thus comparatively slight, and a substantial and legitimate business end is served, the employers' conduct is prima facie lawful. Under these circumstances, the finding of an unfair labor practice under § 8(a)(3) requires a showing of improper subjective intent. Here, there is no assertion by either the union or the Board that the respondents were motivated by anti-union animus, nor is there any evidence that this was the case. On the contrary, the background of the employer association's relations with the union and all the circumstances of the respondents' behavior during the dispute tend to support the contrary conclusion: the history of labor relations between the employers and the Local divulges that the relationship has always been more than amicable; Page 380 U. S. 290 union shop provisions have been incorporated in the collective bargaining agreement between the Local and the employers for many years; in these very negotiations, the employers' association waived the failure of the Local to give timely notice of its desire to bargain over new terms of employment and consented to hear the Local's claims at the bargaining table; the record contains undisputed testimony by the store owners that they had no bone to pick with the Local, that, on the contrary, they thought that unions were a good thing, but felt forced to take action in order to preserve the multiemployer group from disintegration and to save their considerable stock of perishable food produce. Even the struck member of the association did not resort to permanent replacements for the striking workers, though it could have under Mackay; rather, it sought to ride out the dispute with temporary replacements to avoid depriving the regular employees of their jobs. Thus, not only is there absent in the record any independent evidence of improper motive, but the record contains positive evidence of the employers' good faith. In sum, the Court of Appeals was required to conclude that there was not sufficient evidence gathered from the record as a whole to support the Board's finding that respondents' conduct violates § 8(a)(3). See Universal Camera Corp. v. Labor Board, 340 U. S. 474.It is argued, finally, that the Board's decision is within the area of its expert judgment, and that, in setting it aside, the Court of Appeals exceeded the authorized scope of judicial review. This proposition rests upon our statement in Buffalo Linen that, in reconciling the conflicting interests of labor and management, the Board's determination is to be subjected to "limited judicial review." 353 U.S. at 353 U. S. 96. When we used the phrase "limited judicial review," we did not mean that the balance struck by the Board is immune from judicial examination and reversal Page 380 U. S. 291 in proper cases. [Footnote 5] Courts are expressly empowered to enforce, modify, or set aside, in whole or in part, the Board's orders, except that the findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. National Labor Relations Act, as amended, §§ 10(e), (f), 29 U.S.C. §§ 160(e), (f) (1958 ed.). Courts should be "slow to overturn an administrative decision," Labor Board v.Babcock & Wilcox Co., 351 U. S. 105, 351 U. S. 112, but they are not left "to "sheer acceptance" of the Board's conclusions," Republic Aviation Corp. v. Labor Board, 324 U. S. 793, 324 U. S. 803. Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate their Page 380 U. S. 292 responsibility if they did not fully review such administrative decisions. Of course, due deference is to be rendered to agency determinations of fact, so long as there is substantial evidence to be found in the record as a whole. But where, as here, the review is not of a question of fact, but of a judgment as to the proper balance to be struck between conflicting interests,"[t]he deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress."American Ship Building Co. v. Labor Board, post at 380 U. S. 318.Courts must, of course, set aside Board decisions which rest on an "erroneous legal foundation." Labor Board v. Babcock & Wilcox Co., supra, at 351 U. S. 112-113. Congress has not given the Board untrammeled authority to catalogue which economic devices shall be deemed freighted with indicia of unlawful intent. Labor Board v.Insurance Agents, supra, at 361 U. S. 498. In determining here that the respondents' conduct carried its own badge of improper motive, the Board's decision, for the reasons stated, misapplied the criteria governing the application of §§ 8(a)(1) and (3). Since the order therefore rested on an erroneous legal foundation, the Court of Appeals properly refused to enforce it. [Footnote 6]Affirmed

U.S. Supreme CourtNational Labor Relations Board v. Brown, 380 U.S. 278 (1965)National Labor Relations Board v. BrownNo. 7Argued January 19, 1965Decided March 29, 1965380 U.S. 278SyllabusRespondents were members of a multiemployer bargaining group with a history of successful bargaining. After the union struck another member of the group, which continued operations using temporary replacements, respondents locked out their employees and utilized temporary replacements to continue business operations. The National Labor Relations Board found that, while the use of temporary replacements by the struck employer was lawful, the lockout of regular employees and their temporary replacement by respondents violated §§ 8(a)(1) and (3) of the National Labor Relations Act. The Court of Appeals disagreed, and refused to enforce the Board's order.Held:1. Although the Board need not inquire into employer motivation to support a finding of an unfair labor practice where the employer's conduct is demonstrably destructive of employee rights and is not justified by the service of significant or important business ends, respondents' lockout and subsequent operations with temporary help in the face of the struck employer's continued operations during the whipsaw strike do not constitute such conduct. Pp. 380 U. S. 282-286.(a) Since the struck employer continued to operate, respondents might reasonably have been concerned that the integrity of the employer group was threatened unless they managed to stay open during the lockout. P. 380 U. S. 284.(b) Respondents' continued operations with the use of temporary employees after the lockout was wholly consistent with a legitimate business purpose. P. 380 U. S. 285.(c) Respondents' use of temporary replacements, rather than some of their regular employees, does not justify an inference of hostile motivation; to limit the respondents to the use of regular employees under the circumstances here present would be to render largely illusory the right of lockout recognized by Labor Board v. Truck Drivers Union, 353 U. S. 87. P. 380 U. S. 285. Page 380 U. S. 279(d) Absent evidentiary findings of hostile motive, there is no support for a conclusion that respondents violated § 8(a)(1) of the Act. P. 380 U. S. 286.2. Indispensable to a violation of § 8(a)(3) is a determination that the employer's actions were motivated by an unlawful intent, and while no specific evidence of this unlawful intent is necessary when an employer practice is inherently destructive of employee rights and is not justified by legitimate business reasons, where, as here, the tendency to discourage membership is comparatively slight, and the employer's conduct is reasonably adapted to achieve legitimate business ends, the improper intent of the employer must be established by independent evidence. Not only is the record devoid of any evidence that respondents acted with an improper intent, but it contains positive evidence of their good faith. Pp. 380 U. S. 286-290.3. While courts should be slow to overturn an administrative decision, they are not left to sheer acceptance of the Board's conclusions, and must set aside a Board decision which rests on an erroneous legal foundation. Pp. 380 U. S. 290-292.319 F.2d 7, affirmed.

1998_98-208

effort to comply with Title VII would be held liable for the discriminatory acts of agents acting in a "managerial capacity." Holding such an employer liable, however, is in some tension with the principle that it is "improper ... to award punitive damages against one who himself is personally innocent and therefore liable only vicariously," Restatement (Second) of Torts § 909, Comment b. Applying the Restatement of Agency's "scope of employment" rule in this context, moreover, would reduce the incentive for employers to implement antidiscrimination programs and would, in fact, likely exacerbate employers' concerns that 42 U. S. C. § 1981a's "malice" and "reckless indifference" standard penalizes those employers who educate themselves and their employees on Title VII's prohibitions. Dissuading employers from implementing programs or policies to prevent workplace discrimination is directly contrary to Title VII's prophylactic purposes. See, e. g., Burlington Industries, Inc., 524 U. S., at 764. Thus, the Court is compelled to modify the Restatement rules to avoid undermining Title VII's objectives. See, e. g., ibid. The Court therefore agrees that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's good faith efforts to comply with Title VII. Pp. 539-546.3. The question whether petitioner can identify facts sufficient to support an inference that the requisite mental state can be imputed to respondent is left for remand. The parties have not yet had an opportunity to marshal the record evidence in support of their views on the application of agency principles in this case, and the en banc Court of Appeals had no reason to resolve the issue because it concluded that petitioner had failed to demonstrate the requisite "egregious" misconduct. P. 546.139 F.3d 958, vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, Part I of which was unanimous, Part II-A of which was joined by STEVENS, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., and Part II-B of which was joined by REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post, p. 547. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 547.Eric Schnapper argued the cause for petitioner. With him on the briefs was Joseph A. Yablonski.529Solicitor General Waxman argued the cause for the United States et al. as amici curiae in support of petitioner. With him on the brief were Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Dennis J. Dimsey, Gregory B. Friel, C. Gregory Stewart, Philip B. Sklover, and Robert J. Gregory.Raymond C. Fay argued the cause for respondent. With him on the brief were Stephen D. Shawe, Bruce S. Harrison, and Peter M. Sfikas. *JUSTICE O'CONNOR delivered the opinion of the Court. Under the terms of the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071, punitive damages are available in claims under Title VII of the Civil Rights Act of 1964 (Title VII), 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1994 ed. and Supp. III), and the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U. S. C. § 12101 et seq. Punitive damages are limited, however, to cases in which the em-*Briefs of amici curiae urging reversal were filed for the Association of Trial Lawyers of America by Jeffrey L. Needle and Mark S. Mandell; for the National Employment Lawyers Association et al. by Janice Goodman, Paula A. Brantner, and Peter S. Rukin; and for the Rutherford Institute by John W Whitehead and Steven H. Aden.Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; for the National Retail Federation by Robert P. Joy; for the Society for Human Resource Management by D. Gregory Valenza and Roger S. Kaplan; and for the Washington Legal Foundation by Michael J. Connolly, David A. Lawrence, Clifford J. Scharman, Daniel J. Popeo, and Paul D. Kamenar.Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Timothy B. Dyk, Daniel H. Bromberg, John B. Kennedy, Stephen A. Bokat, and Robin S. Conrad; and for the Lawyers' Committee for Civil Rights Under Law et al. by James M. Finberg, Daniel F. Kolb, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Dennis C. Hayes, Willie Abrams, Antonia Hernandez, Patricia Mendoza, Judith L. Lichtman, Donna R. Lenhoff, Judith C. Appelbaum, Martha F. Davis, Yolanda S. Wu, and Steven R. Shapiro.530ployer has engaged in intentional discrimination and has done so "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981a(b)(1). We here consider the circumstances under which punitive damages may be awarded in an action under Title VII.I AIn September 1992, Jack O'Donnell announced that he would be retiring as the Director of Legislation and Legislative Policy and Director of the Council on Government Affairs and Federal Dental Services for respondent, American Dental Association (respondent or Association). Petitioner, Carole Kolstad, was employed with O'Donnell in respondent's Washington, D. C., office, where she was serving as respondent's Director of Federal Agency Relations. When she learned of O'Donnell's retirement, she expressed an interest in filling his position. Also interested in replacing O'Donnell was Tom Spangler, another employee in respondent's Washington office. At this time, Spangler was serving as the Association's Legislative Counsel, a position that involved him in respondent's legislative lobbying efforts. Both petitioner and Spangler had worked directly with O'Donnell, and both had received "distinguished" performance ratings by the acting head of the Washington office, Leonard Wheat.Both petitioner and Spangler formally applied for O'Donnell's position, and Wheat requested that Dr. William Allen, then serving as respondent's Executive Director in the Association's Chicago office, make the ultimate promotion decision. After interviewing both petitioner and Spangler, Wheat recommended that Allen select Spangler for O'Donnell's post. Allen notified petitioner in December 1992 that he had, in fact, selected Spangler to serve as O'Donnell's re-531placement. Petitioner's challenge to this employment decision forms the basis of the instant action.BAfter first exhausting her avenues for relief before the Equal Employment Opportunity Commission, petitioner filed suit against the Association in Federal District Court, alleging that respondent's decision to promote Spangler was an act of employment discrimination proscribed under Title VII. In petitioner's view, the entire selection process was a sham. Tr. 8 (Oct. 26, 1995) (closing argument for plaintiff's counsel). Counsel for petitioner urged the jury to conclude that Allen's stated reasons for selecting Spangler were pretext for gender discrimination, id., at 19, 24, and that Spangler had been chosen for the position before the formal selection process began, id., at 19. Among the evidence offered in support of this view, there was testimony to the effect that Allen modified the description of O'Donnell's post to track aspects of the job description used to hire Spangler. See id., at 132136 (Oct. 19, 1995) (testimony of Cindy Simms); id., at 48-51 (Oct. 20, 1995) (testimony of Leonard Wheat). In petitioner's view, this "preselection" procedure suggested an intent by the Association to discriminate on the basis of sex. I d., at 24. Petitioner also introduced testimony at trial that Wheat told sexually offensive jokes and that he had referred to certain prominent professional women in derogatory terms. See id., at 120-124 (Oct. 18, 1995) (testimony of Carole Kolstad). Moreover, Wheat allegedly refused to meet with petitioner for several weeks regarding her interest in O'Donnell's position. See id., at 112-113. Petitioner testified, in fact, that she had historically experienced difficulty gaining access to meet with Wheat. See id., at 114-115. Allen, for his part, testified that he conducted informal meetings regarding O'Donnell's position with both petitioner and Spangler, see id., at 148 (Oct. 23, 1995), although petitioner532stated that Allen did not discuss the position with her, see id., at 127-128 (Oct. 18, 1995).The District Court denied petitioner's request for a jury instruction on punitive damages. The jury concluded that respondent had discriminated against petitioner on the basis of sex and awarded her backpay totaling $52,718. App.109110. Although the District Court subsequently denied respondent's motion for judgment as a matter of law on the issue of liability, the court made clear that it had not been persuaded that respondent had selected Spangler over petitioner on the basis of sex, and the court denied petitioner's requests for reinstatement and for attorney's fees. 912Petitioner appealed from the District Court's decisions denying her requested jury instruction on punitive damages and her request for reinstatement and attorney's fees. Respondent cross-appealed from the denial of its motion for judgment as a matter of law. In a split decision, a panel of the Court of Appeals for the District of Columbia reversed the District Court's decision denying petitioner's request for an instruction on punitive damages. 108 F.3d 1431, 1435 (1997). In so doing, the court rejected respondent's claim that punitive damages are available under Title VII only in "'extraordinarily egregious cases.'" Id., at 1437. The panel reasoned that, "because 'the state of mind necessary to trigger liability for the wrong is at least as culpable as that required to make punitive damages applicable,'" id., at 1438 (quoting Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 205 (CAl1987)), the fact that the jury could reasonably have found intentional discrimination meant that the jury should have been permitted to consider punitive damages. The court noted, however, that not all cases involving intentional discrimination would support a punitive damages award. 108 F. 3d, at 1438. Such an award might be improper, the panel reasoned, in instances where the employer justifiably believes that intentional discrimination is permitted or533where an employee engages in discrimination outside the scope of that employee's authority. Id., at 1438-1439. Here, the court concluded, respondent "neither attempted to justify the use of sex in its promotion decision nor disavowed the actions of its agents." Id., at 1439.The Court of Appeals subsequently agreed to rehear the case en banc, limited to the punitive damages question. In a divided opinion, the court affirmed the decision of the District Court. 139 F.3d 958 (1998). The en banc majority concluded that, "before the question of punitive damages can go to the jury, the evidence of the defendant's culpability must exceed what is needed to show intentional discrimination." Id., at 961. Based on the 1991 Act's structure and legislative history, the court determined, specifically, that a defendant must be shown to have engaged in some "egregious" misconduct before the jury is permitted to consider a request for punitive damages. Id., at 965. Although the court declined to set out the "egregiousness" requirement in any detail, it concluded that petitioner failed to make the requisite showing in the instant case. Judge Randolph concurred, relying chiefly on § 1981a's structure as evidence of a congressional intent to "limi[t] punitive damages to exceptional cases." Id., at 970. Judge Tatel wrote in dissent for five judges, who agreed generally with the panel majority.We granted certiorari, 525 U. S. 960 (1998), to resolve a conflict among the Federal Courts of Appeals concerning the circumstances under which a jury may consider a request for punitive damages under § 1981a(b)(1). Compare 139 F. 3d 958 (CADC 1998) (case below), with Luciano v. Olsten Corp., 110 F.3d 210, 219-220 (CA2 1997) (rejecting contention that punitive damages require showing of "extraordinarily egregious" conduct).II APrior to 1991, only equitable relief, primarily backpay, was available to prevailing Title VII plaintiffs; the statute pro-534vided no authority for an award of punitive or compensatory damages. See Landgraf v. USI Film Products, 511 U. S. 244, 252-253 (1994). With the passage of the 1991 Act, Congress provided for additional remedies, including punitive damages, for certain classes of Title VII and ADA violations.The 1991 Act limits compensatory and punitive damages awards, however, to cases of "intentional discrimination"that is, cases that do not rely on the "disparate impact" theory of discrimination. 42 U. S. C. § 1981a(a)(1). Section 1981a(b)(1) further qualifies the availability of punitive awards:"A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." (Emphasis added.)The very structure of § 1981a suggests a congressional intent to authorize punitive awards in only a subset of cases involving intentional discrimination. Section 1981a(a)(1) limits compensatory and punitive awards to instances of intentional discrimination, while § 1981a(b)(1) requires plaintiffs to make an additional "demonstrat[ion]" of their eligibility for punitive damages. Congress plainly sought to impose two standards of liability-one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award.The Court of Appeals sought to give life to this two-tiered structure by limiting punitive awards to cases involving intentional discrimination of an "egregious" nature. We credit the en bane majority's effort to effectuate congressional intent, but, in the end, we reject its conclusion that eligibility for punitive damages can only be described in535terms of an employer's "egregious" misconduct. The terms "malice" and "reckless" ultimately focus on the actor's state of mind. See, e. g., Black's Law Dictionary 956-957, 1270 (6th ed. 1990); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton, Law of Torts 212-214 (5th ed. 1984) (defining "willful," "wanton," and "reckless"). While egregious misconduct is evidence of the requisite mental state, see infra, at 538-539; Keeton, supra, at 213-214, § 1981a does not limit plaintiffs to this form of evidence, and the section does not require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Nor does the statute's structure imply an independent role for "egregiousness" in the face of congressional silence. On the contrary, the view that § 1981a provides for punitive awards based solely on an employer's state of mind is consistent with the 1991 Act's distinction between equitable and compensatory relief. Intent determines which remedies are open to a plaintiff here as well; compensatory awards are available only where the employer has engaged in "intentional discrimination." § 1981a(a)(1) (emphasis added).Moreover, § 1981a's focus on the employer's state of mind gives some effect to Congress' apparent intent to narrow the class of cases for which punitive awards are available to a subset of those involving intentional discrimination. The employer must act with "malice or with reckless indifference to the [plaintiff's] federally protected rights." § 1981a(b)(1) (emphasis added). The terms "malice" or "reckless indifference" pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.We gain an understanding of the meaning of the terms "malice" and "reckless indifference," as used in § 1981a, from this Court's decision in Smith v. Wade, 461 U. S. 30 (1983). The parties, as well as both the en banc majority and dissent, recognize that Congress looked to the Court's decision in Smith in adopting this language in § 1981a. See Tr. of Oral536Arg. 28-29; Brief for Petitioner 24; 139 F. 3d, at 964-965; id., at 971 (Tatel, J., dissenting). Employing language similar to what later appeared in § 1981a, the Court concluded in Smith that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." 461 U. S., at 56. While the Smith Court determined that it was unnecessary to show actual malice to qualify for a punitive award, id., at 45-48, its intent standard, at a minimum, required recklessness in its subjective form. The Court referred to a "subjective consciousness" of a risk of injury or illegality and a "'criminal indifference to civil obligations.'" Id., at 37, n. 6, 41 (quoting Philadelphia, W & B. R. Co. v. Quigley, 21 How. 202, 214 (1859)); see also Farmer v. Brennan, 511 U. S. 825, 837 (1994) (explaining that criminal law employs a subjective form of recklessness, requiring a finding that the defendant "disregards a risk of harm of which he is aware"); see generally 1 T. Sedgwick, Measure of Damages §§ 366, 368, pp. 528, 529 (8th ed. 1891) (describing "wantonness" in punitive damages context in terms of "criminal indifference" and "gross negligence" in terms of a "conscious indifference to consequences"). The Court thus compared the recklessness standard to the requirement that defendants act with "'knowledge of falsity or reckless disregard for the truth'" before punitive awards are available in defamation actions, Smith, supra, at 50 (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (1974)), a subjective standard, Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 688 (1989). Applying this standard in the context of § 1981a, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages.There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply537be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See, e. g., 42 U. S. C. § 2000e-2(e)(1) (setting out Title VII defense "where religion, sex, or national origin is a bona fide occupational qualification"); see also § 12113 (setting out defenses under ADA). In Hazen Paper Co. v. Biggins, 507 U. S. 604, 616 (1993), we thus observed that, in light of statutory defenses and other exceptions permitting age-based decisionmaking, an employer may knowingly rely on age to make employment decisions without recklessly violating the Age Discrimination in Employment Act of 1967 (ADEA). Accordingly, we determined that limiting liquidated damages under the ADEA to cases where the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute," without an additional showing of outrageous conduct, was sufficient to give effect to the ADEA's two-tiered liability scheme. Id., at 616, 617.At oral argument, respondent urged that the common law tradition surrounding punitive awards includes an "egregious misconduct" requirement. See, e. g., Tr. of Oral Arg. 26-28; see also Brief for Chamber of Commerce of the United States as Amicus Curiae 8-22 (advancing this argument). We assume that Congress, in legislating on punitive awards, imported common law principles governing this form of relief. See, e. g., Molzof v. United States, 502 U. S. 301, 307 (1992). Moreover, some courts and commentators have described punitive awards as requiring both a specified state of mind and egregious or aggravated misconduct. See, e. g., 1 D. Dobbs, Law of Remedies 468 (2d ed. 1993) ("Punitive damages are awarded when the defendant is guilty of both a bad state of mind and highly serious misconduct").538Most often, however, eligibility for punitive awards is characterized in terms of a defendant's motive or intent. See, e. g., 1 Sedgwick, supra, at 526, 528; C. McCormick, Law of Damages 280 (1935). Indeed, "[t]he justification of exemplary damages lies in the evil intent of the defendant." 1 Sedgwick, supra, at 526; see also 2 J. Sutherland, Law of Damages § 390, p. 1079 (3d ed. 1903) (discussing punitive damages under rubric of "[c]ompensation for wrongs done with bad motive"). Accordingly, "a positive element of conscious wrongdoing is always required." McCormick, supra, at 280.Egregious misconduct is often associated with the award of punitive damages, but the reprehensible character of the conduct is not generally considered apart from the requisite state of mind. Conduct warranting punitive awards has been characterized as "egregious," for example, because of the defendant's mental state. See Restatement (Second) of Torts § 908(2) (1979) ("Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others"). Respondent, in fact, appears to endorse this characterization. See, e. g., Brief for Respondent 19 ("Malicious and reckless conduct [is] by definition egregious"); see also id., at 28-29. That conduct committed with the specified mental state may be characterized as egregious, however, is not to say that employers must engage in conduct with some independent, "egregious" quality before being subject to a punitive award.To be sure, egregious or outrageous acts may serve as evidence supporting an inference of the requisite "evil motive." "The allowance of exemplary damages depends upon the bad motive of the wrong-doer as exhibited by his acts." 1 Sedgwick, supra, at 529 (emphasis added); see also 2 Sutherland, supra, § 394, at 1101 ("The spirit which actuated the wrong-doer may doubtless be inferred from the circumstances surrounding the parties and the transaction"); see, e. g., Chizmar v. Mackie, 896 P. 2d 196, 210 (Alaska 1995)539("[W]here there is no evidence that gives rise to an inference of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual malice, the trial court need not, and indeed should not, submit the issue of punitive damages to the jury" (internal quotation marks omitted)); Horton v. Union Light, Heat & Power Co., 690 S. W. 2d 382, 389 (Ky. 1985) (observing that "malice ... may be implied from outrageous conduct"). Likewise, under § 1981a(b)(1), pointing to evidence of an employer's egregious behavior would provide one means of satisfying the plaintiff's burden to "demonstrat[e]" that the employer acted with the requisite "malice or ... reckless indifference." See 42 U. S. C. § 1981a(b)(1); see, e. g., 3 BNA EEOC Compliance Manual N:6085-N6084 (1992) (Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991) (listing "[t]he degree of egregiousness and nature of the respondent's conduct" among evidence tending to show malice or reckless disregard). Again, however, respondent has not shown that the terms "reckless indifference" and "malice," in the punitive damages context, have taken on a consistent definition including an independent, "egregiousness" requirement. Cf. Morissette v. United States, 342 U. S. 246, 263 (1952) ("[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed").BThe inquiry does not end with a showing of the requisite "malice or ... reckless indifference" on the part of certain individuals, however. 42 U. S. C. § 1981a(b)(1). The plaintiff must impute liability for punitive damages to respondent. The en banc dissent recognized that agency principles place limits on vicarious liability for punitive damages. 139 F. 3d,540at 974 (Tatel, J., dissenting). Likewise, the Solicitor General as amicus acknowledged during argument that common law limitations on a principal's liability in punitive awards for the acts of its agents apply in the Title VII context. Tr. of Oral Arg.23.JUSTICE STEVENS urges that we should not consider these limitations here. See post, at 552-553 (opinion concurring in part and dissenting in part). While we decline to engage in any definitive application of the agency standards to the facts of this case, see infra, at 546, it is important that we address the proper legal standards for imputing liability to an employer in the punitive damages context. This issue is intimately bound up with the preceding discussion on the evidentiary showing necessary to qualify for a punitive award, and it is easily subsumed within the question on which we granted certiorari-namely, "[i]n what circumstances may punitive damages be awarded under Title VII of the 1964 Civil Rights Act, as amended, for unlawful intentional discrimination?" Pet. for Cert. i; see also this Court's Rule 14.1(a). "On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered 'fairly subsumed' by the actual questions presented." Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20, 37 (1991) (STEVENS, J., dissenting) (citing cases). The Court has not always confined itself to the set of issues addressed by the parties. See, e. g., Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 93-102, and n. 1 (1998); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 243-249 (1989); Continental Ill. Nat. Bank & Trust Co. v. Chicago R. 1. & P. R. Co., 294 U. S. 648, 667-675 (1935). Here, moreover, limitations on the extent to which principals may be liable in punitive damages for the torts of their agents was the subject of discussion by both the en bane majority and dissent, see 139 F. 3d, at 968; id., at 974 (Tatel, J., dissenting), amicus541briefing, see Brief for Chamber of Commerce of the United States as Amicus Curiae 22-27, and substantial questioning at oral argument, see Tr. of Oral Arg. 11-17, 19-24, 49-50, 54-55. Nor did respondent discount the notion that agency principles may place limits on an employer's vicarious liability for punitive damages. See post, at 552. In fact, respondent advanced the general position "that the higher agency principles, under common law, would apply to punitive damages." Tr. of Oral Arg. 49. Accordingly, we conclude that these potential limitations on the extent of respondent's liability are properly considered in the instant case.The common law has long recognized that agency principles limit vicarious liability for punitive awards. See, e. g., G. Field, Law of Damages §§ 85-87 (1876); 1 Sedgwick, Damages § 378; McCormick, Damages § 80; 2 F. Mechem, Law of Agency §§ 2014-2015 (2d ed. 1914). This is a principle, moreover, that this Court historically has endorsed. See, e. g., Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 114-115 (1893); The Amiable Nancy, 3 Wheat. 546, 558-559 (1818). Courts of Appeals, too, have relied on these liability limits in interpreting 42 U. S. C. § 1981a. See, e. g., Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 13221323 (CAll 1999); Harris v. L & L Wings, Inc., 132 F.3d 978, 983-985 (CA4 1997). See also Fitzgerald v. Mountain States Telephone & Telegraph Co., 68 F.3d 1257, 1263-1264 (CAlO 1995) (same in suit under 42 U. S. C. § 1981). But see Deffenbaugh- Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 592-594 (CA5 1998), rehearing en banc ordered, 169We have observed that, "[i]n express terms, Congress has directed federal courts to interpret Title VII based on agency principles." Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 754 (1998); see also Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 72 (1986) (noting that, in interpreting Title VII, "Congress wanted courts to look to agency principles for guidance"). Observing the limits on liability542that these principles impose is especially important when interpreting the 1991 Act. In promulgating the Act, Congress conspicuously left intact the "limits of employer liability" established in Meritor. Faragher v. Boca Raton, 524 U. S. 775, 804, n. 4 (1998); see also Burlington Industries, Inc., supra, at 763-764 ("[WJe are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment").Although jurisdictions disagree over whether and how to limit vicarious liability for punitive damages, see, e. g., 2 J. Ghiardi & J. Kircher, Punitive Damages: Law and Practice § 24.01 (1998) (discussing disagreement); 22 Am. Jur. 2d, Damages § 788 (1988) (same), our interpretation of Title VII is informed by "the general common law of agency, rather than ... the law of any particular State." Burlington Industries, Inc., supra, at 754 (internal quotation marks omitted). The common law as codified in the Restatement (Second) of Agency (1957), provides a useful starting point for defining this general common law. See Burlington Industries, Inc., supra, at 755 ("[T]he Restatement ... is a useful beginning point for a discussion of general agency principles"); see also Meritor, supra, at 72. The Restatement of Agency places strict limits on the extent to which an agent's misconduct may be imputed to the principal for purposes of awarding punitive damages:"Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:"(a) the principal authorized the doing and the manner of the act, or"(b) the agent was unfit and the principal was reckless in employing him, or"(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or543"(d) the principal or a managerial agent of the principal ratified or approved the act." Restatement (Second) of Agency, supra, § 217 C.See also Restatement (Second) of Torts § 909 (same).The Restatement, for example, provides that the principal may be liable for punitive damages if it authorizes or ratifies the agent's tortious act, or if it acts recklessly in employing the malfeasing agent. The Restatement also contemplates liability for punitive awards where an employee serving in a "managerial capacity" committed the wrong while "acting in the scope of employment." Restatement (Second) of Agency, supra, § 217 C; see also Restatement (Second) of Torts, supra, § 909 (same). "Unfortunately, no good definition of what constitutes a 'managerial capacity' has been found," 2 Ghiardi, Punitive Damages, § 24.05, at 14, and determining whether an employee meets this description requires a fact-intensive inquiry, id., § 24.05; 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), p. 181 (3d ed. 1995). "In making this determination, the court should review the type of authority that the employer has given to the employee, the amount of discretion that the employee has in what is done and how it is accomplished." Id., § 4.4(B)(2)(a), at 181. Suffice it to say here that the examples provided in the Restatement of Torts suggest that an employee must be "important," but perhaps need not be the employer's "top management, officers, or directors," to be acting "in a managerial capacity." Ibid.; see also 2 Ghiardi, supra, § 24.05, at 14; Restatement (Second) of Torts, supra, § 909, at 468, Comment band Illus. 3.Additional questions arise from the meaning of the "scope of employment" requirement. The Restatement of Agency provides that even intentional torts are within the scope of an agent's employment if the conduct is "the kind [the employee] is employed to perform," "occurs substantially within the authorized time and space limits," and "is actuated, at least in part, by a purpose to serve the" employer. Restate-544ment (Second) of Agency, § 228(1), at 504. According to the Restatement, so long as these rules are satisfied, an employee may be said to act within the scope of employment even if the employee engages in acts "specifically forbidden" by the employer and uses "forbidden means of accomplishing results." Id., § 230, at 511, Comment b; see also Burlington Industries, Inc., 524 U. S., at 756; Keeton, Torts § 70. On this view, even an employer who makes every effort to comply with Title VII would be held liable for the discriminatory acts of agents acting in a "managerial capacity."Holding employers liable for punitive damages when they engage in good faith efforts to comply with Title VII, however, is in some tension with the very principles underlying common law limitations on vicarious liability for punitive damages-that it is "improper ordinarily to award punitive damages against one who himself is personally innocent and therefore liable only vicariously." Restatement (Second) of Torts, supra, § 909, at 468, Comment b. Where an employer has undertaken such good faith efforts at Title VII compliance, it "demonstrat[es] that it never acted in reckless disregard of federally protected rights." 139 F. 3d, at 974 (Tatel, J., dissenting); see also Harris, 132 F. 3d, at 983, 984 (observing that, "[i]n some cases, the existence of a written policy instituted in good faith has operated as a total bar to employer liability for punitive damages" and concluding that "the institution of a written sexual harassment policy goes a long way towards dispelling any claim about the employer's 'reckless' or 'malicious' state of mind").Applying the Restatement of Agency's "scope of employment" rule in the Title VII punitive damages context, moreover, would reduce the incentive for employers to implement antidiscrimination programs. In fact, such a rule would likely exacerbate concerns among employers that § 1981a's "malice" and "reckless indifference" standard penalizes those employers who educate themselves and their employees on Title VII's prohibitions. See Brief for Equal Employment545Advisory Council as Amicus Curiae 12 ("[I]f an employer has made efforts to familiarize itself with Title VII's requirements, then any violation of those requirements by the employer can be inferred to have been committed 'with malice or with reckless indifference' "). Dissuading employers from implementing programs or policies to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII. The statute's "primary objective" is "a prophylactic one," Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975); it aims, chiefly, "not to provide redress but to avoid harm," Faragher, 524 U. S., at 806. With regard to sexual harassment, "[f]or example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms." Burlington Industries, Inc., 524 U. S., at 764. The purposes underlying Title VII are similarly advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII's prohibitions.In light of the perverse incentives that the Restatement's "scope of employment" rules create, we are compelled to modify these principles to avoid undermining the objectives underlying Title VII. See generally ibid. See also Faragher, supra, at 802, n. 3 (noting that Court must "adapt agency concepts to the practical objectives of Title VII"); Meritor Savings Bank, FSB, 477 U. S., at 72 ("[C]ommonlaw principles may not be transferable in all their particulars to Title VII"). Recognizing Title VII as an effort to promote prevention as well as remediation, and observing the very principles underlying the Restatements' strict limits on vicarious liability for punitive damages, we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's "good-faith efforts to comply with Title VII." 139 F. 3d, at 974 (Tatel, J., dissenting). As the dissent recognized, "[g]iving punitive damages protection to employers546who make good-faith efforts to prevent discrimination in the workplace accomplishes" Title VII's objective of "motivat[ing] employers to detect and deter Title VII violations." Ibid.We have concluded that an employer's conduct need not be independently "egregious" to satisfy § 1981a's requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the plaintiff's burden of proof. We leave for remand the question whether petitioner can identify facts sufficient to support an inference that the requisite mental state can be imputed to respondent. The parties have not yet had an opportunity to marshal the record evidence in support of their views on the application of agency principles in the instant case, and the en banc majority had no reason to resolve the issue because it concluded that petitioner had failed to demonstrate the requisite "egregious" misconduct. 139 F. 3d, at 968. Although trial testimony established that Allen made the ultimate decision to promote Spangler while serving as petitioner's interim executive director, respondent's highest position, Tr. 159 (Oct. 19, 1995), it remains to be seen whether petitioner can make a sufficient showing that Allen acted with malice or reckless indifference to petitioner's Title VII rights. Even if it could be established that Wheat effectively selected O'Donnell's replacement, moreover, several questions would remain, e. g., whether Wheat was serving in a "managerial capacity" and whether he behaved with malice or reckless indifference to petitioner's rights. It may also be necessary to determine whether the Association had been making good faith efforts to enforce an antidiscrimination policy. We leave these issues for resolution on remand.For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusKOLSTAD v. AMERICAN DENTAL ASSOCIATIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 98-208. Argued March 1, 1999-Decided June 22,1999Petitioner sued respondent under Title VII of the Civil Rights Act of 1964 (Title VII), asserting that respondent's decision to promote Tom Spangler over her was a proscribed act of gender discrimination. Petitioner alleged, and introduced testimony to prove, that, among other things, the entire selection process was a sham, the stated reasons of respondent's executive director for selecting Spangler were pretext, and Spangler had been chosen before the formal selection process began. The District Court denied petitioner's request for a jury instruction on punitive damages, which are authorized by the Civil Rights Act of 1991 (1991 Act) for Title VII cases in which the employee "demonstrates" that the employer has engaged in intentional discrimination and has done so "with malice or with reckless indifference to [the employee's] federally protected rights." 42 U. S. C. § 1981a(b)(1). In affirming that denial, the en banc Court of Appeals concluded that, before the jury can be instructed on punitive damages, the evidence must demonstrate that the defendant has engaged in some "egregious" misconduct, and that petitioner had failed to make the requisite showing in this case.Held:1. An employer's conduct need not be independently "egregious" to satisfy § 1981a's requirements for a punitive damages award, although evidence of egregious behavior may provide a valuable means by which an employee can show the "malice" or "reckless indifference" needed to qualify for such an award. The 1991 Act provided for compensatory and punitive damages in addition to the backpay and other equitable relief to which prevailing Title VII plaintiffs had previously been limited. Section 1981a's two-tiered structure-it limits compensatory and punitive awards to cases of "intentional discrimination," § 1981a(a)(1), and further qualifies the availability of punitive awards to instances of "malice" or "reckless indifference" -suggests a congressional intent to impose two standards of liability, one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award. The terms "malice" and "reckless indifference" ultimately focus on the actor's state of mind, however, and § 1981a does not require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Nor does the stat-527ute's structure imply an independent role for "egregiousness" in the face of congressional silence. On the contrary, the view that § 1981a provides for punitive awards based solely on an employer's state of mind is consistent with the 1991 Act's distinction between equitable and compensatory relief. Intent determines which remedies are open to a plaintiff here as well. This focus on the employer's state of mind does give effect to the statute's two-tiered structure. The terms "malice" and "reckless indifference" pertain not to the employer's awareness that it is engaging in discrimination, but to its knowledge that it may be acting in violation of federal law, see, e. g., Smith v. Wade, 461 U. S. 30, 37, n. 6,41,50. There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard, as where the employer is unaware of the relevant federal prohibition or discriminates with the distinct belief that its discrimination is lawful, where the underlying theory of discrimination is novel or otherwise poorly recognized, or where the employer reasonably believes that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 616, 617. Although there is some support for respondent's assertion that the common law punitive awards tradition includes an "egregious misconduct" requirement, eligibility for such awards most often is characterized in terms of a defendant's evil motive or intent. Egregious or outrageous acts may serve as evidence supporting an inference of such evil motive, but § 1981a does not limit plaintiffs to this form of evidence or require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Pp. 533-539.2. The inquiry does not end with a showing of the requisite mental state by certain employees, however. Petitioner must impute liability for punitive damages to respondent. Common law limitations on a principal's vicarious liability for its agents' acts apply in the Title VII context. See, e. g., Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 754. The Court's discussion of this question is informed by the general common law of agency, as codified in the Restatement (Second) of Agency, see, e. g., id., at 755, which, among other things, authorizes punitive damages "against a ... principal because of an [agent's] act ... if ... the agent was employed in a managerial capacity and was acting in the scope of employment," § 217 C(c), and declares that even intentional, specifically forbidden torts are within such scope if the conduct is "the kind [the employee] is employed to perform," "occurs substantially within the authorized time and space limits," and "is actuated, at least in part, by a purpose to serve the" employer, §§ 228(1), 230, Comment b. Under these rules, even an employer who made every good faith528Full Text of Opinion

1996_96-5658

class of persons. E. g., Saffle v. Parks, 494 U. S. 484, 494-495. Lambrix does not contend that the second exception-for watershed rules of criminal procedure implicating the criminal proceeding's fundamental fairness and accuracy-applies to Espinosa errors, and Sawyer v. Smith, 497 U. S. 227, 241-244, makes clear that it does not. Pp. 539-540.72 F.3d 1500, affirmed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 540. O'CONNOR, J., filed a dissenting opinion, post, p. 546.Matthew C. Lawry, by appointment of the Court, 519 U. S. 1005, argued the cause for petitioner. With him on the briefs was Mark Evan Olive.Carol M. Dittmar, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General. *JUSTICE SCALIA delivered the opinion of the Court.We granted certiorari in this case to consider whether a prisoner whose conviction became final before our decision in Espinosa v. Florida, 505 U. S. 1079 (1992) (per curiam), is foreclosed from relying on that decision in a federal habeas corpus proceeding because it announced a "new rule" as defined in Teague v. Lane, 489 U. S. 288 (1989).IOn February 5, 1983, Cary Michael Lambrix and his girlfriend, Frances Smith, met Clarence Moore and Aleisha Bryant at a local tavern. The two couples returned to Lambrix's trailer for dinner, where Lambrix killed Moore and Bryant in brutal fashion. Lambrix was convicted on two counts of first-degree murder. In the sentencing phase of trial, the jury rendered an advisory verdict recommending* Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.521that the trial court sentence Lambrix to death on both counts. The trial court, after finding five aggravating circumstances in connection with the murder of Moore, four aggravating circumstances in connection with the murder of Bryant, and no mitigating circumstances as to either murder, sentenced Lambrix to death on both counts. Lambrix's conviction and sentence were upheld on direct appeal by the Florida Supreme Court. Lambrix v. State, 494 So. 2d 1143 (1986).After the Florida courts denied his repeated efforts to obtain collateral relief, Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988); Lambrix v. State, 534 So. 2d 1151 (Fla. 1988); Lambrix v. State, 559 So. 2d 1137 (Fla. 1990), Lambrix filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. § 2254 in the United States District Court for the Southern District of Florida; that court rejected all of his claims. While Lambrix's appeal was pending before the Court of Appeals for the Eleventh Circuit, this Court decided Espinosa v. Florida, supra, which held that if the sentencing judge in a "weighing" State (i. e., a State that requires specified aggravating circumstances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial) is required to give deference to a jury's advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Since Florida is such a State, and since one of Lambrix's claims was that his sentencing jury was improperly instructed on the "especially heinous, atrocious, or cruel" (HAC) aggravator, Espinosa had obvious relevance to his habeas petition. Rather than address this issue in the first instance, however, the Eleventh Circuit held its proceedings in abeyance to permit Lambrix to present his Espinosa claim to the Florida state courts.The Florida Supreme Court rejected Lambrix's Espinosa claim without considering its merits on the ground that the claim was procedurally barred. Lambrix v. Singletary, 641522So. 2d 847 (1994). That court explained that although Lambrix had properly preserved his Espinosa objection at trial by requesting a limiting instruction on the HAC aggravator, he had failed to raise the issue on direct appeal. 641 So. 2d, at 848. The Florida Supreme Court also rejected Lambrix's claim that the procedural bar should be excused because his appellate counsel was ineffective in failing to raise the forfeited issue, explaining that this claim was itself procedurally barred and was, in any event, meritless. Id., at 848-849.After the Florida Supreme Court entered judgment against Lambrix, the Eleventh Circuit adjudicated his habeas petition. Without even acknowledging the procedural bar-which was expressly raised and argued by the Statethe Court of Appeals proceeded to address the Espinosa claim, and determined that Espinosa announced a new rule which cannot be applied retroactively on federal habeas under Teague v. Lane, supra. 72 F.3d 1500, 1503 (1996). We granted certiorari. 519 U. S. 958 (1996).IIBefore turning to the question presented in this case, we pause to consider the State's contention that Lambrix's Espinosa claim is procedurally barred because he failed to contend that the jury was instructed with a vague HAC aggravator on his direct appeal to the Florida Supreme Court. According to the State, the Florida Supreme Court "has consistently required that an Espinosa issue must have been objected to at trial and pursued on direct appeal in order to be reviewed in postconviction proceedings." Brief for Respondent 30, citing Chandler v. Dugger, 634 So. 2d 1066, 1069 (Fla. 1994), Jackson v. Dugger, 633 So. 2d 1051, 1055 (Fla. 1993), and Henderson v. Singletary, 617 So. 2d 313 (Fla.), cert. denied, 507 U. S. 1047 (1993).In Coleman v. Thompson, 501 U. S. 722, 729 (1991), we reaffirmed that this Court "will not review a question of federallaw decided by a state court if the decision of that court523rests on a state law ground that is independent of the federal question and adequate to support the judgment." See also Harris v. Reed, 489 U. S. 255, 262 (1989). We in fact lack jurisdiction to review such independently supported judgments on direct appeal: Since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory. Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945); see also Sochor v. Florida, 504 U. S. 527, 533-534, and n. (1992). The "independent and adequate state ground" doctrine is not technically jurisdictional when a federal court considers a state prisoner's petition for habeas corpus pursuant to 28 U. S. C. § 2254, since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." We have nonetheless held that the doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law. Coleman, supra, at 729-730, 750; see also Wainwright v. Sykes, 433 U. S. 72,81,82 (1977), discussing Brown v. Allen, 344 U. S. 443, 486-487 (1953), and Ex parte Spencer, 228 U. S. 652 (1913); Harris, supra, at 262.Application of the "independent and adequate state ground" doctrine to federal habeas review is based upon equitable considerations of federalism and comity. It "ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." Coleman, 501 U. S., at 732. "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Ibid. If the "independent and adequate state ground" doctrine were not applied, a federal district court or court of appeals would be able to review claims that this Court would have been unable to consider on direct review. See id., at 730-731.524We have never had occasion to consider whether a federal court should resolve a State's contention that a petitioner's claim is procedurally barred before considering whether his claim is Teague barred. Our opinions, however-most particularly, Goleman-certainly suggest that the proceduralbar issue should ordinarily be considered first. I t was speculated at oral argument that the Court of Appeals may have resolved the Teague issue without first considering procedural bar because our opinions have stated that the Teague retroactivity decision is to be made as a "threshold matter." E. g., Penry v. Lynaugh, 492 U. S. 302, 329 (1989); Gaspari v. Bohlen, 510 U. S. 383, 389 (1994). That simply means, however, that the Teague issue should be addressed "before considering the merits of [a] claim." 510 U. S., at 389. It does not mean that the Teague inquiry is antecedent to consideration of the general prerequisites for federal habeas corpus which are unrelated to the merits of the particular claimsuch as the requirement that the petitioner be "in custody," see 28 U. S. C. § 2254(a), or that the state-court judgment not be based on an independent and adequate state ground. Constitutional issues are generally to be avoided, and as even a cursory review of this Court's new-rule cases reveals (including our discussion in Part IV; infra), the Teague inquiry requires a detailed analysis of federal constitutional law. See, e. g., Sawyer v. Smith, 497 U. S. 227, 233-241 (1990); Penry, supra, at 316-319; Gilmore v. Taylor, 508 U. S. 333, 339-344 (1993); Saffle v. Parks, 494 U. S. 484, 488-494 (1990).We are somewhat puzzled that the Eleventh Circuit, after having held proceedings in abeyance while petitioner brought his claim in state court, did not so much as mention the Florida Supreme Court's determination that Lambrix's Espinosa claim was procedurally barred. The State of Florida raised that point before both the District Court and the Court of Appeals, going so far as to reiterate it in a postjudg-525ment Motion for Clarification and/or Modification of Opinion before the Court of Appeals, reprinted at App. 176. A State's procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system. We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be. Judicial economy might counsel giving the Teague question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law. Cf. 28 U. S. C. § 2254(b)(2) (permitting a federal court to deny a habeas petition on the merits notwithstanding the applicant's failure to exhaust state remedies).Despite our puzzlement at the Court of Appeals' failure to resolve this case on the basis of procedural bar, we hesitate to resolve it on that basis ourselves. Lambrix asserts several reasons why his claim is not procedurally barred, which seem to us insubstantial but may not be so; as we have repeatedly recognized, the courts of appeals and district courts are more familiar than we with the procedural practices of the States in which they regularly sit, see, e. g., Rummel v. Estelle, 445 U. S. 263, 267, n. 7 (1980); County Court of Ulster Cty. v. Allen, 442 U. S. 140, 153-154 (1979). Rather than prolong this litigation by a remand, we proceed to decide the case on the Teague grounds that the Court of Appeals used.IIIFlorida employs a three-stage sentencing procedure.First, the jury weighs statutorily specified aggravating circumstances against any mitigating circumstances, and renders an "advisory sentence" of either life imprisonment or death. Fla. Stat. § 921.141(2) (Supp. 1992). Second, the trial court weighs the aggravating and mitigating circumstances, and enters a sentence of life imprisonment or death;526if the latter, its findings must be set forth in writing. § 921.141(3). The jury's advisory sentence is entitled to "great weight" in the trial court's determination, Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), but the court has an independent obligation to determine the appropriate punishment, Ross v. State, 386 So. 2d 1191, 1197 (Fla. 1980). Third, the Florida Supreme Court automatically reviews all cases in which the defendant is sentenced to death. §921.141(4).Lambrix's jury, which was instructed on five aggravating circumstances, recommended that he be sentenced to death for each murder. The trial court found five aggravating circumstances as to Moore's murder and four as to Bryant's, including that each murder was "especially heinous and atrocious"; it found no mitigating circumstances as to either murder; it concluded that the aggravating circumstances outweighed the mitigating, and sentenced Lambrix to death on each count. App. 20-21. Although Lambrix failed to raise any claims concerning the sentencing procedure on direct appeal, the Florida Supreme Court agreed with the trial court's findings as to the aggravating circumstances. Lambrix v. State, 494 So. 2d, at 1148.Lambrix contends that the jury's consideration of the HAC aggravator violated the Eighth Amendment because the jury instructions concerning this circumstance failed to provide sufficient guidance to limit the jury's discretion. Like the Eleventh Circuit, see 72 F. 3d, at 1503, we assume, arguendo, that this was so. Lambrix further contends (and this is at the heart of the present case) that the trial court's independent weighing did not cure this error. Prior to our opinion in Espinosa v. Florida, 505 U. S. 1079 (1992), the State had contended that Lambrix was not entitled to relief because the sentencing judge properly found and weighed a narrowed HAC aggravator. In Espinosa, however, we established the principle that if a "weighing" State requires the sentencing trial judge to give deference to a jury's advisory recommendation, neither the judge nor the jury is constitutionally per-527mitted to weigh invalid aggravating circumstances. Lambrix seeks the benefit of that principle; the State contends that it constitutes a new rule under Teague and thus cannot be relied on in a federal habeas corpus proceeding.1In Teague we held that, in general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U. S., at 310-311. To apply Teague, a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final. See Caspari v. Bohlen, 510 U. S., at 390. Second, it must" '[s]urve[y] the legal landscape as it then existed,' Graham v. Collins, [506 U. S. 461, 468 (1993)], and 'determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,' Saffle v. Parks, 494 U. S. 484, 488 (1990)." Ibid. Finally, if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity. See Gilmore v. Taylor, 508 U. S., at 345.IVLambrix's conviction became final on November 24, 1986, when his time for filing a petition for certiorari expired. Thus, our first and principal task is to survey the legal landscape as of that date, to determine whether the rule later announced in Espinosa was dictated by then-existing precedent-whether, that is, the unlawfulness of Lambrix's1 Lambrix also contends that the trial court itself failed to apply a properly narrowed HAC aggravator. We decline to consider this contention because it is not fairly within the question presented, which asked only whether Teague v. Lane, 489 U. S. 288 (1989), bars relief based upon Espinosa v. Florida, 505 U. S. 1079 (1992) (per curiam), Pet. for Cert. i. See this Court's Rule 14.1(a).528conviction was apparent to all reasonable jurists. See, e. g., Graham v. Collins, 506 U. S. 461, 477 (1993); Butler v. McKellar, 494 U. S. 407, 415 (1990); id., at 417-418 (Brennan, J., dissenting).In Espinosa, we determined that the Florida capital jury is, in an important respect, a cosentencer with the judge. As we explained: "Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances." 505 U. S., at 1082. We then concluded that the jury's consideration of a vague aggravator tainted the trial court's sentence because the trial court gave deference to the jury verdict (and thus indirectly weighed the vague aggravator) in the course of weighing the aggravating and mitigating circumstances. Ibid. We reasoned that this indirect weighing created the same risk of arbitrariness as the direct weighing of an invalid aggravating factor. Ibid.2In our view, Espinosa was not dictated by precedent, but announced a new rule which cannot be used as the basis for federal habeas corpus relief. It is significant that Espinosa itself did not purport to rely upon any controlling precedent.32 Our description of the holding of Espinosa in the preceding paragraph of text is so clear that we are at a loss to explain JUSTICE STEVENS'S impression that we accord Espinosa the "novel interpretation" that "the constitutional error in the jury instruction will 'automatically render a defendant's sentence unconstitutional.' " Post, at 541 (dissenting opinion) (quoting infra, at 530). The sentence from which the phrase quoted by JUSTICE STEVENS is wrenched (so violently that the word "not" which precedes it is omitted) is not discussing the holding of Espinosa; indeed, it does not even mention Espinosa; nor does the entire paragraph or the previous or subsequent paragraphs.3JUSTICE STEVENS maintains that this statement is proved wrong by Espinosa's citation of Godfrey v. Georgia, 446 U. S. 420 (1980), and Tedder v. State, 322 So. 2d 908 (Fla. 1975). Post, at 541, n. 2. This is wordplay. While those two cases can be called "controlling authority" in the sense that the two propositions they established (that an instruction to the529The opinion cited only a single case, Baldwin v. Alabama, 472 U. S. 372, 382 (1985), in support of its central conclusion that indirect weighing of an invalid aggravator "creates the same potential for arbitrariness" as direct weighing of an invalid aggravator. Espinosa, 505 U. S., at 1082. And it introduced that lone citation with a "cf."-an introductory signal which shows authority that supports the point in dictum or by analogy, not one that "controls" or "dictates" the result.Baldwin itself contains further evidence that Espinosa set forth a new rule. Baldwin considered the constitutionality of Alabama's death sentencing scheme, in which the jury was required to "fix the punishment at death" if it found the defendant guilty of an aggravated offense, whereupon the trial court would conduct a sentencing hearing at which it would determine a sentence of death or of life imprisonment. 472 U. S., at 376. The defendant contended that because the jury's mandatory sentence would have been unconstitutional standing alone, see Woodson v. North Carolina, 428 U. S. 280, 288-305 (1976) (plurality opinion), it was impermissible for the trial court to consider that verdict in determining its own sentence. We did not reach that contention because we concluded that under Alabama law the jury's verdict formed no part of the trial judge's sentencing calculus. Id., at 382. We noted, however, on the page of the opinion that Espinosa cited, that the defendant's "argument conceivably might have merit if the judge actually were required to consider the jury's 'sentence' as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Flor-sentencing jury which fails to define the HAC aggravator violates the Eighth Amendment, and that the Florida sentencing judge must give great weight to the jury's recommendation) were among the "givens" from which any decision in Espinosa had to be derived, they assuredly were not "controlling authority" in the sense we obviously intend: that they compel the outcome in Espinosa. They do not answer the definitive question: whether the jury's advisory verdict taints the trial court's sentence, that is, whether indirect weighing of an invalid factor creates the same potential for arbitrariness as direct weighing.530ida, 428 U. S. 242 (1976), and if the judge were obligated to accord some deference to it." Baldwin, 472 U. S., at 382 (emphasis added); see also id., at 386, n. 8 ("express[ing] no view" on the same point). This highly tentative expression, far from showing that Baldwin "dictate[s]" the result in Espinosa, see Sawyer v. Smith, 497 U. S., at 235, suggests just the opposite. Indeed, in Baldwin the Chief Justice, who believed that Alabama's scheme did contemplate that the trial judge would consider the jury's "sentence," nonetheless held the scheme constitutional. 472 U. S., at 392 (opinion concurring in judgment).The Supreme Court decisions relied upon most heavily by petitioner are Godfrey v. Georgia, 446 U. S. 420 (1980); Maynard v. Cartwright, 486 U. S. 356 (1988); and Clemons v. Mississippi, 494 U. S. 738 (1990). In Godfrey, we held that Georgia's "outrageously or wantonly vile, horrible and inhuman" aggravator was impermissibly vague, reasoning that there was nothing in the words "outrageously or wantonly vile, horrible and inhuman" "that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence," and concluded that these terms alone "gave the jury no guidance." 446 U. S., at 428-429 (plurality opinion). Similarly, in Maynard v. Cartwright, applied retroactively to February 1985 in Stringer v. Black, 503 U. S. 222 (1992), we held that Oklahoma's HAC aggravator, which is identically worded to Florida's HAC aggravator, was impermissibly vague because the statute gave no more guidance than the vague aggravator at issue in Godfrey and the sentencing jury was not given a limiting instruction. 486 U. S., at 363-364.Although Godfrey and Maynard support the proposition that vague aggravators must be sufficiently narrowed to avoid arbitrary imposition of the death penalty, these cases, and others, demonstrate that the failure to instruct the sentencing jury properly with respect to the aggravator does not automatically render a defendant's sentence unconstitutional. We have repeatedly indicated that a sentencing531jury's consideration of a vague aggravator can be cured by appellate review. Thus, in Godfrey itself, we were less concerned about the failure to instruct the jury properly than we were about the Georgia Supreme Court's failure to narrow the facially vague aggravator on appeal. Had the Georgia Supreme Court applied a narrowing construction of the aggravator, we would have rejected the Eighth Amendment challenge to Godfrey's death sentence, notwithstanding the failure to instruct the jury on that narrowing construction. Godfrey, supra, at 431-432. Likewise in Maynard, we stressed that the vague HAC aggravator had not been sufficiently limited on appeal by the Oklahoma Court of Criminal Appeals "to cure the unfettered discretion of the jury." 486 U. S., at 364.We reached a similar conclusion in Clemons v. Mississippi, applied retroactively to February 1985 in Stringer. Clemons considered the question whether the sentencer's weighing of a vague HAC aggravator rendered that sentence unconstitutional in a "weighing" State. The sentencing jury in Clemons, as in Maynard, was given a HAC instruction that was unconstitutionally vague. We held that "the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review." Clemons, supra, at 741, 745; see also Stringer, supra, at 230.The principles of the above-described cases do not dictate the result we ultimately reached in Espinosa. Florida, unlike Oklahoma, see Maynard, supra, at 360, had given its facially vague HAC aggravator a limiting construction sufficient to satisfy the Constitution. See Proffitt v. Florida, 428 U. S., at 255-256 (joint opinion of Stewart, Powell, and STEVENS, JJ.); id., at 260 (White, J., concurring in judgment). Thus, unlike the sentencing juries in Clemons, Maynard, and Godfrey, who were not instructed with a properly lim-532ited aggravator, the sentencing trial judge in Espinosa did find the HAC aggravator under a properly limited construction. See Espinosa, 505 U. S., at 1082, citing Walton v. Arizona, 497 U. S. 639, 653 (1990).4 A close examination of the Florida death penalty scheme persuades us that a reasonable jurist considering Lambrix's sentence in 1986 could have reached a conclusion different from the one Espinosa announced in 1992. There were at least three different, but somewhat related, approaches that would have suggested a different outcome:(1) The mere cabining of the trial court's discretion would avoid arbitrary imposition of the death penalty, and thus avoid unconstitutionality. In Proffitt v. Florida, supra, we upheld the Florida death penalty scheme against the contention that it resulted in arbitrary imposition of the death penalty, see Gregg v. Georgia, 428 U. S. 153, 188 (1976), because "trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life" and because the Florida Supreme4JUSTICE STEVENS'S dissent says that "[g]iven that the judge's instruction to the jury failed to narrow the HAC aggravator, there is no reason to believe that [the trial judge] appropriately narrowed the [HAC] factor in his ... deliberations." Post, at 545. Our cases establish that there is always a "reason to believe" that, which we consider fully adequate:"Trial judges are presumed to know the law and to apply it in making their decisions. If the [State] Supreme Court has narrowed the definition of the [HAC] aggravating circumstance, we presume that [state] trial judges are applying the narrower definition." Walton v. Arizona, 497 U. S., at 653. Without abandoning our precedent, the most JUSTICE STEVENS can argue is that the ordinary presumption is overcome by failure to instruct. The factual support for such an argument is questionable:Judges fail to instruct juries about rules of law they are aware of all the time. Moreover, if the argument were correct, the holding in Espinosa itself would have been unnecessary: We could have simply said there (as JUSTICE STEVENS would have us say here) that the failure to instruct on the narrowing construction displayed the judge's ignorance of the narrowing construction. Instead, of course, Espinosa cited the passage from Walton quoted above. Espinosa, 505 U. S., at 1082.533Court reviewed sentences for consistency. Proffitt, 428 U. S., at 253 (joint opinion of Stewart, Powell, and STEVENS, JJ.); id., at 260-261 (opinion of White, J., joined by the Chief Justice and REHNQUIST, J.). (In Proffitt itself, incidentally, the jury had not been instructed on an appropriately narrowed HAC aggravator, see Proffitt v. Wainwright, 685 F.2d 1227, 1264, n. 57 (CAll 1982), cert. denied, 464 U. S. 1002 (1983).) From what was said in Proffitt it would, as the en banc Eleventh Circuit noted, "sensibly follow that the judge's proper review of the sentence cures any risk of arbitrariness occasioned by the jury's consideration of an unconstitutionally vague aggravating circumstance." Glock v. Singletary, 65 F. 3d 878, 886 (1995), cert. denied, 519 U. S. 888 (1996). It could have been argued, of course, as JUSTICE STEVENS contends, see post, at 543 (dissenting opinion), that prior constitutional error by a sentencing-determining jury would make a difference, but both the conclusion and the premise of that argument were debatable: not only whether it would make a difference, but even (as the succeeding point demonstrates) whether there was any constitutional error by a sentencingdetermining jury.(2) There was no error for the trial judge to cure, since under Florida law the trial court, not the jury, was the sentencer. In Espinosa we concluded, in effect, that the jury was at least in part a cosentencer along with the trial court. That determination can fairly be traced to our opinion in Sochor v. Florida, 504 U. S. 527 (1992), decided just three weeks earlier, where we explained that under Florida law the trial court "is at least a constituent part of 'the sentencer,'" implying that the jury was that as well. Id., at 535-536. That characterization is in considerable tension with our pre-1986 view. In Proffitt, for example, after considering Tedder v. State, 322 So. 2d 908 (Fla. 1975), on which Espinosa primarily relied, the Court determined that the trial court was the sentencer. E. g., 428 U. S., at 249 (joint opinion of Stewart, Powell, and STEVENS, JJ.) ("[T]he actual534sentence is determined by the trial judge" (emphasis added)); id., at 251 (the trial court is "[t]he sentencing authority in Florida"); id., at 252 ("[T]he sentence is determined by the judge rather than by the jury"); id., at 260 (White, J., concurring in judgment). We even distinguished the Florida scheme from the Georgia scheme on the ground that "in Florida the sentence is determined by the trial judge rather than by the jury." Id., at 252 (joint opinion) (emphasis added). Some eight years later, just two years before petitioner's conviction became final, we continued to describe the judge as the sentencer. See Spaziano v. Florida, 468 U. S. 447 (1984); see also Barclay v. Florida, 463 U. S. 939, 952-954 (1983) (plurality opinion); id., at 962 (STEVENS, J., concurring in judgment). (Although he now believes the jury is a cosentencer, at the time Lambrix's conviction became final JUSTICE STEVENS had explained that "the sentencing authority [is] the jury in Georgia, the judge in Florida." Ibid.) It would not have been unreasonable to rely on what we had said in Proffitt, Spaziano, and Barclay-that the trial court was the sentencer-and to conclude that where the sentencer considered properly narrowed aggravators there was simply no error under Godfrey or Maynard. The Florida Supreme Court and the Eleventh Circuit held precisely that in 1989, see Smalley v. State, 546 So. 2d 720, 722; Bertolotti v. Dugger, 883 F.2d 1503, 1526-1527, cert. denied, 497 U. S. 1032 (1990); and in 1985 the Eleventh Circuit foresaw the possibility of such a holding: "[Spaziano's] reasoning calls into question whether any given error in such a merely 'advisory' proceeding should be considered to be of constitutional magnitude." Proffitt v. Wainwright, 756 F.2d 1500, 1502.(3) The trial court's weighing of properly narrowed aggravators and mitigators was sufficiently independent of the jury to cure any error in the jury's consideration of a vague aggravator. Although the Florida Supreme Court had interpreted its statute-which provided that the judge was the sentencer, Fla. Stat. § 921.141(3) (Supp. 1992), and that the535jury rendered merely an "advisory sentence," § 921.141(2)-as requiring the trial judge to give "great weight" to a jury's advisory recommendation, Tedder v. State, supra, that court nonetheless emphasized that the trial court must "independently weigh the evidence in aggravation and mitigation," and that "[u]nder no combination of circumstances can thee] [jury's] recommendation usurp the judge's role by limiting his discretion." Eutzy v. State, 458 So. 2d 755, 759 (Fla. 1984), cert. denied, 471 U. S. 1045 (1985). In one case, the Florida Supreme Court vacated a sentence because the trial court had given "undue weight to the jury's recommendation of death and did not make an independent judgment of whether or not the death penalty should be imposed." Ross v. State, 386 So. 2d 1191, 1197 (1980) (emphasis added). In Spaziano v. Florida, supra, we acknowledged that the Florida trial court conducts "its own weighing of the aggravating and mitigating circumstances," id., at 451, and that "[r]egardless of the jury's recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances," id., at 466 (emphasis added); see also Proffitt, 428 U. S., at 251.5 Given these precedents, it was rea-5 JUSTICE STEVENS accuses us of "simply ignoring the reasoning in Tedder." Post, at 543 (dissenting opinion). We have of course not done so. See supra, at 526, 533-534 and this page. JUSTICE STEVENS, however, fails to discuss, or indeed even mention, the cases interpreting Tedder that contradict the dissent's view-cases in both this Court and the Florida Supreme Court repeatedly emphasizing the trial judge's obligation to make an independent assessment and weighing of the aggravating and mitigating circumstances. He relies, for example, upon the Florida Supreme Court's decision in Riley v. Wainwright, 517 So. 2d 656 (1987), see post, at 541, n. 3 (a decision rendered after Lambrix's conviction became final and hence not technically relevant). But subsequent to that case the Florida Supreme Court summarized its jurisprudence as follows:"Our case law contains many instances where a trial judge's override of a jury recommendation of life has been upheld. Notwithstanding the jury recommendation, whether it be for life imprisonment or death, the judge is required to make an independent determination, based on the536sonable to think that the trial court's review would at least constitute the sort of "reweighing" that would satisfy Clemons v. Mississippi, 494 U. S. 738 (1990), see also Stringer, 503 U. S., at 237. In fact, given the view of some Members of this Court that appellate reweighing was inconsistent with the Eighth Amendment, see, e. g., Cabana v. Bullock, 474 U. S. 376, 400-401, 404 (1986) (Blackmun, J., dissenting, joined by Brennan and Marshall, JJ.); Clemons, supra, at 769-772 (Blackmun, J., joined by Brennan, Marshall, and STEVENS, JJ., concurring in part and dissenting in part), it would have been reasonable to think that trial-court reweighing was preferable. As one Court of Appeals was prompted to note, "Clemons's holding, which arguably points in the opposite direction from Espinosa, indicates that even in 1990 Espinosa's result would not have been dictated by precedent." Glock v. Singletary, 65 F. 3d, at 887 (en bane).That Espinosa announced a new rule is strongly confirmed by our decision in Walton v. Arizona, 497 U. S. 639 (1990). Although decided after petitioner's conviction became final, Walton is a particularly good proxy for what a reasonable jurist would have thought in 1986, given that the only relevant cases decided by this Court in the interim were Maynard and Clemons, the holdings of both of which, we lateraggravating and mitigating factors. Moreover, this procedure has been previously upheld against constitutional challenge." Grossman v. State, 525 So. 2d 833, 840 (Fla. 1988) (emphasis added; citations omitted). "It is clear ... that the prosecutor correctly stated the law in Florida: the judge is the sentencing authority and the jury's role is merely advisory." Id., at 839. It is not our burden, of course, to establish that these statements in Grossman, or in the other cases we rely upon, were accurate; as we later determined, they were wrong and the dissent's (current) reading of Tedder is correct. But the question before us is whether a reasonable jurist could have disagreed with the dissent's interpretation of Tedder at the time of Lambrix's conviction. In treating as relevant to that question only that portion of precedent vindicated by later decisions, JUSTICE STEVENS "endues the jurist with prescience, not reasonableness." Stringer v. Black, 503 U. S. 222, 244 (1992) (SOUTER, J., dissenting).537held, were compelled by the law in 1985, see Stringer, supra. In Walton, we rejected a claim that Arizona's HAC aggravator failed sufficiently to channel the sentencer's discretion. Summarizing Godfrey and Maynard, we explained that "in neither case did the state appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition," and this, we said, "w[as] crucial to the conclusion we reached in Maynard." Walton, supra, at 653. This reasoning suggests that even following Maynard, a weighing-state death sentence would satisfy the Eighth Amendment so long as the vague aggravator was narrowed at some point in the process. Additionally, in the course of our opinion, we characterized Clemons as follows:"[E]ven if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather, as we held in Clemons v. Mississippi, 494 U. S. 738 (1990), a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty." Walton, supra, at 653-654 (emphasis added).Our use of the disjunctive suggests that as late as 1990, if a Florida trial court determined that the defendant's conduct fell within the narrowed HAC aggravator, the sentence would satisfy the Eighth Amendment irrespective of whether the trial court reweighed the aggravating and mitigating factors.6 The holdings in Stringer, Maynard, Clem-6JUSTICE STEVENS is thus simply wrong in stating that we have confused appellate application of a limiting construction with a trial court's deference to a tainted jury recommendation, see post, at 545 (dissenting538ons, and Godfrey cannot be thought to suggest otherwise, because there was no indication in those cases that the state courts had found the facts of the crimes to fall within appropriately narrowed definitions of the aggravators. Before Espinosa, we had never invalidated a death sentence where a court found the challenged aggravator to be within the appellate court's narrowed definition of a facially vague aggravator.Most of JUSTICE STEVENS'S dissent is devoted to making a forceful case that Espinosa was a reasonable interpretation of prior law-perhaps even the most reasonable one. But the Teague inquiry-which is applied to Supreme Court decisions that are, one must hope, usually the most reasonable interpretation of prior law-requires more than that. It asks whether Espinosa was dictated by precedent-i. e., whether no other interpretation was reasonable. We think it plain from the above that a jurist considering all the relevant material (and not, like JUSTICE STEVENS'S dissent, considering only the material that favors the Espinosa result) could reasonably have reached a conclusion contrary to our holding in that case. Indeed, both before and after Lambrix's conviction became final, every court decision we are aware of did so. See, e. g., Smalley v. State, 546 So. 2d, at 722; Proffitt v. Wainwright, 756 F. 2d, at 1502; Bertolotti v. Dugger, 883 F. 2d, at 1527; Sanchez-Velasco v. State, 570 So. 2d 908, 916 (Fla. 1990), cert. denied, 500 U. S. 929 (1991).It has been suggested that Espinosa was not a new rule because our decision was handed down as a per curiam without oral argument. See, e. g., Glock v. Singletary, 65 F. 3d, at 896, n. 11 (en bane) (Tjofiat, C. J., dissenting). Whateveropinion). Walton indicated that our precedents provided two distinct and permissible routes to satisfy the Eighth Amendment where the sentencer considered a vague aggravator: a court's finding of the aggravator under a proper limiting construction, or independent reweighing of the circumstances.539inference of established law a summary, per curiam disposition might normally carry is precluded by the peculiar circumstances surrounding the summary per curiam in Espinosa. Just three weeks prior to our issuance of Espinosa, we had decided a case that raised the identical issue, and in which that issue had been fully briefed and argued; we found ourselves without jurisdiction to decide the point, however, because the defendant had failed to preserve his objection in the state courts. See Sochor v. Florida, 504 U. S., at 533534. It is obvious on the face of the matter that Espinosa was only in the most technical sense an "unargued" case: We used that case, which was pending on petition for certiorari when Sochor was decided, as the vehicle for resolving a fully argued point without consuming additional resources.vSince we have determined that Espinosa announced a new rule under Teague, there remains only the task of determining whether that new rule nonetheless falls within one of the two exceptions to our nonretroactivity doctrine. "The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe, see Teague, 489 U. S., at 311, or addresses a 'substantive categorical guarante[e] accorded by the Constitution,' such as a rule 'prohibiting a certain category of punishment for a class of defendants because of their status or offense.'" Saffle v. Parks, 494 U. S., at 494 (quoting Penry v. Lynaugh, 492 U. S., at 329, 330). Plainly, this exception has no application to this case. Espinosa "neither decriminalize[s] a class of conduct nor prohibit[s] the imposition of capital punishment on a particular class of persons." 494 U. S., at 495.The second exception is for" 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Ibid. (quoting Teague,540supra, at 311). Lambrix does not contend that this exception applies to Espinosa errors, and our opinion in Sawyer v. Smith, 497 U. S., at 241-244, makes it quite clear that that is so.***For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit isAffirmed

OCTOBER TERM, 1996SyllabusLAMBRIX v. SINGLETARY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 96-5658. Argued January 15, 1997-Decided May 12, 1997In the sentencing phase of the trial at which petitioner Lambrix was convicted on two counts of first-degree murder, the Florida state-court jury rendered an advisory verdict recommending death sentences on both counts. Finding numerous aggravating circumstances in connection with both murders, and no mitigating circumstances as to either, the trial court sentenced Lambrix to death on both counts. After his conviction and sentence were upheld on direct and collateral review by the Florida courts, he filed a habeas petition in the Federal District Court, which rejected all of his claims. While his appeal was pending before the Eleventh Circuit, this Court decided in Espinosa v. Florida, 505 U. S. 1079, that if the sentencing judge in a "weighing" State (i. e., a State such as Florida that requires specified aggravating circumstances to be weighed against any mitigating circumstances at a capital trial's sentencing phase) is required to give deference to a jury's advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Since one of Lambrix's claims was that his sentencing jury was improperly instructed on the "especially heinous, atrocious, or cruel" aggravator, Espinosa had obvious relevance to his habeas petition. The Eleventh Circuit held its proceedings in abeyance to permit Lambrix to present his Espinosa claim to the Florida Supreme Court, which rejected the claim without considering its merits on the ground that the claim was procedurally barred. Without even acknowledging the procedural bar, the Eleventh Circuit denied relief, ruling that Espinosa announced a "new rule" which cannot be applied retroactively on federal habeas under Teague v. Lane, 489 U. S. 288.Held:1. Although the question whether a federal court should resolve a claim of procedural bar before considering a claim of Teague bar has not previously been presented, the Court's opinions-most particularly, Coleman v. Thompson, 501 U. S. 722-suggest that the procedural bar issue should ordinarily be considered first. The Court nonetheless chooses not to resolve this case on the procedural bar ground. Lambrix asserts several reasons why procedural bar does not apply, the validity519of which is more appropriately determined by the lower federal courts, which are more familiar with the procedural practices of the States in which they sit. Rather than prolong this litigation by a remand, the Court proceeds to decide the question presented. pp. 522-525.2. A prisoner whose conviction became final before Espinosa is foreclosed from relying on that decision in a federal habeas proceeding. Pp. 525-540.(a) To apply Teague, a federal habeas court must: (1) determine the date on which the defendant's conviction became final; (2) survey the legal landscape as it existed on that date to determine whether a state court then considering the defendant's claim would have felt compelled by existing precedent to conclude that the rule the defendant seeks was constitutionally required; and (3) if not, consider whether the relief sought falls within one of two narrow exceptions to nonretroactivity. Pp.525-527.(b) A survey of the legal landscape as of the date that Lambrix's conviction became final shows that Espinosa was not dictated by thenexisting precedent, but announced a "new rule" as defined in Teague. It is significant that Espinosa, supra, at 1082, cited only a single case in support of its central conclusion, Baldwin v. Alabama, 472 U. S. 372, 382, and introduced that lone citation with a "cf."-an introductory signal indicating authority that supports the point in dictum or by analogy. Baldwin states, on the page that Espinosa cites, 472 U. S., at 382, that the defendant's Espinosa-like argument "conceivably might have merit" in circumstances not present in that case. The decisions relied on most heavily by Lambrix-Godfrey v. Georgia, 446 U. S. 420; Maynard v. Cartwright, 486 U. S. 356; and Clemons v. Mississippi, 494 U. S. 738do not dictate the result ultimately reached in Espinosa. Rather, a close examination of the Florida death penalty scheme, in light of cases such as Proffitt v. Florida, 428 U. S. 242, 253 (joint opinion); id., at 260-261 (White, J., concurring in judgment); and Spaziano v. Florida, 468 U. S. 447, 451, 466, indicates that a reasonable jurist considering the matter at the time Lambrix's sentence became final could have reached a result different from Espinosa. That conclusion is confirmed by Walton v. Arizona, 497 U. S. 639, 653-654. The fact that Espinosa was handed down as a per curiam without oral argument is insignificant, since the decision followed by just three weeks Sochor v. Florida, 504 U. S. 527, in which the identical issue was fully briefed and argued, but could not be decided for jurisdictional reasons. Pp. 527-539.(c) Espinosa's new rule does not fall within either of the exceptions to this Court's nonretroactivity doctrine. The first exception plainly has no application, since Espinosa neither decriminalizes a class of conduct nor prohibits the imposition of capital punishment on a particular520Full Text of Opinion

1983_81-2149

JUSTICE WHITE delivered the opinion of the Court.The question in this case is whether Edwards v. Arizona, 451 U. S. 477 (1981), should be applied retroactively.IRespondent, Norman Stumes, was a suspect in the death of Joyce Hoff in Sioux Falls, S.D. On September 27, 1973, Stumes was arrested in Green Bay, Wis., on pending perjury and felony check charges. He had not yet been charged with Hoff's death. The following morning, he spoke by phone with his attorney in Sioux Falls, who told him not to make any statements before returning to South Dakota. Three Sioux Falls police officers, Skadsen, Green, and Hendrick, went to Green Bay to bring Stumes back. They first spoke with him on the morning of October 1. After being read his Miranda rights, Stumes said that he understood them and did not object to speaking with police without his attorney present. After an hour and a half of conversation about the homicide, Page 465 U. S. 640 Green asked Stumes if he would be willing to take a lie detector test. Stumes answered that "that is a question I'd rather not answer until I talk to [my attorney]." At that point, the officers stopped questioning.The officers returned that afternoon and recommenced questioning without giving Miranda warnings. Stumes admitted he had been in Hoff's apartment the night of the killing, and that they had had intercourse, but he denied having had anything to do with her death. When asked if the death had been intentional or accidental, Stumes said that it had been accidental. He then stated that"I would rather not talk about it any more at this time until I talk to my attorney, and after that I'll give you a full statement in regards to her death."Questioning thereupon ceased.The next morning, Stumes and the three officers set out, by car, on the 600-mile trip to Sioux Falls. Stumes was given his Miranda warnings at the beginning of the trip, and was asked whether he would be willing to talk. He shrugged and nodded affirmatively, and there was then some further questioning. For most of the trip, the conversation was about unrelated matters, though occasionally the subject of Hoff's death came up. Late in the afternoon, after a 10- or 15-minute silence in the car, respondent had what he referred to as "a little conflict with my emotions" and "made the statement that I couldn't understand why anybody would want to kill Joyce, and that the taking of a human life is so useless." Green told him he would feel better if he "got it off his chest." Stumes then recounted striking and strangling Hoff after she had said she would tell someone that she and Stumes had slept together. Green asked if Stumes would give the police a statement when they reached Sioux Falls, noting that his attorney would undoubtedly advise him not to. Stumes agreed to give a statement, stating: "I don't give a damn what he says. I'm doing anything I feel like, and I'll talk to anybody I want to." Stumes and the officers reached Sioux Falls at about 6:45 in the evening. Shortly after being Page 465 U. S. 641 placed in a cell, Stumes called for Skadsen, asking him to "tell them that I didn't mean to kill her, that it was an accident -- that I'm not a vicious killer."Stumes was charged with murder; the trial court refused to suppress any of his statements to the police; and the jury found him guilty of first-degree manslaughter and sentenced him to life imprisonment. On direct appeal, the State Supreme Court remanded for a determination whether Stumes' statements had been voluntary. The trial court found that they had; the conviction was accordingly "automatically affirmed." 90 S.D. 382, 241 N.W.2d 587 (1976).Stumes then filed this petition for a writ of habeas corpus in the United States District Court for the District of South Dakota. The District Court denied the writ after an evidentiary hearing. It concluded that Stumes had knowingly, intelligently, and voluntarily waived his right to counsel. Miranda did not require that all questioning must cease forever once a suspect has requested counsel. 511 F. Supp. 1312 (1981). Given the totality of the circumstances, the questioning during the trip to South Dakota was proper. [Footnote 1]While Stumes' appeal was pending, we held that once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him. Edwards v. Arizona, supra. Applying Edwards to this case, the Court of Appeals for the Eighth Circuit found that the police had acted unconstitutionally in twice renewing interrogation after Stumes had invoked his right to counsel. 671 F.2d 1150 (1982). [Footnote 2] Page 465 U. S. 642Petitioner sought a writ of certiorari on three questions: whether the conduct of the police in this case violated Edwards, whether the District Court adequately deferred to the state court's factfinding, and whether Edwards should be applied retroactively. We granted certiorari only as to the third. 463 U.S. 1228 (1983). We therefore assume for present purposes that the conduct at issue here violated Edwards. We need not decide whether the police also violated Miranda v. Arizona, 384 U. S. 436 (1966), a question not considered by the Court of Appeals. Because we conclude that the court erred in applying Edwards to this case, we reverse and remand for reconsideration under pre-Edwards law.IIAs a rule, judicial decisions apply "retroactively." Robinson v. Neil, 409 U. S. 505, 409 U. S. 507-508 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity. Nonetheless, retroactive application is not compelled, constitutionally or otherwise. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 287 U. S. 364 (1932). Since Linkletter v. Walker, 381 U. S. 618 (1965), which held that Mapp v. Ohio, 367 U. S. 643 (1961), applied only to defendants whose convictions were not yet final when Mapp was decided, we have recognized that "the interest of justice" and "the exigencies of the situation" may argue against imposing a new constitutional decision retroactively. 381 U.S. at 381 U. S. 628. The basic principles of retroactivity in criminal cases were established in Linkletter v. Walker, Page 465 U. S. 643 Johnson v. New Jersey, 384 U. S. 719 (1966). Under these cases,"[t]he criteria guiding resolution of the [retroactivity] question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."Stovall v. Denno, 388 U. S. 293, 388 U. S. 297 (1967). [Footnote 3] Examining Edwards in light of these three factors, we conclude that it should not be applied retroactively.AComplete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials. See Williams v. United States, 401 U. S. 646, 401 U. S. 653, and n. 6 (1971) (plurality opinion) (citing cases). The Edwards rule has only a tangential relation to Page 465 U. S. 644 truthfinding at trial. As we have noted in the past,"the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the factfinding process at trial is necessarily a matter of degree."Johnson v. New Jersey, supra, at 384 U. S. 728-729. The application of the exclusionary rule pursuant to Edwards is perhaps not as entirely unrelated to the accuracy of the final result as it is in the Fourth Amendment context. See United States v. Peltier, 422 U. S. 531 (1975); Desist v. United States, 394 U. S. 244 (1969). Yet the Edwards rule cannot be said to be a sine qua non of fair and accurate interrogation. We faced a similar situation in Stovall v. Denno, supra, where we held that the newly established rule that counsel had to be present during lineups was not to be applied retroactively. There we noted that, although excluding identifications made in the absence of counsel was"justified by the need to assure the integrity and reliability of our system of justice, [it] undoubtedly will affect cases in which no unfairness will be present."Id. at 394 U. S. 299. The same is true of the Edwards rule. The fact that a suspect has requested a lawyer does not mean that statements he makes in response to subsequent police questioning are likely to be inaccurate. Most important, in those situations where renewed interrogation raises significant doubt as to the voluntariness and reliability of the statement and, therefore, the accuracy of the outcome at trial, it is likely that suppression could be achieved without reliance on the prophylactic rule adopted in Edwards. [Footnote 4]We have frequently refused to give retroactive effect to decisions that bore at least as heavily on the truthfinding Page 465 U. S. 645 function. The most notable of these is Miranda itself, which was held to apply only to trials taking place after it was decided. Johnson v. New Jersey, supra. [Footnote 5] See generally Williams v. United States, supra, at 401 U. S. 655, n. 7. The Edwards rule is a far cry from the sort of decision that goes to the heart of the truthfinding function, which we have consistently held to be retroactive. E.g., Brown v. Louisiana, 447 U. S. 323 (1980); Hankerson v. North Carolina, 432 U. S. 233 (1977); Arsenault v. Massachusetts, 393 U. S. 5 (1968). Rather, it is a prophylactic rule, designed to implement preexisting rights. This Court has not applied such decisions retroactively. See Michigan v. Payne, 412 U. S. 47 (1973); Halliday v. United States, 394 U. S. 831 (1969) (per curiam); Stovall v. Denno, supra.BIn considering the reliance factor, this Court's cases have looked primarily to whether law enforcement authorities and Page 465 U. S. 646 state courts have justifiably relied on a prior rule of law said to be different from that announced by the decision whose retroactivity is at issue. Unjustified "reliance" is no bar to retroactivity. This inquiry is often phrased in terms of whether the new decision was foreshadowed by earlier cases or was a "clear break with the past." [Footnote 6] When the Court has explicitly overruled past precedent, disapproved a practice it has sanctioned in prior cases, or overturned a longstanding practice approved by near-unanimous lower court authority, the reliance and effect factors in themselves "have virtually compelled a finding of nonretroactivity." United States v. Johnson, 457 U. S. 537, 457 U. S. 549-550 (1982). See also id. at 457 U. S. 551-552. We have been less inclined to limit the effect of a decision that has been "distinctly foreshadowed." Brown v. Louisiana, supra, at 447 U. S. 336. At just what point of predictability local authorities should be expected to anticipate a future decision has been unclear, however.Edwards established a bright-1ine rule to safeguard preexisting rights, not a new substantive requirement. Before and after Edwards, a suspect had a right to the presence of a lawyer, and could waive that right. Edwards established a new test for when that waiver would be acceptable once the suspect had invoked his right to counsel: the suspect had to initiate subsequent communication. Prior to Edwards, the Page 465 U. S. 647 Court had "strongly indicated that additional safeguards are necessary when the accused asks for counsel," 451 U.S. at 451 U. S. 484, and had several times referred to an accused's right to be free from further questioning once he invoked his right to counsel, see id. at 451 U. S. 485. Edwards did not overrule any prior decision or transform standard practice. Thus, it is not the sort of "clear break" case that is almost automatically nonretroactive.Edwards nonetheless did establish a new rule. We do not think that the police can be faulted if they did not anticipate its per se approach. Cf. Adams v. Illinois, 405 U. S. 278, 405 U. S. 283 (1972) (plurality opinion). Prior to Edwards, the emphasis in our cases had been on whether, as an individual, case-by-case matter, a waiver of the right to counsel had been knowing, voluntary, and intelligent. See Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938). As we said in North Carolina v. Butler, 441 U. S. 369, 441 U. S. 374-375 (1979), relying on Johnson v. Zerbst and treating the Fifth Amendment right to counsel as a fortiori,"[e]ven when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'"There we saw "no reason to discard that standard and replace it with an inflexible per se rule." 441 U.S. at 441 U. S. 375. See also Fare v. Michael C., 442 U. S. 707, 442 U. S. 724-725 (1979). The Miranda majority, 384 U.S. at 384 U. S. 475, viewed the waiver question as controlled by Johnson v. Zerbst, and was taken to task for that view by one of the dissenters, 384 U.S. at 384 U. S. 513-514 (Harlan, J., dissenting). See also Tague v. Louisiana, 444 U. S. 469, 444 U. S. 470-471 (1980); Michigan v. Tucker, 417 U. S. 433, 417 U. S. 444 (1974). [Footnote 7] It does not Page 465 U. S. 648 in any way cast doubt on the legitimacy or necessity of Edwards to acknowledge that, in some cases, a waiver could be knowing, voluntary, and intelligent even though it occurred when the police recommenced questioning after an accused had invoked the right to counsel. The Court had several times refused to adopt per se rules governing the waiver of Miranda rights. Michigan v. Mosley, 423 U. S. 96 (1975); North Carolina v. Butler, supra. See also Brown v. Illinois, 422 U. S. 590, 422 U. S. 603-604 (1975). And, while Mosley did distinguish the right to counsel from the right to silence, 423 U.S. at 423 U. S. 104, n. 10, much of the logic and language of the opinion could be applied to the invocation of the former. Edwards was not a necessary consequence of Miranda. Thus, it could be justifiably believed that a waiver of the right to counsel following its invocation could be voluntary even if the police initiated the conversation.The state of the law in the lower courts prior to the Edwards decision bears out this reality. Cf. Michigan v. Payne, 412 U.S. at 412 U. S. 56. Before Edwards, the question whether the authorities could resume questioning after a defendant has asked for an attorney was acknowledged to be unsettled. See United States v. Hernandez, 574 F.2d 1362, 1370, n. 16 (CA5 1978); United States v. Herman, 544 F.2d 791, 796, n. 8 (CA5 1977). Some courts prohibited resumption of questioning unless initiated by the suspect. E.g., United States v. Womack, 542 F.2d 1047, 1050-1051 (CA9 1976); United States v. Priest, 409 F.2d 491, 493 (CA5 1969). On the other hand, a number of courts allowed renewed interrogations after a request for counsel. E.g., Blasingame v. Estelle, 604 F.2d 893 (CA5 1979); White v. Finkbeiner, 611 F.2d 186, 191 (CA7 1979), vacated and remanded, 451 Page 465 U. S. 649 U.S. 1013 (1981); United States v. Rodriguez-Gastelum, 569 F.2d 482, 488 (CA9) (en banc), cert. denied, 436 U.S. 919 (1978); Hill v. Whealon, 490 F.2d 629 (CA6 1974). See also United States v. Clark, 499 F.2d 802, 807 (CA4 1974). [Footnote 8]In Johnson v. New Jersey, we declined to measure the prospectivity of Miranda from the date of Escobedo v. Illinois, 378 U. S. 478 (1964), because it had not been "fully anticipated" or "clearly foreshadowed" by that decision. 384 U.S. at 384 U. S. 734."The disagreements among other courts concerning the implications of Escobedo, however, have impelled us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun"when Miranda was decided. 384 U.S. at 384 U. S. 734 (footnote omitted). The same logic argues against retroactive application of Edwards, which, in light of the disagreements among lower courts, laid down additional guidelines for the implementation of Miranda.In short, it cannot be said that our decision in Edwards had been "clearly" or "distinctly" foreshadowed. See Adams v. Illinois, supra, at 405 U. S. 283. Cf. Brown v. Louisiana, 447 U.S. at 447 U. S. 336. In these circumstances, we consider the reliance Page 465 U. S. 650 interest compelling, even though Edwards did not overrule a specific decision.CThe retroactive application of Edwards would have a disruptive effect on the administration of justice. We can only guess at the number of cases where Edwards might make a difference in the admissibility of statements made to the police, but the number is surely significant. In all of those, some inquiry would be required to assess the substantiality of any Edwards claim. That investigation, and the possible retrial, would be hampered by problems of lost evidence, faulty memory, and missing witnesses. See Jenkins v. Delaware, 395 U. S. 213, 395 U. S. 220-221 (1969).DIn sum, Edwards has little to do with the truthfinding function of the criminal trial, and the rights it is designed to protect may still be claimed by those whose convictions preceded the decision. It would be unreasonable to expect law enforcement authorities to have conducted themselves in accordance with its bright-line rule prior to its announcement; and retroactive application would disrupt the administration of justice. Weighing these considerations, we conclude that Edwards should not be applied retroactively.IIIAt a minimum, nonretroactivity means that a decision is not to be applied in collateral review of final convictions. For purposes of this case, that is all we need decide about Edwards. [Footnote 9] Our prior cases have drawn the nonretroactivity Page 465 U. S. 651 line in a variety of places. Some decisions have been applied only to defendants whose convictions were not yet final when the new rule was established, United States v. Johnson, 457 U. S. 537 (1982); Linkletter v. Walker, 381 U. S. 618 (1965), some only to those defendants whose trials had not yet begun at that point, Johnson v. New Jersey, 384 U. S. 719 (1966); DeStefano v. Woods, 392 U. S. 631 (1968), some only to those whose constitutional rights were violated after the law-changing decision was handed down, United States v. Peltier, 422 U. S. 531 (1975); Desist v. United States, 394 U. S. 244 (1969); Stovall v. Denno, 388 U. S. 293 (1967), and some only to those cases where the prosecution sought to introduce (newly) illegal evidence after the date of the nonretroactive decision, Fuller v. Alaska, 393 U. S. 80 (1968). Just where the line should be drawn as to Edwards need not be decided today.IVThe Court of Appeals erred by evaluating the constitutionality of the police conduct in this case under the standards set out in Edwards. We express no opinion as to whether the conduct of the police in this case was acceptable under prior cases from this Court or the Eighth Circuit, and remand to the Court of Appeals for that determination.Reversed

U.S. Supreme CourtSolem v. Stumes, 465 U.S. 638 (1984)Solem v. StumesNo. 81-2149Argued November 28, 1983Decided February 29, 1984465 U.S. 638SyllabusRespondent, a homicide suspect, when arrested on unrelated charges, made incriminating statements to the police about the homicide after the police had twice renewed interrogation despite respondent's having invoked his right to counsel. Respondent was charged with murder and, after the South Dakota trial court refused to suppress the statements made to the police, was convicted of first-degree manslaughter. The South Dakota Supreme Court affirmed. Respondent then filed a petition for a writ of habeas corpus in Federal District Court, which denied the writ. While respondent's appeal was pending, this Court, in Edwards v. Arizona, 451 U. S. 477, held that once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him. Applying Edwards to this case, the Court of Appeals found that the police had acted unconstitutionally.Held: Edwards should not be applied retroactively, and therefore the Court of Appeals erred in evaluating the constitutionality of the police conduct in this case under the standards set out in Edwards. Pp. 465 U. S. 642-651.(a) The criteria guiding resolution of whether a new constitutional decision should be applied retroactively implicate (1) the purpose to be served by the new standards, (2) the extent law enforcement authorities relied on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards. Pp. 465 U. S. 642-643.(b) Complete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials. Edwards has little to do with the truthfinding function of the criminal trial. The fact that a suspect has requested a lawyer does not mean that statements he makes in response to subsequent police questioning are likely to be inaccurate. Moreover, in those situations where renewed interrogation raises significant doubt as to the voluntariness and reliability of the statements and, therefore, the accuracy of the outcome at trial, it is likely that suppression could be achieved without reliance on the prophylactic rule adopted in Edwards. Pp. 465 U. S. 643-645.(c) It would be unreasonable to expect law enforcement authorities to have conducted themselves in accordance with Edwards' bright-line rule prior to its announcement. Edwards did not overrule any prior decision Page 465 U. S. 639 or transform standard practice, but it did establish a new test for when the waiver of right to counsel would be acceptable once the suspect had invoked that right. It cannot be said that the Edwards decision had been "clearly" or "distinctly" foreshadowed. Pp. 465 U. S. 645-650.(d) The retroactive application of Edwards would have a disruptive effect on the administration of justice. In a significant number of cases, an inquiry, hampered by problems of lost evidence, faulty memory, and missing witnesses, would be required to assess the substantiality of any Edwards claim. P. 465 U. S. 650.671 F.2d 1150, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 465 U. S. 651. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 465 U. S. 655.

1971_70-26

MR. JUSTICE BRENNAN delivered the opinion of the Court.Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code Page 405 U. S. 519 Ann. § 26-6303, which provides:"Any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor."Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). Appellee then sought federal habeas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that § 26-6303 was facially unconstitutional was ripe for decision. [Footnote 1] 303 F. Supp. 952 (1969). On the merits Page 405 U. S. 520 of that question, the District Court, in disagreement with the Georgia Supreme Court, held that § 26-6303, on its face, was unconstitutionally vague and broad, and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. 431 F.2d 855 (1970). We noted probable jurisdiction of the State's appeal, 403 U.S. 930 (1971). We affirm.Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, Cohen v. California, 403 U. S. 15, 403 U. S. 122 (1971); Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4-5 (1949). Only the Georgia courts can supply the requisite construction, since of course "we lack jurisdiction authoritatively to construe state legislation." United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 369 (1971). It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe Page 405 U. S. 521 speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 491 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing"attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,"id. at 380 U. S. 486; see also Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 402 U. S. 616 (1971); id. at 402 U. S. 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U. S. 17, 362 U. S. 21-22 (1960); NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression."Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights."Coates v. City of Cincinnati, supra, at 402 U. S. 619-620 (opinion of WHITE, J.) (citation omitted).The constitutional guarantees of freedom of speech forbid the States to punish the use of words or Page 405 U. S. 522 language not within "narrowly limited classes of speech." Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571 (1942). Even as to such a class, however, because"the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,"Speiser v. Randall, 357 U. S. 513, 357 U. S. 525 (1958),"[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,"Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 304 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, supra, at 371 U. S. 433.Appellant does not challenge these principles, but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words -- "fighting" words -- "those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 315 U. S. 572. In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of New Hampshire, which provided:"No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name. . . ."Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God damned racketeer," and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, "long before Page 405 U. S. 523 the words for which Chaplinsky was convicted," sharply limited the statutory language "offensive, derisive or annoying word" to "fighting" words:"[N]o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. . . .""* * * *" "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . . . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . .""The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee. . . ."91 N.H. 310, 313, 320-321, 18 A.2d 754, 758, 762 (1941).In view of that authoritative construction, this Court held:"We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace."315 U.S. at 315 U. S. 573. Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression, Cohen v. California, 403 U.S. at 403 U. S. 20; Bachellar v. Maryland, 397 U. S. 564, 397 U. S. 567 (1970); see Street v. New York, 394 U. S. 576, 394 U. S. 592 (1969). We reaffirm that proposition today. Page 405 U. S. 524Appellant argues that the Georgia appellate courts have, by construction, limited the proscription of § 26-6303 to "fighting" words, as the New Hampshire Supreme Court limited the New Hampshire statute."A consideration of the [Georgia] cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which, as a matter of common knowledge and under ordinary circumstances, will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated 'fighting words.'"Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, "Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to limit or properly define these terms." 303 F. Supp. at 955. The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench. [Footnote 2] Their views of Georgia law necessarily are persuasive with us. C. Wright, Law of Federal Courts § 58, pp. 240-241 (2d ed.1970). We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed § 26-6303 to be limited in application, as in Chaplinsky, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Page 405 U. S. 525The dictionary definitions of "opprobrious" and "abusive" give them greater reach than "fighting" words. Webster's Third New International Dictionary (1961) defined "opprobrious" as "conveying or intended to convey disgrace," and "abusive" as including "harsh insulting language." Georgia appellate decisions have construed § 26-6303 to apply to utterances that, although within these definitions, are not "fighting" words as Chaplinsky defines them. In Lyons v. State, 94 Ga.App. 570, 95 S.E.2d 478 (1956), a conviction under the statute was sustained for awakening 10 women scout leaders on a camp-out by shouting, "Boys, this is where we are going to spend the night." "Get the G__ d___ bed rolls out . . . let's see how close we can come to the G__ d___ tents." Again, in Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), the Georgia Supreme Court held that a jury question was presented by the remark, "You swore a lie." Again, Jackson v. State, 14 Ga.App. 19, 80 S.E. 20 (1913), held that a jury question was presented by the words addressed to another, "God damn you, why don't you get out of the road?" Plainly, although "conveying . . . disgrace" or "harsh insulting language," these were not words "which by their very utterance . . . tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 315 U. S. 572.Georgia appellate decisions construing the reach of "tending to cause a breach of the peace" underscore that § 26-6303 is not limited, as appellant argues, to words that "naturally tend to provoke violent resentment." Lyons v. State, supra; Fish v. State, supra; and Jackson v. State, supra. Indeed, the Georgia Court of Appeals [Footnote 3] in Elmore v. State, 15 Ga.App. 461, 83 S.E. Page 405 U. S. 526 799 (1914), construed "tending to cause a breach of the peace" as mere"words of description, indicating the kind or character of opprobrious or abusive language that is penalized, and the use of language of this character is a violation of the statute, even though it be addressed to one who, on account of circumstances or by virtue of the obligations of office, cannot actually then and there resent the same by a breach of the peace. . . ."". . . Suppose that one, at a safe distance and out of hearing of any other than the person to whom he spoke, addressed such language to one locked in a prison cell or on the opposite bank of an impassable torrent, and hence without power to respond immediately to such verbal insults by physical retaliation, could it be reasonably contended that, because no breach of the peace could then follow, the statute would not be violated? . . ."". . . [T]hough, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another on account of such language, it might still tend to cause a breach of the peace at some future time, when the person to whom it was addressed might be no longer hampered by physical inability, present conditions, or official position."15 Ga.App. at 461-463, 83 S.E. at 799-800. [Footnote 4] Page 405 U. S. 527Moreover, in Samuels v. State, 103 Ga.App. 66, 67, 118 S.E.2d 231, 232 (1961), the Court of Appeals, in applying another statute, adopted from a textbook the common law definition of "breach of the peace.""The term 'breach of the peace' is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community. . . . By 'peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members."This definition makes it a "breach of peace" merely to speak words offensive to some who hear them, and so sweeps too broadly. Street v. New York, 394 U.S. at 394 U. S. 592. "[H]ow infinitely more doubtful and uncertain are the boundaries of an offense including any "diversion tending to a breach of the peace." . . ." Gregory v. Chicago, 394 U. S. 111, 394 U. S. 119 (1969) (Black, J., concurring) (emphasis supplied).Accordingly, we agree with the District Court that our decisions in Ashton v. Kentucky, 384 U. S. 195 (1966), and Cox v. Louisiana, 379 U. S. 536 (1965), compel the conclusion that § 26-6303, as construed, does not define the standard of responsibility with requisite narrow specificity. In Ashton, we held that"to make an offense of conduct which is 'calculated to create disturbances of the peace' leaves wide open the standard of responsibility."384 U.S. at 384 U. S. 200. In Co v. Louisiana the statute struck down included as an element congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby." As the District Court observed,"[a]s construed by the Georgia courts, especially in the instant case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute."303 F. Supp. at 956. Page 405 U. S. 528We conclude that "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools than [Georgia] has supplied." Speiser v. Randall, 357 U.S. at 357 U. S. 525. The most recent decision of the Georgia Supreme Court, Wilson v. State, supra, in rejecting appellee's attack on the constitutionality of § 26-6303, stated that the statute "conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice." 223 Ga. at 533, 156 S.E.2d at 448. Because earlier appellate decisions applied § 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt "measured by common understanding and practice" does not limit the application of § 26-6303 to "fighting" words defined by Chaplinsky. Rather, that broad standard effectively "licenses the jury to create its own standard in each case." Herndon v. Lowry, 301 U. S. 242, 301 U. S. 263 (1937). Accordingly, we agree with the conclusion of the District Court, "[t]he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application." 303 F. Supp. at 955-956. Unlike the construction of the New Hampshire statute by the New Hampshire Supreme Court, the Georgia appellate courts have not construed § 26-6303 "so as to avoid all constitutional difficulties." United States v. Thirty-seven Photographs, 402 U.S. at 402 U. S. 369.Affirmed

U.S. Supreme CourtGooding v. Wilson, 405 U.S. 518 (1972)Gooding v. WilsonNo. 70-26Argued December 8, 1971Decided March 23, 1972405 U.S. 518SyllabusGeorgia statute providing that"[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor,"which has not been narrowed by the Georgia courts to apply only to "fighting" words "which by their very utterance . . . tend to incite an immediate breach of the peace," Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 572, is on its face unconstitutionally vague and overbroad under the First and Fourteenth Amendments. Pp. 405 U. S. 520-528.431 F.2d 855, affirmed.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. BURGER, C.J., filed a dissenting opinion, post, p. 405 U. S. 528. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 405 U. S. 534. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

2000_00-5250

Syllabusinto play, a stage at which South Carolina law provides no third choice, no 30-year mandatory minimum, just death or life without parole. See Ramdass v. Angelone, 530 U. S. 156, 169. Thus, whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole. Pp. 48-51.2. South Carolina's other grounds in support of the trial judge's refusal to give Shafer's requested parole ineligibility instruction are unavailing. Pp. 52-55.(a) The State's argument that the jury was properly informed of the law on parole ineligibility by the trial court's instructions and by defense counsel's own argument is unpersuasive. To support that contention, the State sets out defense counsel's closing pleas that, if Shafer's life is spared, he will die in prison after spending his natural life there, as well as passages from the trial judge's instructions reiterating that life imprisonment means until the death of the defendant. Displacement of the longstanding practice of parole availability remains a relatively recent development, and common sense indicates that many jurors might not know whether a life sentence carries with it the possibility of parole. Simmons, 512 U. S., at 177-178 (O'CONNOR, J., concurring in judgment). Indeed, until two years before Shafer's trial, South Carolina's law did not categorically preclude parole for capital defendants sentenced to life imprisonment. Most plainly contradicting the State's contention, the jury's written request for further instructions on the question left no doubt about the jury's failure to gain from defense counsel's closing argument or the judge's instructions any clear understanding of what a life sentence means. Cf., e. g., id., at 178. The jury's comprehension was hardly aided by the court's final instruction declaring that parole eligibility was not for the jury's consideration. That instruction did nothing to ensure that the jury was not misled and may well have been taken to mean that parole was available but that the jury, for some unstated reason, should be blind to this fact. E. g., id., at 170 (plurality opinion). Thus, although a life sentence for Shafer would permit no parole or other release under current state law, this reality was not conveyed to Shafer's jury by the court's instructions or by the arguments defense counsel was allowed to make. Pp. 52-54.(b) The State's contention that no parole ineligibility instruction was required under Simmons because the State never argued that Shafer would pose a future danger to society presents an issue that is not ripe for this Court's resolution. The State Supreme Court, in order to rule broadly that Simmons no longer governs capital sentencing in the State, apparently assumed, arguendo, that future dangerousness had been shown at Shafer's sentencing proceeding. Because that court did39not home in on the question whether the prosecutor's evidentiary submissions or closing argument in fact placed Shafer's future dangerousness at issue, the question is left open for the state court's attention and disposition. Pp. 54-55.340 S. C. 291, 531 S. E. 2d 524, reversed and remanded.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., post, p. 55, and THOMAS, J., post, p. 55, filed dissenting opinions.David 1. Bruck, by appointment of the Court, 531 U. S. 1009, argued the cause for petitioner. With him on the briefs was William N. Nettles.Donald J. Zelenka, Assistant Deputy Attorney General of South Carolina, argued the cause for respondent. With him on the brief were Charlie Condon, Attorney General, John W McIntosh, Chief Deputy Attorney General, and S. Creighton Waters, Assistant Attorney General. *JUSTICE GINSBURG delivered the opinion of the Court. This case concerns the right of a defendant in a capital case to inform the jury that, under the governing state law, he would not be eligible for parole in the event that the jury sentences him to life imprisonment. In Simmons v. South Carolina, 512 U. S. 154 (1994), this Court held that where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant "to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel." Ramdass v. Angelone, 530 U. S. 156, 165 (2000) (plurality opinion) (describing Simmons' premise and plurality opinion). The case we now confront involves a death sentence returned by a jury instructed both that "life imprison-*Sheri Lynn Johnson and John H. Blume filed a brief for the Cornell Death Penalty Project as amicus curiae.40ment means until death of the offender," and that "[p]arole eligibility or ineligibility is not for your consideration." 340 S. C. 291, 297, 531 S. E. 2d 524, 527 (2000). It presents the question whether the South Carolina Supreme Court misread our precedent when it declared Simmons inapplicable to South Carolina's current sentencing scheme. We hold that South Carolina's Supreme Court incorrectly limited Simmons and therefore reverse that court's judgment.IIn April 1997, in the course of an attempted robbery in Union County, South Carolina, then-18-year-old Wesley Aaron Shafer, Jr., shot and killed a convenience store cashier. A grand jury indicted Shafer on charges of murder, attempted armed robbery, and criminal conspiracy. App. 2-4. Prior to trial, the prosecutor notified Shafer that the State would seek the death penalty for the murder. App. 4-5. In that pursuit, the prosecutor further informed Shafer, the State would present evidence of Shafer's "prior bad acts," as well as his "propensity for [future] violence and unlawful conduct." App. 6, 8.Under South Carolina law, juries in capital cases consider guilt and sentencing in separate proceedings. S. C. Code Ann. §§ 16-3-20(A), (B) (2000 Cum. Supp.). In the initial (guilt phase) proceeding, the jury found Shafer guilty on all three charges. Governing the sentencing proceeding, South Carolina law instructs: "[T]he jury ... shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment .... The State, the defendant, and his counsel are permitted to present arguments for or against the sentence to be imposed." § 16-3-20(B).Under amendments effective January 1, 1996, South Carolina capital jurors face two questions at sentencing. They decide first whether the State has proved beyond a reasonable doubt the existence of any statutory aggravating circumstance. If the jury fails to agree unanimously on41the presence of a statutory aggravator, "it shall not make a sentencing recommendation." § 16-3-20(C). "[T]he trial judge," in that event, "shall sentence the defendant to either life imprisonment or a mandatory minimum term of imprisonment for thirty years." Ibid.; see § 16-3-20(B). If, on the other hand, the jury unanimously finds a statutory aggravator, it then recommends one of two potential sentencesdeath or life imprisonment without the possibility of parole. §§ 16-3-20(A), (B). No sentencing option other than death or life without parole is available to the jury.During the sentencing proceeding in Shafer's case, the State introduced evidence of his criminal record, past aggressive conduct, probation violations, and misbehavior in prison. The State urged the statutory aggravating circumstance that Shafer had committed the murder in the course of an attempted robbery while armed with a deadly weapon. See § 16-3-20(C)(a)(1)(d). The defense presented evidence of Shafer's abusive childhood and mental problems.Near the completion of the parties' sentencing presentations, the trial judge conducted an in camera hearing on jury instructions. Shafer's counsel maintained that due process, and our decision in Simmons v. South Carolina, 512 U. S. 154 (1994), required the judge to instruct that under South Carolina law a life sentence carries no possibility of parole. The prosecutor, in opposition, urged that Shafer was not entitled to a Simmons instruction because "the State has not argued at any point ... that he would be a danger to anybody in the future, nor will we argue [that] in our closing argument .... " App. 161. Shafer's counsel replied: "The State cannot introduce evidence of future dangerousness, and then say we are not going to argue it and [thereby avoid] a charge on the law .... They have introduced [evidence of a] post arrest assault, [and] post arrest violations of the rules of the jail .... If you put a jailer on to say that [Shafer] is charged with assault ... on [the jailer], that is future dangerousness." App. 162. Ruling that "the matter of parole42ineligibility will not be charged," the trial judge stated: "I find that future dangerousness [was] not argued[;] if it's argued [in the prosecutor's closing], it may become different." App.164.Unsuccessful in his effort to gain a court instruction on parole ineligibility, Shafer's counsel sought permission to impart the information to the jury himself. He sought leave to read in his closing argument lines from the controlling statute, § 16-3-20(A), stating plainly that a life sentence in South Carolina carries no possibility of parole. App. 164165.1 In accord with the State's motion "to prevent the defense from arguing in their closing argument anything to the effect that [Shafer] will never get out of prison," App. 161, the judge denied the defense permission to read the statute's text to the jury. App. 165.1 Section 16-3-20(A) reads: "A person who is convicted of or pleads guilty to murder must be punished by death, by imprisonment for life, or by a mandatory minimum term of imprisonment for thirty years. If the State seeks the death penalty and a statutory aggravating circumstance is found beyond a reasonable doubt pursuant to subsections (B) and (C), and a recommendation of death is not made, the trial judge must impose a sentence of life imprisonment. For purposes of this section, 'life imprisonment' means until death of the offender. No person sentenced to life imprisonment pursuant to this section is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section. No person sentenced to a mandatory minimum term of imprisonment for thirty years pursuant to this section is eligible for parole or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory minimum term of imprisonment for thirty years required by this section .... When the Governor commutes a sentence of death to life imprisonment under the provisions of Section 14 of Article IV of the Constitution of South Carolina, 1895, the commutee is not eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the mandatory imprisonment required by this subsection."43After the prosecution's closing argument, and out of the presence of the jury, Shafer's counsel renewed his plea for "a life without parole charge." App. 188. He referred to his earlier submissions and urged, in addition, that the State had placed future dangerousness at issue during closing argument by repeating the words of an alarmed witness at the crime scene: "[T]hey [Shafer and his two accomplices] might come back, they might come back." App. 188. The trial judge denied the request. The judge "admit[ted he] had some concern [as to whether the State's] argument ... had crossed the line," but in the end he found "that it comes close, but did not." App. 191-192.Instructing the jury, the judge explained:"If you do not unanimously find the existence of the aggravating circumstance as set forth on the form [murder during the commission of an attempted armed robbery], you do not need to go any further."If you find unanimously the existence of a statutory aggravating circumstance ... you will go further and continue your deliberations."Once you have unanimously found and signed as to the presence of an aggravated circumstance, you then further deliberate, and determine whether or not Wesley Aaron Shafer should be sentence[d] to life imprisonment or death." App. 202.The judge twice told the jury, quoting words from § 16-320(A), that "life imprisonment means until the death of the defendant." App. 201; see App. 209. In line with his prior rulings, the judge did not instruct that a life sentence, if recommended by the jury, would be without parole. In the concluding portion of his charge, he told the jury that "the sentence you send to me by way of a recommendation will in fact be the sentence that the court imposes on the defendant." App. 215. After the judge instructed the jury, the defense once more renewed its "objection to the statutory44language [on parole ineligibility] not being charged," App. 221, and the judge again overruled the objection, App. 222.Three hours and twenty-five minutes into its sentencing deliberations, the jury sent a note to the trial judge containing two questions:"1) Is there any remote chance for someone convicted of murder to become elig[i]ble for parole?"2) Under what conditions would someone convicted for murder be elig[i]ble." App. 253.Shafer's counsel urged the court to read to the jury the following portion of § 16-3-20(A):"If the State seeks the death penalty and a statutory aggravating circumstance is found beyond a reasonable doubt ... and a recommendation of death is not made, the trial judge must impose a sentence of life imprisonment. For purposes of this section, 'life imprisonment' means until death of the offender. No person sentenced to life imprisonment pursuant to this section is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section." App. 226 (emphasis added).He argued that the court's charge, which partially quoted from § 16-3-20 (above in italics), but omitted the provision's concluding sentence (above in boldface), had left the jurors confused about Shafer's parole eligibility. App. 226. The State adhered to its position that "the jury should not be informed as to any parole eligibility." App. 223. South Carolina law, the prosecutor insisted, required the judge to "instruct the jury that it shall not consider parole eligibility in reaching its decision, and that the term life imprisonment and a death sentence should be understood in their ordinary and plain meaning." App.223-224.45The trial judge decided "not ... to charge the jury about parole ineligibility," App. 229, and informed counsel that he would instruct:"Your consideration is restricted to what sentence to recommend. I will, as trial judge, impose the sentence you recommend. Section 16-3-20 of the South Carolina Code of Laws provides that for the purpose of this section life imprisonment means until the death of the offender. Parole eligibility is not for your consideration." App. 236.Shafer's counsel asked the judge "to take off the language of parole eligibility." App. 236. The statement that "parole eligibility is not to be considered by [the jury]," counsel argued, "impl[ies] that it is available." App. 236; see App. 239 (Shafer's counsel reiterated: "[I]f you tell them they can't consider parole eligibility ... that certainly implies that he may be eligible.").Following counsels' arguments, and nearly an hour after the jury tendered its questions, the trial judge instructed:"Section 16-3-20 of our Code of Laws as applies to this case in the process we're in, states that, quote, for the purposes of this section life imprisonment means until the death of the offender, end quote."Parole eligibility or ineligibility is not for your con-sideration." App. 240.The jury returned some 80 minutes later. It unanimously found beyond a reasonable doubt the aggravating factor of murder while attempting armed robbery, and recommended the death penalty. App. 242-243. The jury was polled, and each member indicated his or her assent to the aggravated circumstance finding and to the death penalty recommendation. App. 243-248. Defense counsel asked that the jury be polled on "the specific question as to whether parole eligibility, their belief therein, gave rise to the verdict," and "whether juror number 233 who works for probation and pa-46role, expressed personal knowledge in the jury's deliberation outside of the evidence and the law given." App. 248. The judge denied both requests and imposed the death sentence. App. 248, 251.2Shafer appealed his death sentence to the South Carolina Supreme Court. Noting our decision in Simmons, the South Carolina Supreme Court acknowledged that "[w]hen the State places the defendant's future dangerousness at issue and the only available alternative sentence to the death penalty is life imprisonment without parole, due process entitles the defendant to inform the jury he is parole ineligible." 340 S. C., at 297-298, 531 S. E. 2d, at 528. Without considering whether the prosecutor's evidentiary submissions or closing argument in fact placed Shafer's future dangerousness at issue, the court held Simmons generally inapplicable to South Carolina's "new sentencing scheme." Under that scheme, life without the possibility of parole and death are not the only authorized sentences, the court said, for there is a third potential sentence, "a mandatory minimum thirty year sentence." 340 S. C., at 298, 531 S. E. 2d, at 528 (citing State v. Starnes, 340 S. C. 312, 531 S. E. 2d 907 (2000) (decided the same day as Shafer)).32 The judge also sentenced Shafer to consecutive terms of 20 years in prison for the attempted armed robbery and 5 years in prison for the criminal conspiracy. App.251-252.3 South Carolina's "new" sentencing scheme changed the punishments available for a capital murder conviction that did not result in a death sentence. The capital sentencing law in effect at the time we decided Simmons read: "A person who is convicted of or pleads guilty to murder must be punished by death or by imprisonment for life and is not eligible for parole until the service of twenty years; provided, however, that when the State seeks the death penalty and an aggravating circumstance is specifically found beyond a reasonable doubt ... , and a recommendation of death is not made, the court must impose a sentence of life imprisonment without eligibility for parole until the service of thirty years." S. C. Code Ann. § 16-3-20(A) (Supp. 1993). What made Simmons parole ineligible was the provision stating: "The board must not grant parole nor is parole authorized to any prisoner serving a sentence for a second or subsequent conviction, following a separate sentencing for a prior conviction, for vio-47Shafer had urged that a Simmons instruction was warranted under the new sentencing scheme, for when the jury serves as sentencer, i. e., when it finds a statutory aggravating circumstance, sentencing discretion is limited to death or life without the possibility of parole. See 340 S. C., at 298, 531 S. E. 2d, at 528. The South Carolina Supreme Court read Simmons differently. In its view, "Simmons requires the trial judge instruct the jury the defendant is parole ineligible only if no other sentence than death, other than life without the possibility of parole, is legally available to the defendant." 340 S. C., at 298, 531 S. E. 2d, at 528 (emphasis in original) (citing Simmons, 512 U. S., at 178 (O'CONNOR, J., concurring in judgment)). "At the time [Shafer's] jury began its deliberations," the court observed, "three alternative sentences were available"; "[s]ince one of these alternatives to death was not life without the possibility of parole," the court concluded, "Simmons was inapplicable." 340 S. C., at 299, 531 S. E. 2d, at 528.Chief Justice Finney dissented. "[T]he overriding principle to be drawn from [Simmons]," he stated, "is that due process is violated when a jury's speculative misunderstanding about a capital defendant's parole eligibility is allowed to go uncorrected." Id., at 310, 531 S. E. 2d, at 534. Due process mandates reversal here, he concluded, because "the jury's inquiry prompted a misleading response which suggested parole was a possibility." Ibid. Moreover, Chief Justice Finney added, when "a capital jury inquires about parole," id., at 310, n. 2, 531 S. E. 2d, at 534, n. 2, even if the question "is simply one of policy, as the majority suggests [it is], then why not adopt a policy which gives the jurors the simpl[e] truth: no parole." Id., at 311, 531 S. E. 2d, at 534.lent crimes .... " §24-21-640. This latter provision has not been amended; however, it did not apply to Shafer. Here, we consider whether South Carolina's wholesale elimination of parole for capital defendants sentenced to life in prison, see S. C. Code Ann. § 16-3-20 (2000 Cum. Supp.), described supra, at 40-41, requires a Simmons instruction in all South Carolina capital cases in which future dangerousness is "at issue."48We granted certiorari, 530 U. S. 1306 (2000), to determine whether the South Carolina Supreme Court properly held Simmons inapplicable to the State's current sentencing regime. We conclude that South Carolina's Supreme Court misinterpreted Simmons, and we therefore reverse that court's judgment.IISouth Carolina has consistently refused to inform the jury of a capital defendant's parole eligibility status.4 We first confronted this practice in Simmons. The South Carolina sentencing scheme then in effect, S. C. Code Ann. §§ 16-320(A) and 24-21-610 (Supp. 1993), did not categorically preclude parole for capital defendants sentenced to life imprisonment, see supra, at 46-47, n. 3. Simmons, however, was parole ineligible under that scheme because of prior convictions for crimes of violence. See § 24-21-640; Simmons, 512 U. S., at 156 (plurality opinion); id., at 176 (O'CONNOR, J., concurring in judgment). Simmons' jury, in a note to the judge during the penalty phase deliberations, asked: "Does the imposition of a life sentence carry with it the possibility of parole?" Id., at 160 (plurality opinion). Over defense counsel's objection, the trial judge in Simmons instructed:"Do not consider parole or parole eligibility [in reaching your4 At the time we decided Simmons v. South Carolina, 512 U. S. 154 (1994), South Carolina was one of only three States-Pennsylvania and Virginia were the others-that "ha[d] a life-without-parole sentencing alternative to capital punishment for some or all convicted murderers but refuse[d] to inform sentencing juries of th[at] fact." Id., at 168, n. 8. Since Simmons, Virginia has abandoned this practice. Yarbrough v. Commonwealth, 258 Va. 347, 374, 519 S. E. 2d 602, 616 (1999) ("[W]e hold that in the penalty-determination phase of a trial where the defendant has been convicted of capital murder, in response to a proffer of a proper instruction from the defendant prior to submitting the issue of penaltydetermination to the jury or where the defendant asks for such an instruction following an inquiry from the jury during deliberations, the trial court shall instruct the jury that the words 'imprisonment for life' mean 'imprisonment for life without possibility of parole.' ").49verdict]. That is not a proper issue for your consideration." Ibid. After receiving this response from the court, Simmons' jury returned a sentence of death, which Simmons unsuccessfully sought to overturn on appeal to the South Carolina Supreme Court. Id., at 160-161.Mindful of the "longstanding practice of parole availability," id., at 177 (O'CONNOR, J.), we recognized that Simmons' jury, charged to chose between death and life imprisonment, may have been misled. Given no clear definition of "life imprisonment" and told not to consider parole eligibility, that jury "reasonably may have believed that [Simmons] could be released on parole if he were not executed." Id., at 161 (plurality opinion); see id., at 177-178 (O'CONNOR, J.). It did not comport with due process, we held, for the State to "secur[e] a death sentence on the ground, at least in part, of [defendant's] future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its [only] noncapital sentencing alternative, namely, that life imprisonment meant life without parole." Id., at 162 (plurality opinion); see id., at 178 (O'CONNOR, J.) ("Where the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury-by either argument or instruction-that he is parole ineligible.").As earlier stated, see supra, at 46-47, the South Carolina Supreme Court held Simmons "inapplicable under the [State's] new sentencing scheme," 340 S. C., at 298, 531 S. E. 2d, at 528. Simmons is not triggered, the South Carolina court said, unless life without parole is "the only legally available sentence alternative to death." 340 S. C., at 298, 531 S. E. 2d, at 528. Currently, the court observed, when a capital case jury begins its sentencing deliberations, three alternative sentences are available: "1) death, 2) life without the possibility of parole, or 3) a mandatory minimum thirty year sentence." Ibid. "Since one of these alternatives to50death [is] not life without the possibility of parole," the court concluded, Simmons no longer constrains capital sentencing in South Carolina. 340 S. C., at 299, 531 S. E. 2d, at 528.This reasoning might be persuasive if the jury's sentencing discretion encompassed the three choices the South Carolina court identified. But, that is not how the State's new scheme works. See supra, at 40-41. Under the law now governing, in any case in which the jury does not unanimously find a statutory aggravator, death is not a permissible sentence and Simmons has no relevance. In such a case, the judge alone becomes the sentencer. S. C. Code Ann. § 16-3-20(C) (2000 Cum. Supp.). Only if the jury finds an aggravating circumstance does it decide on the sentence. Ibid. And when it makes that decision, as was the case in Simmons, only two sentences are legally available under South Carolina law: death or life without the possibility of parole. § 16-3-20(C).The South Carolina Supreme Court was no doubt correct to this extent: At the time the trial judge instructed the jury in Shafer's case, it was indeed possible that Shafer would receive a sentence other than death or life without the possibility of parole. That is so because South Carolina, in line with other States, gives capital juries, at the penalty phase, discrete and sequential functions. Initially, capital juries serve as factfinders in determining whether an alleged aggravating circumstance exists. Once that factual threshold is passed, the jurors exercise discretion in determining the punishment that ought to be imposed. The trial judge in Shafer's case recognized the critical difference in the two functions. He charged that "[a] statutory aggravating circumstance is a fact, an incident, a detail or an occurrence," the existence of which must be found beyond a reasonable doubt. App. 203. Turning to the sentencing choice, he referred to considerations of "fairness and mercy," and the defendant's "moral culpability." App. 204. He also instructed51that the jury was free to decide "whether ... for any reason or no reason at all Mr. Shafer should be sentenced to life imprisonment rather than to death." App.203.In sum, when the jury determines the existence of a statutory aggravator, a tightly circumscribed factual inquiry, none of Simmons' due process concerns arise. There are no "misunderstanding[sJ" to avoid, no "false choice[sJ" to guard against. See Simmons, 512 U. S., at 161 (plurality opinion). The jury, as aggravating circumstance factfinder, exercises no sentencing discretion itself. If no aggravator is found, the judge takes over and has sole authority to impose the mandatory minimum so heavily relied upon by the South Carolina Supreme Court. See supra, at 46-47,49-50. It is only when the jury endeavors the moral judgment whether to impose the death penalty that parole eligibility may become critical. Correspondingly, it is only at that stage that Simmons comes into play, a stage at which South Carolina law provides no third choice, no 30-year mandatory minimum, just death or life without parole. See Ramdass, 530 U. S., at 169 (Simmons applies where "as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." (emphasis added)).5 We therefore hold that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole.5 Tellingly, the State acknowledged at oral argument that if future dangerousness was a factor, and the jury first reported finding an aggravator before going on to its sentencing recommendation, a Simmons charge would at that point be required. Tr. of Oral Arg. 32. We see no significant difference between that situation and the one presented here. Nor does JUSTICE THOMAS' dissent in this case plausibly urge any such distinction. See post, at 56-58. If the jurors should be told life means no parole in the hypothesized bifurcated sentencing proceeding, they should be equally well informed in the actual uninterrupted proceeding.52IIISouth Carolina offers two other grounds in support of the trial judge's refusal to give Shafer's requested parole ineligibility instruction. First, the State argues that the jury was properly informed of the law on parole ineligibility by the trial court's instructions and by defense counsel's own argument. Second, the State contends that no parole ineligibility instruction was required under Simmons because the State never argued Shafer would pose a future danger to society. We now turn to those arguments.A"Even if this Court finds Simmons was triggered," the State urges, "the defense's closing argument and the judge's charge fulfilled the requirements of Simmons." Brief for Respondent 38. To support that contention, the State sets out defense counsel's closing pleas that, if Shafer's life is spared, he will "die in prison" after "spend[ing] his natural life there." Id., at 39. Next, the State recites passages from the trial judge's instructions reiterating that "life imprisonment means until the death of the defendant." Id., at 40.The South Carolina Supreme Court, we note, never suggested that counsel's arguments or the trial judge's instructions satisfied Simmons. That court simply held Simmons inapplicable under the State's new sentencing scheme. 340 S. C., at 298, 531 S. E. 2d, at 528. We do not find the State's position persuasive. Displacement of "the longstanding practice of parole availability" remains a relatively recent development, and "common sense tells us that many jurors might not know whether a life sentence carries with it the possibility of parole." Simmons, 512 U. S., at 177-178 (O'CONNOR, J.). South Carolina's situation is illustrative. Until two years before Shafer's trial, as we earlier noted, the State's law did not categorically preclude parole for capital53defendants sentenced to life imprisonment. See supra, at 46-47, n. 3, and 48.Most plainly contradicting the State's contention, Shafer's jury left no doubt about its failure to gain from defense counsel's closing argument or the judge's instructions any clear understanding of what a life sentence means. The jurors sought further instruction, asking: "Is there any remote chance for someone convicted of murder to become elig[i]ble for parole?" App. 253; cf. Simmons, 512 U. S., at 178 (O'CONNOR, J.) ("that the jury in this case felt compelled to ask whether parole was available shows that the jurors did not know whether or not a life-sentenced defendant will be released from prison").6The jury's comprehension was hardly aided by the court's final instruction: "Parole eligibility or ineligibility is not for your consideration." App. 240. That instruction did nothing to ensure that the jury was not misled and may well have been taken to mean "that parole was available but that the jury, for some unstated reason, should be blind to this fact." Simmons, 512 U. S., at 170 (plurality opinion); see 340 S. C., at 310, 531 S. E. 2d, at 534 (Finney, C. J., dissenting) ("[T]he jury's inquiry prompted a misleading response which suggested parole was a possibility."); State v. Kelly, 343 S. C. 342, 375, 540 S. E. 2d 851, 863-864 (2001) (Pleicones, J., dissenting in part, concurring in part) ("Without the knowledge that, if aggravators are found, a life sentence is not subject to being reduced by parole, or any other method of early release, the jury is likely to speculate unnecessarily on the possibility of early release, and impose a sentence of death6 Animating JUSTICE THOMAS' dissent is the conviction that the limited information defense counsel was allowed to convey and the judge's charge "left no room for speculation by the jury." Post, at 57. The full record scarcely supports, and we do not share, that conviction. Cf. 340 S. C. 291, 310-311, 531 S. E. 2d 524, 534 (2000) (Finney, C. J., dissenting) ("the jury's inquiry prompted a misleading response" that did not reveal the "simpl[e] truth").54based upon 'fear rather than reason.'" (quoting Yarbrough v. Commonwealth, 258 Va. 347, 369, 519 S. E. 2d 602, 613 (1999))).In sum, a life sentence for Shafer would permit no "parole, community supervision, ... early release program, ... or any other credits that would reduce the mandatory life imprisonment," S. C. Code Ann. § 16-3-20(A) (2000 Cum. Supp.) (set out supra, at 42, n. 1); this reality was not conveyed to Shafer's jury by the court's instructions or by the arguments defense counsel was allowed to make.BUltimately, the State maintains that "[t]he prosecution did not argue future dangerousness," so the predicate for a Simmons charge is not present here. Brief for Respondent 42. That issue is not ripe for our resolution.In the trial court, the prosecutor and defense counsel differed on what it takes to place future dangerousness "at issue." The prosecutor suggested that the State must formally argue future dangerousness. App. 161. Defense counsel urged that once the prosecutor introduces evidence showing future dangerousness, the State cannot avoid a Simmons charge by saying the point was not argued or calling the evidence by another name. See App. 161-162.As earlier recounted, the trial judge determined that future dangerousness was not at issue, but acknowledged, at one point, that the prosecutor had come close to crossing the line. See supra, at 41-42, 43. The South Carolina Supreme Court, in order to rule broadly that Simmons no longer governs capital sentencing in the State, apparently assumed, arguendo, that future dangerousness had been shown at Shafer's sentencing proceeding. See supra, at 46-47; cf. Kelly, 343 S. C., at 363, 540 S. E. 2d, at 857 (recognizing that future dangerousness is an issue when it is "a logical inference from the evidence" or was "injected into the case through the State's closing argument"). Because the South55Carolina Supreme Court did not home in on the question whether the prosecutor's evidentiary submissions or closing argument in fact placed Shafer's future dangerousness at issue, we leave that question open for the state court's attention and disposition.***For the reasons stated, the judgment of the South Carolina Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 2000SyllabusSHAFER v. SOUTH CAROLINACERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA No. 00-5250. Argued January 9, 200l-Decided March 20, 2001Under recent amendments to South Carolina law, capital jurors face two questions at the sentencing phase of the trial. They decide first whether the State has proved beyond a reasonable doubt the existence of any statutory aggravating circumstance. If the jury fails to agree unanimously on the presence of a statutory aggravator, it cannot make a sentencing recommendation. In that event, the trial judge is charged with sentencing the defendant to either life imprisonment or a mandatory minimum 30-year prison term. If, on the other hand, the jury unanimously finds a statutory aggravator, it then recommends one of two potential sentences-death or life imprisonment without the possibility of parole. No other sentencing option is available to the jury.A South Carolina jury found petitioner Shafer guilty of murder, armed robbery, and conspiracy. During the trial's sentencing phase, Shafer's counsel and the prosecutor disagreed on the application of Simmons v. South Carolina, 512 U. S. 154, to this case. This Court held in Simmons that where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process requires that the jury be informed of the defendant's parole ineligibility. Shafer's counsel maintained that Simmons required the trial judge to instruct the jury that under South Carolina law a life sentence carries no possibility of parole. The prosecutor, in opposition, urged that no Simmons instruction was required because the State did not plan to argue to the jury that Shafer would be a danger in the future. Shafer's counsel replied that the State had in fact put future dangerousness at issue by introducing evidence of a postarrest assault by Shafer and jail rules violations. The judge refused to charge on parole ineligibility, stating that future dangerousness had not been argued. The judge also denied Shafer's counsel leave to read in his closing argument lines from the controlling statute stating plainly that a life sentence in South Carolina carries no possibility of parole. After the prosecution's closing argument, Shafer's counsel renewed his plea for a life without parole instruction on the ground that the State had placed future dangerousness at issue by repeating the statements of an alarmed witness at the crime scene that Shafer and his accomplices "might come back." The trial judge again denied the request. Quoting a passage from the relevant37statute but not the full text, the judge twice told the jury that "life imprisonment means until the death of the defendant." During its sentencing deliberations, the jury asked the judge whether, and under what circumstances, someone convicted of murder could become eligible for parole. The judge responded that "[p]arole eligibility or ineligibility is not for your consideration." The jury unanimously found beyond a reasonable doubt the aggravating factor of murder while attempting armed robbery, and recommended the death penalty, which the judge imposed.The South Carolina Supreme Court affirmed. Without considering whether the prosecutor's evidentiary submissions or closing argument in fact placed Shafer's future dangerousness at issue, the court held Simmons generally inapplicable to the State's "new sentencing scheme." Simmons is not triggered, the South Carolina court said, unless life without parole is the only legally available sentence alternative to death. Currently, the court observed, when a capital jury begins its sentencing deliberations, three alternative sentences are available: (1) death, (2) life without the possibility of parole, or (3) a mandatory minimum 30-year sentence. Since an alternative to death other than life without the possibility of parole exists, the court concluded, Simmons no longer constrains capital sentencing in South Carolina.Held:1. The South Carolina Supreme Court incorrectly interpreted Simmons when it declared the case inapplicable to South Carolina's current sentencing scheme. That court's reasoning might be persuasive if the jury's sentencing discretion actually encompassed the three choices the court identified: death, life without the possibility of parole, or a mandatory minimum 30-year sentence. But, that is not how the State's new scheme works. Under the law now governing sentencing proceedings, if the jury finds an aggravating circumstance, it must recommend a sentence, and its choices are limited to death and life without parole. When the jury makes the threshold determination whether a statutory aggravator exists, a tightly circumscribed factual inquiry, none of Simmons' due process concerns yet arise. At that stage, there are no "misunderstanding[s]" to avoid, no "false choice[s]" to guard against. See Simmons, 512 U. S., at 161 (plurality opinion). The jury, as aggravating circumstance factfinder, exercises no sentencing discretion itself. If no aggravator is found, the judge takes over and has sole authority to impose the mandatory minimum so heavily relied upon by the State Supreme Court. It is only when the jury endeavors the moral judgment whether to impose the death penalty that parole eligibility may become critical. Correspondingly, it is only at that stage that Simmons comes38Full Text of Opinion

1956_61

MR. JUSTICE BRENNAN delivered the opinion of the Court.The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute [Footnote 1] violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code [Footnote 2] invade the freedoms of speech and press as they may be incorporated in Page 354 U. S. 480 the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.Other constitutional questions are: whether these statutes violate due process, [Footnote 3] because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth), and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to establish post offices and post roads, preempted the regulation of the subject matter (raised in Alberts).Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit. [Footnote 4] We granted certiorari. [Footnote 5] Page 354 U. S. 481Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District (having waived a jury trial) under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles. [Footnote 6] We noted probable jurisdiction. [Footnote 7]The dispositive question is whether obscenity is utterance within the area of protected speech and press. [Footnote 8] Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U. S. 727, 96 U. S. 736-737; United States v. Chase, 135 U. S. 255, 135 U. S. 261; Robertson v. Baldwin, 165 U. S. 275, 165 U. S. 281; Public Clearing House v. Coyne, 194 U. S. 497, 194 U. S. 508; Hoke v. United States, 227 U. S. 308, 227 U. S. 322; Near v. Minnesota, 283 U. S. 697, 283 U. S. 716; Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572; Hannegan v. Esquire, Inc., 327 U. S. 146, 327 U. S. 158; Winters v. New York, 333 U. S. 507, 333 U. S. 510; Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 266. [Footnote 9] Page 354 U. S. 482The guaranties of freedom of expression [Footnote 10] in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, [Footnote 11] and all of those States made either blasphemy or profanity, or both, statutory crimes. [Footnote 12] As early as Page 354 U. S. 483 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses.In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press. [Footnote 13] Page 354 U. S. 484The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:"The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs."1 Journals of the Continental Congress 108 (1774).All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. [Footnote 14] But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for Page 354 U. S. 485 that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, [Footnote 15] in the obscenity laws of all of the 48 States, [Footnote 16] and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. [Footnote 17] This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572:". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."(Emphasis added.) We hold that obscenity is not within the area of constitutionally protected speech or press.It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish Page 354 U. S. 486 incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial Judge instructed the jury:"The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts."(Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal. App. 2d Supp. 959, 178 P.2d 853, namely, whether the material has "a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires." (Emphasis added.) It is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of anti-social conduct, [Footnote 18] or will probably induce its recipients to such conduct. [Footnote 19] But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois, supra, at 343 U. S. 266:"Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech, Page 354 U. S. 487 for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class."However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. [Footnote 20] The portrayal of sex, e.g., in art, literature and scientific works, [Footnote 21] is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. As to all such problems, Page 354 U. S. 488 this Court said in Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102:"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."(Emphasis added.)The fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to its continued growth. [Footnote 22] Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed, and opened only the slightest crack necessary to prevent encroachment upon more important interests. [Footnote 23] It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated Page 354 U. S. 489 excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. [Footnote 24] Some American courts adopted this standard, [Footnote 25] 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. [Footnote 26] 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.Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in ruling on a motion to dismiss, the trial judge indicated that, as the Page 354 U. S. 490 trier of facts, he was judging each item as a whole as it would affect the normal person, [Footnote 27] and, in Roth, the trial judge instructed the jury as follows:". . . The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated indifferent and unmoved. . . .""* * * *" "The test in each case is the effect of the book, picture or publication considered as a whole not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.""* * * *" "In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and, in determining that conscience, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious -- men, women and children. "Page 354 U. S. 491It is argued that the statutes do not provide reasonably ascertainable standards of guilt, and therefore violates the constitutional requirements of due process. Winters v. New York, 333 U. S. 507. The federal obscenity statute makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character." [Footnote 28] The California statute makes punishable, inter alia, the keeping for sale or advertising material that is "obscene or indecent." The thrust of the argument is that these words are not sufficiently precise, because they do not mean the same thing to all people, all the time, everywhere.Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote 29] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ". . . [T]he Constitution does not require impossible standards"; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ." United States v. Petrillo, 332 U. S. 1, 332 U. S. 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed, and mark". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on Page 354 U. S. 492 which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ."Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 U. S. 340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373. [Footnote 30]In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.Roth's argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." (Emphasis added.) That argument falls in light of our holding that obscenity is not expression protected by the First Amendment. [Footnote 31] We Page 354 U. S. 493 therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7. [Footnote 32] In United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 95-96, this Court said:". . . The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. . . ."Alberts argues that, because his was a mail-order business, the California statute is repugnant to Art. I, § 8, cl. 7, under which the Congress allegedly preempted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal statute deals only with actual Page 354 U. S. 494 mailing; it does not eliminate the power of the state to punish "keeping for sale" or "advertising" obscene material. The state statute in no way imposes a burden or interferes with the federal postal functions.". . . The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions. . . ."Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96.The judgments areAffirmed

U.S. Supreme CourtRoth v. United States, 354 U.S. 476 (1957)Roth v. United StatesNo. 582Argued April 22, 1957Decided June 24, 1957*354 U.S. 476Syllabus1. In the Roth case, the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising, are sustained. Pp. 354 U. S. 479-494.2. In the Albert case, the constitutionality of § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale, or to advertise, material that is "obscene or indecent," and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent books and for writing, composing, and publishing an obscene advertisement of them, are sustained. Pp. 354 U. S. 479-494.3. Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 354 U. S. 481-485.(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 354 U. S. 482-483.(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 354 U. S. 484.(c) All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 354 U. S. 484-485. Page 354 U. S. 4774. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U. S. 250. Pp. 354 U. S. 485-490.(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest -- i.e., material having a tendency to excite lustful thoughts. P. 354 U. S. 487.(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 354 U. S. 487-488.(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 354 U. S. 488-489.(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. Pp. 354 U. S. 489-490.5. When applied according to the proper standard for judging obscenity, 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," does not (1) violate the freedom of speech or press guaranteed by the First Amendment, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.6. When applied according to the proper standard for judging obscenity, § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to advertise material that is "obscene or indecent," does not (1) violate the freedom of speech or press guaranteed by the Fourteenth Amendment against encroachment by the States, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.7. The federal obscenity statute, 18 U.S.C. § 1461, punishing the use of the mails for obscene material, is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7, and it Page 354 U. S. 478 does not unconstitutionally encroach upon the powers reserved to the States by the Ninth and Tenth Amendments. Pp. 354 U. S. 492-493.8. The California obscenity statute here involved is not repugnant to Art. I, § 8, cl. 7, since it does not impose a burden upon, or interfere with, the federal postal functions -- even when applied to a mail-order business. Pp. 354 U. S. 493-494.237 F.2d 796, affirmed.138 Cal. App. 2d Supp. 909, 292 P.2d 90, affirmed. Page 354 U. S. 479

1981_80-824

JUSTICE POWELL delivered the opinion of the Court.The question in this case is whether a public defender acts "under color of state law" when representing an indigent defendant in a state criminal proceeding.IThis case arose when the respondent Russell Richard Dodson filed a pro se complaint in the United States District Court for the Southern District of Iowa. Dodson brought the action in federal court under 42 U.S.C. § 1983. As the factual basis for his lawsuit, Dodson alleged that Martha Shepard, an attorney in the Polk County Offender Advocate's Office, had failed to represent him adequately in an appeal to the Iowa Supreme Court. [Footnote 1]A full-time employee of the county, Shepard had been assigned to represent Dodson in the appeal of a conviction for robbery. After inquiring into the case, however, she moved for permission to withdraw as counsel on the ground that Dodson's claims were wholly frivolous. [Footnote 2] Shepard accompanied her motion with an affidavit explaining this conclusion. Page 454 U. S. 315 She also filed a memorandum summarizing Dodson's claims and the supporting legal arguments. On November 9, 1979, the Iowa Supreme Court granted the motion to withdraw and dismissed Dodson's appeal.In his complaint in the District Court, the respondent alleged that Shepard's actions, especially her motion to withdraw, had deprived him of his right to counsel, subjected him to cruel and unusual punishment, and denied him due process of law. [Footnote 3] He sought injunctive relief as well as damages in the amount of $175,000. To establish that Shepard acted "under color of state law," a jurisdictional requisite for a § 1983 action, Dodson relied on her employment by the county. Dodson also sued Polk County, the Polk County Offender Advocate, and the Polk County Board of Supervisors. He alleged that the Offender Advocate and the Board of Supervisors had established the rules and procedures that Shepard was bound to follow in handling criminal appeals.The District Court dismissed Dodson's claims against all defendants. 483 F. Supp. 347 (1979). It held that the relevant actions by Shepard had not occurred under color of state law. Canvassing the leading authorities, it reasoned that a public defender owes a duty of undivided loyalty to his client. A public defender therefore could not be sued as an agent of the State. The District Court dismissed the Offender Advocate from the suit on the same theory. It also held Page 454 U. S. 316 that Dodson's complaint failed to allege the requisite personal involvement to state a § 1983 claim against Polk County and the Board of Supervisors.The Court of Appeals for the Eighth Circuit reversed. 628 F.2d 1104 (1980). Like the District Court, it assumed that a public defender owed his client the same responsibility as any other attorney. In its view, however, the "dispositive point" was that Iowa Offender Advocates were "employees of the County," which was "merely a creature of the State." Whether public defenders received instructions from county officials was "beside the point.""Public defenders receive their power not because they are selected by their clients, but because they are employed by the County to represent a certain class of clients, who likely have little or no choice in selecting the lawyer who will defend them."Id. at 1106. In holding as it did on this issue, the court recognized that its decision conflicted with the holdings of a number of other Courts of Appeals. Reasoning that Dodson's pro se complaint should be liberally construed, the court also ordered reinstatement of the § 1983 claims against the Offender Advocate and the Board of Supervisors. The question of their involvement was left for factual development in the District Court. In addition, the court ordered that Dodson be given an opportunity on remand to state his claim against the county with greater specificity. Finally, the court rejected the argument that a public defender should enjoy the same immunity provided to judges and prosecutors. It held that the defendants were entitled to a defense of "good faith," but not of "absolute," immunity.One member of the panel filed a dissent. The dissent argued that a person acts under color of state law only when exercising powers created by the authority of the State. In this case, it reasoned, the alleged wrongs were not made possible only because the defendant was a public defender. In Page 454 U. S. 317 essence, the complaint asserted an ordinary malpractice claim, which would be equally maintainable against a retained attorney or appointed counsel. The dissent also argued that public defenders should be entitled to absolute immunity from suit.We granted certiorari to resolve the division among the Courts of Appeals over whether a public defender acts under color of state law when providing representation to an indigent client. [Footnote 4] 450 U.S. 963 (1981). We now reverse.IIIn United States v. Classic, 313 U. S. 299, 313 U. S. 326 (1941), this Court held that a person acts under color of state law only when exercising power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the Page 454 U. S. 318 authority of state law." [Footnote 5] In this case, the Offender Advocate for Polk County assigned Martha Shepard to represent Russell Dodson in the appeal of his criminal conviction. This assignment entailed functions and obligations in no way dependent on state authority. From the moment of her appointment, Shepard became Dodson's lawyer, and Dodson became Shepard's client. Except for the source of payment, their relationship became identical to that existing between any other lawyer and client."Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program."ABA Standards for Criminal Justice 4-3.9 (2d ed.1980). [Footnote 6]Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are "officers of the court." But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor "under color of state law" within the meaning of § 1983. [Footnote 7] In our system, a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public not by acting on behalf of the State or in concert with it, but rather by advancing Page 454 U. S. 319 "the undivided interests of his client." [Footnote 8] This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed. [Footnote 9]IIIThe respondent argues that a public defender's employment relationship with the State, rather than his function, should determine whether he acts under color of state law. We take a different view.AIn arguing that the employment relationship establishes that the public defender acts under color of state law, Dodson relies heavily on two cases in which this Court assumed that physicians, whose relationships with their patients have not traditionally depended on state authority, could be held liable under § 1983. See O'Connor v. Donaldson, 422 U. S. 563 (1975); Estelle v. Gamble, 429 U. S. 97 (1976). These cases, he argues, are analytically identical to this one. Like the physicians in O'Connor and Estelle, a public defender is paid by the State. Further, like the institutionalized patients in Page 454 U. S. 320 those cases, an indigent convict is unable to choose the professional who will render him traditionally private services. These factors, it is argued, establish that public defenders -- like physicians in state hospitals -- act under color of state law and are amenable to suit under § 1983.In our view, O'Connor and Estelle are distinguishable from this case. O'Connor involved claims against a psychiatrist who served as the superintendent at a state mental hospital. Although a physician with traditionally private obligations to his patients, he was sued in his capacity as a state custodian and administrator. Unlike a lawyer, the administrator of a state hospital owes no duty of "undivided loyalty" to his patients. On the contrary, it is his function to protect the interest of the public, as well as that of his wards. Similarly, Estelle involved a physician who was the medical director of the Texas Department of Corrections and also the chief medical officer of a prison hospital. He saw his patients in a custodial, as well as a medical, capacity.Because of their custodial and supervisory functions, the state-employed doctors in O'Connor and Estelle faced their employer in a very different posture than does a public defender. Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve. With the public defender, it is different. As argued in the dissenting opinion in the Court of Appeals, it is the function of the public defender to enter "not guilty" pleas, move to suppress State's evidence, object to evidence at trial, cross-examine State's witnesses, and make closing arguments in behalf of defendants. [Footnote 10] All of these are adversarial functions. We find it peculiarly difficult to detect any color of state law in such activities.BDespite the public defender's obligation to represent his clients against the State, Dodson argues -- and the Court of Appeals concluded -- that the status of the public defender Page 454 U. S. 321 differs materially from that of other defense lawyers. Because public defenders are paid by the State, it is argued that they are subject to supervision by persons with interests unrelated to those of indigent clients. Although the employment relationship is certainly a relevant factor, we find it insufficient to establish that a public defender acts under color of state law within the meaning of § 1983.First, a public defender is not amenable to administrative direction in the same sense as other employees of the State. Administrative and legislative decisions undoubtedly influence the way a public defender does his work. State decisions may determine the quality of his law library or the size of his caseload. But a defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, see Moore v. United Sates, 432 F.2d 730 (CA3 1970), a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client."A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services."DR 5-107(B), ABA Code of Professional Responsibility (1976). [Footnote 11]Second, and equally important, it is the constitutional obligation of the State to respect the professional independence Page 454 U. S. 322 of the public defenders whom it engages. [Footnote 12] This Court's decision in Gideon v. Wainwright, 372 U. S. 335 (1963), established the right of state criminal defendants to the "guiding hand of counsel at every step in the proceedings against [them].'" Id. at 372 U. S. 345, quoting Powell v. Alabama, 287 U. S. 45, 287 U. S. 69 (1932). Implicit in the concept of a "guiding hand" is the assumption that counsel will be free of state control. There can be no fair trial unless the accused receives the services of an effective and independent advocate. See, e.g., Gideon v. Wainwright, supra; Holloway v. Arkansas, 435 U. S. 475 (1978). At least in the absence of pleading and proof to the contrary, we therefore cannot assume that Polk County, having employed public defenders to satisfy the State's obligations under Gideon v. Wainwright, has attempted to control their action in a manner inconsistent with the principles on which Gideon rests. [Footnote 13]CThe respondent urges a different view of the public defender's relationships to his clients and to the State. Whatever Page 454 U. S. 323 their ethical obligations, public defenders do not, he argues, characteristically extend their clients the same undivided loyalty tendered by privately retained attorneys. In support of this argument, Dodson notes that the public defender moved to be dismissed from his case against the client's wishes. Dodson claims to have suffered prejudice from this act. He insists that such action would not have been taken by a privately retained attorney.Dodson's argument assumes that a private lawyer would have borne no professional obligation to refuse to prosecute a frivolous appeal. This is error. In claiming that a public defender is peculiarly subject to divided loyalties, Dodson confuses a lawyer's ethical obligations to the judicial system with an allegiance to the adversary interests of the State in a criminal prosecution. Although a defense attorney has a duty to advance all colorable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer -- whether privately retained or publicly appointed -- not to clog the courts with frivolous motions or appeals. [Footnote 14] Dodson has no legitimate complaint that his lawyer refused to do so. Page 454 U. S. 324As a matter of empirical fact, it may or may not be true that the professional obligation to withdraw from frivolous appeals will be invoked with disproportionate frequency in cases involving indigent prisoners. The recent burgeoning of postconviction remedies has undoubtedly subjected the legal system to unprecedented strains, including increased demands for legal assistance. [Footnote 15] The State of Iowa has responded by authorizing the provision of greater representation than the Constitution requires. Its system of public defenders contemplates the extension of legal assistance through the various tiers of postconviction review, incorporating only the general ethical limitation that counsel should withdraw from frivolous cases. [Footnote 16]In this context, Dodson argues that public defenders making withdrawal decisions are viewed by indigent prisoners as hostile state actors. We think there is little justification for this view, if indeed it is widely held. [Footnote 17]IVIn concluding that Shepard did not act under color of state law in exercising her independent professional judgment in a criminal proceeding, we do not suggest that a public defender Page 454 U. S. 325 never acts in that role. In Branti v. Finkel, 445 U. S. 507 (1980), for example, we found that a public defender so acted when making hiring and firing decisions on behalf of the State. It may be -- although the question is not present in this case -- that a public defender also would act under color of state law while performing certain administrative and possibly investigative functions. Cf. Imbler v. Pachtman, 424 U. S. 409, 424 U. S. 430-431, and n. 33 (1976). And, of course, we intimate no views as to a public defender's liability for malpractice in an appropriate case under state tort law. See Ferri v. Ackerman, 444 U. S. 193, 444 U. S. 198 (1979). [Footnote 18] With respect to Dodson's § 1983 claims against Shepard, we decide only that a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding. [Footnote 19] Because it was based on such activities, the complaint against Shepard must be dismissed.VIn his complaint in the District Court, Dodson also asserted § 1983 claims against the Offender Advocate, Polk County, and the Polk County Board of Supervisors. Section 1983 will not support a claim based on a respondeat superior theory of liability. Monell v. New York City Dept. of Social Services, 436 U. S. 658, 436 U. S. 694 (1978). To the extent that Dodson's claims rest on this basis, they fail to present a federal claim. Page 454 U. S. 326The Court of Appeals apparently read Dodson's pro se complaint as susceptible of another construction. It found an actionable claim in the bald allegation that Shepard had injured him while acting pursuant to administrative "rules and procedures for . . . handling criminal appeals," and that her employers were therefore responsible for her actions. 628 F.2d at 1108. We also have noted an allegation in respondent's complaint that the county "retains and maintains, advocates out of law school" who have, on numerous occasions, moved to withdraw from appeals of criminal convictions.The question is whether either allegation describes a constitutional tort actionable under § 1983. We conclude not. In Monell v. New York City Dept. of Social Services, supra, we held that official policy must be "the moving force of the constitutional violation" in order to establish the liability of a government body under § 1983. Id. at 436 U. S. 694. See Rizzo v. Goode, 423 U. S. 362, 423 U. S. 370-377 (1976) (general allegation of administrative negligence fails to state a constitutional claim cognizable under § 1983). In this case, the respondent failed to allege any policy that arguably violated his rights under the Sixth, Eighth, or Fourteenth Amendments. He did assert that assistant public defenders refused to prosecute certain appeals on grounds of their frivolity. But a policy of withdrawal from frivolous cases would not violate the Constitution. Anders v. California, 386 U. S. 738 (1967). And respondent argued the existence of no impermissible policy pursuant to which the withdrawals might have occurred. Respondent further asserted that he personally was deprived of a Sixth Amendment right to effective counsel. Again, however, he failed to allege that this deprivation was caused by any constitutionally forbidden rule or procedure.When Dodson's complaint is viewed against the standards of our cases, even in light of the sympathetic pleading requirements applicable to pro se petitioners, see Haines v. Kerner, 404 U. S. 519 (1972) (per curiam), we do not believe Page 454 U. S. 327 he has alleged unconstitutional action by the Offender Advocate, Polk County, or the Polk County Board of Supervisors. Accordingly, his claims against them must be dismissed.VIFor the reasons stated in this opinion, the decision of the Court of Appeals isReversed

U.S. Supreme CourtPolk County v. Dodson, 454 U.S. 312 (1981)Polk County v. DodsonNo. 80-824Argued October 13, 1981Decided December 14, 1981454 U.S. 312SyllabusRespondent brought suit in Federal District Court under 42 U.S.C. § 1983 against petitioners Polk County, its Offender Advocate, its Board of Supervisors, and Martha Shepard, an attorney in the Offender Advocate's Office. As the factual basis for his lawsuit, respondent alleged that Shepard, who had been assigned to represent him in an appeal of a criminal conviction to the Iowa Supreme Court, failed to represent him adequately, since she had moved for permission to withdraw as counsel on the ground that respondent's claims were legally frivolous. The Iowa Supreme Court granted Shepard's motion and dismissed respondent's appeal. In the District Court, respondent alleged that Shepard's actions violated certain of his constitutional rights. To establish that Shepard acted "under color of state law," a jurisdictional requisite for a § 1983 action, respondent relied on her employment by the county. The District Court dismissed the claims against all of the petitioners, but the Court of Appeals reversed.Held:1. A public defender does not act "under color of state law" when performing a lawyer's traditional functions as counsel to an indigent defendant in a state criminal proceeding. Because it was based on such activities, the complaint against Shepard must be dismissed. Pp. 454 U. S. 317-325.(a) From the moment of Shepard's assignment to represent respondent, their relationship became identical to that existing between any other lawyer and client, except for the source of Shepard's payment. The legal system posits that a defense lawyer best serves the public not by acting on the State's behalf or in concert with it, but rather by advancing the undivided interests of the client. This is essentially a private function for which state office and authority are not needed. Pp. 454 U. S. 317-319.(b) Cases in which this Court assumed that state-employed doctors serving in supervisory capacities at state institutions could be held liable under § 1983 are not controlling. O'Connor v. Donaldson, 422 U. S. 563, and Estelle v. Gamble, 429 U. S. 97, distinguished. Pp. 454 U. S. 319-320.(c) Although the employment relationship between the State and a public defender is a relevant factor, it is insufficient to establish that a Page 454 U. S. 313 public defender acts under color of state law within the meaning of § 1983. A public defender is not amenable to administrative direction in the same sense as other state employees. And equally important, it is the State's constitutional obligation to respect the professional independence of the public defenders whom it engages. Pp. 454 U. S. 320-322.(d) It is the ethical obligation of any lawyer -- whether privately retained or publicly appointed -- not to clog the courts with frivolous motions or appeals. Respondent has no legitimate complaint that Shepard failed to prosecute a frivolous appeal on his behalf. Pp. 454 U. S. 322-324.2. Respondent has not alleged unconstitutional action by Polk County, its Offender Advocate, or its Board of Supervisors. To the extent that his claims rest on a respondeat superior theory of liability, they fail to present a claim under 1983. And a constitutional tort actionable under § 1983 is not described by the bald allegations that Shepard had injured respondent while acting pursuant to administrative rules and procedures, and that the county "retains and maintains, advocates out of law school" who have on numerous occasions moved to withdraw from appeals of convictions. Respondent failed to allege any administrative policy that arguably caused a violation of his rights under the Sixth, Eighth, or Fourteenth Amendments. An official,policy of withdrawal from frivolous cases would not violate the Constitution. Pp. 454 U. S. 325-327.628 F.2d 1104, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 454 U. S. 327. BLACKMUN, J., filed a dissenting opinion, post, p. 454 U. S. 328. Page 454 U. S. 314

1968_198

MR. JUSTICE STEWART delivered the opinion of the Court.In Klopfer v. North Carolina, 386 U. S. 213, this Court held that, by virtue of the Fourteenth Amendment, the Page 393 U. S. 375 Sixth Amendment right to a speedy trial [Footnote 1] is enforceable against the States as "one of the most basic rights preserved by our Constitution." Id. at 386 U. S. 226. The case before us involves the nature and extent of the obligation imposed upon a State by that constitutional guarantee, when the person under the state criminal charge is serving a prison sentence imposed by another jurisdiction.In 1960, the petitioner was indicted in Harris County, Texas, upon a charge of theft. He was then, and still is, a prisoner in the federal penitentiary at Leavenworth, Kansas. [Footnote 2] Shortly after the state charge was filed against him, the petitioner mailed a letter to the Texas trial court requesting a speedy trial. In reply, he was notified that "he would be afforded a trial within two weeks of any date [he] might specify at which he could be present." [Footnote 3] Thereafter, for the next six years, the petitioner, "by various letters, and more formal so-called motions,'" continued periodically to ask that he be brought to trial. Beyond the response already alluded to, the State took no steps to obtain the petitioner's appearance in the Harris County trial court. Finally, in 1967, the petitioner filed in that court a verified motion to dismiss the charge against him for want of prosecution. No action was taken on the motion.The petitioner then brought a mandamus proceeding in the Supreme Court of Texas, asking for an order to show cause why the pending charge should not be dismissed. Mandamus was refused in an informal and unreported order of the Texas Supreme Court. The petitioner then sought certiorari in this Court. After inviting Page 393 U. S. 376 and receiving a memorandum from the Solicitor General of the United States, 390 U.S. 937, we granted certiorari to consider the constitutional questions this case presents. 392 U. S. 925.In refusing to issue a writ of mandamus, the Supreme Court of Texas relied upon and reaffirmed its decision of a year earlier in Cooper v. State, 400 S.W.2d 890. [Footnote 4] In that case, as in the present one, a state criminal charge was pending against a man who was an inmate of a federal prison. He filed a petition for a writ of habeas corpus ad prosequendum in the Texas trial court, praying that he be brought before the court for trial, or that the charge against him be dismissed. Upon denial of that motion, he applied to the Supreme Court of Texas for a writ of mandamus. In denying the application, the court acknowledged that an inmate of a Texas prison would have been clearly entitled to the relief sought as a matter of constitutional right, [Footnote 5] but held that "a different Page 393 U. S. 377 rule is applicable when two separate sovereignties are involved." 400 S.W.2d at 891. The court viewed the difference as "one of power and authority." Id. at 892. While acknowledging that, if the state authorities were"ordered to proceed with the prosecution . . . and comply with certain conditions specified by the federal prison authorities, the relator would be produced for trial in the state court,"id. at 891, it nonetheless denied relief because it thought "[t]he true test should be the power and authority of the state unaided by any waiver, permission or act of grace of any other authority." Id. at 892. Four Justices dissented, expressing their belief that, "where the state has the power to afford the accused a speedy trial, it is under a duty to do so." Id. at 893.There can be no doubt that, if the petitioner in the present case had been at large for a six-year period following his indictment, and had repeatedly demanded that he be brought to trial, the State would have been under a constitutional duty to try him. Klopfer v. North Carolina, supra, at 386 U. S. 219. And Texas concedes that if, during that period, he had been confined in a Texas prison for some other state offense, its obligation would have been no less. But the Texas Supreme Court has held that, because petitioner is, in fact, confined in a federal prison, the State is totally absolved from any duty at all under the constitutional guarantee. We cannot agree.The historic origins of the Sixth Amendment right to a speedy trial were traced in some detail by THE CHIEF JUSTICE in his opinion for the Court in Klopfer, supra, at 386 U. S. 223-226, and we need not review that history again here. Suffice it to remember that this constitutional guarantee has universally [Footnote 6] been thought essential to protect Page 393 U. S. 378 at least three basic demands of criminal justice in the Anglo-American legal system:"[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself."United States v. Ewell, 383 U. S. 116, 383 U. S. 120. These demands are both aggravated and compounded in the case of an accused who is imprisoned by another jurisdiction. At first blush, it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from "undue and oppressive incarceration prior to trial." But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. [Footnote 7] Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him. [Footnote 8] Page 393 U. S. 379And while it might be argued that a person already in prison would be less likely than others to be affected by "anxiety and concern accompanying public accusation," there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, at 386 U. S. 221-222. In the opinion of the former Director of the Federal Bureau of Prisons,"[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner's ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement. [Footnote 9]"Finally, it is self-evident that "the possibilities that long delay will impair the ability of an accused to defend himself" are markedly increased when the accused is incarcerated in another jurisdiction. Confined in a prison, perhaps far from the place where the offense covered by the outstanding charge allegedly took place, his ability to confer with potential defense witnesses, or even to Page 393 U. S. 380 keep track of their whereabouts, is obviously impaired. And, while "evidence and witnesses disappear, memories fade, and events lose their perspective," [Footnote 10] a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time.Despite all these considerations, the Texas Supreme Court has said that the State is under no duty even to attempt to bring a man in the petitioner's position to trial, because"[t]he question is one of power and authority, and is in no way dependent upon how or in what manner the federal sovereignty may proceed in a discretionary way under the doctrine of comity. [Footnote 11]"Yet Texas concedes that, if it did make an effort to secure a federal prisoner's appearance, he would, in fact, "be produced Page 393 U. S. 381 for trial in the state court." [Footnote 12] This is fully confirmed by the memorandum that the Solicitor General has filed in the present case:"[T]he Bureau of Prisons would doubtless have made the prisoner available if a writ of habeas corpus ad prosequendum had been issued by the state court. It does not appear, however, that the State at any point sought to initiate that procedure in this case. [Footnote 13]"In view of these realities, we think the Texas court was mistaken in allowing doctrinaire concepts of "power" and "authority" to submerge the practical demands of the constitutional right to a speedy trial. Indeed, the rationale upon which the Texas Supreme Court based its denial of relief in this case was wholly undercut last Term in Barber v. Page, 390 U. S. 719. In that case, we dealt Page 393 U. S. 382 with another Sixth Amendment guarantee -- the right of confrontation. In holding that Oklahoma could not excuse its failure to produce a prosecution witness simply because he was in a federal prison outside the State, we said:"We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that""it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.""5 Wigmore, Evidence § 1404 (3d ed.1940).""Whatever may have been the accuracy of that theory at one time, it is clear that, at the present time, increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. . . ."". . . The Court of Appeals majority appears to have reasoned that, because the State would have had to request an exercise of discretion on the part of federal authorities, it was under no obligation to make any such request. Yet as Judge Aldrich, sitting by designation, pointed out in dissent below, 'the possibility of a refusal is not the equivalent of asking and receiving a rebuff.' 381 F.2d at 481. In short, a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good faith effort to obtain his presence Page 393 U. S. 383 at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly."390 U.S. at 390 U. S. 723-725 (footnotes omitted).By a parity of reasoning, we hold today that the Sixth Amendment right to a speedy trial may not be dispensed with so lightly either. Upon the petitioner's demand, Texas had a constitutional duty to make a diligent, good faith effort to bring him before the Harris County court for trial.The order of the Supreme Court of Texas is set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtSmith v. Hooey, 393 U.S. 374 (1969)Smith v. HooeyNo. 198Argued December 11, 1968Decided January 20, 1969393 U.S. 374SyllabusPetitioner was indicted in 1960 on a Texas criminal charge. He was then, and still is, a prisoner in a federal penitentiary. For the next six years, he vainly sought to gain a speedy trial in respondent's court. In 1967, he filed in that court a motion, which has not been acted on, to dismiss the charge for want of prosecution. Petitioner then filed a mandamus petition requesting an order to show cause why the charge should not be dismissed. The Texas Supreme Court denied the petition on the basis of a previous decision acknowledging that a state prisoner would have been entitled to be brought to trial but holding that a different rule applies "when two separate sovereignties are involved," since "[t]he true test should be the power and authority of the state unaided by any waiver, permission or act of grace of any other authority."Held: Under the Sixth Amendment, as made applicable to the States by the Fourteenth, the State, on petitioner's demand, was required to make a diligent, good faith effort to bring petitioner to trial in respondent's court. Pp. 393 U. S. 377-383.Vacated and remanded.

1996_95-6556

Daniel Donovan argued the cause for petitioner. With him on the briefs was Anthony R. Gallagher.Miguel A. Estrada argued the cause for the United States.On the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Alan Jenkins, and Thomas E. Booth. *JUSTICE SOUTER delivered the opinion of the Court. Subject to certain limitations, 18 U. S. C. § 922(g)(1) prohibits possession of a firearm by anyone with a prior felony conviction, which the Government can prove by introducing a record of judgment or similar evidence identifying the previous offense. Fearing prejudice if the jury learns the nature of the earlier crime, defendants sometimes seek to avoid such an informative disclosure by offering to concede the fact of the prior conviction. The issue here is whether a district court abuses its discretion if it spurns such an offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.1 We hold that it does.IIn 1993, petitioner, Old Chief, was arrested after a fracas involving at least one gunshot. The ensuing federal charges included not only assault with a dangerous weapon and using a firearm in relation to a crime of violence but violation of 18 U. S. C. § 922(g)(1). This statute makes it unlawful for anyone "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm .... " "[A]*Tova Indritz and Barbara Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.1 The standard of review applicable to the evidentiary rulings of the district court is abuse of discretion. United States v. Abel, 469 U. S. 45, 54-55 (1984).175crime punishable by imprisonment for a term exceeding one year" is defined to exclude "any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices" and "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." § 921(a)(20).The earlier crime charged in the indictment against Old Chief was assault causing serious bodily injury. Before trial, he moved for an order requiring the Government "to refrain from mentioning-by reading the Indictment, during jury selection, in opening statement, or closing argumentand to refrain from offering into evidence or soliciting any testimony from any witness regarding the prior criminal convictions of the Defendant, except to state that the Defendant has been convicted of a crime punishable by imprisonment exceeding one (1) year." App.6. He said that revealing the name and nature of his prior assault conviction would unfairly tax the jury's capacity to hold the Government to its burden of proof beyond a reasonable doubt on current charges of assault, possession, and violence with a firearm, and he offered to "solve the problem here by stipulating, agreeing and requesting the Court to instruct the jury that he has been convicted of a crime punishable by imprisonment exceeding one (1) yea[r]." Id., at 7. He argued that the offer to stipulate to the fact of the prior conviction rendered evidence of the name and nature of the offense inadmissible under Rule 403 of the Federal Rules of Evidence, the danger being that unfair prejudice from that evidence would substantially outweigh its probative value. He also proposed this jury instruction:"The phrase 'crime punishable by imprisonment for a term exceeding one year' generally means a crime which is a felony. The phrase does not include any state offense classified by the laws of that state as a misde-176meanor and punishable by a term of imprisonment of two years or less and certain crimes concerning the regulation of business practices."[I] hereby instruct you that Defendant JOHNNY LYNN OLD CHIEF has been convicted of a crime punishable by imprisonment for a term exceeding one year." Id., at 11.22 Proposals for instructing the jury in this case proved to be perilous.We will not discuss Old Chief's proposed instruction beyond saying that, even on his own legal theory, revision would have been required to dispel ambiguity. The jury could not have said whether the instruction that Old Chief had been convicted of a crime punishable by imprisonment for more than one year meant that, as a matter of law, his conviction fell within the definition of "crime punishable by imprisonment for a term exceeding one year," or was instead merely a statement of fact, in which case the jurors could not have determined whether the predicate offense was within one of the statute's categorical exceptions, a "state ... misdemeanor ... punishable by a term ... of two years or less" or a "business" crime. The District Court did not, however, deny Old Chief's motion because of the artless instruction he proposed, but because of the general rule, to be discussed below, that permits the Government to choose its own evidence.While Old Chief's proposed instruction was defective even under the law as he viewed it, the instruction actually given was erroneous even on the Government's view of the law. The District Court charged, "You have also heard evidence that the defendant has previously been convicted of a felony. You may consider that evidence only as it may affect the defendant's believability as a witness. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial." App. 31. This instruction invited confusion. First, of course, if the jury had applied it literally there would have been an acquittal for the wrong reason: Old Chief was on trial for, among other offenses, being a felon in possession, and if the jury had not considered the evidence of prior conviction it could not have found that he was a felon. Second, the remainder of the instruction referred to an issue that was not in the case. While it is true that prior-offense evidence may in a proper case be admissible for impeachment, even if for no other purpose, Fed. Rule Evid. 609, petitioner did not testify at trial; there was no justification for admitting the evidence for impeachment purposes and consequently no basis for the District Court's suggestion that the jurors could consider the prior conviction as impeachment evidence. The fault for this error lies at least as much with Old Chief as with the District Court, since Old Chief apparently sought177The Assistant United States Attorney refused to join in a stipulation, insisting on his right to prove his case his own way, and the District Court agreed, ruling orally that, "If he doesn't want to stipulate, he doesn't have to." Id., at 15-16. At trial, over renewed objection, the Government introduced the order of judgment and commitment for Old Chief's prior conviction. This document disclosed that on December 18, 1988, he "did knowingly and unlawfully assault Rory Dean Fenner, said assault resulting in serious bodily injury," for which Old Chief was sentenced to five years' imprisonment. Id., at 18-19. The jury found Old Chief guilty on all counts, and he appealed.The Ninth Circuit addressed the point with brevity:"Regardless of the defendant's offer to stipulate, the government is entitled to prove a prior felony offense through introduction of probative evidence. See United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir. 1993) (citing United States v. Gilman, 684 F.2d 616, 622 (9th Cir. 1982)). Under Ninth Circuit law, a stipulation is not proof, and, thus, it has no place in the FRE 403 balancing process. Breitkreutz, 8 F.3d 691-92."Thus, we hold that the district court did not abuse its discretion by allowing the prosecution to introduce evidence of Old Chief's prior conviction to prove that element of the unlawful possession charge." No. 9430277, 1995 WL 325745, *1 (CA9, May 31, 1995) (unpublished), App. 50-51, judgt. order reported at 56 F.3d 75 (1995).We granted Old Chief's petition for writ of certiorari, 516 U. S. 1110 (1996), because the Courts of Appeals have divided sharply in their treatment of defendants' efforts to exclude evidence of the names and natures of prior offenses in cases like this. Compare, e. g., United States v. Burkhart, 545some such instruction and withdrew the request only after the court had charged the jury.178F. 2d 14, 15 (CA6 1976); United States v. Smith, 520 F.2d 544, 548 (CA8 1975), cert. denied, 429 U. S. 925 (1976); and United States v. Breitkreutz, 8 F.3d 688, 690-692 (CA9 1993) (each recognizing a right on the part of the Government to refuse an offered stipulation and proceed with its own evidence of the prior offense), with United States v. Tavares, 21 F.3d 1, 3-5 (CAl1994) (en bane); United States v. Poore, 594 F.2d 39, 40-43 (CA4 1979); United States v. Wacker, 72 F.3d 1453, 1472-1473 (CAlO 1995); and United States v. Jones, 67 F. 3d 320, 322-325 (CADC 1995) (each holding that the defendant's offer to stipulate to or to admit to the prior conviction triggers an obligation of the district court to eliminate the name and nature of the underlying offense from the case by one means or another). We now reverse the judgment of the Ninth Circuit.II AAs a threshold matter, there is Old Chief's erroneous argument that the name of his prior offense as contained in the record of conviction is irrelevant to the prior-conviction element, and for that reason inadmissible under Rule 402 of the Federal Rules of Evidence.3 Rule 401 defines relevant evidence as having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. Rule Evid. 401. To be sure, the fact that Old Chief's prior conviction was for assault resulting in serious bodily injury rather than, say, for theft was not itself an ultimate fact, as if the statute had specifically required proof of injurious assault. But its demonstration3 "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." Fed. Rule Evid.402.179was a step on one evidentiary route to the ultimate fact, since it served to place Old Chief within a particular subclass of offenders for whom firearms possession is outlawed by § 922(g)(1). A documentary record of the conviction for that named offense was thus relevant evidence in making Old Chief's § 922(g)(1) status more probable than it would have been without the evidence.Nor was its evidentiary relevance under Rule 401 affected by the availability of alternative proofs of the element to which it went, such as an admission by Old Chief that he had been convicted of a crime "punishable by imprisonment for a term exceeding one year" within the meaning of the statute. The 1972 Advisory Committee Notes to Rule 401 make this point directly:"The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute." Advisory Committee's Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 859.If, then, relevant evidence is inadmissible in the presence of other evidence related to it, its exclusion must rest not on the ground that the other evidence has rendered it "irrelevant," but on its character as unfairly prejudicial, cumulative or the like, its relevance notwithstanding.44 Viewing evidence of the name of the prior offense as relevant, there is no reason to dwell on the Government's argument that relevance is to be determined with respect to the entire item offered in evidence (here, the entire record of conviction) and not with reference to distinguishable subunits of that object (here, the name of the offense and the sentence received). We see no impediment in general to a district court's determination, after objection, that some sections of a document are relevant within180BThe principal issue is the scope of a trial judge's discretion under Rule 403, which authorizes exclusion of relevant evidence when its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. Rule Evid. 403. Old Chief relies on the danger of unfair prejudice.51The term "unfair prejudice," as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. See generally 1 J. Weinstein, M. Berger, & J. McLaughlin, Weinstein's Evidence, 403[03] (1996) (discussing the meaning of "unfair prejudice" under Rule 403). So, the Committee Notes to Rule 403 explain, "'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Notes on Fed. Rule Evid. 403, 28 U. S. C. App., p. 860.Such improper grounds certainly include the one that Old Chief points to here: generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as call-the meaning of Rule 401, and others irrelevant and inadmissible under Rule 402.5 Petitioner also suggests that we might find a prosecutor's refusal to accept an adequate stipulation and jury instruction in the narrow context presented by this case to be prosecutorial misconduct. The argument is that, since a prosecutor is charged with the pursuit of just convictions, not victory by fair means or foul, any ethical prosecutor must agree to stipulate in the situation here. But any ethical obligation will depend on the construction of Rule 403, and we have no reason to anticipate related ethicallapses once the meaning of the Rule is settled.181ing for preventive conviction even if he should happen to be innocent momentarily). As then-Judge Breyer put it, "Although ... 'propensity evidence' is relevant, the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment-creates a prejudicial effect that outweighs ordinary relevance." United States v. Moccia, 681 F.2d 61, 63 (CAl1982). Justice Jackson described how the law has handled this risk:"Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." Michelson v. United States, 335 U. S. 469, 475-476 (1948) (footnotes omitted).Rule of Evidence 404(b) reflects this common-law tradition by addressing propensity reasoning directly: "Evidence of other crimes, wrongs, or acts is not admissible to prove the182character of a person in order to show action in conformity therewith." Fed. Rule Evid. 404(b). There is, accordingly, no question that propensity would be an "improper basis" for conviction and that evidence of a prior conviction is subject to analysis under Rule 403 for relative probative value and for prejudicial risk of misuse as propensity evidence. Cf. 1 J. Strong, McCormick on Evidence 780 (4th ed. 1992) (hereinafter McCormick) (Rule 403 prejudice may occur, for example, when "evidence of convictions for prior, unrelated crimes may lead a juror to think that since the defendant already has a criminal record, an erroneous conviction would not be quite as serious as would otherwise be the case").As for the analytical method to be used in Rule 403 balancing, two basic possibilities present themselves. An item of evidence might be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding whether the danger substantially outweighs the value and whether the evidence ought to be excluded. Or the question of admissibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made.6 This second approach would start out like the first but be ready to go further. On objection, the court would decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well. If an alternative6 It is important that a reviewing court evaluate the trial court's decision from its perspective when it had to rule and not indulge in review by hindsight. See, for example, United States v. O'Shea, 724 F.2d 1514, 1517 (CAll 1984), where the appellate court approved the trial court's pretrial refusal to impose a stipulation on the Government and exclude the Government's corresponding evidence of past convictions because the trial court had found at that stage that the evidence would quite likely come in anyway on other grounds.183were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk. As we will explain later on, the judge would have to make these calculations with an appreciation of the offering party's need for evidentiary richness and narrative integrity in presenting a case, and the mere fact that two pieces of evidence might go to the same point would not, of course, necessarily mean that only one of them might come in. It would only mean that a judge applying Rule 403 could reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point. Even under this second approach, as we explain below, a defendant's Rule 403 objection offering to concede a point generally cannot prevail over the Government's choice to offer evidence showing guilt and all the circumstances surrounding the offense. See infra, at 186-189.7The first understanding of the Rule is open to a very telling objection. That reading would leave the party offering evidence with the option to structure a trial in whatever way would produce the maximum unfair prejudice consistent with relevance. He could choose the available alternative carrying the greatest threat of improper influence, despite the availability of less prejudicial but equally probative evidence. The worst he would have to fear would be a ruling sustaining a Rule 403 objection, and if that occurred, he could simply fall back to offering substitute evidence. This would be a strange rule. It would be very odd for the law7While our discussion has been general because of the general wording of Rule 403, our holding is limited to cases involving proof of felon status. On appellate review of a Rule 403 decision, a defendant must establish abuse of discretion, a standard that is not satisfied by a mere showing of some alternative means of proof that the prosecution in its broad discretion chose not to rely upon.184of evidence to recognize the danger of unfair prejudice only to confer such a degree of autonomy on the party subject to temptation, and the Rules of Evidence are not so odd.Rather, a reading of the companions to Rule 403, and of the commentaries that went with them to Congress, makes it clear that what counts as the Rule 403 "probative value" of an item of evidence, as distinct from its Rule 401 "relevance," may be calculated by comparing evidentiary alternatives. The Committee Notes to Rule 401 explicitly say that a party's concession is pertinent to the court's discretion to exclude evidence on the point conceded. Such a concession, according to the Notes, will sometimes "call for the exclusion of evidence offered to prove [the] point conceded by the opponent .... " Advisory Committee's Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 859. As already mentioned, the Notes make it clear that such rulings should be made not on the basis of Rule 401 relevance but on "such considerations as waste of time and undue prejudice (see Rule 403) .... " Ibid. The Notes to Rule 403 then take up the point by stating that when a court considers "whether to exclude on grounds of unfair prejudice," the "availability of other means of proof may ... be an appropriate factor." Advisory Committee's Notes on Fed. Rule Evid. 403, 28 U. S. C. App., p. 860. The point gets a reprise in the Notes to Rule 404(b), dealing with admissibility when a given evidentiary item has the dual nature of legitimate evidence of an element and illegitimate evidence of character: "No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decision of this kind under 403." Advisory Committee's Notes on Fed. Rule Evid. 404, 28 U. S. C. App., p. 861. Thus the notes leave no question that when Rule 403 confers discretion by providing that evidence "may" be excluded, the discretionary judgment may be informed not only by assessing an evidentiary item's185twin tendencies, but by placing the result of that assessment alongside similar assessments of evidentiary alternatives. See 1 McCormick 782, and n. 41 (suggesting that Rule 403's "probative value" signifies the "marginal probative value" of the evidence relative to the other evidence in the case); 22 C. Wright & K. Graham, Federal Practice and Procedure § 5250, pp. 546-547 (1978) ("The probative worth of any particular bit of evidence is obviously affected by the scarcity or abundance of other evidence on the same point").2In dealing with the specific problem raised by § 922(g)(1) and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case, for the reasons already given, but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious, and Old Chief sensibly worried that the prejudicial effect of his prior assault conviction, significant enough with respect to the current gun charges alone, would take on added weight from the related assault charge against him.88 It is true that a prior offense may be so far removed in time or nature from the current gun charge and any others brought with it that its potential to prejudice the defendant unfairly will be minimal. Some prior offenses, in fact, may even have some potential to prejudice the Government's case unfairly. Thus an extremely old conviction for a relatively minor felony that nevertheless qualifies under the statute might strike many jurors as a foolish basis for convicting an otherwise upstanding member of the community of otherwise legal gun possession. Since the Government could not, of course, compel the defendant to admit formally the existence of the prior conviction, the Government would have to bear the risk of jury nullification, a fact that might properly drive the Government's charging decision.186The District Court was also presented with alternative, relevant, admissible evidence of the prior conviction by Old Chief's offer to stipulate, evidence necessarily subject to the District Court's consideration on the motion to exclude the record offered by the Government. Although Old Chief's formal offer to stipulate was, strictly, to enter a formal agreement with the Government to be given to the jury, even without the Government's acceptance his proposal amounted to an offer to admit that the prior-conviction element was satisfied, and a defendant's admission is, of course, good evidence. See Fed. Rule Evid. 801(d)(2)(A).Old Chief's proffered admission would, in fact, have been not merely relevant but seemingly conclusive evidence of the element. The statutory language in which the priorconviction requirement is couched shows no congressional concern with the specific name or nature of the prior offense beyond what is necessary to place it within the broad category of qualifying felonies, and Old Chief clearly meant to admit that his felony did qualify, by stipulating "that the Government has proven one of the essential elements of the offense." App. 7. As a consequence, although the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission. Logic, then, seems to side with Old Chief.3There is, however, one more question to be considered before deciding whether Old Chief's offer was to supply evidentiary value at least equivalent to what the Government's own evidence carried. In arguing that the stipulation or admission would not have carried equivalent value, the Government invokes the familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as187the Government chooses to present it. The authority usually cited for this rule is Parr v. United States, 255 F.2d 86 (CA5), cert. denied, 358 U. S. 824 (1958), in which the Fifth Circuit explained that the "reason for the rule is to permit a party 'to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.''' 255 F. 2d, at 88 (quoting DunningThis is unquestionably true as a general matter. The "fair and legitimate weight" of conventional evidence showing individual thoughts and acts amounting to a crime reflects the fact that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness. Unlike an abstract premise, whose force depends on going precisely to a particular step in a course of reasoning, a piece of evidence may address any number of separate elements, striking hard just because it shows so much at once; the account of a shooting that establishes capacity and causation may tell just as much about the triggerman's motive and intent. Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them. Jury duty is usually unsought and sometimes resisted, and it may be as difficult for one juror suddenly to face the findings that can send another human being to prison, as it is for another to hold out conscientiously for acquittal. When a juror's duty does seem hard, the evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human signifi-188cance, and so to implicate the law's moral underpinnings and a juror's obligation to sit in judgment. Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault. Cf. United States v. Gilliam, 994 F.2d 97, 100-102 (CA2), cert. denied, 510 U. S. 927 (1993).But there is something even more to the prosecution's interest in resisting efforts to replace the evidence of its choice with admissions and stipulations, for beyond the power of conventional evidence to support allegations and give life to the moral underpinnings of law's claims, there lies the need for evidence in all its particularity to satisfy the jurors' expectations about what proper proof should be. Some such demands they bring with them to the courthouse, assuming, for example, that a charge of using a firearm to commit an offense will be proven by introducing a gun in evidence. A prosecutor who fails to produce one, or some good reason for his failure, has something to be concerned about. "If [jurors'] expectations are not satisfied, triers of fact may penalize the party who disappoints them by drawing a negative inference against that party." Saltzburg, A Special Aspect of Relevance: Countering Negative Inferences Associated with the Absence of Evidence, 66 Calif. L. Rev. 1011, 1019 (1978) (footnotes omitted).9 Expectations may also arise in9Cf. Green, "The Whole Truth?"; How Rules of Evidence Make Lawyers Deceitful, 25 Loyola (LA) L. Rev. 699, 703 (1992) ("[E]videntiary rules ... predicated in large measure on the law's distrust of juries [can] have the unintended, and perhaps ironic, result of encouraging the jury's distrust of lawyers. The rules do so by fostering the perception that lawyers are deliberately withholding evidence" (footnote omitted)). The fact that juries have expectations as to what evidence ought to be presented by a party, and may well hold the absence of that evidence against the party, is also recognized in the case law of the Fifth Amendment, which explicitly189jurors' minds simply from the experience of a trial itself. The use of witnesses to describe a train of events naturally related can raise the prospect of learning about every ingredient of that natural sequence the same way. If suddenly the prosecution presents some occurrence in the series differently, as by announcing a stipulation or admission, the effect may be like saying, "never mind what's behind the door," and jurors may well wonder what they are being kept from knowing. A party seemingly responsible for cloaking something has reason for apprehension, and the prosecution with its burden of proof may prudently demur at a defense request to interrupt the flow of evidence telling the story in the usual way.In sum, the accepted rule that the prosecution is entitled to prove its case free from any defendant's option to stipulate the evidence away rests on good sense. A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story's truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.supposes that, despite the venerable history of the privilege against selfincrimination, jurors may not recall that someone accused of crime need not explain the evidence or avow innocence beyond making his plea. See, e. g., Lakeside v. Oregon, 435 U. S. 333,340, and n. 10 (1978). The assumption that jurors may have contrary expectations and be moved to draw adverse inferences against the party who disappoints them undergirds the rule that a defendant can demand an instruction forbidding the jury to draw such an inference.190This recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him. As in this case, the choice of evidence for such an element is usually not between eventful narrative and abstract proposition, but between propositions of slightly varying abstraction, either a record saying that conviction for some crime occurred at a certain time or a statement admitting the same thing without naming the particular offense. The issue of substituting one statement for the other normally arises only when the record of conviction would not be admissible for any purpose beyond proving status, so that excluding it would not deprive the prosecution of evidence with multiple utility; if, indeed, there were a justification for receiving evidence of the nature of prior acts on some issue other than status (i. e., to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," Fed. Rule Evid. 404(b)), Rule 404(b) guarantees the opportunity to seek its admission. Nor can it be argued that the events behind the prior conviction are proper nourishment for the jurors' sense of obligation to vindicate the public interest. The issue is not whether concrete details of the prior crime should come to the jurors' attention but whether the name or general character of that crime is to be disclosed. Congress, however, has made it plain that distinctions among generic felonies do not count for this purpose; the fact of the qualifying conviction is alone what matters under the statute. "A defendant falls within the category simply by virtue of past conviction for any [qualifying] crime ranging from possession of short lobsters, see 16 U. s. C. § 3372, to the most aggravated murder." Tavares, 21 F. 3d, at 4. The most the jury needs to know is that the conviction admitted by the defend-191ant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant's admission and underscored in the court's jury instructions. Finally, the most obvious reason that the general presumption that the prosecution may choose its evidence is so remote from application here is that proof of the defendant's status goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense. Proving status without telling exactly why that status was imposed leaves no gap in the story of a defendant's subsequent criminality, and its demonstration by stipulation or admission neither displaces a chapter from a continuous sequence of conventional evidence nor comes across as an officious substitution, to confuse or offend or provoke reproach.Given these peculiarities of the element of felony-convict status and of admissions and the like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence. For purposes of the Rule 403 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other. In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.lO What we have said shows why this will be10 There may be yet other means of proof besides a formal admission on the record that, with a proper objection, will obligate a district court to exclude evidence of the name of the offense. A redacted record of conviction is the one most frequently mentioned. Any alternative will, of192the general rule when proof of convict status is at issue, just as the prosecutor's choice will generally survive a Rule 403 analysis when a defendant seeks to force the substitution of an admission for evidence creating a coherent narrative of his thoughts and actions in perpetrating the offense for which he is being tried.The judgment is reversed, and the case is remanded to the Ninth Circuit for further proceedings consistent with this opinion. 11It is so ordered

OCTOBER TERM, 1996SyllabusOLD CHIEF v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 95-6556. Argued October 16, 1996-Decided January 7, 1997After a fracas involving at least one gunshot, petitioner, Old Chief, was charged with, inter alia, violating 18 U. S. C. § 922(g)(I), which prohibits possession of a firearm by anyone with a prior felony conviction. He offered to stipulate to § 922(g)(I)'s prior-conviction element, arguing that his offer rendered evidence of the name and nature of his prior offenseassault causing serious bodily injury-inadmissible because its "probative value [was] substantially outweighed by the danger of unfair prejudice ... ," Fed. Rule Evid. 403. The Government refused to join the stipulation, however, insisting on its right to present its own evidence of the prior conviction, and the District Court agreed. At trial, the Government introduced the judgment record for the prior conviction, and a jury convicted Old Chief. In affirming the conviction, the Court of Appeals found that the Government was entitled to introduce probative evidence to prove the prior offense regardless of the stipulation offer.Held: A district court abuses its discretion under Rule 403 if it spurns a defendant's offer to concede a prior judgment and admits the full judgment record over the defendant's objection, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction. Pp. 178-192.(a) Contrary to Old Chief's position, the name of his prior offense as contained in the official record is relevant to the prior-conviction element. That record made his § 922(g)(I) status "more probable ... than it [would have been] without the evidence," Fed. Rule Evid. 401; and the availability of alternative proofs, such as his admission, did not affect its evidentiary relevance, see Advisory Committee's Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 859. pp. 178-179.(b) As to a criminal defendant, Rule 403's term "unfair prejudice" speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on an improper basis rather than on proof specific to the offense charged. Such improper grounds certainly include generalizing from a past bad act that a defendant is by propensity the probable perpetrator of the current crime. Thus, Rule 403 requires that the relative probative value of prior-conviction evidence be bal-173anced against its prejudicial risk of misuse. A judge should balance these factors not only for the item in question but also for any actually available substitutes. If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk. Pp. 180-185.(c) In dealing with the specific problem raised by § 922(g)(1) and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice whenever the official record would be arresting enough to lure a juror into a sequence of bad character reasoning. Old Chief sensibly worried about the prejudicial effect of his prior offense. His proffered admission also presented the District Court with alternative, relevant, admissible, and seemingly conclusive evidence of the prior conviction. Thus, while the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission. Pp. 185-186.(d) Old Chief's offer supplied evidentiary value at least equivalent to what the Government's own evidence carried. The accepted rule that the prosecution is entitled to prove its case free from any defendant's option to stipulate the evidence away has virtually no application when the point at issue is a defendant's legal status. Here, the most the jury needed to know was that the conviction admitted fell within the class of crimes that Congress thought should bar a convict from possessing a gun. More obviously, the proof of status went to an element entirely outside the natural sequence of what Old Chief was charged with thinking and doing to commit the current offense. Since there was no cognizable difference between the evidentiary significance of the admission and the official record's legitimately probative component, and since the functions of the competing evidence were distinguishable only by the risk inherent in the one and wholly absent from the other, the only reasonable conclusion was that the risk of unfair prejudice substantially outweighed the conviction record's discounted probative value. Thus, it was an abuse of discretion to admit the conviction record when the defendant's admission was available. Pp. 186-192.56 F.3d 75, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined, post, p. 192.174Full Text of Opinion

1966_51

MR. JUSTICE CLARK delivered the opinion of the Court.These cases involve the construction of those portions of the National Banking Act, 44 Stat. 1228, 12 U.S.C. § 36(c), which authorize a national banking association, with the approval of the Comptroller of the Currency, to establish and operate new branches within the limits of the municipality in which the bank is located, if such operation is "at the time authorized to State banks by the law of the State in question." [Footnote 1] Two national banks with their main banking houses in Logan and Ogden, Utah, respectively, seek to open branches in those municipalities. The Utah statute prohibits Utah banks, with certain exceptions not here relevant, from establishing branches except by taking over an existing bank which has been in operation for not less than five years. Utah Code Ann., Tit. 7, c. 3, § 6 (1965 Supp.). [Footnote 2] In No. 51, Page 385 U. S. 254 First National Bank of Logan v. Walker Bank & Trust Co., the petitioner seeks to establish a new branch in Logan, where its principal banking house is located, without taking over an established bank. The District Court approved its doing so, but the Court of Appeals reversed. 352 F.2d 90 (C.A.10th Cir.), sub nom. Walker Bank & Trust Co. v. Saxon. In No. 73, First Security Bank of Utah, N.A. v. Commercial Security Bank, and No. 88, Saxon v. Commercial Security Bank, First Security seeks to establish a new branch in Ogden, in which its home office is situated, without taking over an established bank. The District Court held that state law must be complied with, 236 F. Supp. 457, and the Court of Appeals affirmed in a judgment, without opinion, citing Walker Bank & Trust Co., supra. In view of a conflict between these holdings and the decision in First National Bank of Smithfield v. Saxon, 352 F.2d 267 (C.A.4th Cir.), we granted certiorari, and consolidated the three cases for argument. 384 U.S. 925. We affirm the judgments.1. The FactsIn No. 51, the petitioner maintains its principal banking house in Logan, Utah, which is a second class city Page 385 U. S. 255 under Utah law (Utah Code Ann., Tit. 10, c. 1, § 1 (1953, as amended)), and is therefore subject to § 7-3-6 of the Utah Code, supra. It applied to the Comptroller of the Currency for a certificate to establish an "inside" branch office in Logan. At the time of the application, there were no other banks with their main banking offices in Logan. However, there were two branches of banks whose home offices were situated outside of Logan, one of which belonged to respondent, Walker Bank & Trust Co., whose home office was located in Salt Lake City. After a hearing, the Comptroller ordered the certificate issued. The respondent subsequently filed this suit seeking a declaratory judgment and injunctive relief against the Comptroller and First National claiming the action of the Comptroller to be void since the proposed branch was not taking over an established bank in Logan, as required by Utah law. The District Court dismissed the complaint. It found "express authority" under Utah law for state banks to establish branch offices in Logan, relying on the general authority of the statute and holding that the subsequent conditions, such as the acquisition of another bank, did not"change the 'express authority' into a lack of authority on the part of State banks or a lack of a statutory expression of such authority, and [did] not add to the Federal statute a requirement that compliance be made by National banks with all State conditions."234 F. Supp. 74, 78, n. 8. The Court of Appeals reversed, holding that the Congress, in enacting § 36(c)(1), acceded to state law and created "a competitive equality between state and national banks." Finding that the trial court's interpretation was to the contrary, it declared "the proper approach is for the Comptroller to look at all the State law on branch banking, not just part of it." 352 F.2d 90, 94. Page 385 U. S. 256In Nos. 73 and 88, the First Security Bank of Utah, a national bank, applied for a certificate from the Comptroller to establish a branch bank in Ogden, where it maintained its principal banking house. Its proposal was to open a new branch, and not to take over an existing bank in Ogden. Under Utah law, Ogden is also a second class city, and the "take over" provision of § 7-3-6, supra, was therefore applicable. Two other banks have their main offices in Ogden. After the Comptroller approved the issuance of the certificate, respondent filed suit in the District Court of the United States for the District of Columbia asking for injunctive and other relief. The District Court imposed all of the restrictions of § 7-3-6 of Utah law on the establishment of national banks, and the Court of Appeals for the District of Columbia Circuit affirmed, by a judgment without opinion, but cited the opinion of the 10th Circuit, Walker Bank & Trust Co., supra.2. The National Banking Act: Its Background.There has long been opposition to the exercise of federal power in the banking field. Indeed, President Jefferson was opposed to the creation of the first Bank of the United States, and President Jackson vetoed the Act of Congress extending the charter of the second Bank of the United States. However, the authority of Congress to act in the field was resolved in the landmark case of M'Culloch v. Maryland, 4 Wheat. 316 (1819). There, Chief Justice Marshall, while admitting that it does not appear that a bank was in the contemplation of the Framers of the Constitution, held that a national bank could be chartered under the implied powers of the Congress as an instrumentality of the Federal Government to implement its fiscal powers. The paramount power of the Congress over national banks has, therefore, been settled for almost a century and a half. Page 385 U. S. 257Nevertheless, no national banking act was adopted until 1863 (12 Stat. 665), and it was not until 1927 that Congress dealt with the problem before us in these cases. This inaction was possibly due to the fact that, at the turn of the century, there were very few branch banks in the country. At that time, only five national and 82 state banks were operating branches, with a total of 119 branches. By the end of 1923, however, there were 91 national and 580 state banks with a total of 2,054 branches. [Footnote 3] The Comptroller of the Currency, in his Annual Report of 1923, recommended congressional action on branch banking. The report stated that, if state banks continue to engage "in unlimited branch banking, it will mean the eventual destruction of the national banking system. . . ." H.R.Doc.No.90, 68th Cong., 1st Sess., 6 (1924). Soon thereafter, legislation was introduced to equalize national and state branch banking. The House Report on the measure, H.R.Rep.No.83, 69th Cong., 1st Sess., 7 (1926), stated, among other things:"The bill recognizes the absolute necessity of taking legislative action with reference to the branch banking controversy. The present situation is intolerable to the national banking system. The bill proposes the only practicable solution by stopping the further extension of statewide branch banking in the federal reserve system by State member banks, and by permitting national banks to have branches in those cities where State banks are allowed to have them under State laws."This bill failed to pass in the Senate, and, although Congress continued to study the problem, it was not until Page 385 U. S. 258 1927 that the McFadden Act was adopted. The bill originated in the House, and, in substance, proposed that both national and state banks be permitted to establish "inside" branches within the municipality of their main banking facilities in those States that permitted branch banking at the time of the enactment of the bill. H.R.Rep.No.83, 69th Cong., 1st Sess., 4-5 (1926). The intent of the Congress to leave the question of the desirability of branch banking up to the States is indicated by the fact that the Senate struck from the House bill the time limitation, thus permitting a subsequent change in state law to have a corresponding effect on the authority of national banks to engage in branching. The Senate Report concluded that the Act would permit "national banks to have branches in those cities where State banks are allowed to have them under State laws." S.Rep.No.473, 69th Cong., 1st Sess., 14 (1926). In the subsequent Conference Committee, the Senate position was adopted. State banks which were members of the Federal Reserve System were also limited to "inside" branches. A grandfather clause permitted retention of branches operated at the date of enactment. H.R.Rep.No.1481, 69th Cong., 1st Sess., 6 (1926). The Act was finally passed on February 25, 1927, and became known as the McFadden Act of 1927, taking its name from its sponsor, Representative McFadden. At the time of its enactment, he characterized it in this language:"As a result of the passage of this act, the national bank act has been so amended that national banks are able to meet the needs of modern industry and commerce, and competitive equality has been established among all member banks of the Federal reserve system."(Emphasis added.) 68 Cong.Rec. 5815 (1927). Page 385 U. S. 259During the economic depression, there was much agitation that bank failures were due to small undercapitalized rural banks, and that these banks should be supplanted by branches of larger and stronger banks. The Comptroller of the Currency advocated that national banks be permitted to branch regardless of state law. Hearings before a Subcommittee of the Senate Committee on Banking and Currency pursuant to S.Res.No.71, 71st Cong., 3d Sess., 7-10 (1931). Senator Carter Glass held a similar belief, and introduced a bill that would authorize national banks to organize branches irrespective of state law beyond and "outside" the municipality of its principal banking house. His proposal was strenuously opposed, and was eventually defeated. It was not until the Seventy-third Congress that the Bankruptcy Act of 1933 was adopted. Senator Glass, the ranking member of the Senate Committee on Banking and Currency and the dominant banking figure in the Congress, was sponsor of the Act. In reporting it to the Senate for passage, he said, the Act"required that the establishment of branch banks by national banks in States which by law permit branch banking should be under the regulations required by State law of State banks."77 Cong.Rec. 3726 (1933). In a colloquy on the floor of the Senate with Senator Copeland as to the purpose of the Act (with reference to branch banking by national banks), Senator Glass said that it would be permissible "in only those States the laws of which permit branch banking, and only to the extent that the State laws permit branch banking." Moreover, to make it crystal clear, when Senator Copeland replied that "it permits branch banking only in those States where the State laws permit branch banking by State banks," Senator Glass was careful to repeat: "Only in those States and to the extent that the State laws permit branch banking." (Emphasis added.) 76 Cong.Rec. 2511 (1933). Remarks of other Page 385 U. S. 260 members of Congress also indicate that they shared the understanding of Senator Glass. For example, Senator Vandenberg stated that § 36(c)(1) provides"that the branch banking privilege so far as national banks are concerned shall follow the status established by State law in respect to the State privilege."76 Cong. Rec. 2262 (1933). Likewise, Senator Long, who had joined a filibuster against an earlier version of the bill, stated at final passage that "[w]e have only undertaken to secure equal treatment for State banks," and that the bill had substantially achieved that result. 77 Cong.Rec. 5862 (1933). In similar tone, Representative Bacon stated that branches of national banks may be established provided "this is permitted by the laws of that State and subject to them." (Emphasis added.) 77 Cong.Rec. 3949 (1933). And Representative Luce, a member of the Conference Committee, reported to the House:"In the controversy over the respective merits of what are known as 'unit banking' and 'branch banking systems,' a controversy that has been alive and sharp for years, branch banking has been steadily gaining in favor. It is not, however, here proposed to give the advocates of branch banking any advantage. We do not go an inch beyond saying that the two ideas shall compete on equal terms and only where the States make the competition possible by letting their own institutions have branches."77 Cong.Rec. 5896 (1933).As finally passed, the Act permitted national banks to establish outside branches if such branches could be established by state banks under state law. It is well to note that the same Act also removed the restriction on outside branch banking by state member banks previously imposed by the McFadden Act. Page 385 U. S. 2613. The Policy of Competitive Equality.It appears clear from this resume of the legislative history of § 36(c)(1) and (2) that Congress intended to place national and state banks on a basis of "competitive equality" insofar as branch banking was concerned. Both sponsors of the applicable banking Act, Representative McFadden and Senator Glass, so characterized the legislation. It is not for us to so construe the Acts as to frustrate this clear-cut purpose so forcefully expressed by both friend and foe of the legislation at the time of its adoption. To us, it appears beyond question that the Congress was continuing its policy of equalization first adopted in the National Bank Act of 1864. See Lewis v.Fidelity & Deposit Co., 292 U. S. 559, 292 U. S. 565-566 (1934); McClellan v. Chipman, 164 U. S. 347 (1896); Chase Securities Corp. v. Husband, 302 U.S. 660 (1938); Anderson Nat. Bank v. Luckett, 321 U. S. 233 (1944).The Comptroller argues that Utah's statute "expressly authorizes" state banks to have branches in their home municipalities. He maintains that the restriction, in the subsequent paragraph of the statute limiting branching solely to the taking over of an existing bank, is not applicable to national banks. It is a strange argument that permits one to pick and choose what portion of the law binds him. Indeed, it would fly in the face of the legislative history not to hold that national branch banking is limited to those States the laws of which permit it, and even there "only to the extent that the State laws permit branch banking." Utah clearly permits it "only to the extent" that the proposed branch takes over an existing bank.The Comptroller also contends that the Act supersedes state law only as to "whether" and "where" branches may be located, and not the "method" by which this is effected. Page 385 U. S. 262 We believe that, where a State allows branching only by taking over an existing bank, it expresses as much "whether" and "where" a branch may be located as does a prohibition or a limitation to the home office municipality. As to the restriction being a "method," we have concluded that, since it is part and parcel of Utah's policy, it was absorbed by the provisions of §§ 36(c)(1) and (2), regardless of the tag placed upon it.Affirmed

U.S. Supreme CourtFirst Nat'l Bank v. Walker Bank, 385 U.S. 252 (1966)First National Bank of Logan v. Walker Bank & Trust Co.No. 51Argued November 7-8, 1966Decided December 12, 1966*385 U.S. 252SyllabusThe provisions of the National Bank Act, 12 U.S.C. § 36(c), which authorize a national banking association, with the Comptroller of the Currency's approval, to establish and operate branch banks if such operation is "at the time expressly authorized to State banks by the law of the State in question," place national and state banks on a basis of "competitive equality" as far as branch banking is concerned, and national banks may establish branches only in accordance with all requirements and conditions applicable to state banks by state law. Pp. 385 U. S. 256-262.No. 51, 352 F.2d 90, and Nos. 73 and 88, affirmed. Page 385 U. S. 253

1980_79-1515

JUSTICE STEVENS delivered the opinion of the Court.The owner of an economic interest in a mineral deposit is allowed a special deduction from taxable income measured by a percentage of his gross income derived from exhaustion of the mineral. This deduction, codified in §§ 611 and 613 of the Internal Revenue Code of 1954, is designed to compensate such owners for the exhaustion of their interest in a wasting asset, the mineral in place. [Footnote 1] This case presents the question Page 451 U. S. 573 whether that "percentage depletion" allowance must be denied to otherwise eligible lessees of underground coal because their leases were subject to termination by the lessor on 30 days' notice.This question arises out of three different tax refund suits that were decided by the Court of Claims in a single opinion. 221 Ct.Cl. 246, 602 F.2d 348. The controlling facts are essentially the same in all three cases. Each taxpayer operated a coal mine pursuant to a written lease; in exchange for a fixed royalty per ton, the lessor granted the lessee the right to extract coal and to sell it at prices determined by the lessee. Each lease contained a clause permitting the lessor to terminate the lease on 30 days' notice. In fact, however, none of the lessors exercised that right; each lessee mined a substantial tonnage of coal during an uninterrupted operation that continued for several years. The proceeds from the sale of the coal represented the only revenue from which the lessees recovered the royalties paid to the lessors.In each of the cases, certain additional facts help to illuminate the issue. In the Black Hawk [Footnote 2] case, the lease was to continue"during the term commencing on the first day Page 451 U. S. 574 of March, 1964, and terminating when LESSEE shall have exhausted all of The Feds Creek (or Clintwood) Seam of coal, . . . or until said tenancy shall be earlier terminated. . . ."App. 77a. The lease required Black Hawk to pay a royalty of 25 cents per ton of coal or $5,000 per year, whichever was larger. Id. at 77a-78a. In addition, the lease required Black Hawk to pay all taxes on the underground coal, as well as the taxes on its plant and equipment and on mined coal. Id. at 79a. Black Hawk paid independent contractors a fixed price per ton to remove the coal, and Black Hawk was free to sell the coal to any party at whatever price it could obtain. Black Hawk mined the seam to exhaustion, operating continuously under the lease for 13 years. Id. at 70a-71a. The Government stipulated that Black Hawk was the sole claimant to the percentage depletion deduction; no claim had been made by the lessor or by any independent mining contractor employed by Black Hawk. Id. at 71a.The Swank case involves two separate leases executed by Swank and Northumberland County, Pa., pursuant to which Swank operated mines on land owned by the county. The first lease, a deep-mining lease executed in 1964, was terminated in 1968 after a mountain slide forced Swank to close the mine. Id. at 52a. The second, a strip-mining lease executed in 1966, was still being operated by Swank's successor in interest in 1977 when the case was tried. During the tax years in dispute, Swank's royalty payments to the county at the rate of 35 cents per ton amounted to $7,545.10 in 1966 and $6,854.05 in 1967. Id. at 53a. The deduction for depletion, which was based on the gross income received from the sale of the coal, was significantly larger. [Footnote 3] The record also indicates that Swank invested significant sums in the construction Page 451 U. S. 575 of access roads, the acquisition of equipment, and the purchase and improvement of a "tipple" -- the surface structure that is used to remove slate and rock from the mined product and to sort the coal into specific sizes for marketing. Id. at 55a-56a.The Bull Run [Footnote 4] case involves a 5-year lease executed in 1967 and renewed in 1972. Id. at 90a-91a. Unlike the leases in the other cases, it gave the lessor a right of first purchase if it was willing to meet the lessee's price, and, in the tax year in dispute, the lessor did purchase all of the coal mined by Bull Run. 221 Ct.Cl. at 249, n. 4, 602 F.2d at 350, n. 4. The lease did not, however, limit the lessee's right to set selling prices or to sell to others who were willing to pay more than the lessor. Ibid. Like the lease in Black Hawk, the lease provided for a royalty of 25 cents per ton. App. 91a. As is also true in both Black Hawk and Swank, there is no suggestion that any other party has made any claim to any part of the percentage depletion allowance at issue in this case. [Footnote 5] See id. at 92a. The Bull Run lease, like the others, contained a provision giving the lessor the right to cancel on 30 days' written notice. [Footnote 6] Page 451 U. S. 576ISince 1913, the Internal Revenue Code or its predecessors have provided special deductions for depletion of wasting assets. We have explained these deductions as resting "on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit," and therefore the depletion allowance permits"a recoupment of the owner's capital investment in the minerals so that, when the minerals are exhausted, the owner's capital is unimpaired."Commissioner v. Southwest Exploration Co., 350 U. S. 308, 350 U. S. 312. [Footnote 7] The percentage depletion allowance however, is clearly more than a method of enabling the operator of a coal mine to recover the amount he has paid for the unmined coal. Because the deduction is computed as a percentage of his gross income from the mining operation, and is not computed with reference to the operator's investment, it provides a special incentive for engaging in this line of business that goes well beyond a purpose of merely allowing the owner of a wasting asset to recoup the capital invested in that asset. [Footnote 8] As the Court said in Southwest Exploration Co., supra:"The present allowance, however, bears little relationship Page 451 U. S. 577 to the capital investment, and the taxpayer is not limited to a recoupment on his original investment. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit. The depletion allowance in the Internal Revenue Code of 1939 [the forerunner of the present statute] is solely a matter of congressional grace. . . ."350 U.S. at 350 U. S. 312. [Footnote 9] Hence, eligibility for the deduction is determined not by the amount of the capital investment, but by the mine operator's "economic interest" in the coal. [Footnote 10]A recognition that the percentage depletion allowance is more than merely a recovery of the cost of the unmined coal is especially significant in this case. The question here is Page 451 U. S. 578 whether a deduction for the asset depleted by respondents will be received by anyone. [Footnote 11] The tax consequences of the lessors' receipt of royalties will not be affected, either favorably Page 451 U. S. 579 or unfavorably, by our decision in this case. [Footnote 12] The Government therefore is not contending that the wrong party is claiming the percentage depletion allowance. Rather, the Government takes the position that no such deduction shall be allowed to any party if the legal interest of the lessee-operator is subject to cancellation on short notice. [Footnote 13]IIThe language of the controlling statute makes no reference to the minimum duration of the interest in mineral deposits on which a taxpayer may base his claim to percentage depletion. [Footnote 14] The relevant Treasury Regulation merely requires the taxpayer to have an "economic interest" in the unmined coal. [Footnote 15] That term is broadly defined by regulation as follows:"(b) Economic interest. (1) Annual depletion deductions Page 451 U. S. 580 are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. [Footnote 16]"The Government's argument that the termination clause deprived the lessees of an economic interest is advanced in two forms. First, the Government notes that the regulation distinguishes a mere "economic advantage" [Footnote 17] from a depletable "economic interest," and argues that two cases -- Parsons v. Smith, 359 U. S. 215, and Paragon Jewel Coal Co. v. Commissioner, 380 U. S. 624, in which the Court concluded that mining contractors had only an "economic advantage," rather than an "economic interest," in coal deposits -- support the conclusion that these lessees also had a mere "economic advantage." Second, the Government argues, as a matter of "practical economics," that the right to terminate gives the lessor the only significant economic interest in the coal. Neither submission is persuasive.The Parsons opinion covered two consolidated cases with similar facts. In each, the owner of coal-bearing land entered Page 451 U. S. 581 into a contract with the taxpayer providing that the taxpayer would strip-mine the coal and deliver it to the owner for a fixed price per ton. Neither of the contracts purported to give the mining contractor any interest in the coal, either before or after it was mined, or any right to sell it to third parties. See 359 U.S. at 359 U. S. 216-219. The contracts were terminable on short notice, and terminability was one of the seven factors the Court listed to support its conclusion that the independent contractors did not have an economic interest in the coal. [Footnote 18] It is perfectly clear, however, that the Court would have reached the same conclusion if that factor had not been present.The facts in the Paragon Jewel case were much like those in Parsons, except that the mining contractors dealt with Page 451 U. S. 582 lessees instead of the owners of the underground coal. As in Parsons, the contractors agreed to mine the coal at their own expense and deliver it to Paragon's tipple at a fixed fee per ton. [Footnote 19] The contractors had no control over the coal after delivery to Paragon, had no responsibility for its sale or in fixing its price, and did not even know the price at which Paragon sold the coal. 380 U.S. at 380 U. S. 628. The Court stated that the Commissioner took the position that"only a taxpayer with a legally enforceable right to share in the value of a mineral deposit has a depletable capital or economic interest in that deposit, and the contract miners in this case had no such interest in the unmined coal."Id. at 380 U. S. 627. The Court agreed that the miners did not have an economic interest in the coal:"Here, Paragon was bound to pay the posted fee regardless of the condition of the market at the time of the particular delivery, and thus the contract miners did not look to the sale of the coal for a return of their investment, but looked solely to Paragon to abide by its covenant."Id. at 380 U. S. 635. Thus, in Paragon Jewel Coal Co., as in Parsons, the terminability of the agreements was not the dispositive factor, [Footnote 20] and Page 451 U. S. 583 neither case answers the narrow question before us in this case. [Footnote 21]The contrast between the interest of the contractors in Parsons and Paragon Jewel and the lessees in these cases is stark. Whereas those contractors never acquired any legal interest in the coal, the lessees in these cases had a legal interest in the mineral both before and after it was mined, and were free to sell the coal at whatever price the market could bear. Indeed, the Government does not contend that, absent the termination clauses, the lessees would not have had an economic interest in the coal. In contrast, it seems clear that the contract miners' interest in the Parsons and Paragon Jewel cases would have been insufficient even if their agreements had been for a fixed term.The Government, however, does argue that the lessors' right to terminate the leases, alone, made the taxpayers' interest so tenuous as to defeat a claim to the percentage depletion deduction. [Footnote 22] According to the Government, as a matter Page 451 U. S. 584 of "Practical economics," an increase in the price of the minerals will "assuredly" lead to an exercise of the lessors' right to terminate; accordingly, the only significant economic interest is controlled by the lessor. We find this theoretical argument unpersuasive for at least three reasons.First, the royalty rate is a relatively small element of the mine operator's total cost. [Footnote 23] Therefore, even if the price of coal increases, the lessor cannot be certain that he will be able to negotiate a more favorable lease with another lessee. Moreover, the quantity of coal extracted by the operator each year may be as important in providing royalties for the lessor as the rate per ton. Purely as a theoretical matter, it therefore is by no means certain that an increase in the price of coal will induce a lessor to terminate a satisfactory business relationship. Indeed, the only evidence in the record -- the history of three different operations that were uninterrupted for many years -- tends to belie the Government's entire argument. [Footnote 24]Second, from the standpoint of the taxpayer who did, in fact, conduct a prolonged and continuous operation, it would Page 451 U. S. 585 seem rather unfair to deny him a tax benefit that is available to his competitors simply because he accepted a business risk -- the risk of termination -- that his competitors were able to avoid when they negotiated their mining leases. It is unlikely that Congress intended to limit the availability of the percentage depletion deduction to the mining operations with the greatest bargaining power.Third, and most important, the Government has not suggested any rational basis for linking the right to a depletion deduction to the period of time that the taxpayer operates a mine. If the authorization of a special tax benefit for mining a seam of coal to exhaustion is sound policy, that policy would seem equally sound whether the entire operation is conducted by one taxpayer over a prolonged period or by a series of taxpayers operating for successive shorter periods. The Government has suggested no reason why the efficient removal of a great quantity of coal in less than 30 days should have different tax consequences than the slower removal of the same quantity over a prolonged period. [Footnote 25]The Court of Claims correctly concluded that the mere existence of the lessors' unexercised right to terminate these leases did not destroy the taxpayers' economic interest in the leased mineral deposits.The judgment isAffirmed

U.S. Supreme CourtUnited States v. Swank, 451 U.S. 571 (1981)United States v. SwankNo. 79-1515Argued December 9, 1980Decided May 18, 1981451 U.S. 571SyllabusHeld: The "percentage depletion" allowance under §§ 611 and 613 of the Internal Revenue Code of 1954 -- whereby the owner of an economic interest in a mineral deposit is allowed a special deduction from taxable income measured by a percentage of his gross income derived from exhaustion of the mineral -- may not be denied to respondent lessees of underground coal who had the right to extract and sell the coal at prices fixed by them, paying a fixed royalty per ton to their lessors, merely because their leases were subject to termination by the lessor on 30 days' notice. Pp. 451 U. S. 576-585.(a) The deduction provides a special incentive for engaging in the mining business that goes well beyond a purpose of merely allowing the owner of a wasting asset to recoup the capital invested in that asset, and hence eligibility for the deduction is determined not by the amount of the capital investment, but by the mine operator's "economic interest" in the coal. The question here is whether the deduction for the asset depleted by respondents will be received by anyone, since the tax consequences of the lessors' receipt of royalties will not be affected, either favorably or unfavorably, by the decision. Pp. 451 U. S. 576-579.(b) Under their leases, respondents had a legal interest in the coal both before and after it was mined, and were free to sell the coal at whatever price the market could bear. Thus, they had a depletable "economic interest" in the coal deposits, not merely an "economic advantage." Parsons v. Smith, 359 U. S. 215, and Paragon Jewel Coal Co. v. Commissioner, 380 U. S. 624, distinguished. Nor does the right to terminate give the lessor the only significant economic interest in the coal as a matter of "practical economics." It is by no means certain that an increase in the price of coal will induce a lessor to terminate a satisfactory business relationship, and it would be unfair to deny a lessee a tax benefit that is available to competitors simply because he accepted the business risk of termination that his competitors were able to avoid when they negotiated their mining leases. Moreover, the Government has not suggested any rational basis for linking the right to a depletion deduction to the period of time that the taxpayer operates a mine. Thus, the mere existence of the lessors' unexercised Page 451 U. S. 572 right to terminate respondents' leases did not destroy their economic interest in the leased mineral deposits. Pp. 451 U. S. 579-585.221 Ct.Cl. 246, 602 F.2d 348, affirmed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 451 U. S. 585.

1988_87-1269

JUSTICE MARSHALL delivered the opinion of the Court.The California Elections Code forbids the official governing bodies of political parties from endorsing candidates in party primaries. It also dictates the organization and composition of those bodies, limits the term of office of a party chair, and requires that the chair rotate between residents of northern and southern California. The Court of Appeals for the Ninth Circuit held that these provisions violate the free speech and associational rights of political parties and their members guaranteed by the First and Fourteenth Amendments. 826 F.2d 814 (1987). We noted probable jurisdiction, 485 U.S. 1004 (1988), and now affirm.IAThe State of California heavily regulates its political parties. Although the laws vary in extent and detail from party to party, certain requirements apply to all "ballot-qualified" parties. [Footnote 1] The California Elections Code (Code) provides that the "official governing bodies" for such a party are its "state convention," "state central committee," and "county central committees," Cal.Elec.Code Ann. § 11702 (West Page 489 U. S. 217 1977), and that these bodies are responsible for conducting the party's campaigns. [Footnote 2] At the same time, the Code provides that the official governing bodies "shall not endorse, support, or oppose, any candidate for nomination by that party for partisan office in the direct primary election." Ibid. It is a misdemeanor for any primary candidate, or a person on her behalf, to claim that she is the officially endorsed candidate of the party. § 29430.Although the official governing bodies of political parties are barred from issuing endorsements, other groups are not. Political clubs affiliated with a party, labor organizations, political action committees, other politically active associations, and newspapers frequently endorse primary candidates. [Footnote 3] With the official party organizations silenced by the ban, it has been possible for a candidate with views antithetical to those of her party nevertheless to win its primary. [Footnote 4] Page 489 U. S. 218In addition to restricting the primary activities of the official governing bodies of political parties, California also regulates their internal affairs. Separate statutory provisions dictate the size and composition of the state central committees; [Footnote 5] set forth rules governing the selection and removal of committee members; [Footnote 6] fix the maximum term of office for the chair of the state central committee; [Footnote 7] require that the chair rotate between residents of northern and southern California; [Footnote 8] specify the time and place of committee meetings; [Footnote 9] and Page 489 U. S. 219 limit the dues parties may impose on members. [Footnote 10] Violations of these provisions are criminal offenses punishable by fine and imprisonment.BVarious county central committees of the Democratic and Republican Parties, the state central committee of the Libertarian Party, members of various state and county central committees, and other groups and individuals active in partisan politics in California brought this action in federal court against state officials responsible for enforcing the Code (State or California). [Footnote 11] They contended that the ban on primary endorsements and the restrictions on internal party governance deprive political parties and their members of the rights of free speech and free association guaranteed by the First and Fourteenth Amendments of the United States Constitution. [Footnote 12] The first count of the complaint challenged the ban on endorsements in partisan primary elections; the second count challenged the ban on endorsements in nonpartisan school, county, and municipal elections; and the third count challenged the provisions that prescribe the composition of state central committees, the term of office and eligibility criteria for state central committee chairs, the time and place of state and county central committee meetings, and the dues county committee members must pay. Page 489 U. S. 220The plaintiffs moved for summary judgment, in support of which they filed 28 declarations from the chairs of each plaintiff central committee, prominent political scientists, and elected officials from California and other States. The State moved to dismiss, and filed a cross-motion for summary judgment supported by one declaration from a former state senator.The District Court granted summary judgment for the plaintiffs on the first count, ruling that the ban on primary endorsements in §§ 11702 and 29430 violated the First Amendment as applied to the States through the Fourteenth Amendment. The court stayed all proceedings on the second count under the abstention doctrine of Railroad Comm'n of Texas v. Pullman Co., 312 U. S. 496 (1941). [Footnote 13] On the third count, the court ruled that the laws prescribing the composition of state central committees, limiting the committee chairs' terms of office, and designating that the chair rotate between residents of northern and southern California violate the First Amendment. [Footnote 14] The court denied summary judgment with respect to the statutory provisions establishing Page 489 U. S. 221 the time and place of committee meetings and the amount of dues. Civ. No. C-83-5599 MHP (ND Cal., May 3, 1984).The Court of Appeals for the Ninth Circuit affirmed. 792 F.2d 802 (1986). This Court vacated that decision, 479 U.S. 1024 (1987), and remanded for further consideration in light of Tashijian v. Republican Party of Connecticut, 479 U. S. 208 (1986).After supplemental briefing, the Court of Appeals again affirmed. 826 F.2d 814 (1987). The court first rejected the State's arguments based on nonjusticiability, lack of standing, Eleventh Amendment immunity, and Pullman abstention. 826 F.2d at 821-825. Turning to the merits, the court characterized the prohibition on primary endorsements as an "outright ban" on political speech. Id. at 833.Prohibiting the governing body of a political party from supporting some candidates and opposing others patently infringes both the right of the party to express itself freely and the right of party members to an unrestricted flow of political information.Id. at 835. The court rejected the State's argument that the ban served a compelling state interest in preventing internal party dissension and factionalism: "The government simply has no legitimate interest in protecting political parties from disruptions of their own making." Id. at 834. The court noted, moreover, that the State had not shown that banning primary endorsements protects parties from factionalism. Ibid. The court concluded that the ban was not necessary to protect voters from confusion, stating, "California's ban on preprimary endorsements is a form of paternalism that is inconsistent with the First Amendment." Id. at 836.The Court of Appeals also found that California's regulation of internal party affairs "burdens the parties' right to govern themselves as they think best." Id. at 827. This interference with the parties' and their members' First Amendment rights was not justified by a compelling state interest, for a State has a legitimate interest "in orderly elections, Page 489 U. S. 222 not orderly parties." Id. at 831. In any event, the court noted, the State had failed to submit "a shred of evidence,'" id. at 833 (quoting Civ. No. C-83-5599 (ND Cal. May 3, 1984)), that the regulations of party internal affairs helped minimize party factionalism. Accordingly, the court held that the challenged provisions were unconstitutional under the First and Fourteenth Amendments.IIA State's broad power to regulate the time, place, and manner of elections"does not extinguish the State's responsibility to observe the limits established by the First Amendment rights of the State's citizens."Tashijian v. Republican Party of Connecticut, 479 U.S. at 479 U. S. 217. To assess the constitutionality of a state election law, we first examine whether it burdens rights protected by the First and Fourteenth Amendments. Id. at 479 U. S. 214; Anderson v. Celebrezze, 460 U. S. 780, 460 U. S. 789 (1983). If the challenged law burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest, Tashijian, supra, at 479 U. S. 217, 479 U. S. 222; Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 440 U. S. 184 (1979); American Party of Texas v. White, 415 U. S. 767, 415 U. S. 780, and n. 11 (1974); Williams v. Rhodes, 393 U. S. 23, 393 U. S. 31 (1968), and is narrowly tailored to serve that interest, Illinois Bd. of Elections, supra, at 440 U. S. 185; Kusper v. Pontikiss, 414 U. S. 51, 414 U. S. 58-59 (1973); Dunn v. Blumstein, 405 U. S. 330, 405 U. S. 343 (1972).AWe first consider California's prohibition on primary endorsements by the official governing bodies of political parties. California concedes that its ban implicates the First Amendment, Tr. of Oral Arg. 17, but contends that the burden is "miniscule." Id. at 7. We disagree. The ban directly affects speech, which "is at the core of our electoral Page 489 U. S. 223 process and of the First Amendment freedoms." Williams v. Rhodes, supra, at 393 U. S. 32. We have recognized repeatedly that "debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution." Buckley v. Valeo, 424 U. S. 1, 424 U. S. 14 (1976) (per curiam); see also NAACP v. Claiborne Hardware Co., 458 U. S. 886, 458 U. S. 913 (1982); Carey v. Brown, 447 U. S. 455, 447 U. S. 467 (1980); Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 74-75 (1964). Indeed, the First Amendment "has its fullest and most urgent application" to speech uttered during a campaign for political office. Monitor Patriot Co. v. Roy, 401 U. S. 265, 401 U. S. 272 (1971); see also Mills v. Alabama, 384 U. S. 214, 384 U. S. 218 (1966). Free discussion about candidates for public office is no less critical before a primary than before a general election. Cf. Storer v. Brown, 415 U. S. 724, 415 U. S. 735 (1974); Smith v. Allwright, 321 U. S. 649, 321 U. S. 666 (1944); United States v. Classic, 313 U. S. 299, 313 U. S. 314 (1941). In both instances, the "election campaign is a means of disseminating ideas as well as attaining political office." Illinois Bd. of Elections, supra, at 440 U. S. 186.California's ban on primary endorsements, however, prevents party governing bodies from stating whether a candidate adheres to the tenets of the party or whether party officials believe that the candidate is qualified for the position sought. This prohibition directly hampers the ability of a party to spread its message, and hamstrings voters seeking to inform themselves about the candidates and the campaign issues. See Tashijian, supra, at 479 U. S. 220-222; Pacific Gas & Electric Co. v. Public Utilities Comm'n of California, 475 U. S. 1, 475 U. S. 8 (1986); Brown v. Hartlage, 456 U. S. 45, 456 U. S. 60 (1982); First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 791-792 (1978). A "highly paternalistic approach" limiting what people may hear is generally suspect, Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 Page 489 U. S. 224 U.S. 748, 425 U. S. 770 (1976); see also First National Bank of Boston, supra, at 435 U. S. 790-792, but it is particularly egregious where the State censors the political speech a political party shares with its members. See Roberts v. United States Jaycees, 468 U. S. 609, 468 U. S. 634 (1984) (O'CONNOR, J., concurring).Barring political parties from endorsing and opposing candidates not only burdens their freedom of speech, but also infringes upon their freedom of association. It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments. Tashijian, supra, at 479 U. S. 214; see also Elrod v. Burns, 427 U. S. 347, 427 U. S. 357 (1976) (plurality opinion). Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, Tashijian, supra, at 479 U. S. 214 (quoting Kusper, supra, at 414 U. S. 57), but also that a political party has a right to "identify the people who constitute the association,'" Tashijian, supra, at 479 U. S. 214 (quoting Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 450 U. S. 122 (1981)); cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 460-462 (1958), and to select a "standardbearer who best represents the party's ideologies and preferences." Ripon Society, Inc. v. National Republican Party, 173 U.S.App.D.C. 350, 384, 525 F.2d 567, 601 (1975) (Tamm, J., concurring in result), cert. denied, 424 U.S. 933 (1976).Depriving a political party of the power to endorse suffocates this right. The endorsement ban prevents parties from promoting candidates"at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community."Tashijian, supra, at 479 U. S. 216. Even though individual members of the state central committees and county central committees are free to issue endorsements, imposing limitation Page 489 U. S. 225"on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association."Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 454 U. S. 296 (1981).Because the ban burdens appellees' rights to free speech and free association, it can only survive constitutional scrutiny if it serves a compelling governmental interest. [Footnote 15] The Page 489 U. S. 226 State offers two: stable government and protecting voters from confusion and undue influence. [Footnote 16] Maintaining a stable political system is, unquestionably, a compelling state interest. See Storer v. Brown, 415 U.S. at 415 U. S. 736. California, however, never adequately explains how banning parties from endorsing or opposing primary candidates advances that interest. There is no showing, for example, that California's political system is any more stable now than it was in 1963, when the legislature enacted the ban. Nor does the State explain what makes the California system so peculiar that it is virtually the only State that has determined that such a ban is necessary. [Footnote 17] Page 489 U. S. 227The only explanation the State offers is that its compelling interest in stable government embraces a similar interest in party stability. Brief for Appellants 47. The State relies heavily on Storer v. Brown, supra, where we stated that, because "splintered parties and unrestrained factionalism may do significant damage to the fabric of government," 415 U.S. at 415 U. S. 736, States may regulate elections to ensure that "some sort of order, rather than chaos . . . accompan[ies] the democratic processes," id. at 415 U. S. 730. Our decision in Storer, however, does not stand for the proposition that a State may enact election laws to mitigate intraparty factionalism during a primary campaign. To the contrary, Storer recognized that "contending forces within the party employ the primary campaign and the primary election to finally settle their differences." Id. at 415 U. S. 735. A primary is not hostile to intraparty feuds; rather, it is an ideal forum in which to resolve them. Ibid.; American Party of Texas v. White, 415 U.S. at 415 U. S. 781. Tashijian recognizes precisely this distinction. In that case, we noted that a State may enact laws to "prevent the disruption of the political parties from without" but not, as in this case, laws "to prevent the parties from taking internal steps affecting their own process for the selection of candidates." 479 U.S. at 479 U. S. 224.It is no answer to argue, as does the State, that a party that issues primary endorsements risks intraparty friction which may endanger the party's general election prospects. Presumably a party will be motivated by self-interest, and not engage in acts or speech that run counter to its political success. However, even if a ban on endorsements saves a political party from pursuing self-destructive acts, that would Page 489 U. S. 228 not justify a State substituting its judgment for that of the party. See ibid.; Democratic Party of United States, 450 U.S. at 450 U. S. 124. Because preserving party unity during a primary is not a compelling state interest, we must look elsewhere to justify the challenged law.The State's second justification for the ban on party endorsements and statements of opposition is that it is necessary to protect primary voters from confusion and undue influence. Certainly the State has a legitimate interest in fostering an informed electorate. Tashijian, supra, at 479 U. S. 220; Anderson v. Celebrezze, 460 U.S. at 460 U. S. 796; American Party of Texas v. White, supra, at 415 U. S. 782, n. 14; Bullock v. Carter, 405 U. S. 134, 405 U. S. 145 (1972); Jenness v. Fortson, 403 U. S. 431, 403 U. S. 442 (1971). However,"'[a] State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism.'"Tashijian, supra, at 479 U. S. 221 (quoting Anderson v. Celebrezze, supra, at 798). [Footnote 18] While a State may regulate the Page 489 U. S. 229 flow of information between political associations and their members when necessary to prevent fraud and corruption, see Buckley v. Valeo, 424 U.S. at 424 U. S. 26-27; Jenness v. Fortson, supra, at 403 U. S. 442, there is no evidence that California's ban on party primary endorsements serves that purpose. [Footnote 19]Because the ban on primary endorsements by political parties burdens political speech while serving no compelling governmental interest, we hold that §§ 11702 and 29430 violate the First and Fourteenth Amendment.BWe turn next to California's restrictions on the organization and composition of official governing bodies, the limits on the term of office for state central committee chair, and the requirement that the chair rotate between residents of northern and southern California. These laws directly implicate the associational rights of political parties and their members. As we noted in Tashijian, a political party's "determination . . . of the structure which best allows it to pursue its political goals is protected by the Constitution." 479 U.S. at 479 U. S. 224. Freedom of association also encompasses a political party's decisions about the identity of, and the process for electing, its leaders. See Democratic Party of United States, supra, (State cannot dictate process of selecting state delegates to Democratic National Convention); Page 489 U. S. 230 Cousins v. Wigoda, 419 U. S. 477 (1975) (State cannot dictate who may sit as state delegates to Democratic National Convention); cf. Tashijian, supra, at 479 U. S. 235-236 (SCALIA, J., dissenting) ("The ability of the members of [a political p]arty to select their own candidate . . . unquestionably implicates an associational freedom").The laws at issue burden these rights. By requiring parties to establish official governing bodies at the county level, California prevents the political parties from governing themselves with the structure they think best. [Footnote 20] And by specifying who shall be the members of the parties' official governing bodies, California interferes with the parties' choice of leaders. A party might decide, for example, that it will be more effective if a greater number of its official leaders are local activists, rather than Washington-based elected officials. The Code prevents such a change. A party might also decide that the state central committee chair needs more than two years to successfully formulate and implement policy. The Code prevents such an extension of the chair's term of office. A party might find that a resident of northern California would be particularly effective in promoting the party's message and in unifying the party. The Code prevents her from chairing the state central committee unless the preceding chair was from the southern part of the State.Each restriction thus limits a political party's discretion in how to organize itself, conduct its affairs, and select its leaders. Indeed, the associational rights at stake are much stronger than those we credited in Tashijian. There, we found that a party's right to free association embraces a right to allow registered voters who are not party members to vote in the party's primary. Here, party members do not seek to Page 489 U. S. 231 associate with nonparty members, but only with one another in freely choosing their party leaders. [Footnote 21]Because the challenged laws burden the associational rights of political parties and their members, the question is whether they serve a compelling state interest. A State indisputably has a compelling interest in preserving the integrity of its election process. Rosario v. Rockefeller, 410 U. S. 752, 410 U. S. 761 (1973). Toward that end, a State may enact laws that interfere with a party's internal affairs when necessary to ensure that elections are fair and honest. Storer v. Brown, 415 U.S. at 415 U. S. 730. For example, a State may impose certain eligibility requirements for voters in the general election even though they limit parties' ability to garner support and members. See, e.g., Dunn v. Blumstein, 405 U.S. at 405 U. S. 343-344 (residence requirement); Oregon v. Mitchell, 400 U. S. 112, 400 U. S. 118 (1970) (age minimum); Kramer v. Union Free School Dist. No. 15, 395 U. S. 621, 395 U. S. 625 (1969) (citizenship requirement). We have also recognized that a State may impose restrictions that promote the integrity of primary elections. See, e.g., American Party of Texas v. White, 415 U.S. at 415 U. S. 779-780 (requirement that major political parties nominate candidates through a primary and that minor parties nominate candidates through conventions); id. at 415 U. S. 785-786 (limitation on voters' participation to one primary and bar on voters both voting in a party primary and signing a petition supporting an independent candidate); Rosario v. Rockefeller, supra, (waiting periods before voters may change party registration and participate in another party's primary); Bullock v. Carter, 405 U.S. at 405 U. S. 145 (reasonable filing fees as a condition of placement on the ballot). None of these restrictions, however, involved direct regulation of Page 489 U. S. 232 a party's leaders. [Footnote 22] Rather, the infringement on the associational rights of the parties and their members was the indirect consequence of laws necessary to the successful completion of a party's external responsibilities in ensuring the order and fairness of elections.In the instant case, the State has not shown that its regulation of internal party governance is necessary to the integrity of the electoral process. Instead, it contends that the challenged laws serve a compelling "interest in the democratic management of the political party's internal affairs.'" Brief for Appellants 43 (quoting 415 U.S. at 415 U. S. 781, n. 15). This, however, is not a case where intervention is necessary to prevent the derogation of the civil rights of party adherents. Cf. Smith v. Allwright, 321 U. S. 649 (1944). Moreover, as we have observed, the State has no interest in "protect[ing] the integrity of the Party against the Party itself." Tashijian, 479 U.S. at 479 U. S. 224. The State further claims that limiting the term of the state central committee chair and requiring that the chair rotate between residents of northern and southern California helps "prevent regional friction from reaching a `critical mass.'" Brief for Appellants 48. However, Page 489 U. S. 233 a State cannot substitute its judgment for that of the party as to the desirability of a particular internal party structure any more than it can tell a party that its proposed communication to party members is unwise. Tashijian, supra, at 479 U. S. 224.In sum, a State cannot justify regulating a party's internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair. Because California has made no such showing here, the challenged laws cannot be upheld. [Footnote 23]IIIFor the reasons stated above, we hold that the challenged California election laws burden the First Amendment rights of political parties and their members without serving a compelling state interest. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtEu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214 (1989)Eu v. San Francisco Democratic Central CommitteeNo. 87-1269Argued December 5, 1988Decided February 22, 1989489 U.S. 214SyllabusSection 11702 of the California Elections Code (Code) forbids the official governing bodies of political parties to endorse or oppose candidates in primary elections, while § 29430 makes it a misdemeanor for any candidate in a primary to claim official party endorsement. Other Code sections dictate the organization and composition of parties' governing bodies, limit the term of office for a party's state central committee chair, and require that the chair rotate between residents of northern and southern California. Various party governing bodies, members of such bodies, and other politically active groups and individuals brought suit in the District Court, claiming, inter alia, that these Code provisions deprived parties and their members of the rights of free speech and free association guaranteed by the First and Fourteenth Amendments. The District Court granted summary judgment for the plaintiffs as to the provisions in question, and the Court of Appeals affirmed.Held: The challenged California election laws are invalid, since they burden the First Amendment rights of political parties and their members without serving a compelling state interest. Pp. 489 U. S. 222-233.(a) The ban on primary endorsements in §§ 11702 and 29430 violates the First and Fourteenth Amendments. By preventing a party's governing body from stating whether a candidate adheres to the party's tenets or whether party officials believe that the candidate is qualified for the position sought, the ban directly hampers the party's ability to spread its message and hamstrings voters seeking to inform themselves about the candidates and issues, and thereby burdens the core right to free political speech of the party and its members. The ban also infringes a party's protected freedom of association rights to identify the people who constitute the association and to select a standard-bearer who best represents the party's ideology and preferences, by preventing the party from promoting candidates at the crucial primary election juncture. Moreover, the ban does not serve a compelling governmental interest. The State has not adequately explained how the ban advances its claimed interest in a stable political system or what makes California so peculiar that it is virtually the only State to determine that such a ban Page 489 U. S. 215 is necessary. The explanation that the State's compelling interest in stable government embraces a similar interest in party stability is untenable, since a State may enact laws to prevent disruption of political parties from without, but not from within. The claim that a party that issues primary endorsements risks intraparty friction which may endanger its general election prospects is insufficient, since the goal of protecting the party against itself would not justify a State's substituting its judgment for that of the party. The State's claim that the ban is necessary to protect primary voters from confusion and undue influence must be viewed with skepticism, since the ban restricts the flow of information to the citizenry without any evidence of the existence of fraud or corruption that would justify such a restriction. Pp. 489 U. S. 222-229.(b) The restrictions on the organization and composition of the official governing bodies of political parties, the limits on the term of office for state central committee chairs, and the requirement that such chairs rotate between residents of northern and southern California cannot be upheld. These laws directly burden the associational rights of a party and its members by limiting the party's discretion in how to organize itself, conduct its affairs, and select its leaders. Moreover, the laws do not serve a compelling state interest. A State cannot justify regulating a party's internal affairs without showing that such regulation is necessary to ensure that elections are orderly, fair, and honest, and California has made no such showing. The State's claim that it has a compelling interest in the democratic management of internal party affairs is without merit, since this is not a case where intervention is necessary to prevent the derogation of party adherents' civil rights, and since the State has no interest in protecting the party's integrity against the party itself. Nor are the restrictions justified by the State's claim that limiting the term of the state central committee chair and requiring that the chair rotate between northern and southern California help to prevent regional friction from reaching a critical mass, since a State cannot substitute its judgment for that of the party as to the desirability of a particular party structure. Pp. 489 U. S. 229-233.826 F.2d 814, affirmed.MARSHALL, J., delivered the opinion of the Court, in which all other Members joined, except REHNQUIST, C.J., who took no part in the consideration or decision of the case. STEVENS, J., filed a concurring opinion, post, p. 489 U. S. 233. Page 489 U. S. 216

1975_75-455

MR. JUSTICE POWELL delivered the opinion of the Court.In this case, we address the question whether a common law tort action based on alleged fraudulent misrepresentation by an air carrier subject to regulation by the Civil Aeronautics Board (Board) must be stayed pending reference to the Board for determination whether the practice is "deceptive" within the meaning of § 411 of the Federal Aviation Act of 1958, 72 Stat. 769, 49 U.S.C. § 1381. We hold that, under the circumstances of this case, a stay pending reference is inappropriate.IThe facts are not contested. Petitioner agreed to make several appearances in Connecticut on April 28, 1972, in support of the fund-raising efforts of the Connecticut Citizen Action Group (CCAG), a nonprofit public interest organization. His two principal appearances were to be a a noon rally in Hartford and a later address at the Storrs campus of the University of Connecticut. On April 25, petitioner reserved a seat on respondent's flight 864 for April 28. The flight was scheduled to leave Washington, D.C. at 10:15 a.m. and to arrive in Hartford at 11:15 a.m. Petitioner's ticket was purchased from a travel agency on the morning of the flight. It indicated, by the standard "OK" notation, that the reservation was confirmed.Petitioner arrived at the boarding and check-in area approximately five minutes before the scheduled departure Page 426 U. S. 293 time. He was informed that all seats on the flight were occupied, and that he, like several other passengers who had arrived shortly before him, could not be accommodated. Explaining that he had to arrive in Hartford in time for the noon rally, petitioner asked respondent's agent to determine whether any standby passengers had been allowed to board by mistake, or whether anyone already on board would voluntarily give up his or her seat. Both requests were refused. In accordance with respondent's practice, petitioner was offered alternative transportation by air taxi to Philadelphia, where connections could be made with an Allegheny flight scheduled to arrive in Hartford at 12:15 p.m. Fearing that the Philadelphia connection, which allowed only 10 minutes between planes, was too close, petitioner rejected this offer and elected to fly to Boston, where he was met by a CCAG staff member who drove him to Storrs.Both parties agree that petitioner's reservation was not honored because respondent had accepted more reservations for flight 864 than it could, in fact, accommodate. One hour prior to the flight, 107 reservations had been confirmed for the 100 seats actually available. Such overbooking is a common industry practice, designed to ensure that each flight leaves with as few empty seats as possible despite the large number of "no-shows" -- reservation-holding passengers who do not appear at flight time. By the use of statistical studies of no-show patterns on specific flights, the airlines attempt to predict the appropriate number of reservations necessary to fill each flight. In this way, they attempt to ensure the most efficient use of aircraft while preserving a flexible booking system that permits passengers to cancel and change reservations without notice or penalty. At times, the practice of overbooking results Page 426 U. S. 294 in oversales, which occur when more reservation-holding passengers than can be accommodated actually appear to board the flight. When this occurs, some passengers must be denied boarding ("bumped"). The chance that any particular passenger will be bumped is so negligible that few prospective passengers aware of the possibility would give it a second thought. In April, 1972, the month in which petitioner's reservation was dishonored, 6.7 confirmed passengers per 10,000 enplanements were denied boarding on domestic flights. [Footnote 1] For all domestic airlines, oversales resulted in bumping an average of 5.4 passengers per 10,000 enplanements in 1972, and 4.6 per 10,000 enplanements in 1973. [Footnote 2] In domestic operations, respondent oversold 6.3 seats per 10,000 enplanements in 1972 and 4.5 seats per 10,000 enplanements in 1973. [Footnote 3] Thus, based on the 1972 experience of all domestic airlines, there was only slightly more than one chance in 2,000 that any particular passenger would be bumped on a given flight. [Footnote 4] Nevertheless, the total number of confirmed ticket holders denied seats is quite substantial, numbering over 82,000 passengers in 1972 and about 76,000 in 1973. [Footnote 5]Board regulations require each airline to establish priority rules for boarding passengers and to offer "denied boarding compensation" to bumped passengers. These "liquidated damages" are equal to the value of the passenger's ticket with a § 25 minimum and a § 200 maximum. 14 CFR § 250.5 (1975). Passengers are free to reject the compensation offered in favor of a common Page 426 U. S. 295 law suit for damages suffered as a result of the bumping. Petitioner refused the tender of denied boarding compensation (§ 32.41 in his case) and, with CCAG, filed this suit for compensatory and punitive damages. His suit did not seek compensation for the bumping per se, but asserted two other bases of liability: a common law action based on fraudulent misrepresentation arising from respondent's alleged failure to inform petitioner in advance of its deliberate overbooking practices, and a statutory action under § 404(b) of the Act, 49 U.S.C. § 1374(b), [Footnote 6] arising from respondent's alleged failure to afford petitioner the boarding priority specified in its rules filed with the Board under 14 CFR § 250.3 (1975).The District Court entered a judgment for petitioner on both claims, awarding him a total of $10 in compensatory damages and $25,000 in punitive damages. Judgment also was entered for CCAG on its misrepresentation claim, with an award of $51 in compensatory damages and $25,000 in punitive damages.The Court of Appeals for the District of Columbia Circuit reversed. 167 U.S.App.D.C. 350, 512 F.2d 527 (1975). A number of its rulings were not presented to this Court in the petition for certiorari. The award of damages to CCAG was reversed on the ground that the organization was too "remote from the transaction" to fall "within the class of persons who may recover." Id. at 372, 512 F.2d at 549. The merits of petitioner's statutory claim were remanded for further Page 426 U. S. 296 findings. The award of punitive damages to petitioner on the statutory claim was reversed on the ground that respondent's conduct contained no "elements of intentional wrongdoing or conscious disregard for" petitioner's rights. Id. at 373, 512 F.2d at 550. The question of punitive damages for the common law claim was remanded for further findings on respondent's good faith. In particular, the trial court was to consider "whether Allegheny reasonably believed that its policies were completely lawful and in fact carried the approval of the Board." Id. at 374, 512 F.2d at 551. None of these rulings was presented to this Court in the petition for certiorari.The only issue before us concerns the Court of Appeals' disposition on the merits of petitioner's claim of fraudulent misrepresentation. Although the court rejected respondent's argument that the existence of the Board's cease and desist power under § 411 of the Act eliminates all private remedies for common law torts arising from unfair or deceptive practices by regulated carriers, it held that a determination by the Board that a practice is not deceptive within the meaning of § 411 would, as a matter of law, preclude a common law tort action seeking damages for injuries caused by that practice. [Footnote 7] Therefore, the court held that the Board must be Page 426 U. S. 297 allowed to determine in the first instance whether the challenged practice (in this case, the alleged failure to disclose the practice of overbooking) falls within the ambit of § 411. The court took judicial notice that a rulemaking proceeding concerning possible changes in reservation practices in response to the 1973-1974 fuel crisis was already underway, and that a challenge to the carriers' overbooking practices had been raised by an intervenor in that proceeding. [Footnote 8] The District Court was instructed to stay further action on petitioner's misrepresentation claim pending the outcome of the rulemaking proceeding. The Court of Appeals characterized its holding as"but another application of the principles of primary jurisdiction, a doctrine whose purpose is the coordination of the workings of agency and court."167 U.S.App.D.C. at 367, 512 F.2d at 544. Page 426 U. S. 298IIThe question before us, then, is whether the Board must be given an opportunity to determine whether respondent's alleged failure to disclose its practice of deliberate overbooking is a deceptive practice under § 411 before petitioner's common law action is allowed to proceed. The decision of the Court of Appeals requires the District Court to stay the action brought by petitioner in order to give the Board an opportunity to resolve the question. If the Board were to find that there had been no violation of § 411, respondent would be immunized from common law liability.ASection 1106 of the Act, 49 U.S.C. § 1506, provides that"[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies."The Court of Appeals found that, "although the saving clause of section 1106 purports to speak in absolute terms, it cannot be read so literally." 167 U.S.App.D.C. at 367, 512 F.2d at 544. In reaching this conclusion, it relied on Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (1907). In that case, the Court, despite the existence of a saving clause virtually identical to § 1106, refused to permit a state court common law action challenging a published carrier rate as "unjust and unreasonable." The Court conceded that a common law right, even absent a saving clause, is not to be abrogated"unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would, in effect, deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory."204 U.S. at 204 U. S. 437. But the Court found that Page 426 U. S. 299 the continuance of private damages actions attacking the reasonableness of rates subject to the regulation of the Interstate Commerce Commission would destroy the purpose of the Interstate Commerce Act, which was to eliminate discrimination by requiring uniform rates. The saving clause, the Court found,"cannot in reason be construed as continuing in shippers a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself."Id. at 204 U. S. 446. [Footnote 9]In this case, unlike Abilene, we are not faced with an irreconcilable conflict between the statutory scheme and the persistence of common law remedies. In Abilene, the carrier, if subject to both agency and court sanctions, would be put in an untenable position when the agency and a court disagreed on the reasonableness of a rate. The carrier could not abide by the rate filed with the Commission, as required by statute, and also comply with a court's determination that the rate was excessive. The conflict between the court's common law authority and the agency's ratemaking power was direct and unambiguous. The court in the present case, in contrast, is not called upon to substitute its judgment for the agency's on the reasonableness of a rate -- or, indeed, on Page 426 U. S. 300 the reasonableness of any carrier practice. There is no Board requirement that air carriers engage in overbooking, or that they fail to disclose that they do so. And any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental. Under the circumstances, the common law action and the statute are not "absolutely inconsistent," and may coexist, as contemplated by § 1106.BSection 411 of the Act allows the Board, where "it considers that such action . . . would be in the interest of the public," "upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent," to "investigate and determine whether any air carrier . . . has been or is engaged in unfair or deceptive practices or unfair methods of competition. . . ." Practices determined to be in violation of this section "shall" be the subject of a cease and desist order. The Court of Appeals concluded -- and respondent does not challenge the conclusion here -- that this section does not totally preclude petitioner's common law tort action. But the Court of Appeals also held, relying on the nature of the airline industry as "a regulated system of limited competition," American Airlines, Inc. v. North American Airlines, Inc., 351 U. S. 79, 351 U. S. 84 (1956), and the Board's duty to promote "adequate, economical, and efficient service," § 102(c) of the Act, 49 U.S.C. § 1302(c), "at the lowest cost consistent with the furnishing of such service," § 1002(e)(2) of the Act, 49 U.S.C. § 1482(e)(2), that the Board has the power in a § 411 proceeding to approve practices that might otherwise be considered deceptive, and thus to immunize carriers from common law liability. 167 U.S.App.D.C. at 366, 512 F.2d at 543. Page 426 U. S. 301We cannot agree. No power to immunize can be derived from the language of § 411. And where Congress has sought to confer such power, it has done so expressly, as in § 414 of the Act, 49 U.S.C. § 1384, which relieves those affected by certain designated orders (not including orders issued under § 411) "from the operations of the antitrust laws.'" When faced with an exemptive provision similar to § 414 in United States Navigation Co. v. Cunard S.S. Co., 284 U. S. 474 (1932), this Court dismissed an antitrust action because initial consideration by the agency had not been sought. The Court pointed out that the Act in question was "restrictive in its operation upon some of the activities of common carriers . . . and permissive in respect of others." Id. at 284 U. S. 485. See also Far East Conference v. United States, 342 U. S. 570 (1952). Section 411, in contrast, is purely restrictive. It contemplates the elimination of "unfair or deceptive practices" that impair the public interest. Its role has been described in American Airlines, Inc. v. North American Airlines, Inc., supra at 351 U. S. 85:"'Unfair or deceptive practices or unfair methods of competition,' as used in § 411, are broader concepts than the common law idea of unfair competition. . . . The section is concerned not with punishment of wrongdoing or protection of injured competitors, but rather with protection of the public interest."As such, § 411 provides an injunctive remedy for vindication of the public interest to supplement the compensatory common law remedies for private parties preserved by § 1106. [Footnote 10] Page 426 U. S. 302Thus, a violation of § 411, contrary to the Court of Appeals' conclusion, is not coextensive with a breach of duty under the common law. We note that the Board's jurisdiction to initiate an investigation under § 411 is expressly premised on a finding that the "public interest" is involved. The Board "may not employ its powers to vindicate private rights." 351 U.S. at 351 U. S. 83. Indeed, individual consumers are not even entitled to initiate proceedings under § 411, a circumstance that indicates that Congress did not intend to require private litigants to obtain a § 411 determination before they could proceed with the common law remedies preserved by § 1106, Cf. Rosado v. Wyman, 397 U. S. 397, 397 U. S. 406 (1970).Section 411 is both broader and narrower than the remedies available at common law. A cease and desist order may issue under § 411 merely on the Board's conclusion, after an investigation determined to be in the public interest, that a carrier is engaged in an "unfair or deceptive practice." No findings that the practice was intentionally deceptive or fraudulent, or that it, in fact, has caused injury to an individual, are necessary. American Airlines, Inc. v. North American Airlines, Inc., supra at 351 U. S. 86. On the other hand, a Board decision that a cease and desist order is inappropriate does not represent approval of the practice under investigation. It may merely represent the Board's conclusion that the serious prohibitory sanction of a cease and desist order is inappropriate, that a more flexible approach is necessary. A wrong may be of the sort that calls for compensation to an injured individual without requiring the extreme remedy of a cease and desist order. Indeed, the Board, Page 426 U. S. 303 in dealing with the problem of overbooking by air carriers, has declined to issue cease and desist orders despite the determination by an examiner in one case that a § 411 violation had occurred. [Footnote 11] Instead, the Board has elected to establish boarding priorities and to ensure that passengers will be compensated for being bumped either by a liquidated sum under Board regulations or by resort to a suit for compensatory damages at common law. [Footnote 12]In sum, § 411 confers upon the Board a new and powerful weapon against unfair and deceptive practices that injure the public. But it does not represent the only, or best, response to all challenged carrier actions that result in private wrongs.CThe doctrine of primary jurisdiction"is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties."United States v. Western Pacific R. Co., 352 U. S. 59, 352 U. S. 63 (1956). Even when common law rights and remedies survive and the agency in question lacks the power to confer immunity from common law liability, it may be appropriate to refer specific issues to an agency for initial determination where that procedure would secure "[u]niformity and Page 426 U. S. 304 consistency in the regulation of business entrusted to a particular agency" or where"the limited functions of review by the judiciary [would be] more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure."Far East Conference v. United States, 342 U.S. at 342 U. S. 574-575. See also United States v. Western Pacific R. Co., supra at 352 U. S. 64.The doctrine has been applied, for example, when an action otherwise within the jurisdiction of the court raises a question of the validity of a rate or practice included in a tariff filed with an agency, e.g., Danna v. Air France, 463 F.2d 407 (CA2 1972); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U. S. 411, 360 U. S. 417-418 (1959), particularly when the issue involves technical questions of fact uniquely within the expertise and experience of an agency -- such as matters turning on an assessment of industry conditions, e.g., United States v. Western Pacific R. Co., supra, at 352 U. S. 66-67. In this case, however, considerations of uniformity in regulation and of technical expertise do not call for prior reference to the Board.Petitioner seeks damages for respondent's failure to disclose its overbooking practices. He makes no challenge to any provision in the tariff, and indeed there is no tariff provision or Board regulation applicable to disclosure practices. [Footnote 13] Petitioner also makes no challenge, Page 426 U. S. 305 comparable to those made in Southwestern Sugar & Molasses Co. v. River Terminals Corp., supra, and Lichten v. Eastern Airlines, Inc., 189 F.2d 939 (CA2 1951), to limitations on common law damages imposed through exculpatory clauses included in a tariff.Referral of the misrepresentation issue to the Board cannot be justified by the interest in informing the court's ultimate decision with "the expert and specialized knowledge," United States v. Western Pacific R. Co., supra, at 352 U. S. 64, of the Board. The action brought by petitioner does not turn on a determination of the reasonableness of a challenged practice -- a determination that could be facilitated by an informed evaluation of the economics or technology of the regulated industry. The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically Page 426 U. S. 306 expert body is not likely to be helpful in the application of these standards to the facts of this case. [Footnote 14]We are particularly aware that, even where the wrong sought to be redressed is not misrepresentation, but bumping itself, which has been the subject of Board consideration and for which compensation is provided in carrier tariffs, the Board has contemplated that there may be individual adjudications by courts in common law suits brought at the option of the passenger. The present regulations dealing with the problems of overbooking and oversales were promulgated by the Board in 1967. They provide for denied boarding compensation to bumped passengers, and require each carrier to establish priority rules for seating passengers and to file reports of passengers who could not be accommodated. [Footnote 15] The order instituting these regulations contemplates that the bumped passenger will have a choice between accepting denied boarding compensation as"liquidated damages for all damages incurred . . . as a result of the carrier's failure to provide the passenger with confirmed reserved space,"or pursuing his or her common law remedies. [Footnote 16] The Board specifically provided Page 426 U. S. 307 for a 30-day period before the specified compensation need be accepted so that the passenger will not be forced to make a decision before "the consequences of denied boarding have occurred and are known." [Footnote 17] After evaluating the consequences, passengers may choose as an alternative "to pursue their remedy under the common law." [Footnote 18]IIIWe conclude that petitioner's tort action should not be stayed pending reference to the Board and accordingly the decision of the Court of Appeals on this issue is reversed. The Court of Appeals did not address the question Page 426 U. S. 308 whether petitioner had introduced sufficient evidence to sustain his claim. We remand the case for consideration of that question, and for further proceedings consistent with this opinion. [Footnote 19]It is so ordered

U.S. Supreme CourtNader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976)Nader v. Allegheny Airlines, Inc.No. 75-455Argued March 24, 1976Decided June 7, 1976426 U.S. 290SyllabusShortly before his scheduled departure from Washington, D.C. to Connecticut, where he was to fulfill speaking engagements, petitioner, who had reserved a seat on one of respondent's Hartford flights arrived at the check-in area, but was advised that he could not be accommodated because all the seats were occupied. After refusing the tender of respondent, which concededly overbooked the flight, of denied boarding compensation, petitioner brought a common law action against respondent based on an alleged fraudulent misrepresentation arising from respondent's failure to apprise petitioner of its deliberate overbooking practices, and a statutory action under § 404(b) of the Federal Aviation Act of 1958, arising from respondent's failure to afford petitioner the boarding priority specified in its rules filed with the Civil Aeronautics Board (CAB). The District Court entered judgment and awarded compensatory and punitive damages on both claims. The Court of Appeals remanded petitioner's statutory claim for further findings and reversed the award of punitive damages on that claim. The question of punitive damages for the common law claim was remanded for further findings on respondent's good faith. None of that court's foregoing rulings was presented in the petition for certiorari. The court also held that the common law fraudulent misrepresentation claim had to be remanded to the District Court, and stayed, under the principles of primary jurisdiction, pending referral to the CAB to determine whether the alleged failure to disclose the practice of deliberate overbooking is a deceptive practice under § 411 of the Act, which provides that the CAB may investigate and determine whether any air carrier has been or is engaged in unfair or deceptive practices, and that practices found to violate the section shall be the subject of a cease and desist order. The court held that a CAB determination that a practice is not deceptive under § 411 would preclude a common law tort action for damages for injuries caused by that practice.Held: Petitioner's common law tort action based on Page 426 U. S. 291 the alleged fraudulent misrepresentation by respondent air carrier should not be stayed pending reference to the CAB for a determination whether the practice is "deceptive" within the meaning of § 411 of the Act. Pp. 426 U. S. 298-308.(a) There is no irreconcilable conflict between the Act's scheme and the common law remedy; both may coexist as contemplated by the Act's saving clause, which provides that"[n]othing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies."§ 1106. Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, distinguished. Pp. 426 U. S. 298-300.(b) No power to immunize a carrier from common law liability can be inferred from § 411's language; where Congress has sought to confer such power, it has done so expressly, as in § 414 of the Act. Section 411 is both broader and narrower than common law remedies. A cease and desist order may issue thereunder if the CAB concludes that a carrier is engaged in an unfair or deceptive practice, and no findings that the practice was intentionally deceptive or has caused injury in fact are necessary; on the other hand, a CAB decision that such an order is inappropriate does not manifest the CAB's approval of the practice, but may merely represent the agency's conclusion that a more flexible approach is necessary. Pp. 426 U. S. 300-303.(c) The doctrine of primary jurisdiction, which has been applied where a claim originally cognizable in the courts requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative agency, is inapplicable here, where petitioner's action for respondent's asserted failure to disclose its overbooking practices implicates no tariff practice or similar technical question of fact uniquely within the CAB's expertise. Pp. 426 U. S. 303-307.167 U.S.App.D.C. 350, 512 F.2d 527, reversed and remanded.POWELL, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, post, p. 426 U. S. 308. Page 426 U. S. 292

1986_86-88

STEVENS, J., filed a dissenting opinion, in which WHITE, J., joined, post p. 483 U. S. 40.JUSTICE MARSHALL delivered the opinion of the Court.Section 15(a)(1) of the Fair Labor Standards Act of 1938, 52 Stat. 1068, prohibits "any person" from introducing into Page 483 U. S. 29 interstate commerce goods produced in violation of the minimum wage or overtime provisions of the Act. The question in this case is whether § 15(a)(1) applies to holders of collateral obtained pursuant to a security agreement.IIn 1983, petitioner entered into a financing agreement with Qualitex Corporation, a clothing manufacturer and the corporate predecessor to Ely Group, Inc., and its subsidiaries Rockford Textile Mills, Inc., and Ely & Walker, Inc. (collectively Ely). Under the terms of the financing arrangement, petitioner agreed to loan up to $11 million to provide working capital for Ely. In return, Ely granted petitioner a security interest in inventory, accounts receivable, and other assets. Petitioner perfected its security interest under applicable state law.The financing agreement imposed various reporting requirements on Ely, including the submission to petitioner of a weekly schedule of inventory, a monthly balance sheet and income statement, and reports of accounts receivable. Petitioner also monitored the collateral upon which it made cash advances through a system of audits and on-site inspections. In the fall of 1984, Ely's sales began to fall below projections, and the balance on the loan began to increase, reaching over $9.5 million by February, 1985. Ely stopped reporting to petitioner in January, 1985. On February 8, petitioner stopped advancing funds and demanded payment in full. At the request of Ely's management, however, petitioner did not immediately foreclose. It gave Ely an opportunity to devise a plan for continuing its operations, but Ely was unable to do so. Petitioner waited until February 19, at which time it took possession of the collateral, including Ely's inventory of finished goods.Ely's employees continued to work until February 19, when Ely ceased all operations and closed its manufacturing facilities. Because Ely defaulted on its payroll, the employees Page 483 U. S. 30 did not receive any wages for pay periods between January 27 and February 19. The Department of Labor concluded that the items manufactured during these times were produced in violation of §§ 6 and 7 of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 206 and 207, and that, under § 15(a)(1), they were "hot goods" that could not be introduced into interstate commerce. [Footnote 1] Acting on information that petitioner intended to transport these goods in interstate commerce, the Secretary of Labor sought to enjoin shipment.In an action filed in the United States District Court for the Eastern District of Tennessee, the Secretary moved for a preliminary injunction and sought a temporary restraining order to prohibit Ely and petitioner from placing the goods in interstate commerce. The District Court denied the application for a temporary restraining order, but, after a hearing, granted the Secretary's motion for a preliminary injunction. Donovan v. Rockford Textile Mills, Inc., 608 F. Supp. 215 (1985). The Under Secretary of Labor then filed another complaint against Ely and petitioner, this time in the United Page 483 U. S. 31 States District Court for the Western District of Tennessee. This complaint was also accompanied by a motion for a preliminary injunction and application for a temporary restraining order. The District Court granted the temporary restraining order, and later granted the Under Secretary's motion for a preliminary injunction. Ford v. Ely Group, Inc., 621 F. Supp. 22 (1985).Both District Courts held that § 15(a)(1), which makes it unlawful for any person to ship "hot goods" in interstate commerce, prohibited not only Ely but also petitioner from transporting or selling items produced by employees who had not been paid in conformity with §§ 6 and 7 of the FLSA. They found this reading of § 15(a)(1) consistent with congressional intent to exclude from interstate commerce goods produced under substandard labor conditions. 608 F. Supp. at 217; 621 F. Supp. at 25-26. The courts concluded that,"'in light of the purposes of the Act, it would be an unjust and harsh result for the creditor to get the benefit of the labor of the employees during the period of time they produced goods and were not paid as provided by the Act; a benefit which the creditor would not have without the employees['] labor.'"Id. at 26 (quoting 608 F.Supp. at 217). [Footnote 2]The two cases were consolidated on appeal. The United States Court of Appeals for the Sixth Circuit affirmed, one judge dissenting. Brock v. Ely Group, Inc., 788 F.2d 1200 Page 483 U. S. 32 (1986). Following the plain language of § 15(a)(1), the majority concluded that "any person," as used in that section, applies to secured creditors. Id. at 1202-1203. Like the District Courts, it found this result consistent with the purpose of the FLSA: to exclude tainted goods from interstate commerce. Id. at 1203. The Court of Appeals rejected the reasoning of the Second Circuit in Wirtz v. Powell Knitting Mills Co., 360 F.2d 730 (1966), which had held § 15(a)(1) inapplicable to secured creditors who take possession of goods produced in violation of the FLSA. 788 F.2d at 1204-1205. The Sixth Circuit noted that Congress created only two exceptions to the broad scope of § 15(a)(1), one for common carriers and one for good faith purchasers, id. at 1205, and concluded that "Powell Knitting Mills created an exception for secured creditors that Congress did not and has not deemed appropriate." Id. at 1206. The dissenting judge would have followed Powell Knitting Mills. He maintained that, in enacting the "hot goods" provision, Congress was concerned with violations of the Act occurring in the course of the ongoing production of goods by a solvent manufacturer, not, as here, by an insolvent corporation that has ceased operations. Id. at 1207.We granted certiorari to resolve this conflict among the Circuits. [Footnote 3] 479 U.S. 929 (1986). We now affirm.IIAThe FLSA mandates the payment of minimum wage and overtime compensation to covered employees. Section 6(a) provides that every employer, as defined in the Act, "shall Page 483 U. S. 33 pay to each of his employees" wages not less than the specified minimum rate; § 7(a)(1) prohibits employment of any employee in excess of 40 hours per week "unless such employee receives compensation" at a rate of not less than one and one-half times the employee's regular rate. Petitioner does not contest the lower courts' findings that Ely failed to pay its employees at all for several weeks immediately preceding the plant closings. Consequently, we conclude, as did the Court of Appeals, that the goods produced during this period were manufactured in violation of § 6 and/or § 7 of the FLSA, and are "hot goods" for the purposes of § 15(a)(1). [Footnote 4] See 788 F.2d at 1201.Section 15(a)(1) prohibits "any person" from introducing goods produced in violation of § 6 or § 7 of the FLSA into interstate commerce. Section 3(a) defines "person" as "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons." 29 U.S.C. § 203(a). As a corporate entity, petitioner clearly falls within the plain language of the statute. Section 15(a)(1) contains two exemptions to the general prohibition on interstate shipment of "hot goods." The first, enacted as part of the original FLSA, exempts common carriers from the prohibition on transportation of such goods. The second, added in 1949, exempts a purchaser who acquired the goods Page 483 U. S. 34 for value, without notice of any violation, and "in good faith in reliance on written assurance from the producer that the goods were produced in compliance with the requirements" of the Act.Petitioner does not claim to come within either statutory exemption. Rather, it argues that the exemptions reflect congressional intent to limit application of the "hot goods" provision to culpable parties, and therefore, "innocent" secured creditors should not be subject to the Act. [Footnote 5] We disagree. Although §§ 6 and 7 only require "employers" to pay minimum wage and overtime, § 15(a)(1) refers to "any person," not "any employer." Congress limited other provisions of the FLSA as petitioner suggests, [Footnote 6] which indicates that its failure to do so in § 15(a)(1) was not inadvertent. That Congress identified only two narrow categories of "innocent" persons who were not subject to the "hot goods" provision suggests that all other persons, innocent or not, are subject to § 15(a)(1). [Footnote 7] We find no indication that Congress actually Page 483 U. S. 35 considered application of the "hot goods" provision to secured creditors when it enacted the FLSA. By claiming a general exemption for creditors, without any duty to ascertain compliance with the FLSA, petitioner is asking us to put creditors in a better position than good faith purchasers, for whom Congress specifically added an exemption.In the past, the Court has refused "[t]o extend an exemption to other than those plainly and unmistakably within [the FLSA's] terms and spirit." A. H. Phillips, Inc. v. Walling, 324 U. S. 490, 324 U. S. 493 (1945). Similarly, where the FLSA provides exemptions "in detail and with particularity," we have found this to preclude "enlargement by implication." Addison v. Holly Hill Fruit Products, Inc., 322 U. S. 607, 322 U. S. 617 (1944). See also Powell v. United States Cartridge Co., 339 U. S. 497, 339 U. S. 512 (1950); Mabee v. White Plains Publishing Co., 327 U. S. 178, 327 U. S. 183-184 (1946). We see no reason to deviate from our traditional approach in this case.BPetitioner urges us to look beyond the plain language of the statute, citing the often-quoted passage from Holy Trinity Page 483 U. S. 36 Church v. United States, 143 U. S. 457, 143 U. S. 459 (1892):"[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."According to petitioner, the sole aim of the FLSA was to establish decent wages and hours for American workers. This goal, petitioner claims, is not furthered by application of § 15(a)(1) to creditors who acquire "hot goods" by foreclosure, and are not themselves responsible for the minimum wage and overtime violations. However, we conclude that the legislative intent fully supports the result achieved by application of the plain language.While improving working conditions was undoubtedly one of Congress' concerns, it was certainly not the only aim of the FLSA. In addition to the goal identified by petitioner, the Act's declaration of policy, contained in § 2(a), reflects Congress' desire to eliminate the competitive advantage enjoyed by goods produced under substandard conditions. [Footnote 8] 29 Page 483 U. S. 37 U.S.C. § 202(a). This Court has consistently recognized this broad regulatory purpose."The motive and purpose of the present regulation are plainly . . . that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce."United States v. Darby, 312 U. S. 100, 312 U. S. 115 (1941). See also Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 471 U. S. 296 (1985); Maryland v. Wirtz, 392 U. S. 183, 392 U. S. 189 (1968); Rutherford Food Corp v. McComb, 331 U. S. 722, 331 U. S. 727 (1947).Application of § 15(a)(1) to secured creditors furthers this goal by excluding tainted goods from interstate commerce. Had the Department of Labor not obtained an injunction in this case, petitioner, as a secured creditor, would have converted several weeks of labor by the debtor's employees into goods covered by its security interest; the "hot goods" produced by these uncompensated employees would have competed with goods produced in conformity with the FLSA's minimum wage and overtime requirements. Moreover, prohibiting foreclosing creditors from selling "hot goods" also advances the goal identified by petitioner. Secured creditors often monitor closely the operations of employer-borrowers, as petitioner did in this case. They may be in a position to insist on compliance with the FLSA's minimum wage and overtime requirements. As the District Court for the Western District observed: Page 483 U. S. 38"[I]f foreclosing creditors are free to ship and sell tainted goods across state lines, the temptation to overextend credit to marginal producers is strong, as is the likelihood that such producers will become unable to meet their payrolls. The reason for this is that finance companies and institutions stand to reap financial gain by keeping such producers in business. A holding by this Court that creditors may not ship and sell in interstate commerce goods produced in violation of the Act will not only protect complying manufacturers from the unfair competition of such tainted goods, but, we submit, it will also discourage the type of commercial financing which leads to minimum wage and overtime violations."621 F. Supp. at 26 (emphasis added).CA literal application of § 15(a)(1) does not grant employees a priority in "hot goods" superior to that which a secured creditor has under state law. Petitioner's rights in the collateral as against Ely are unchanged by our holding. Petitioner still owns the goods, subject only to the "hot goods" provision, which prevents it from placing them in interstate commerce. The employees have not acquired a possessory interest in the goods. [Footnote 9] Indeed, as the District Court for the Western District of Tennessee recognized, the Secretary brought this action"not to compel the foreclosing creditor to pay the statutory wages or to put pressure on the defaulting producer to pay such wages, but to keep tainted goods from entering the channels of interstate commerce."Id. at 25-26. That petitioner can cure the employer's violation of the FLSA by paying the employees the statutorily required Page 483 U. S. 39 wages does not give the employees a "lien" on the assets superior to that of a secured creditor. [Footnote 10]In numerous other statutes, Congress has exercised its authority under the Commerce Clause to exclude from interstate commerce goods which, for a variety of reasons, it considers harmful. Like the FLSA, these regulatory measures bar goods not produced in conformity with specified standards from the channels of commerce. [Footnote 11] As the District Courts in this case recognized, secured creditors take their security interests subject to the laws of the land. See 621 F. Supp. at 26; 608 F. Supp. at 217. If, for example, the goods at issue in this case were fabrics that failed to meet federal flammability standards and were therefore banned from interstate commerce under the Flammable Fabrics Act, 67 Stat. 111, as amended, 15 U.S.C. § 1191 et seq., surely petitioner could not argue that it had a right to sell the inventory merely by virtue of its status as a secured creditor. "Hot goods" are not inherently hazardous, but Congress has determined that they are contraband nonetheless. We see no reason for a different result merely because a different form of contraband is involved.IIIWe hold that § 15(a)(1)'s broad prohibition on interstate shipment of "hot goods" applies to secured creditors who acquire the goods pursuant to a security agreement. This result is mandated by the plain language of the statute, and it Page 483 U. S. 40 furthers the goal of eliminating the competitive advantage enjoyed by goods produced under substandard labor conditions. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtCiticorp Indus. Credit v. Brock, 483 U.S. 27 (1987)Citicorp Industrial Credit, Inc. v. BrockNo. 86-88Argued April 20, 1987Decided June 22, 1987483 U.S. 27SyllabusSection 15(a)(1) of the Fair Labor Standards Act (FLSA or Act) prohibits "any person" from introducing into interstate commerce goods produced in violation of the minimum wage or overtime pay provisions of §§ 6 and 7 of the Act. Under a financing agreement with manufacturer Ely Group, Inc. (Ely), petitioner perfected a security interest in Ely's inventory. After Ely began to fail financially, petitioner took possession of the inventory, part of which was manufactured during a period in which Ely's employees were not paid. Concluding that such items were "hot goods" under § 15(a)(1), the United States Department of Labor filed suits in two Federal District Courts, each of which granted a preliminary injunction prohibiting the transportation or sale of the goods in interstate commerce. The Court of Appeals affirmed the consolidated cases.Held: Section 15(a)(1) applies to secured creditors who acquire "hot goods" pursuant to a security agreement. Pp. 483 U. S. 32-38.(a) The goods produced during the period when Ely's employees were not paid were manufactured in violation of § 6 and/or § 7 of the Act, and are "hot goods" for the purposes of § 15(a)(1). Pp. 483 U. S. 32-33.(b) As a corporate entity, petitioner falls within § 15(a)(1)'s plain language, since that section prohibits "any person" from introducing "hot goods" into commerce, while the Act defines "person" to include corporations. Petitioner's argument that § 15(a)(1)'s exemptions for common carriers and good faith purchasers reflect a congressional intent that the "hot goods" prohibition should apply only to culpable parties, and not to "innocent" secured creditors, is not persuasive. Congress' limitation of the effects of other FLSA provisions to culpable parties indicates that its failure to do so here was not inadvertent. Rather, § 15(a)(1)'s exemption of only two narrow categories of "innocent" persons suggests that all others, whether innocent or not, are covered. There is no indication that Congress actually considered secured creditors when it enacted § 15(a)(1), but, by claiming a general exemption for them, without any duty to ascertain compliance with the Act, petitioner would put them in a better position than good faith purchasers, whom Congress did specifically act to protect. Detailed and particular FLSA exemptions cannot Page 483 U. S. 28 be enlarged by implication to include persons not plainly and unmistakably within the Act's terms and spirit. Pp. 483 U. S. 33-35.(c) By excluding tainted goods from interstate commerce, the application of § 15(a)(1) to secured creditors furthers the FLSA's goal of eliminating the competitive advantage enjoyed by goods produced under substandard labor conditions. Moreover, prohibiting foreclosing creditors from selling "hot goods" also advances the Act's purpose of establishing decent wages and hours, since such creditors will be encouraged to insist that their debtors comply with the Act's minimum wage and overtime pay requirements. Pp. 483 U. S. 35-38.(d) Applying § 15(a)(1) to secured creditors does not give employees a "lien" on, or priority in, "hot goods" superior to that of the creditors under state law, since creditors' rights in the goods as against the employer are unchanged by such application, while the employees acquire no possessory interest in the goods thereby. Such application is simply an exercise of Congress' power to exclude contraband from interstate commerce. Pp. 483 U. S. 38-39.788 F.2d 1200, affirmed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, BLACKMUN, POWELL, O'CONNOR, and SCALIA, JJ., joined. SCALIA, J., filed a concurring opinion, post p. 483 U. S. 40. STEVENS, J., filed a dissenting opinion, in which WHITE, J., joined, post p. 483 U. S. 40.

1977_77-836

MR. JUSTICE BLACKMUN delivered the opinion of the Court.These cases present issues concerning state and federal jurisdiction over certain crimes committed on lands within the area designated as a reservation for the Choctaw Indians residing in central Mississippi. More precisely, the questions presented are whether the lands are "Indian country," as that phrase is defined in 18 U.S.C. § 1151 (1976 ed.) and as it was used in the Major Crimes Act of 1885, being § 9 of the Act of Mar. 3, 1885, 23 Stat. 385, later codified as 18 U.S.C. § 1153, and, if so, whether these federal statutes operate to preclude the exercise of state criminal jurisdiction over the offenses.IIn October 1975, in the Southern District of Mississippi, Smith John [Footnote 1] was indicted by a federal grand jury for assault with intent to kill Artis Jenkins, in violation of 18 U.S.C. §§ 1153 and 113(a). [Footnote 2] He was tried before a jury and, on Page 437 U. S. 636 December 15, was convicted of the lesser included offense of simple assault. [Footnote 3] A sentence of 90 days in a local jail-type institution and a fine of $300 were imposed. On appeal, the United States Court of Appeals for the Fifth Circuit, considering the issue on its own motion, see App. to Pet. for Cert. in Page 437 U. S. 637 No. 77-836, p. 39A, ruled that the District Court was without jurisdiction over the case because the lands designated as a reservation for the Choctaw Indians residing in Mississippi, and on which the offense took place, were not "Indian country," and that, therefore, § 1153 did not provide a basis for federal prosecution. 560 F.2d 1202, 1205-1206 (1977). The United States sought review, and we granted its petition for certiorari in No. 77-836. 434 U.S. 1032 (1978).In April, 1976, Smith John [Footnote 4] was indicted by a grand jury of Leake County, Miss., for aggravated assault upon the same Artis Jenkins, in violation of Miss.Code Ann § 97-37(2) (Supp. 1977). The incident that was the subject of the state indictment was the same as that to which the federal indictment related. A motion to dismiss the charge on the ground the federal jurisdiction was exclusive was denied. John was tried before a jury in the Circuit Court of Leake County, and, in May, 1976, was convicted of the offense charged. He was sentenced to two years in the state penitentiary. On appeal, the Supreme Court of Mississippi, relying on its earlier decision in Tubby v. State, 327 So. 2d 272 (1976), and on the decision of the United States Court of Appeals for the Fifth Circuit in United States v. State Tax Comm'n, 505 F.2d 633 (1974), rehearing denied, 535 F.2d 300, rehearing en banc denied, 541 F.2d 469 (1976), held that the United States District Court had had no jurisdiction to prosecute Smith John, and that, therefore, his arguments against state court jurisdiction were without merit. 347 So. 2d 959 (1977). Characterizing the case as one falling within this Court's jurisdiction under 28 U.S.C. § 1257(2) (1976 ed.), Smith John filed notice of an appeal in No. 77-575. We Page 437 U. S. 638 postponed jurisdiction, 434 U.S. 1032 (1978). We now note jurisdiction. Antoine v. Washington, 420 U. S. 194 (1975); McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164 (1973).IIThere is no dispute that Smith John is a Choctaw Indian, and it is presumed by all that he is a descendant of the Choctaws who, for hundreds of years, made their homes in what is now central Mississippi. The story of these Indians, and of their brethren who left Mississippi to settle in what is now the State of Oklahoma, has been told in the pages of the reports of this Court and of other federal courts. See, e.g., Choctaw Nation v. Oklahoma, 397 U. S. 620 (1970); Winton v. Amos, 255 U. S. 373 (1921); Fleming v. McCourtain, 215 U. S. 56 (1909); United States v. Choctaw Nation, 179 U. S. 494 (1900); Choctaw Nation v. United States, 119 U. S. 1 (1886); Chitto v. United States, 133 Ct.Cl. 643, 138 F. Supp. 253, cert. denied, 352 U.S. 841 (1956); Choctaw Nation v. United States, 81 Ct.Cl. 1, cert. denied, 296 U.S. 643 (1935).At the time of the Revolutionary War, these Indians occupied large areas of what is now the State of Mississippi. In the years just after the formation of our country, they entered into a treaty of friendship with the United States. Treaty at Hopewell, 7 Stat. 21 (1786). But the United States became anxious to secure the lands the Indians occupied in order to allow for westward expansion. The Choctaws, in an attempt to avoid what proved to be their fate, entered into a series of treaties gradually relinquishing their claims to these lands. [Footnote 5] Page 437 U. S. 639Despite these concessions, when Mississippi became a State on December 10, 1817, the Choctaws still retained claims, recognized by the Federal Government, to more than three-quarters of the land within the State's boundaries. The popular pressure to make these lands available to non-Indian settlement, and the responsibility for these Indians felt by some in the Government, combined to shape a federal policy aimed at persuading the Choctaws to give up their lands in Mississippi completely and to remove to new lands in what for many years was known as the Indian Territory, now a part of Oklahoma and Arkansas. The first attempt to effectuate this policy, the Treaty at Doak's Stand, 7 Stat. 210 (1820), resulted in an exchange of more than 5 million acres. Because, however, of complications arising when it was discovered that much of the land promised the Indians already had been settled, most Choctaws remained in Mississippi. A delegation of Choctaws went to Washington, D.C., to untangle the situation and to negotiate yet another treaty. See 7 Stat. 234 (1825). Still, few Choctaws moved.Only after the election of Andrew Jackson to the Presidency in 1828 did the federal efforts to persuade the Choctaws to leave Mississippi meet with some success. [Footnote 6] Even before Page 437 U. S. 640 Jackson himself had acted on behalf of the Federal Government, however, the State of Mississippi, grown impatient with federal policies, had taken steps to assert jurisdiction over the lands occupied by the Choctaws. In early 1829, legislation was enacted purporting to extend legal process into the Choctaw territory. 1824-1838 Miss. Gen. Laws 195 (Act of Feb. 4, 1829). In his first annual address to Congress on December 8, 1829, President Jackson made known his position on the Indian question and his support of immediate removal. S.Doc. No. 1, 21st Cong., 1st Sess., 116 (1829). Further encouraged, the Mississippi Legislature passed an Act purporting to abolish the Choctaw government and to impose a fine upon anyone assuming the role of chief. The Act also declared that the rights of white persons living within the State were to be enjoyed by the Indians, and that the laws of the State were to be in effect throughout the territory they occupied. 1824-1838 Miss.Gen.Laws 207 (Act of Jan.19, 1830).In Washington, Congress debated whether the States had power to assert such jurisdiction and whether such assertions were wise. [Footnote 7] But the only message heard by the Choctaws in Mississippi was that the Federal Government no longer would stand between the States and the Indians. Appreciating these realities, the Choctaws again agreed to deal with the Federal Government. On September 27, 1830, the Treaty at Dancing Page 437 U. S. 641 Rabbit Creek, 7 Stat. 333, was signed. [Footnote 8] It provided that the Choctaws would cede to the United States all lands still occupied by them east of the Mississippi, more than 10 million acres. They were to remove to lands west of the river, where they would remain perpetually free of federal or state control, by the fall of 1833. The Government would help plan and pay for this move. Each Choctaw "head of a family being desirous to remain and become a citizen of the States," id. at 335, however, was to be permitted to do so by signifying his intention within six months to the federal agent assigned to the area. Lands were to be reserved, at least 640 acres per household, to be held by the Indians in fee simple if they would remain upon the lands for five years. Ibid. Other lands were reserved to the various chiefs and to others already residing on improved lands. Id. at 335-336. Those who remained, however, were not to "lose the privilege of a Choctaw citizen," id. at 335, although they were to receive no share of the annuity provided for those who chose to remove.The relations between the Federal Government and the Choctaws remaining in Mississippi did not end with the formal ratification of the Treaty at Dancing Rabbit Creek by the United States Senate in February, 1831. 7 Cong.Deb. 347 (1831). The account of the federal attempts to satisfy Page 437 U. S. 642 the obligations of the United States, both to those who remained [Footnote 9] and to those who removed, [Footnote 10] is one best left to historians. It is enough to say here that the failure of these Page 437 U. S. 643 attempts, characterized by incompetence, if not corruption, proved an embarrassment and an intractable problem for the Federal Government for at least a century. See, e.g., Chitto v. United States, 133 Ct.Cl. 643, 138 F. Supp. 26 (1956). It remained federal policy, however, to try to induce these Indians to leave Mississippi.During the 1890's, the Federal Government became acutely aware of the fact that not all the Choctaws had left Mississippi. At that time, federal policy toward the Indians favored the allotment of tribal holdings, including the Choctaw holdings in the Indian Territory, in order to make way for Oklahoma's statehood. The inclusion of the Choctaws then residing in Mississippi in the distribution of these holdings proved among the largest obstacles encountered during the allotment effort. [Footnote 11] But even during this era, when federal policy again Page 437 U. S. 644 supported the removal of the Mississippi Choctaws to join their brethren in the West, there was no doubt that there remained persons in Mississippi who were properly regarded both by the Congress and by the Executive Branch as Indians. It was not until 1916 that this federal recognition of the presence of Indians in Mississippi was manifested by other than attempts to secure their removal. The appropriations for the Bureau of Indian Affairs in that year included an item (for $1,000) to enable the Secretary of the Interior "to investigate the condition of the Indians living in Mississippi" and to report to Congress "as to their need for additional land and school facilities." 39 Stat. 138. See H.R.Doc. No. 1464, 64th Cong., 2d Sess. (1916). In March, 1917, hearings were held in Union, Miss., by the House Committee on Investigation of the Indian Service, again exploring the desirability of providing federal services for these Indians. The efforts resulted in an inclusion in the general appropriation for the Bureau of Indian Affairs in 1918. T his appropriation, passed only after debate in the House, 56 Cong.Rec. 1136-1140 (1918), included funds for the establishment of an agency with a physician, for the maintenance of schools, and for the purchase of land and farm equipment. [Footnote 12] Lands purchased Page 437 U. S. 645 through these appropriations were to be sold on contract to individuals in keeping with the general pattern of providing lands eventually to be held in fee by individual Indians, rather than held collectively. Further provisions for the Choctaws in Mississippi were made in similar appropriations in later years. [Footnote 13]In the 1930's, the federal Indian policy had shifted back toward the preservation of Indian communities generally. This shift led to the enactment of the Indian Reorganization Act of 1934, 48 Stat. 984, and the discontinuance of the allotment program. The Choctaws in Mississippi were among the many groups who, before the legislation was enacted, voted to support its passage. This vote was reported to Congress by the Bureau of Indian Affairs. See Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 82 (1934); Hearings on H.R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 423 (1934). On March 30, 1935, the Mississippi Choctaws voted, as anticipated by § 18 of the Act, 48 Stat. 988, 25 U.S.C. § 478 (1976 ed.), to accept the provisions of the Page 437 U. S. 646 Act. T. Haas, Ten Years of Tribal Government Under I.R.A. 17 (U.S. Indian Service, Tribal Relations Pamphlet No. 1 (1947))By this time, it had become obvious that the original method of land purchase authorized by the 1918 appropriations -- by contract to a particular Indian purchaser -- not only was inconsistent with the new federal policy of encouraging the preservation of Indian communities with commonly held lands, but also was not providing the Mississippi Choctaws with the benefits intended. See H.R.Rep. No.194, 76th Cong., 1st Sess. (1939). In 1939, Congress passed an Act providing essentially that title to all the lands previously purchased for the Mississippi Choctaws would be"in the United States in trust for such Choctaw Indians of one-half or more Indian blood, resident in Mississippi, as shall be designated by the Secretary of the Interior."Ch. 235, 53 Stat. 851. In December, 1944, the Assistant Secretary of the Department of the Interior officially proclaimed all the lands then purchased in aid of the Choctaws in Mississippi, totaling at that time more than 15,000 acres, to be a reservation. 9 Fed.Reg. 14907. [Footnote 14]In April, 1945, again as anticipated by the Indian Reorganization Act, § 16, 48 Stat. 987, 25 U.S.C. § 476 (1976 ed.), the Mississippi Band of Choctaw Indians adopted a constitution and bylaws; these were duly approved by the appropriate federal authorities in May 1945. [Footnote 15] Page 437 U. S. 647With this historical sketch as background, we turn to the jurisdictional issues presented by Smith John's case.IIIIn order to determine whether there is federal jurisdiction over the offense with which Smith John was charged (alleged in the federal indictment to have been committed "on and within the Choctaw Indian Reservation and on land within the Indian country under the jurisdiction of the United States of America"), we first look to the terms of the statute upon which the United States relies, that is, the Major Crimes Act, 18 U.S.C. § 1153. This Act, as codified at the time of the alleged offense, provided:"Any Indian who commits. . . assault with intent to kill . . . within the Indian country, shall be subject to the same laws and penalties as al other persons committing any [such offense], within the exclusive jurisdiction of the United States."The definition of "Indian country" as used here and elsewhere in chapter 53 of Title 18 is provided in § 1151. [Footnote 16] Both the Mississippi Supreme Court Page 437 U. S. 648 and the Court of Appeals concluded that the situs of the alleged offense did not constitute "Indian country," and that, therefore, § 1153 did not afford a basis for the prosecution of Smith John in federal court. We do not agree.With certain exceptions not pertinent here, § 1151 includes within the term "Indian country" three categories of land. The first, with which we are here concerned, [Footnote 17] is"all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent."This language first appeared in the Code in 1948 as a part of the general revision of Title 18. The Reviser's Notes indicate that this definition was based on several decisions of this Court interpreting the term as it was used in various criminal statutes relating to Indians. In one of these cases, United States v. McGowan, 302 U. S. 535 (1938), the Court held that the Reno Indian Colony, consisting of 28.38 acres within the State of Nevada, purchased out of federal funds appropriated in 1917 and 1926 and occupied by several hundred Indians theretofore scattered throughout Nevada, was "Indian country" for the purposes of what was then 25 U.S.C. § 247 (the predecessor of 18 U.S.C. § 3618 (1976 ed.)), providing for the forfeiture of a vehicle used to transport intoxicants into the Indian country. The Court noted that the"fundamental consideration of both Congress and the Department of the Interior in establishing this colony has been the protection of a dependent people."302 U.S. at 302 U. S. 538. The principal test applied was drawn from Page 437 U. S. 649 an earlier case, United States v. Pelican, 232 U. S. 442 (1914), and was whether the land in question "had been validly set apart for the use of the Indians as such, under the superintendence of the Government." Id. at 232 U. S. 449; 302 U.S. at 302 U. S. 539. [Footnote 18]The Mississippi lands in question here were declared by Congress to be held in trust by the Federal Government for the benefit of the Mississippi Choctaw Indians who were at that time under federal supervision. There is no apparent reason why these lands, which had been purchased in previous years for the aid of those Indians, did not become a "reservation," at least for the purposes of federal criminal jurisdiction at that particular time. See United States v. Celestine, 215 U. S. 278, 215 U. S. 285 (1909). But if there were any doubt about the matter in 1939 when, as hereinabove described, Congress declared that title to lands previously purchased for the Mississippi Choctaws would be held in trust, the situation was completely clarified by the proclamation in 1944 of a reservation and the subsequent approval of the constitution and bylaws adopted by the Mississippi Band.The Court of Appeals and the Mississippi Supreme Court held, and the State now argues, that the 1944 proclamation had no effect, because the Indian Reorganization Act of 1934 was not intended to apply to the Mississippi Choctaws. Assuming for the moment that authority for the proclamation Page 437 U. S. 650 can be found only in the 1934 Act, we find this argument unpersuasive. The 1934 Act defined "Indians" not only as "all persons of Indian descent who are members of any recognized [in 1934] tribe now under Federal jurisdiction," and their descendants who then were residing on any Indian reservation, but also as "all other persons of one-half or more Indian blood." 48 Stat. 988, 25 U.S.C. § 479 (1976 ed.). There is no doubt that persons of this description lived in Mississippi, and were recognized as such by Congress and by the Department of the Interior, at the time the Act was passed. [Footnote 19] The references to the Mississippi Choctaws in the legislative history of the Act, see supra at 437 U. S. 645-646, confirm our view that the Mississippi Choctaws were not to be excepted from the general operation of the 1934 Act. [Footnote 20] Page 437 U. S. 651IVMississippi appears to concede, Brief for Appellee in No. 77-575, p. 44, that, if § 1153 provides a basis for the prosecution of Smith John for the offense charged, the State has no similar jurisdiction. This concession, based on the assumption that § 1153 ordinarily is preemptive of state jurisdiction when it applies, seems to us to be correct. [Footnote 21] It was a necessary premise of at least one of our earlier decisions. Seymour v. Superintendent, 368 U. S. 351 (1962). See also Williams v. Lee, 358 U. S. 217, 358 U. S. 220, and n. 5 (1959); Rice v. Olson, 324 U. S. 786 (1945); In re Carmen's Petition, 165 F. Supp. 942 (ND Cal.1958), aff'd sub nom. Dickson v. Carmen, 270 F.2d 809 (CA9 1959), cert. denied, 361 U.S. 034 (1960). [Footnote 22] Page 437 U. S. 652The State argues, however, that the Federal Government has no power to produce this result. It suggests that, since 1830, the Choctaws residing in Mississippi have become fully assimilated into the political and social life of the State, and that the Federal Government long ago abandoned its supervisory authority over these Indians. Because of this abandonment, and the long lapse in the federal recognition of a tribal organization in Mississippi, the power given Congress "[t]o regulate Commerce . . . with the Indian Tribes," Const. Art. I, § 8, cl. 3, cannot provide a basis for federal jurisdiction. To recognize the Choctaws in Mississippi as Indians over whom special federal power may be exercised would be anomalous and arbitrary. [Footnote 23]We assume for purposes of argument, as does the United States, that there have been times when Mississippi's jurisdiction over the Choctaws and their lands went unchallenged. But, particularly in view of the elaborate history, recounted above, of relations between the Mississippi Choctaws and the United States, we do not agree that Congress and the Executive Page 437 U. S. 653 Branch have less power to deal with the affairs of the Mississippi Choctaws than with the affairs of other Indian groups. Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, long ago removed from Mississippi, nor the fact that federal supervision over them has not been continuous, destroys the federal power to deal with them. United States v. Wright, 53 F.2d 300 (CA4 1931), cert. denied, 285 U.S. 539 (1932). [Footnote 24]The State also argues that the Federal Government may not deal specially with the Indians within the State's boundaries, because to do so would be inconsistent with the Treaty at Dancing Rabbit Creek. This argument may seem to be a cruel joke to those familiar with the history of the execution of that treaty, and of the treaties that renegotiated claims arising from it. See supra at 437 U. S. 640-643. And even if that treaty were the only source regarding the status of these Indians in federal law, we see nothing in it inconsistent with the continued federal supervision of them under the Commerce Clause. It is true that this treaty anticipated that each of those electing to remain in Mississippi would become "a citizen of the States," but the extension of citizenship status to Indians does not, in itself, end the powers given Congress to Page 437 U. S. 654 deal with them. See United States v. Celestine, 215 U. S. 278 (1909).VWe therefore hold that § 1153 provides a proper basis for federal prosecution of the offense involved here, and that Mississippi has no power similarly to prosecute Smith John for that same offense. Accordingly, the judgment of the Supreme Court of Mississippi in No. 77-575 is reversed; further, the judgment of the United States Court of Appeals for the Fifth Circuit in No. 77-836 is reversed, and that case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. John, 437 U.S. 634 (1978)United States v. JohnNo. 77-836Argued April 19, 1978Decided June 23, 1978*437 U.S. 634SyllabusLands designated as a reservation for Choctaw Indians residing in central Mississippi. held, on the basis of the history of the relations between the Mississippi Choctaws and the United States, to be "Indian country," as defined in 18 U.S.C. § 1151 (1976 ed.) to include "land within the limits of any Indian reservation under the jurisdiction of the United States Government," and as used in the Major Crimes Act, 18 U.S.C. § 1153, which makes any Indian who commits certain specified offenses"within the Indian country . . . subject to the same laws and penalties as all other persons committing [such] offenses, within the exclusive jurisdiction of the United States."Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians nor the fact that federal supervision over them has not been continuous affects the federal power to deal with them under these statutes. Hence, the Major Crimes Act provided a proper basis for federal prosecution of a Choctaw Indian for assault with intent to kill (one of the specified offenses) occurring on such lands, and Mississippi had no power similarly to prosecute him for the same offense. Pp. 437 U. S. 638-654.No. 77-836, 560 F.2d 1202, reversed and remanded; No. 77-575, 347 So. 2d 959, reversed.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 437 U. S. 635

1978_77-1489

MR. JUSTICE STEWART delivered the opinion of the Court.This case involves the scope of the privilege against compulsory self-incrimination, grounded in the Fifth Amendment and made binding against the States by the Fourteenth. The precise question is whether, despite this constitutional privilege, a prosecutor may use a person's legislatively immunized grand jury testimony to impeach his credibility as a testifying defendant in a criminal trial.IIn the early 1970's, Joseph Portash was Mayor of Manchester Township, Executive Director of the Pinelands Environmental Council, and a member of both the Ocean County Board of Freeholders and the Manchester Municipal Utilities Authority in New Jersey. In November, 1974, after a lengthy investigation, a state grand jury subpoenaed Portash. He expressed an intention to claim his privilege against compulsory self-incrimination. The prosecutors and Portash's lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could, under New Jersey law, be used in subsequent criminal proceedings (except in prosecutions for perjury or Page 440 U. S. 452 false swearing). [Footnote 1] After Portash's testimony, the parties tried to come to an agreement to avoid a criminal prosecution against Portash, but no bargain was reached. In April, 1975, Portash was indicted for misconduct in office and extortion by a public official. [Footnote 2]Before trial, defense counsel sought to obtain a ruling from the trial judge that no use of the immunized grand jury testimony would be permitted. The judge refused to rule that the prosecution could not use this testimony for purposes of impeachment. After the completion of the State's case, defense counsel renewed his request for a ruling by the trial judge as to the use of the grand jury testimony. There followed an extended colloquy, and the judge finally ruled that, if Portash testified and gave an answer on direct or cross-examination which was materially inconsistent with his grand jury testimony, the prosecutor could use that testimony in his cross-examination of Portash. Defense counsel then stated that, because of this ruling, he would advise his client not to take the stand. Portash did not testify, and the jury ultimately found him guilty on one of the two counts. Page 440 U. S. 453The New Jersey Appellate Division reversed the conviction. 151 N.J.Super. 200, 376 A.2d 950 (1977). That court held that the Constitution requires that the immunity granted by the New Jersey statute must be at least coextensive with the privilege afforded by the Fifth and Fourteenth Amendments. To confer such protection, the court reasoned, the grant of immunity must "leave defendant and the State in the position each would have occupied had defendant's claim of privilege [before the grand jury] been honored." Id. at 205, 376 A. d, at 953. Use of the immunized grand jury testimony to impeach a defendant at his trial, it held, did not meet this test. Because Portash's decision not to testify was based upon the trial court's erroneous ruling to the contrary, the Appellate Division reversed the conviction and remanded the case for a new trial. [Footnote 3] The New Jersey Supreme Court denied the State's petition for certification of an appeal. 75 N.J. 597, 384 A.2d 827 (1978). We granted certiorari. 436 U.S. 955.IINew Jersey presents two questions. First, it argues that Portash cannot properly invoke the privilege against compulsory incrimination because he did not take the witness stand, and, as a result, his immunized grand jury testimony was never used against him. Second, it urges that the Fifth and Page 440 U. S. 454 Fourteenth Amendments do not prohibit the use of immunized grand jury testimony to impeach materially inconsistent statements made at trial.AThe State contends that the issue presented by Portash is abstract and hypothetical because he did not, in fact, become a witness. Portash could have taken the stand, testified, objected to the prosecution's use of the immunized testimony to impeach him, and appealed any subsequent conviction. Absent that, the State would have us hold that the constitutional question was not and is not presented. This argument must be rejected. First, it is clear that, although the trial judge was concerned about making a ruling before specific questions were asked, he did rule on the merits of the constitutional question:"THE COURT: Well, this is what the Court was concerned with and still is, and I thought the Court had straightened it out previously, the witness taking the stand and testifying as to something and then have counsel saying didn't you say before the grand jury such and such.""MR. WILBERT [defense counsel]: That's the problem that we have. We don't know whether he's going to be able to use that or not, your Honor, especially if he didn't touch that area in his examination -- ""THE COURT: Mr. Wilbert, suppose your client takes the stand and he testifies that I worked for Donald Safran and suppose he testified before the grand jury I never worked for Donald Safran?""MR. WILBERT: Inconsistency, and under your Honor's ruling that can be used in this case.""THE COURT: No doubt about it.""MR. WILBERT: Your Honor, I would submit it could be used over my objection, of course. "Page 440 U. S. 455"THE COURT: You have a standing objection with respect to the use at all of the grand jury testimony."(Emphasis added.) App. 223a. Second, the New Jersey appellate court necessarily concluded that the federal constitutional question had been properly presented, because it ruled in Portash's favor on the merits. [Footnote 4] See Raley v. Ohio, 360 U. S. 423, 360 U. S. 435-437; cf. Jenkins v. Georgia, 418 U. S. 153, 418 U. S. 157; Coleman v. Alabama, 377 U. S. 129, 377 U. S. 133; Whitney v. California, 274 U. S. 357, 274 U. S. 360 361; Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 234 U. S. 134.Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, or, so long as the "case or controversy" requirement of Art. III is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it. This is made clear by a case decided by this Court in 1972, Brooks v. Tennessee, 406 U. S. 605. There the Court held unconstitutional a Tennessee statutory requirement that a defendant in a criminal case had to be his own first witness if he was to take the stand at all. The Court held that such a requirement unconstitutionally penalized a defendant's right to remain silent, since a defendant could remain silent immediately after the close of the State's case only at the cost of never testifying in his own defense. Although Brooks had not testified, the Tennessee court considered the constitutional validity of the state statute, and so did this Court. Because the rule imposed Page 440 U. S. 456 a penalty on the right to remain silent, the Court found that his constitutional rights had been infringed even though he had never taken the stand. Id. at 406 U. S. 611 n. 6.In Brooks, the Court held that the defendant's Fifth and Fourteenth Amendment rights had been violated because, in order to assert his Fifth Amendment right to remain silent after the prosecution's case in chief had been presented, the defendant would have had to pay a penalty. He could never testify. Here, as in Brooks, federal law does not insist that New Jersey was wrong in not requiring Portash to take the witness stand in order to raise his constitutional claim. [Footnote 5]BIn both Great Britain and in what later became the United States, immunity statutes, like the privilege against compulsory self-incrimination, predate the adoption of the Constitution. Kastigar v. United States, 406 U. S. 441, 406 U. S. 445 n. 13, 406 U. S. 446 n. 14. This Court first considered a constitutional challenge to an immunity statute in Counselman v. Hitchcock, 142 U. S. 547. The witness in that case had refused to testify before a federal grand jury in spite of a grant of immunity under the relevant federal statute. The Court overturned his contempt conviction. It construed the statute to permit the use of evidence derived from his immunized testimony. The witness was held to have validly asserted his privilege because"legislation cannot abridge a constitutional privilege, and . . . it cannot replace or supply one, at least unless it is so broad Page 440 U. S. 457 as to have the same extent in scope and effect."Id. at 142 U. S. 585. See also Brown v. United States, 359 U. S. 41; Ullman v. United States, 350 U. S. 422; Brown v. Walker, 161 U. S. 591. After the holding in Malloy v. Hogan, 378 U. S. 1, that the Fifth Amendment privilege against compulsory self-incrimination is also contained in the Fourteenth Amendment, this rule is necessarily applicable to state immunity statutes as well. Cf. Murphy v. Waterfront Comm'n, 378 U. S. 52. [Footnote 6]Language in Counselman and its progeny was read by some to require that the witness must be immune from prosecution for the transaction his testimony concerned. Indeed, the federal statutes subsequently upheld by the Court granted such transactional immunity. Brown v. United States, supra; Ullman v. United States, supra; Heike v. United States, 227 U. S. 131; Brown v. Walker, supra. [Footnote 7] The adoption of Pub.L. 91452 in 1970 marked a change in federal immunity legislation from the provision of transactional immunity to the provision of what is known as "use" immunity. 18 U.S. C §§ 6001, 6002. This immunity, similar to that provided by the New Jersey statute in this case, protects the witness from the use of his compelled testimony and any information derived from it. In Kastigar v. United States, supra, the Court upheld that statute against a challenge that mere use immunity is not coextensive with the Fifth Amendment's privilege."The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its Page 440 U. S. 458 sole concern is to afford protection against being "forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.'" Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness." 406 U.S. at 406 U. S. 453. (Emphasis in original; footnote omitted.)Against this broad statement of the necessary constitutional scope of testimonial immunity, the State asks us to weigh Harris v. New York, 401 U. S. 222, and Oregon v. Hass, 420 U. S. 714. [Footnote 8] Those cases involved the use of statements, concededly taken in violation of Miranda v. Arizona, 384 U. S. 436, to impeach a defendant's testimony at trial. In both cases, the Court weighed the incremental deterrence of police illegality against the strong policy against countenancing perjury. In the balance, use of the incriminating statements for impeachment purposes prevailed. The State asks that we apply the same reasoning to this case. It points out that the interest in preventing perjury is just as strongly involved, and that the statements made to the grand jury are at least as reliable as those made by the defendants in Harris and Hass.But the State has overlooked a crucial distinction between those cases and this one. In Harris and Hass, the Court expressly noted that the defendant made "no claim that the statements made to the police were coerced or involuntary," Harris v. New York, supra at 401 U. S. 224; Oregon v. Hass, supra at Page 440 U. S. 459 420 U. S. 722-723. That recognition was central to the decisions in those cases.The Fifth and the Fourteenth Amendments provide that no person "shall be compelled in any criminal case to be a witness against himself." As we reaffirmed last Term, a defendant's compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. "But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law." (Emphasis in original.) Mincey v. Arizona, 437 U. S. 385 398. [Footnote 9]Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases, there is no question whether physical or psychological pressures overrode the defendant's will; the witness is told to talk or face the government's coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. Balancing of interests was thought to be necessary in Harris and Hass when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible.The Superior Court of New Jersey, Appellate Division, correctly ruled that a person's testimony before a grand jury Page 440 U. S. 460 under a grant of immunity cannot constitutionally be used to impeach him when he is a defendant in a later criminal trial. [Footnote 10] Accordingly, the judgment is affirmed.It is so ordered

U.S. Supreme CourtNew Jersey v. Portash, 440 U.S. 450 (1979)New Jersey v. PortashNo. 77-1489Argued December 5, 1978Decided March 20, 1979440 U.S. 450SyllabusRespondent municipal official testified before a state grand jury under immunity granted pursuant to a New Jersey statute preventing a public employee's grand jury testimony or evidence derived therefrom from being used against him in a subsequent criminal proceeding. Thereafter, respondent was charged with misconduct in office and extortion, and, at his trial, the judge ruled that respondent's grand jury testimony could be used to impeach his credibility if he testified. As a result of this ruling, respondent did not testify, and he was ultimately convicted. The New Jersey appellate court held that the use of the immunized grand jury testimony to impeach respondent would have violated the Constitution, and, because respondent's decision not to testify was based on the trial court's erroneous ruling to the contrary, reversed the conviction and remanded for a new trial.Held: Under the Fifth Amendment privilege against compulsory self-incrimination made binding on the States by the Fourteenth Amendment, respondent's testimony before the grand jury under a grant of immunity could not constitutionally be used against him in the later criminal trial. Pp. 440 U. S. 453-460.(a) That respondent did not take the witness stand does not render the constitutional question abstract and hypothetical. It appears from the record that the trial judge did rule on the merits of such question, and the appellate court necessarily concluded that such question had been properly presented, because it ruled in respondent's favor on the merits. Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, nor, so long as Art. III's "case or controversy" requirement is met, to foreclose this Court's consideration of the constitutional issue now that the New Jersey courts have decided it. Pp. 440 U. S. 454-456.(b) Testimony given in response to a grant of legislative immunity is the essence of coerced testimony and involves the constitutional privilege against compulsory self-incrimination in its most pristine form. Thus, any balancing of interests so as to take into account the interest in preventing perjury is not only unnecessary, but impermissible. Harris v. New York, 401 U. S. 222, and Oregon v. Hass, 420 U. S. 714, distinguished. Pp. 440 U. S. 456-460.151 N.J.Super. 200, 376 A.2d 950, affirmed. Page 440 U. S. 451STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 440 U. S. 460. POWELL, J., filed a concurring opinion, in which REHNQUIST, J., joined, post, p. 440 U. S. 462. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 440 U. S. 463.

1975_74-966

MR. JUSTICE MARSHALL delivered the opinion of the Court.Granville C. Matise, a seaman, brought this suit alleging that upon his discharge from the S.S. American Hawk, petitioner, the ship's owner, withheld $510 in wages from him. Matise claimed that, pursuant to Rev.Stat. § 4529, as amended, 46 U.S.C. § 596, he was entitled to two days' pay for every day that payment of the $510 had been delayed.Title 46 U.S.C. § 596 provides in relevant part:"The master or owner of any vessel [making foreign voyages] shall pay to every seaman his wages . . . within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens. . . . Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days' pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court. "Page 423 U. S. 152The parties to this case differ over the meaning of "sufficient cause" under § 596; they are in conflict, too, over whether the trial court can exercise any discretion in determining the amount of the award under § 596. [Footnote 1] But we need not address either of these questions today. We hold simply that, in this case, the District Court correctly concluded that petitioner shipowner never "refuse[d] or neglect[ed] to make payment" to Matise. This being so, petitioner incurred no liability under § 596.IGranville Matise was hired on January 11, 1969, as a seaman aboard the S.S. American Hawk. Between February 14 and March 19, 1969, there were five occasions on which the ship's master entered in the ship's log reports that Matise either was absent from his duty position or, because of intoxication, was unable to fulfill his normal responsibilities. On the first four occasions, relatively minor penalties of the loss of several days' pay were imposed. On March 19, the date of the fifth log entry, the master decided that Matise should be discharged. With the ship docked in Saigon, South Vietnam, the master took Matise before the United States Vice Consul stationed in Saigon. The Vice Consul, Page 423 U. S. 153 whose duty in such situations is to "inquire carefully into the facts and circumstances, and [to] satisfy himself that good and substantial reasons exist fora discharge," 22 CFR § 82.16, [Footnote 2] agreed with the master that Matise's discharge was justified. He granted the discharge application without objection from Matise, and entered into the ship's log a notation stating that he "agreed to remove [Matise] from the vessel on grounds of misconduct at the Master's request and for the good of the vessel." The Vice Consul also advised the master that, because the discharge resulted from repeated instances of misconduct by Matise, petitioner was not obligated to pay for Matise's repatriation. [Footnote 3]Petitioner did, of course, have an obligation to pay Matise the wages that he had earned prior to his discharge. See 46 U.S.C. § 596. But payment in a form enabling Matise to secure transportation back to the United States was no easy matter. South Vietnamese law prohibited American seamen from carrying American currency ashore, and required that any ship's safe containing American currency be sealed while the ship was in port. An airline ticket to the United States, however, could be purchased only with American currency. Thus, Matise could not simply be put ashore with his wages and left there to secure transportation back to the United States for himself. [Footnote 4] Page 423 U. S. 154In order to resolve the resulting dilemma, Vietnamese Customs officials gave the ship's master special permission to break the seal on the ship's safe and to remove enough money to purchase an airline ticket to the United States. The ticket was purchased and given to Matise along with a wage voucher for $118.45 -- a sum which, as indicated on the voucher itself, represented the amount of the wages due him, less the $510 paid for the airline ticket. [Footnote 5] When Matise arrived back in the United States, he signed off the ship's articles, executed a mutual release, [Footnote 6] and, on March 24, 1969, received the $118.45 from petitioner.Almost one year later, Matise filed suit against petitioner in the United States District Court for the Northern District of California. [Footnote 7] He claimed that petitioner had withheld from him $510 in wages, and that petitioner was liable to him for that amount and, as provided in § 596, for two days' pay for every day that payment had been delayed. The District Court rejected Matise's claim, finding that he had "consented to and approved the purchase of an airline ticket for his purposes with his money," and concluding that "[t]he purchase of that ticket under those circumstances constituted the Page 423 U. S. 155 equivalent of payment of monies over to the seaman." Having found that the purchase of the airline ticket for $510 constituted a partial payment of wages, the District Court concluded that petitioner had not "refuse[d] or neglect[ed]" to pay and had therefore incurred no liability under § 596.The Court of Appeals for the Ninth Circuit reversed. 488 F.2d 469 (1974). It read § 596 as requiring that wage payments be paid directly to the seaman, and held that the $510 paid to the airline without ever having passed through Matise's hands could not be regarded as a partial payment of wages. Citing this Court's indication in Isbrandtsen Co. v. Johnson, 343 U. S. 779 (1952), that only deductions and setoffs for derelictions of duty specifically provided for by Congress could lawfully be deducted from a seaman's wages, the Court of Appeals concluded that, since the statutory scheme does not provide for setoffs for return transportation expenses, the "withholding" here at issue was improper, and was without "sufficient cause" under § 596.On remand, the District Court assessed damages in the amount of $510 for the wages "wrongfully withheld" and $29,462 in penalties, [Footnote 8] representing double wages calculated from March 24, 1969, four days after the discharge, until December 15, 1971, the date of the first District Court judgment in the case. [Footnote 9] Petitioner's appeal from this assessment was dismissed by the Court of Appeals as frivolous, and this Court thereupon granted certiorari. 420 U.S. 971 (1975). We reverse. Page 423 U. S. 156IIThe threshold question in this case is whether petitioner's purchase and Matise's receipt of the airline ticket constituted a partial payment of wages. If it was a partial payment, then there was no refusal or neglect to pay wages and there can be no double-wage liability under § 596. [Footnote 10] Only if the transaction was not a partial payment are we presented with the question whether the "withholding" of the $510 was without "sufficient cause" under § 596.In Isbrandtsen Co. v. Johnson, supra, on which the Court of Appeals heavily relied, there was no question that what this Court was faced with was a refusal or neglect to make payment. There, respondent, a seaman, had stabbed one of his shipmates while at sea. Over respondent's objection, the shipowner deducted from his wages amounts spent for the medical care and hospitalization of the shipmate. We held that, because the deductions were not provided for in the relevant statutes, [Footnote 11] they should not have been made -- even though it might later have been determined that the shipowner had a valid claim for reimbursement against the respondent.The situation before us today is quite different from that in Isbrandtsen. While the deductions in Isbrandtsen were made over the seaman's objection, the District Court in this case explicitly found that Matise "consented to and approved the purchase of an airline ticket for his purposes with his money." [Footnote 12] Moreover, unlike Page 423 U. S. 157 the seaman in Isbrandtsen, Matise received a benefit from the petitioner's expenditure that he simply could not have obtained through being paid in cash. [Footnote 13] Because of South Vietnamese currency regulations, it was only the procedure that was followed that allowed Matise to secure air transportation to the United States. Under such circumstances, it is evident that the shipowner did not refuse or neglect to make payment under § 596 as the shipowner in Isbrandtsen so clearly did; [Footnote 14] rather, the Page 423 U. S. 158 transaction in question constituted a partial payment of Matise's wages.The Court of Appals rejected petitioner's attempt to treat the giving of the plane ticket to Matise as a payment of wages. It viewed the purchase of the ticket as a payment to the airline, not to Matise, and observed that "the applicable statutes explicitly and unequivocally provide that the wages due are to be paid to the seaman, 46 U.S.C. §§ 596-597." 488 F.2d at 471 (emphasis in original). The Court was evidently relying at this point on the following language in § 596: "The master . . . shall pay to every seaman his wages . . . within four days after the seaman has been discharged. . . ." [Footnote 15] (Emphasis added.) Page 423 U. S. 159The Court of Appeals' conclusion that the "payment" went to the airline, and not to Matise, does not necessarily follow from the facts of this case. It could as easily be argued that "payment," albeit in the form of an airline ticket, rather than cash, was made to Matise. But even under the Court of Appeals' characterization of the transaction, we are unwilling to say that the payment was precluded by the general language of § 596. A far more explicit statement would be required to bar such a payment under the peculiar circumstances of this case. The obvious concern of § 596 is that the shipowner not unlawfully withhold wages, and thereby unjustly enrich himself while wrongfully denying the seaman the benefits of his labor. In this case, there was neither unjust enrichment of the shipowner nor a denial of benefits to the seaman. The shipowner made in a timely manner all the expenditures for which it was obligated. And the seaman received full benefit from the $510 by consenting to have it applied in the fashion most useful to him -- the purchase of an airline ticket.Respondent advanced an alternative theory during oral argument to support the contention that petitioner neglected to make payment under § 596. Respondent argued that the master's failure to enter into the ship's logbook a notation that the $510 had been paid bars viewing the transaction as a partial payment of wages.We find this argument unpersuasive. When crew members become liable for deductions from wages during Page 423 U. S. 160 a ship's voyage, there is, it is true, a statutory requirement that"the master shall, during the voyage, enter the various matters in respect to which such deductions are made, with the amounts of the respective deductions as they occur, in the official log book."46 U.S.C. § 642. As we have indicated above, however, the airline ticket transaction in this case is not a "deduction from" Matise's wages, but rather is itself a partial payment of wages. Section 642's terms do not apply to payments of wages. The shipowner therefore acted properly in doing no more than rendering Matise a complete wage voucher that clearly noted the purchase of the airline ticket.IIIIn reversing the decision of the Court of Appeals, we do not retreat from our view that the aim of § 596 is "to protect [seamen] from the harsh consequences of arbitrary and unscrupulous action[s] of their employers." Collie v. Fergusson, 281 U. S. 52, 281 U. S. 55 (1930). In this case, there was no impropriety either in the discharge itself or in the payment of wages to Matise. Nor do we today compromise our holding in Isbrandtsen that"only such deductions and set-offs for derelictions in the performance of . . . duties shall be allowed against . . . wages as are recognized in the statutes."343 U.S. at 343 U. S. 787. We hold simply that, under the circumstances of this case, the transaction resulting in Matise's receipt of an airline ticket purchased with money owed to him as wages constituted a payment of wages. There was therefore no refusal or neglect to make payment under § 596.The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtAmerican Foreign Steamship Co. v. Matise, 423 U.S. 150 (1975)American Foreign Steamship Co. v. MatiseNo. 74-966Argued October 14, 1975Decided December 16, 1975423 U.S. 150SyllabusRespondent's decedent, a seaman, was discharged for misconduct from petitioner's ship while it was docked in South Vietnam. Because of South Vietnamese currency regulations and other complications precluding paying the seaman in American currency the wages due him that he had earned prior to his discharge, petitioner purchased for him an airline ticket to the United States for $510, and this ticket, together with a wage voucher for $118.5, representing wages due less the $510, were given to him. When the seaman arrived back in the United States, he received the $118.45. Subsequently he sued petitioner, claiming that it had withheld $510 in wages from him. He contended that petitioner was liable to him for the $510, and for an added sum pursuant to 46 U.S.C. § 596, which requires the master or owner of a vessel making foreign voyages to pay a discharged seaman his wages within four days after the discharge, and, upon refusal or neglect to make such payment "without sufficient cause," to pay the seaman a sum equal to two days' pay for every day during which payment is delayed. Finding that the seaman had consented to the purchase of the airline ticket for his purposes with his money and that such purchase therefore constituted a partial payment of wages, the District Court held that petitioner had not refused or neglected to pay, and hence was not liable under § 596. The Court of Appeals reversed, holding that § 596 requires that wage payments be made directly to the seaman, and that therefore the $510 paid to the airline could not be regarded as a partial payment of wages. On remand, the District Court assessed damages pursuant to § 596, and the Court of Appeals dismissed an appeal from this assessment.Held: Under the circumstances, the transaction resulting in the seaman's receipt of an airline ticket purchased with money owed to him as wages constituted a payment of wages, and therefore there was no refusal or neglect to make payment, and hence no liability, under § 596. Isbrandtsen Co. v. Johnson, 343 U. S. 779, distinguished. Since the transaction was a partial payment of wages and not a "deduction Page 423 U. S. 151 from" wages, the requirement of 46 U.S.C. § 642 that a ship's master enter wage deductions in the logbook does not apply, and thus the master's failure to make a logbook entry that the $510 had been paid does not bar viewing the transaction as a partial payment of wages. Pp. 423 U. S. 156-160.Reversed and remanded; see 488 F.2d 469.MARSHALL, J., delivered the opinion for a unanimous Court.

1987_87-526

JUSTICE BRENNAN delivered the opinion of the Court.A Wisconsin statute provides that, before suit may be brought in state court against a state or local governmental entity or officer, the plaintiff must notify the governmental defendant of the circumstances giving rise to the claim, the amount of the claim, and his or her intent to hold the named defendant liable. The statute further requires that, in order to afford the defendant an opportunity to consider the requested relief, the claimant must refrain from filing suit for 120 days after providing such notice. Failure to comply with these requirements constitutes grounds for dismissal of the action. In the present case, the Supreme Court of Wisconsin held that this notice of claim statute applies to federal civil rights actions brought in state court under 42 U.S.C. § 1983. Because we conclude that these requirements are preempted as inconsistent with federal law, we reverse.IOn July 4, 1981, Milwaukee police officers stopped petitioner Bobby Felder for questioning while searching his neighborhood for an armed suspect. The interrogation proved to be hostile, and apparently loud, attracting the attention of petitioner's family and neighbors, who succeeded in convincing the police that petitioner was not the man they sought. According to police reports, the officers then directed petitioner to return home, but he continued to argue, Page 487 U. S. 135 and allegedly pushed one of them, thereby precipitating his arrest for disorderly conduct. Petitioner alleges that, in the course of this arrest, the officers beat him about the head and face with batons, dragged him across the ground, and threw him, partially unconscious, into the back of a paddy wagon, face first, all in full view of his family and neighbors. Shortly afterwards, in response to complaints from these neighbors, a local city alderman and members of the Milwaukee Police Department arrived on the scene and began interviewing witnesses to the arrest. Three days later, the local alderman wrote directly to the chief of police, requesting a full investigation into the incident. Petitioner, who is black, alleges that various members of the Police Department responded to this request by conspiring to cover up the misconduct of the arresting officers, all of whom are white. The Department took no disciplinary action against any of the officers, and the city attorney subsequently dropped the disorderly conduct charge against petitioner.Nine months after the incident, petitioner filed this action in the Milwaukee County Circuit Court against the city of Milwaukee and certain of its police officers, alleging that the beating and arrest were unprovoked and racially motivated, and violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. He sought redress under 42 U.S.C. § 1983, [Footnote 1] as well as attorney's fees pursuant to 42 U.S.C. § 1988. The officers moved to dismiss Page 487 U. S. 136 the suit based on petitioner's failure to comply with the State's notice of claim statute. That statute provides that no action may be brought or maintained against any state governmental subdivision, agency, or officer unless the claimant either provides written notice of the claim within 120 days of the alleged injury, or demonstrates that the relevant subdivision, agency, or officer had actual notice of the claim and was not prejudiced by the lack of written notice. Wis.Stat. § 893.80(1)(a) (1983 and Supp.1987). [Footnote 2] The statute further provides that the party seeking redress must also Page 487 U. S. 137 submit an itemized statement of the relief sought to the governmental subdivision or agency, which then has 120 days to grant or disallow the requested relief. § 893.80(1)(b). Finally, claimants must bring suit within six months of receiving notice that their claim has been disallowed. Ibid.The trial court granted the officers' motion as to all state law causes of action, but denied the motion as to petitioner's remaining federal claims. The Court of Appeals affirmed on the basis of its earlier decisions holding the notice of claim statute inapplicable to federal civil rights actions brought in state court. The Wisconsin Supreme Court, however, reversed. 139 Wis.2d 614, 408 N.W.2d 19 (1987). Passing on the question for the first time, the court reasoned that, while Congress may establish the procedural framework under which claims are heard in federal courts, States retain the authority under the Constitution to prescribe the rules and procedures that govern actions in their own tribunals. Accordingly, a party who chooses to vindicate a congressionally created right in state court must abide by the State's procedures. Requiring compliance with the notice of claim statute, the court determined, does not frustrate the remedial and deterrent purposes of the federal civil rights laws, because the statute neither limits the amount a plaintiff may recover for violation of his or her civil rights nor precludes the possibility of such recovery altogether. Rather, the court reasoned, the notice requirement advances the State's legitimate interests in protecting against stale or fraudulent claims, facilitating prompt settlement of valid claims, and identifying and correcting inappropriate conduct by governmental employees and officials. Turning to the question of compliance in this case, the court concluded that the complaints lodged with the local police by petitioner's neighbors, and the letter submitted to the police chief by the local alderman, failed to satisfy the statute's actual notice standard because these communications neither recited the facts giving Page 487 U. S. 138 rise to the alleged injuries nor revealed petitioner's intent to hold the defendants responsible for those injuries.We granted certiorari, 484 U.S. 942 (1987), and now reverse.IINo one disputes the general and unassailable proposition relied upon by the Wisconsin Supreme Court below that States may establish the rules of procedure governing litigation in their own courts. By the same token, however, where state courts entertain a federally created cause of action, the "federal right cannot be defeated by the forms of local practice." Brown v. Western R. Co. of Alabama, 338 U. S. 294, 338 U. S. 296 (1949). The question before us today, therefore, is essentially one of preemption: is the application of the State's notice of claim provision to § 1983 actions brought in state courts consistent with the goals of the federal civil rights laws, or does the enforcement of such a requirement instead "stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress'"? Perez v. Campbell, 402 U. S. 637, 402 U. S. 649 (1971) (quoting Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941)). Under the Supremacy Clause of the Federal Constitution, "[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law," for "any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield." Free v. Bland, 369 U. S. 663, 369 U. S. 666 (1962). Because the notice of claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of § 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is preempted when the § 1983 action is brought in a state court. Page 487 U. S. 139ASection 1983 creates a species of liability in favor of persons deprived of their federal civil rights by those wielding state authority. As we have repeatedly emphasized,"the central objective of the Reconstruction-Era civil rights statutes . . . is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief."Burnett v. Grattan, 468 U. S. 42, 468 U. S. 55 (1984). Thus, § 1983 provides "a uniquely federal remedy against incursions . . . upon rights secured by the Constitution and laws of the Nation," Mitchum v. Foster, 407 U. S. 225, 407 U. S. 239 (1972), and is to be accorded "a sweep as broad as its language." United States v. Price, 383 U. S. 787, 383 U. S. 801 (1966).Any assessment of the applicability of a state law to federal civil rights litigation, therefore, must be made in light of the purpose and nature of the federal right. This is so whether the question of state law applicability arises in § 1983 litigation brought in state courts, which possess concurrent jurisdiction over such actions, see Patsy v. Board of Regents of Florida, 457 U. S. 496, 457 U. S. 506-507 (1982), or in federal court litigation, where, because the federal civil rights laws fail to provide certain rules of decision thought essential to the orderly adjudication of rights, courts are occasionally called upon to borrow state law. See 42 U.S.C. § 1988. Accordingly, we have held that a state law that immunizes government conduct otherwise subject to suit under § 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy, see Martinez v. California, 444 U. S. 277, 444 U. S. 284 (1980), which of course already provides certain immunities for state officials. See e.g., Davis v. Scherer, 468 U. S. 183 (1984); Stump v. Sparkman, 435 U. S. 349 (1978); Imbler v. Pachtman, 424 U. S. 409 (1976). Similarly, in actions brought in federal courts, we have disapproved the adoption of state statutes of limitation Page 487 U. S. 140 that provide only a truncated period of time within which to file suit, because such statutes inadequately accommodate the complexities of federal civil rights litigation, and are thus inconsistent with Congress' compensatory aims. Burnett, supra, at 468 U. S. 50-55. And we have directed the lower federal courts in § 1983 cases to borrow the state law limitations period for personal injury claims because it is"most unlikely that the period of limitations applicable to such claims ever was, or ever would be, fixed [by the forum State] in a way that would discriminate against federal claims, or be inconsistent with federal law in any respect."Wilson v. Garcia, 471 U. S. 261, 471 U. S. 279 (1985).Although we have never passed on the question, the lower federal courts have all, with but one exception, concluded that notice of claim provisions are inapplicable to § 1983 actions brought in federal court. See Brown v. United States, 239 U.S.App.D.C. 345, 356, n. 6, 742 F.2d 1498, 1509, n. 6 (1984) (en banc) (collecting cases); but see Cardo v. Lakeland Central School Dist., 592 F. Supp. 765, 772-773 (SDNY 1984). These courts have reasoned that, unlike the lack of statutes of limitations in the federal civil rights laws, the absence of any notice of claim provision is not a deficiency requiring the importation of such statutes into the federal civil rights scheme. Because statutes of limitation are among the universally familiar aspects of litigation considered indispensable to any scheme of justice, it is entirely reasonable to assume that Congress did not intend to create a right enforceable in perpetuity. Notice of claim provisions, by contrast, are neither universally familiar nor in any sense indispensable prerequisites to litigation, and there is thus no reason to suppose that Congress intended federal courts to apply such rules, which "significantly inhibit the ability to bring federal actions." 239 U.S.App.D.C. at 354, 742 F.2d at 1507.While we fully agree with this near-unanimous consensus of the federal courts, that judgment is not dispositive here, where the question is not one of adoption, but of preemption. Page 487 U. S. 141 Nevertheless, this determination that notice of claim statutes are inapplicable to federal court § 1983 litigation informs our analysis in two crucial respects. First, it demonstrates that the application of the notice requirement burdens the exercise of the federal right by forcing civil rights victims who seek redress in state courts to comply with a requirement that is entirely absent from civil rights litigation in federal courts. This burden, as we explain below, is inconsistent in both design and effect with the compensatory aims of the federal civil rights laws. Second, it reveals that the enforcement of such statutes in § 1983 actions brought in state court will frequently and predictably produce different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court. States may not apply such an outcome-determinative law when entertaining substantive federal rights in their courts.BAs we noted above, the central purpose of the Reconstruction-Era laws is to provide compensatory relief to those deprived of their federal rights by state actors. Section 1983 accomplishes this goal by creating a form of liability that, by its very nature, runs only against a specific class of defendants: government bodies and their officials. Wisconsin's notice of claim statute undermines this "uniquely federal remedy," Mitchum v. Foster, 407 U.S. at 407 U. S. 239, in several interrelated ways. First, it conditions the right of recovery that Congress has authorized, and does so for a reason manifestly inconsistent with the purposes of the federal statute: to minimize governmental liability. Nor is this condition a neutral and uniformly applicable rule of procedure; rather, it is a substantive burden imposed only upon those who seek redress for injuries resulting from the use or misuse of governmental authority. Second, the notice provision discriminates against the federal right. While the State affords the victim of an intentional tort two years to recognize the compensable Page 487 U. S. 142 nature of his or her injury, the civil rights victim is given only four months to appreciate that he or she has been deprived of a federal constitutional or statutory right. Finally, the notice provision operates, in part, as an exhaustion requirement, in that it forces claimants to seek satisfaction in the first instance from the governmental defendant. We think it plain that Congress never intended that those injured by governmental wrongdoers could be required, as a condition of recovery, to submit their claims to the government responsible for their injuries.(1)Wisconsin's notice of claim statute is part of a broader legislative scheme governing the rights of citizens to sue the State's subdivisions. The statute, both in its earliest and current forms, provides a circumscribed waiver of local governmental immunity that limits the amount recoverable in suits against local governments and imposes the notice requirements at issue here. Although the Wisconsin Supreme Court has held that the statutory limits on recovery are preempted in federal civil rights actions, Thompson v. Village of Hales Corners, 115 Wis.2d 289, 340 N.W.2d 704 (1983), and thus recognizes that partial immunities inconsistent with § 1983 must yield to the federal right, it concluded in the present case that the notice and exhaustion conditions attached to the waiver of such immunities may nevertheless be enforced in federal actions. The purposes of these conditions, however, mirror those of the judicial immunity the statute replaced. Such statutes "are enacted primarily for the benefit of governmental defendants," Civil Actions, at 564, and enable those defendants to "investigate early, prepare a stronger case, and perhaps reach an early settlement." Brown v. United States, supra, at 353, 742 F.2d at 1506. Moreover, where the defendant is unable to obtain a satisfactory settlement, the Wisconsin statute forces claimants to bring suit within a relatively short period after the local governing Page 487 U. S. 143 body disallows the claim, in order to "assure prompt initiation of litigation." Gutter v. Seamandel, 103 Wis.2d 1, 22, 308 N.W.2d 403, 413 (1981). To be sure, the notice requirement serves the additional purpose of notifying the proper public officials of dangerous physical conditions or inappropriate and unlawful governmental conduct, which allows for prompt corrective measures. See Nielsen v. Town of Silver Cliff, 112 Wis.2d 574, 580, 334 N.W.2d 242, 245 (1983); Binder v. Madison, 72 Wis.2d 613, 623, 241 N.W.2d 613, 618 (1976). This interest, however, is clearly not the predominant objective of the statute. Indeed, the Wisconsin Supreme Court has emphasized that the requisite notice must spell out both the amount of damages the claimant seeks and his or her intent to hold the governing body responsible for those damages precisely because these requirements further the State's interest in minimizing liability and the expenses associated with it. See Gutter, supra, at 10-11, 308 N.W.2d at 407 (statute's purpose cannot be served unless the claim demands a specific sum of money); Pattermann v. Whitewater, 32 Wis.2d 350, 355-359, 145 N.W.2d 705, 708-709 (1966) (distinguishing notice-of-injury from notice of claim requirement).In sum, as respondents explain, the State has chosen to expose its subdivisions to large liability and defense costs, and, in light of that choice, has made the concomitant decision to impose conditions that "assis[t] municipalities in controlling those costs." Brief for Respondents 12. The decision to subject state subdivisions to liability for violations of federal rights, however, was a choice that Congress, not the Wisconsin Legislature, made, and it is a decision that the State has no authority to override. Thus, however understandable or laudable the State's interest in controlling liability expenses might otherwise be, it is patently incompatible with the compensatory goals of the federal legislation, as are the means the State has chosen to effectuate it. Page 487 U. S. 144This incompatibility is revealed by the design of the notice of claim statute itself, which operates as a condition precedent to recovery in all actions brought in state court against governmental entities or officers. Sambs v. Nowak, 47 Wis.2d 158, 167, 177 N.W.2d 144, 149 (1970). "Congress," we have previously noted,"surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action."Wilson, 471 U.S. at 471 U. S. 269. Yet that is precisely the consequence of what Wisconsin has done here: although a party bringing suit against a local governmental unit need not allege compliance with the notice statute as part of his or her complaint, Nielsen, supra, at 580, 334 N.W.2d at 245, the statute confers on governmental defendants an affirmative defense that obligates the plaintiff to demonstrate compliance with the notice requirement before he or she may recover at all, a showing altogether unnecessary when such an action is brought in federal court. States, however, may no more condition the federal right to recover for violations of civil rights than bar that right altogether, particularly where those conditions grow out of a waiver of immunity which, however necessary to the assertion of state-created rights against local governments, is entirely irrelevant insofar as the assertion of the federal right is concerned, see Martinez, 444 U.S. at 444 U. S. 284, and where the purpose and effect of those conditions, when applied in § 1983 actions, is to control the expense associated with the very litigation Congress has authorized.This burdening of a federal right, moreover, is not the natural or permissible consequence of an otherwise neutral, uniformly applicable state rule. Although it is true that the notice of claim statute does not discriminate between state and federal causes of action against local governments, the fact remains that the law's protection extends only to governmental defendants, and thus conditions the right to bring suit against the very persons and entities Congress intended to Page 487 U. S. 145 subject to liability. We therefore cannot accept the suggestion that this requirement is simply part of"the vast body of procedural rules, rooted in policies unrelated to the definition of any particular substantive cause of action, that forms no essential part of 'the cause of action' as applied to any given plaintiff."Brief for International City Management Association et al. as Amici Curiae 22 (Brief for Amici Curiae). On the contrary, the notice of claim provision is imposed only upon a specific class of plaintiffs -- those who sue governmental defendants -- and, as we have seen, is firmly rooted in policies very much related to, and to a large extent directly contrary to, the substantive cause of action provided those plaintiffs. This defendant-specific focus of the notice requirement serves to distinguish it, rather starkly, from rules uniformly applicable to all suits, such as rules governing service of process or substitution of parties, which respondents cite as examples of procedural requirements that penalize noncompliance through dismissal. That state courts will hear the entire § 1983 cause of action once a plaintiff complies with the notice of claim statute, therefore, in no way alters the fact that the statute discriminates against the precise type of claim Congress has created.(2)While respondents and amici suggest that prompt investigation of claims inures to the benefit of claimants and local governments alike by providing both with an accurate factual picture of the incident, such statutes "are enacted primarily for the benefit of governmental defendants," and are intended to afford such defendants an opportunity to prepare a stronger case. Civil Actions, at 564 (emphasis added); see also Brown v. United States, 239 U.S.App.D.C. at 354, 742 F.2d at 1506. Sound notions of public administration may support the prompt notice requirement, but those policies necessarily clash with the remedial purposes of the federal civil rights laws. In Wilson, we held that, for purposes Page 487 U. S. 146 of choosing a limitations period for § 1983 actions, federal courts must apply the state statute of limitations governing personal injury claims, because it is highly unlikely that States would ever fix the limitations period applicable to such claims in a manner that would discriminate against the federal right. Here, the notice of claim provision most emphatically does discriminate in a manner detrimental to the federal right: only those persons who wish to sue governmental defendants are required to provide notice within such an abbreviated time period. Many civil rights victims, however, will fail to appreciate the compensable nature of their injuries within the 4-month window provided by the notice of claim provision, [Footnote 3] and will thus be barred from asserting their federal right to recovery in state court unless they can show that the defendant had actual notice of the injury, the circumstances giving rise to it, and the claimant's intent to hold the defendant responsible -- a showing which, as the facts of this case vividly demonstrate, is not easily made in Wisconsin.(3)Finally, the notice provision imposes an exhaustion requirement on persons who choose to assert their federal right in state courts, inasmuch as the § 1983 plaintiff must provide the requisite notice of injury within 120 days of the civil rights violation, then wait an additional 120 days while the Page 487 U. S. 147 governmental defendant investigates the claim and attempts to settle it. In Patsy v. Board of Regents of Florida, 457 U. S. 496 (1982), we held that plaintiffs need not exhaust state administrative remedies before instituting § 1983 suits in federal court. The Wisconsin Supreme Court, however, deemed that decision inapplicable to this state court suit on the theory that States retain the authority to prescribe the rules and procedures governing suits in their courts. 139 Wis.2d at 623, 408 N.W.2d at 23. As we have just explained, however, that authority does not extend so far as to permit States to place conditions on the vindication of a federal right. Moreover, as we noted in Patsy, Congress enacted § 1983 in response to the widespread deprivations of civil rights in the Southern States and the inability or unwillingness of authorities in those States to protect those rights or punish wrongdoers. Patsy, supra, at 457 U. S. 503-505; see also Wilson v. Garcia, 471 U.S. at 471 U. S. 276-277, 471 U. S. 279. Although it is true that the principal remedy Congress chose to provide injured persons was immediate access to federal courts, Patsy, supra, at 457 U. S. 503-504, it did not leave the protection of such rights exclusively in the hands of the federal judiciary, and instead conferred concurrent jurisdiction on state courts as well. 457 U.S. at 457 U. S. 506-507. Given the evil at which the federal civil rights legislation was aimed, there is simply no reason to suppose that Congress meant "to provide these individuals immediate access to the federal courts notwithstanding any provision of state law to the contrary," id. at 457 U. S. 504, yet contemplated that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries. [Footnote 4] Page 487 U. S. 148Respondents nevertheless argue that any exhaustion requirement imposed by the notice of claim statute is essentially de minimis because the statutory settlement period entails none of the additional expense or undue delay typically associated with administrative remedies, and indeed does not alter a claimant's right to seek full compensation through suit. This argument fails for two reasons. First, it ignores our prior assessment of "the dominant characteristic of civil rights actions: they belong in court." Burnett, 468 U.S. at 468 U. S. 50 (emphasis added). "These causes of action," we have explained,"exist independent of any other legal or administrative relief that may be available as a matter of federal or state law. They are judicially enforceable in the first instance."Ibid. (emphasis added). The dominant characteristic of a § 1983 action, of course, does not vary depending upon whether it is litigated in state or federal court, and States therefore may not adulterate or dilute the predominant feature of the federal right by imposing mandatory settlement periods, no matter how reasonable the administrative waiting period or the interests it is designed to serve may appear.Second, our decision in Patsy rested not only on the legislative history of § 1983 itself, but also on the facts that, in the Civil Rights of Institutionalized Persons Act of 1980, 94 Stat. 353, 42 U.S.C. § 1997e, Congress established an exhaustion requirement for a specific class of § 1983 actions -- those brought by adult prisoners challenging the conditions of Page 487 U. S. 149 their confinement -- and that, in so doing, Congress expressly recognized that it was working a change in the law. Accordingly, we refused to engraft an exhaustion requirement onto another type of § 1983 action where Congress had not provided for one, not only because the judicial imposition of such a requirement would be inconsistent with Congress' recognition that § 1983 plaintiffs normally need not exhaust administrative remedies, 457 U.S. at 457 U. S. 508-512, but also because decisions concerning both the desirability and the scope and design of any exhaustion requirement turn on a host of policy considerations which "do not invariably point in one direction," and which, for that very reason, are best left to "Congress' superior institutional competence." Id. at 457 U. S. 513. "[P]olicy considerations alone," we concluded, "cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent." Ibid. While the exhaustion required by Wisconsin's notice of claim statute does not involve lengthy or expensive administrative proceedings, it forces injured persons to seek satisfaction from those alleged to have caused the injury in the first place. Such a dispute resolution system may have much to commend it, but that is a judgment the current Congress must make, for we think it plain that the Congress which enacted § 1983 over 100 years ago would have rejected as utterly inconsistent with the remedial purposes of its broad statute the notion that a State could require civil rights victims to seek compensation from offending state officials before they could assert a federal action in state court.Finally, to the extent the exhaustion requirement is designed to sift out "specious claims" from the stream of complaints that can inundate local governments in the absence of immunity, see Nielsen, 112 Wis.2d at 580, 334 N.W.2d at 245, we have rejected such a policy as inconsistent with the aims of the federal legislation. In Burnett, state officials urged the adoption of a 6-month limitations period in a § 1983 action in order that they might enjoy "some reasonable protection Page 487 U. S. 150 from the seemingly endless stream of unfounded, and often stale, lawsuits brought against them." 468 U.S. at 468 U. S. 54 (internal quotation marks omitted; citation omitted). Such a contention, we noted,"reflects in part a judgment that factors such as minimizing the diversion of state officials' attention from their duties outweigh the interest in providing [claimants] ready access to a forum to resolve valid claims."Id. at 468 U. S. 55. As we explained there, and reaffirm today, "[t]hat policy is manifestly inconsistent with the central objective of the Reconstruction-Era civil rights statutes." Ibid.CRespondents and their supporting amici urge that we approve the application of the notice of claim statute to § 1983 actions brought in state court as a matter of equitable federalism. They note that"'[t]he 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.'"Brief for Amici Curiae 8 (quoting Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 508 (1954)). Litigants who choose to bring their civil rights actions in state courts presumably do so in order to obtain the benefit of certain procedural advantages in those courts, or to draw their juries from urban populations. Having availed themselves of these benefits, civil rights litigants must comply as well with those state rules they find less to their liking.However equitable this bitter-with-the-sweet argument may appear in the abstract, it has no place under our Supremacy Clause analysis. Federal law takes state courts as it finds them only insofar as those courts employ rules that do not "impose unnecessary burdens upon rights of recovery authorized by federal laws." Brown v. Western R. Co. of Alabama, 338 U.S. at 338 U. S. 298-299; see also Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 486 U. S. 336 (1988) (state rule designed to encourage settlement cannot limit recovery Page 487 U. S. 151 in federally created action). States may make the litigation of federal rights as congenial as they see fit -- not as a quid pro quo for compliance with other, uncongenial rules, but because such congeniality does not stand as an obstacle to the accomplishment of Congress' goals. As we have seen, enforcement of the notice of claim statute in § 1983 actions brought in state court so interferes with and frustrates the substantive right Congress created that, under the Supremacy Clause, it must yield to the federal interest. This interference, however, is not the only consequence of the statute that renders its application in § 1983 cases invalid. In a State that demands compliance with such a statute before a § 1983 action may be brought or maintained in its courts, the outcome of federal civil rights litigation will frequently and predictably depend on whether it is brought in state or federal court. Thus, the very notions of federalism upon which respondents rely dictate that the State's outcome-determinative law must give way when a party asserts a federal right in state court.Under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), when a federal court exercises diversity or pendent jurisdiction over state law claims,"the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court."Guaranty Trust Co. v. York, 326 U. S. 99, 326 U. S. 109 (1945). Accordingly, federal courts entertaining state law claims against Wisconsin municipalities are obligated to apply the notice of claim provision. See Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 911 (CA7 1985). Just as federal courts are constitutionally obligated to apply state law to state claims, see Erie, supra, at 304 U. S. 78-79, so too the Supremacy Clause imposes on state courts a constitutional duty "to proceed in such manner that all the substantial rights of the parties under controlling federal law [are] protected." Garrett v. Moore-McCormack Co., 317 U. S. 239, 317 U. S. 245 (1942). Page 487 U. S. 152Civil rights victims often do not appreciate the constitutional nature of their injuries, see Burnett, 468 U.S. at 468 U. S. 50, and thus will fail to file a notice of injury or claim within the requisite time period, see n 3, supra, which in Wisconsin is a mere four months. Unless such claimants can prove that the governmental defendant had actual notice of the claim, which, as we have already noted, is by no means a simple task in Wisconsin, and unless they also file an itemized claim for damages, they must bring their § 1983 suits in federal court, or not at all. Wisconsin, however, may not alter the outcome of federal claims it chooses to entertain in its courts by demanding compliance with outcome-determinative rules that are inapplicable when such claims are brought in federal court, for"'[w]hatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.'"Brown v. Western R. Co. of Alabama, supra, at 338 U. S. 298-299 (quoting Davis v. Wechsler, 263 U. S. 22, 263 U. S. 24 (1923)). The state notice of claim statute is more than a mere rule of procedure: as we discussed above, the statute is a substantive condition on the right to sue governmental officials and entities, and the federal courts have therefore correctly recognized that the notice statute governs the adjudication of state law claims in diversity actions. Orthmann, supra, at 911. In Guaranty Trust, supra, we held that, in order to give effect to a State's statute of limitations, a federal court could not hear a state law action that a state court would deem time-barred. Conversely, a state court may not decline to hear an otherwise properly presented federal claim because that claim would be barred under a state law requiring timely filing of notice. State courts simply are not free to vindicate the substantive interests underlying a state rule of decision at the expense of the federal right.Finally, in Wilson, we characterized § 1983 suits as claims for personal injuries because such an approach ensured that Page 487 U. S. 153 the same limitations period would govern all § 1983 actions brought in any given State, and thus comported with Congress' desire that the federal civil rights laws be given a uniform application within each State. 471 U.S. at 471 U. S. 274-275. A law that predictably alters the outcome of § 1983 claims depending solely on whether they are brought in state or federal court within the same State is obviously inconsistent with this federal interest in intrastate uniformity.IIIIn enacting § 1983, Congress entitled those deprived of their civil rights to recover full compensation from the governmental officials responsible for those deprivations. A state law that conditions that right of recovery upon compliance with a rule designed to minimize governmental liability, and that directs injured persons to seek redress in the first instance from the very targets of the federal legislation, is inconsistent in both purpose and effect with the remedial objectives of the federal civil rights law. Principles of federalism, as well as the Supremacy Clause, dictate that such a state law must give way to vindication of the federal right when that right is asserted in state court.Accordingly, the judgment of the Supreme Court of Wisconsin is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtFelder v. Casey, 487 U.S. 131 (1988)Felder v. CaseyNo. 87-526Argued March 28, 1988Decided June 22, 1988487 U.S. 131SyllabusNine months after being allegedly beaten by Milwaukee police officers who arrested him on a disorderly conduct charge that was later dropped, petitioner filed this state court action against the city and certain of the officers under 42 U.S.C. § 1983, alleging that the beating and arrest were racially motivated, and violated his rights under the Fourth and Fourteenth Amendments to the Federal Constitution. The officers (respondents) moved to dismiss the suit because of petitioner's failure to comply with Wisconsin's notice of claim statute, which provides, inter alia, that before suit may be brought in state court against a state or local governmental entity or officer, the plaintiff, within 120 days of the alleged injury, must notify the defendant of the circumstances and amount of the claim and the plaintiff's intent to hold the named defendant liable; that the defendant then has 120 days to grant or disallow the requested relief; and that the plaintiff must bring suit within six months of receiving notice of disallowance. The court denied the motion as to petitioner's § 1983 claim, and the Wisconsin Court of Appeals affirmed. The Wisconsin Supreme Court reversed, holding that, while Congress may establish the procedural framework under which claims are heard in federal courts, States retain the authority under the Constitution to prescribe procedures that govern actions in their own tribunals, including actions to vindicate congressionally created rights.Held: Because the Wisconsin notice of claim statute conflicts in both its purpose and effects with § 1983's remedial objectives, and because its enforcement in state court actions will frequently and predictably produce different outcomes in § 1983 litigation based solely on whether the claim is asserted in state or federal court, it is preempted pursuant to the Supremacy Clause when the § 1983 action is brought in a state court. Pp. 487 U. S. 138-153.(a) Unlike the lack of statutes of limitations in the federal civil rights laws -- which has led to borrowing state law limitations periods for personal injury claims -- the absence of any federal notice of claim provision is not a deficiency requiring the importation of such a state law provision into the federal civil rights scheme. Notice of claim rules are neither universally familiar nor in any sense indispensable prerequisites to litigation, and there is thus no reason to suppose that Congress intended federal courts to apply such rules, which significantly inhibit the ability to Page 487 U. S. 132 bring federal actions. With regard to federal preemption (as opposed to adoption) of state law, application of the notice requirement burdens the exercise of the federal right by forcing civil rights victims who seek redress in state courts to comply with a requirement that is absent from civil rights litigation in federal courts. Moreover, enforcement of such statutes in state court § 1983 actions will frequently and predictably produce different outcomes in federal civil rights litigation based solely on whether the litigation takes place in state or federal court. Pp. 487 U. S. 139-141.(b) Wisconsin's notice of claim statute undermines § 1983's unique remedy against state governmental bodies and their officials by conditioning the right of recovery so as to minimize governmental liability. The state statute also discriminates against the federal right, since the State affords the victim of an intentional tort two years to recognize the compensable nature of his or her injury, while the civil rights victim is given only four months to appreciate that he or she has been deprived of a federal constitutional or statutory right. Moreover, the notice provision operates, in part, as an exhaustion requirement by forcing claimants to seek satisfaction in the first instance from the governmental defendant. Congress never intended that those injured by governmental wrongdoers could be required, as a condition of recovery, to submit their claims to the government responsible for their injuries. Pp. 487 U. S. 141-142.(c) Wisconsin has chosen, through its legislative scheme governing citizens' rights to sue the State's subdivisions, to expose its subdivisions to large liability and defense costs, and has made the concomitant decision to impose notice conditions that assist the subdivisions in controlling those costs. The decision to subject state subdivisions to liability for violations of federal rights, however, was a choice that Congress made, and it is a decision that the State has no authority to override. That state courts will hear the entire § 1983 cause of action once a plaintiff complies with the notice statute does not alter the fact that the statute discriminates against the precise type of claim Congress has created. Pp. 487 U. S. 142-145.(d) While prompt investigation of claims inures to the benefit of both claimants and local governments, notice statutes are enacted primarily for the benefit of governmental defendants, and are intended to afford such defendants an opportunity to prepare a stronger case. Sound notions of public administration may support the prompt notice requirement, but those policies necessarily clash with the remedial purposes of the federal civil rights laws. Pp. 487 U. S. 145-146.(e) Patsy v. Board of Regents of Florida, 457 U. S. 496, which held that plaintiffs need not exhaust state administrative remedies before instituting § 1983 suits in federal court, is not inapplicable to this state court suit on the theory, asserted by the Wisconsin Supreme Court, that Page 487 U. S. 133 States retain the authority to prescribe the rules and procedures governing suits in their courts. That authority does not extend so far as to permit States to place conditions on the vindication of a federal right. Congress meant to provide individuals immediate access to the federal courts, and did not contemplate that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries. There is no merit to respondents' contention that the exhaustion requirement imposed by the Wisconsin statute is essentially de minimis, because the statutory settlement period entails none of the additional expense or undue delay typically associated with administrative remedies, and does not alter a claimant's right to seek full compensation through suit. Moreover, to the extent the exhaustion requirement is designed to sift out "specious claims" from the stream of complaints that can inundate local governments in the absence of immunity, such a policy is inconsistent with the aims of the federal legislation. Pp. 487 U. S. 146-150.(f) Application of Wisconsin's statute to state court § 1983 actions cannot be approved as a matter of equitable federalism. Just as federal courts are constitutionally obligated to apply state law to state claims, the Supremacy Clause imposes on state courts a constitutional duty to proceed in such manner that all the substantial rights of the parties under controlling federal law are protected. A state law that predictably alters the outcome of § 1983 claims depending solely on whether they are brought in state or federal court within the State is obviously inconsistent with the federal interest in intrastate uniformity. Pp. 487 U. S. 150-153.139 Wis.2d 614, 408 N.W.2d 19, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 487 U. S. 153. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. 487 U. S. 156. Page 487 U. S. 134

1997_96-1337

authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race through traffic at breakneck speed. Willard's outrageous behavior was practically instantaneous, and so was Smith's instinctive response. While prudence would have repressed the reaction, Smith's instinct was to do his job, not to induce Willard's lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive. Pp. 845-855.98 F.3d 434, reversed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a concurring opinion, post, p. 855. KENNEDY, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 856. BREYER, J., filed a concurring opinion, post, p. 858. STEVENS, J., filed an opinion concurring in the judgment, post, p. 859. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p.860.Terence J. Cassidy argued the cause and filed briefs for petitioners.Paul J. Hedlund argued the cause for respondents. With him on the brief was Michael L. Baum. **Briefs of amici curiae urging reversal were filed for the State of Alaska et al. by Daniel E. Lungren, Attorney General of California, Margaret A. Rodda, Senior Assistant Attorney General, Darryl L. Doke, Supervising Deputy Attorney General, and Stephen J. Egan, Deputy Attorney General, joined by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Grant Woods of Arizona, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Michael E. Carpenter of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Heidi Heitkamp of North Dakota, D. Michael Fisher of Pennsylvania, Mark W Barnett of South Dakota, Jan Graham of Utah, Richard Cullen of Virginia, Darrell V. McGraw, Jr., of West Virginia, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; for the City and County of Denver by Theodore S. Halaby; for the County of Riverside et al. by William C. Katzenstein, James K. Hahn, Gregory836JUSTICE SOUTER delivered the opinion of the Court.The issue in this case is whether a police officer violates the Fourteenth Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. We answer no, and hold that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.IOn May 22, 1990, at approximately 8:30 p.m., petitioner James Everett Smith, a Sacramento County sheriff's deputy, along with another officer, Murray Stapp, responded to a call to break up a fight. Upon returning to his patrol car, Stapp saw a motorcycle approaching at high speed. It was operated by 18-year-old Brian Willard and carried Philip Lewis, respondents' 16-year-old decedent, as a passenger. Neither boy had anything to do with the fight that prompted the call to the police.Stapp turned on his overhead rotating lights, yelled to the boys to stop, and pulled his patrol car closer to Smith's, attempting to pen the motorcycle in. Instead of pulling over in response to Stapp's warning lights and commands, WillardP. Orland, Timothy T. Coates, H. Peter Klein, Alan K. Marks, James B. Lindholm, Jr., Steven M. Woodside, James Rumble, and James P. Botz; for the Grand Lodge of the Fraternal Order of Police by Gary Lightman, Thomas T. Rutherford, and William J. Friedman; for the National Association of Counties et al. by Richard Ruda and Charles Rothfeld; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Howard A. Friedman and Richard D. Haley; for Gabriel Torres et al. by Stephen Yagman and Marion R. Yagman; and for Solutions to the Tragedies of Police Pursuits (STOPP) by Andrew C. Clarke.837slowly maneuvered the motorcycle between the two police cars and sped off. Smith immediately switched on his own emergency lights and siren, made a quick turn, and began pursuit at high speed. For 75 seconds over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off the road. The motorcycle and patrol car reached speeds up to 100 miles an hour, with Smith following at a distance as short as 100 feet; at that speed, his car would have required 650 feet to stop.The chase ended after the motorcycle tipped over as Willard tried a sharp left turn. By the time Smith slammed on his brakes, Willard was out of the way, but Lewis was not. The patrol car skidded into him at 40 miles an hour, propelling him some 70 feet down the road and inflicting massive injuries. Lewis was pronounced dead at the scene.Respondents, Philip Lewis's parents and the representatives of his estate, brought this action under Rev. Stat. § 1979, 42 U. S. C. § 1983, against petitioners Sacramento County, the Sacramento County Sheriff's Department, and Deputy Smith, alleging a deprivation of Philip Lewis's Fourteenth Amendment substantive due process right to life.1 The District Court granted summary judgment for Smith, reasoning that even if he violated the Constitution, he was entitled to qualified immunity, because respondents could point to no "state or federal opinion published before May, 1990, when the alleged misconduct took place, that supports1 Respondents also brought claims under state law. The District Court found that Smith was immune from state tort liability by operation of California Vehicle Code § 17004, which provides that "[a] public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle ... when in the immediate pursuit of an actual or suspected violator of the law." Cal. Veh. Code Ann. § 17004 (West 1971). The court declined to rule on the potential liability of the county under state law, instead dismissing the tort claims against the county without prejudice to refiling in state court.838[their] view that [the decedent had] a Fourteenth Amendment substantive due process right in the context of high speed police pursuits." App. to Pet. for Cert. 52.2The Court of Appeals for the Ninth Circuit reversed, holding that "the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person's right to life and personal security," 98 F.3d 434, 441 (1996), and concluding that "the law regarding police liability for death or injury caused by an officer during the course of a high-speed chase was clearly established" at the time of Philip Lewis's death, id., at 445. Since Smith apparently disregarded the Sacramento County Sheriff's Department's General Order on police pursuits, the Ninth Circuit found a genuine issue of material fact that might be resolved by a finding that Smith's conduct amounted to deliberate indifference:"The General Order requires an officer to communicate his intention to pursue a vehicle to the sheriff's department dispatch center. But defendants concede that Smith did not contact the dispatch center. The General Order requires an officer to consider whether the seriousness of the offense warrants a chase at speeds in excess of the posted limit. But here, the only apparent 'offense' was the boys' refusal to stop when another officer told them to do so. The General Order requires an officer to consider whether the need for apprehen-2 The District Court also granted summary judgment in favor of the county and the Sheriff's Department on the § 1983 claim, concluding that municipal liability would not lie under Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978), after finding no genuine factual dispute as to whether the county adequately trains its officers in the conduct of vehicular pursuits or whether the pursuit policy of the Sheriff's Department evinces deliberate indifference to the constitutional rights of the public. The Ninth Circuit affirmed the District Court on these points, 98 F.3d 434, 446-447 (1996), and the issue of municipal liability is not before us.839sion justifies the pursuit under existing conditions. Yet Smith apparently only 'needed' to apprehend the boys because they refused to stop. The General Order requires an officer to consider whether the pursuit presents unreasonable hazards to life and property. But taking the facts here in the light most favorable to plaintiffs, there existed an unreasonable hazard to Lewis's and Willard's lives. The General Order also directs an officer to discontinue a pursuit when the hazards of continuing outweigh the benefits of immediate apprehension. But here, there was no apparent danger involved in permitting the boys to escape. There certainly was risk of harm to others in continuing the pursuit." Id., at 442.Accordingly, the Court of Appeals reversed the summary judgment in favor of Smith and remanded for trial.We granted certiorari, 520 U. S. 1250 (1997), to resolve a conflict among the Circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case. Compare 98 F. 3d, at 441 ("deliberate indifference" or "reckless disregard"),3 with Evans v. Avery, 100 F.3d 1033, 1038 (CAl1996) ("shocks the conscience"), cert. denied, 520 U. S. 1210 (1997); Williams v. Denver, 99 F.3d 1009, 1014-1015 (CAlO 1996) (same); Fagan v. Vineland, 22 F.3d 1296, 1306-1307 (CA3 1994) (en banc) (same); Temkin v. Frederick County Commissioners, 9453 In Jones v. Sherrill, 827 F.2d 1102, 1106 (1987), the Sixth Circuit adopted a "gross negligence" standard for imposing liability for harm caused by police pursuit. Subsequently, in Foy v. Berea, 58 F.3d 227, 230 (1995), the Sixth Circuit, without specifically mentioning Jones, disavowed the notion that "gross negligence is sufficient to support a substantive due process claim." Although Foy involved police inaction, rather than police pursuit, it seems likely that the Sixth Circuit would now apply the "deliberate indifference" standard utilized in that case, see 58 F. 3d, at 232-233, rather than the "gross negligence" standard adopted in Jones, in a police pursuit situation.840F. 2d 716, 720 (CA4 1991) (same), cert. denied, 502 U. S. 1095 (1992); and Checki v. Webb, 785 F.2d 534, 538 (CA5 1986) (same). We now reverse.IIOur prior cases have held the provision that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law," U. S. Const., Arndt. 14, § 1, to "guarante[e] more than fair process," Washington v. Glucksberg, 521 U. S. 702, 719 (1997), and to cover a substantive sphere as well, "barring certain government actions regardless of the fairness of the procedures used to implement them," Daniels v. Williams, 474 U. S. 327, 331 (1986); see also Zinermon v. Burch, 494 U. S. 113, 125 (1990) (noting that substantive due process violations are actionable under § 1983). The allegation here that Lewis was deprived of his right to life in violation of substantive due process amounts to such a claim, that under the circumstances described earlier, Smith's actions in causing Lewis's death were an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the Fourteenth Amendment. Cf. Collins v. Harker Heights, 503 U. S. 115, 126 (1992) (noting that the Due Process Clause was intended to prevent government officials '" "from abusing [their] power, or employing it as an instrument of oppression"''') (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989), in turn quoting Davidson v. Cannon, 474 U. S. 344, 348 (1986)).44 Respondents do not argue that they were denied due process of law by virtue of the fact that California's postdeprivation procedures and rules of immunity have effectively denied them an adequate opportunity to seek compensation for the state-occasioned deprivation of their son's life. We express no opinion here on the merits of such a claim, cf. Albright v. Oliver, 510 U. S. 266, 281-286 (1994) (KENNEDY, J., concurring in judgment); Parratt v. Taylor, 451 U. S. 527 (1981), or on the adequacy of California's postdeprivation compensation scheme.841Leaving aside the question of qualified immunity, which formed the basis for the District Court's dismissal of their case,5 respondents face two principal objections to their5 As in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated. See Graham v. Connor, 490 U. S. 386, 394 (1989). The District Court granted summary judgment to Smith on the basis of qualified immunity, assuming without deciding that a substantive due process violation took place but holding that the law was not clearly established in 1990 so as to justify imposition of § 1983 liability. We do not analyze this case in a similar fashion because, as we have held, the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. N ormally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question. See Siegert v. Gilley, 500 U. S. 226, 232 (1991) ("A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all," and courts should not "assum[e], without deciding, this preliminary issue").JUSTICE STEVENS suggests that the rule of Siegert should not apply where, as here, the constitutional question presented "is both difficult and unresolved." Post, at 859. But the generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or nonconstitutional. In practical terms, escape from uncertainty would require the issue to arise in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion in a criminal proceeding; in none of these instances would qualified immunity be available to block a determination of law. See Shapiro, Public Officials' Qualified Immunity in Section 1983 Actions Under Harlow v. Fitzgerald and its Progeny, 22 U. Mich. J. L. Ref. 249, 265, n. 109 (1989). But these avenues would not necessarily be open, and therefore842claim. The first is that its subject is necessarily governed by a more definite provision of the Constitution (to the exclusion of any possible application of substantive due process); the second, that in any event the allegations are insufficient to state a substantive due process violation through executive abuse of power. Respondents can meet the first objection, but not the second.ABecause we have "always been reluctant to expand the concept of substantive due process," Collins v. Harker Heights, supra, at 125, we held in Graham v. Connor, 490 U. S. 386 (1989), that "[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Albright v. Oliver, 510 U. S. 266, 273 (1994) (plurality opinion of REHNQUIsT, C. J.) (quoting Graham v. Connor, supra, at 395) (internal quotation marks omitted). Given the rule in Graham, we were presented at oral argument with the threshold issue raised in several amicus briefs,6 whether facts involving a police chase aimed at apprehending suspects can ever support a due process claim. The argument runs that in chasing the motorcycle, Smith was attempting to make a seizure within the meaning of the Fourth Amendment, and, perhaps, even that he succeeded when Lewis was stopped by the fatal collision. Hence, any liability must turn on an application of the reasonableness stand-the better approach is to determine the right before determining whether it was previously established with clarity.6 See Brief for National Association of Counties et al. as Amici Curiae 8-13; Brief for Grand Lodge of the Fraternal Order of Police as Amicus Curiae 4-9; Brief for City and County of Denver, Colorado, as Amici Curiae 2-7; Brief for County of Riverside et al. as Amici Curiae 6-18; Brief for Gabriel Torres et al. as Amici Curiae 3-11.843ard governing searches and seizures, not the due process standard of liability for constitutionally arbitrary executive action. See Graham v. Connor, supra, at 395 ("[Alll claims that law enforcement officers have used excessive forcedeadly or not-in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach" (emphasis in original)); Albright v. Oliver, 510 U. S., at 276 (GINSBURG, J., concurring); id., at 288, n. 2 (SOUTER, J., concurring in judgment). One Court of Appeals has indeed applied the rule of Graham to preclude the application of principles of generalized substantive due process to a motor vehicle passenger's claims for injury resulting from reckless police pursuit. See Mays v. East St. Louis, 123 F.3d 999, 1002-1003 (CA7 1997).The argument is unsound. Just last Term, we explainedthat Graham"does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U. S. 259, 272, n. 7 (1997).Substantive due process analysis is therefore inappropriate in this case only if respondents' claim is "covered by" the Fourth Amendment. It is not.The Fourth Amendment covers only "searches and seizures," neither of which took place here. No one suggests that there was a search, and our cases foreclose finding a seizure. We held in California v. Hodari D., 499 U. S. 621,844626 (1991), that a police pursuit in attempting to seize a person does not amount to a "seizure" within the meaning of the Fourth Amendment. And in Brower v. County of Inyo, 489 U. S. 593, 596-597 (1989), we explained that "a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied." We illustrated the point by saying that no Fourth Amendment seizure would take place where a "pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit," but accidentally stopped the suspect by crashing into him. Id., at 597. That is exactly this case. See, e. g., Campbell v. White, 916 F.2d 421, 423 (CA7 1990) (following Brower and finding no seizure where a police officer accidentally struck and killed a fleeing motorcyclist during a high-speed pursuit), cert. denied, 499 U. S. 922 (1991). Graham's more-specific-provision rule is therefore no bar to respondents' suit. See, e. g., Frye v. Akron, 759 F. Supp. 1320,1324 (ND Ind. 1991) (parents of a motorcyclist who was struck and killed by a police car during a high-speed pursuit could sue under substantive due process because no Fourth Amendment seizure took place); Evans v. Avery, 100 F. 3d, at 1036 (noting that "outside the context of a seizure, ... a person injured as a result of police misconduct may prosecute a substantive due process claim under section 1983"); Pleasant v. Zamieski, 895 F.2d 272, 276, n. 2 (CA6) (noting that Graham "preserve[s] fourteenth amendment substantive due process analysis for those instances in which a free citizen is denied his or her constitutional right to life through means other than a law enforcement official's arrest, investi-845gatory stop or other seizure"), cert. denied, 498 U. S. 851 (1990).7BSince the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action:"The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 235-244 [(1819)]: 'As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.'" Hurtado v. California, 110 U. S. 516, 527 (1884).We have emphasized time and again that "[t]he touchstone of due process is protection of the individual against arbitrary action of government," Wolff v. McDonnell, 418 U. S. 539, 558 (1974), whether the fault lies in a denial of funda-7 Several amici suggest that, for the purposes of Graham, the Fourth Amendment should cover not only seizures, but also failed attempts to make a seizure. See, e. g., Brief for National Association of Counties et al. as Amici Curiae 10-11. This argument is foreclosed by California v. Hodari D., 499 U. S. 621 (1991), in which we explained that "neither usage nor common-law tradition makes an attempted seizure a seizure. The common law may have made an attempted seizure unlawful in certain circumstances; but it made many things unlawful, very few of which were elevated to constitutional proscriptions." Id., at 626, n. 2. Attempted seizures of a person are beyond the scope of the Fourth Amendment. See id., at 646 (STEVENS, J., dissenting) (disagreeing with the Court's position that "an attempt to make [a] ... seizure is beyond the coverage of the Fourth Amendment").846mental procedural fairness, see, e. g., Fuentes v. Shevin, 407 U. S. 67, 82 (1972) (the procedural due process guarantee protects against "arbitrary takings"), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e. g., Daniels v. Williams, 474 U. S., at 331 (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised). While due process protection in the substantive sense limits what the government may do in both its legislative, see, e. g., Griswold v. Connecticut, 381 U. S. 479 (1965), and its executive capacities, see, e. g., Rochin v. California, 342 U. S. 165 (1952), criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be "arbitrary in the constitutional sense," Collins v. Harker Heights, 503 U. S., at 129, thereby recognizing the point made in different circumstances by Chief Justice Marshall, "'that it is a constitution we are expounding,'" Daniels v. Williams, supra, at 332 (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original)). Thus, in Collins v. Harker Heights, for example, we said that the Due Process Clause was intended to prevent government officials '" "from abusing [their] power, or employing it as an instrument of oppression."'" 503 U. S., at 126 (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S., at 196, in turn quoting Davidson v. Cannon, 474 U. S., at 348).To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v. California, supra, at 172-173, where we found the forced pumping of a suspect's stomach enough to offend due process as conduct "that shocks the conscience" and violates the "decencies of civilized conduct." In the intervening847years we have repeatedly adhered to Rochin's benchmark. See, e. g., Breithaupt v. Abram, 352 U. S. 432, 435 (1957) (reiterating that conduct that" 'shocked the conscience' and was so 'brutal' and 'offensive' that it did not comport with traditional ideas of fair play and decency" would violate substantive due process); Whitley v. Albers, 475 U. S. 312, 327 (1986) (same); United States v. Salerno, 481 U. S. 739, 746 (1987) ("So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' ... or interferes with rights 'implicit in the concept of ordered liberty''') (quoting Rochin v. California, supra, at 172, and Palko v. Connecticut, 302 U. S. 319, 325-326 (1937)). Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." While the measure of what is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, "poin[t] the way." Johnson v. Glick, 481 F.2d 1028, 1033 (CA2), cert. denied, 414 U. S. 1033 (1973).88 As JUSTICE SCALIA has explained before, he fails to see "the usefulness of 'conscience shocking' as a legal test," Herrera v. Collins, 506 U. S. 390, 428 (1993), and his independent analysis of this case is therefore understandable. He is, however, simply mistaken in seeing our insistence on the shocks-the-conscience standard as an atavistic return to a scheme of due process analysis rejected by the Court in Washington v. Glucksberg, 521 U. S. 702 (1997).Glucksberg presented a disagreement about the significance of historical examples of protected liberty in determining whether a given statute could be judged to contravene the Fourteenth Amendment. The differences of opinion turned on the issues of how much history indicating recognition of the asserted right, viewed at what level of specificity, is necessary to support the finding of a substantive due process right entitled to prevail over state legislation.As we explain in the text, a case challenging executive action on substantive due process grounds, like this one, presents an issue antecedent to any question about the need for historical examples of enforcing a lib-848It should not be surprising that the constitutional concept of conscience shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability. Thus, we have made it clear that the due process guarantee does not entail a body of constitutionallaw imposing liability whenever someone cloaked with state authority causes harm. In Paul v. Davis, 424 U. S. 693, 701 (1976), for example, we explained that the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States," and in Daniels v. Williams, 474 U. S., at 332, we reaffirmed the point that "[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." We have accordingly rejected the lowest common denominator of customary tort lia-erty interest of the sort claimed. For executive action challenges raise a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we have called a font of tort law. Thus, in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them. Only if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action, and only then might there be a debate about the sufficiency of historical examples of enforcement of the right claimed, or its recognition in other ways. In none of our prior cases have we considered the necessity for such examples, and no such question is raised in this case.In sum, the difference of opinion in Glucksberg was about the need for historical examples of recognition of the claimed liberty protection at some appropriate level of specificity. In an executive action case, no such issue can arise if the conduct does not reach the degree of the egregious.849bility as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. See id., at 328; see also Davidson v. Cannon, 474 U. S., at 348 (clarifying that Daniels applies to substantive, as well as procedural, due process). It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. See Daniels v. Williams, 474 U. S., at 331 ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property" (emphasis in original)).Whether the point of the conscience shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but "less than intentional conduct, such as recklessness or 'gross negligence,'" id., at 334, n. 3, is a matter for closer calls.9 To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, ibid., and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239 (1983), that "the due process rights of a [pretrial detainee] are at least as great as the9In Rochin v. California, 342 U. S. 165 (1952), the case in which we formulated and first applied the shocks-the-conscience test, it was not the ultimate purpose of the government actors to harm the plaintiff, but they apparently acted with full appreciation of what the Court described as the brutality of their acts. Rochin, of course, was decided long before Graham v. Connor (and Mapp v. Ohio, 367 U. S. 643 (1961)), and today would be treated under the Fourth Amendment, albeit with the same result.850Eighth Amendment protections available to a convicted prisoner." Id., at 244 (citing Bell v. Wolfish, 441 U. S. 520, 535, n. 16, 545 (1979)). Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, see Estelle v. Gamble, 429 U. S. 97, 104 (1976), it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial, see, e. g., Barrie v. Grand County, Utah, 119 F.3d 862, 867 (CAlO 1997); Weyant v. Okst, 101 F.3d 845, 856 (CA2 1996).10Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. What we have said of due process in the procedural sense is just as true here:"The phrase [due process of law] formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial." Betts v. Brady, 316 U. S. 455, 462 (1942).lOWe have also employed deliberate indifference as a standard of culpability sufficient to identify a dereliction as reflective of municipal policy and to sustain a claim of municipal liability for failure to train an employee who causes harm by unconstitutional conduct for which he would be individually liable. See Canton v. Harris, 489 U. S. 378, 388-389 (1989).851Thus, attention to the markedly different circumstances of normal pretrial custody and high-speed law enforcement chases shows why the deliberate indifference that shocks in the one case is less egregious in the other (even assuming that it makes sense to speak of indifference as deliberate in the case of sudden pursuit). As the very term "deliberate indifference" implies, the standard is sensibly employed only when actual deliberation is practical, see Whitley v. Albers, 475 U. S., at 320,11 and in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare."[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs-e. g., food, clothing, shelter, medical care, and reasonable safety-it transgresses the substantive limits on state action set by the ... Due Process Clause." DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S., at 199-200 (citation and footnote omitted).Nor does any substantial countervailing interest excuse the State from making provision for the decent care and protection of those it locks up; "the State's responsibility to attend11 By "actual deliberation," we do not mean "deliberation" in the narrow, technical sense in which it has sometimes been used in traditional homicide law. See, e. g., Caldwell v. State, 84 So. 272, 276 (Ala. 1919) (noting that "'deliberation here does not mean that the man slayer must ponder over the killing for a long time'''; rather, "it may exist and may be entertained while the man slayer is pressing the trigger of the pistol that fired the fatal shot[,] even if it be only for a moment or instant of time").852to the medical needs of prisoners [or detainees] does not ordinarily clash with other equally important governmental responsibilities." Whitley v. Albers, supra, at 320.12But just as the description of the custodial prison situation shows how deliberate indifference can rise to a constitutionally shocking level, so too does it suggest why indifference may well not be enough for liability in the different circumstances of a case like this one. We have, indeed, found that deliberate indifference does not suffice for constitutional liability (albeit under the Eighth Amendment) even in prison circumstances when a prisoner's claim arises not from normal custody but from response to a violent disturbance. Our analysis is instructive here:"[I]n making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials undoubtedly must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used .... In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance." Whitley v. Albers, 475 U. S., at 320.We accordingly held that a much higher standard of fault than deliberate indifference has to be shown for officer liabil-12 Youngberg v. Romeo, 457 U. S. 307 (1982), can be categorized on much the same terms. There, we held that a severely retarded person could state a claim under § 1983 for a violation of substantive due process if the personnel at the mental institution where he was confined failed to exercise professional judgment when denying him training and habilitation. Id., at 319-325. The combination of a patient's involuntary commitment and his total dependence on his custodians obliges the government to take thought and make reasonable provision for the patient's welfare.853ity in a prison riot. In those circumstances, liability should turn on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id., at 320-321 (internal quotation marks omitted). The analogy to sudden police chases (under the Due Process Clause) would be hard to avoid.Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made "in haste, under pressure, and frequently without the luxury of a second chance." Id., at 320; cf. Graham v. Connor, 490 U. S., at 397 ("[P]olice officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving"). A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the highspeed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders.To recognize a substantive due process violation in these circumstances when only midlevel fault has been shown would be to forget that liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking. But when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates "the large concerns of the governors and the governed." Daniels v. Wil-854liams, 474 U. S., at 332. Just as a purpose to cause harm is needed for Eighth Amendment liability in a riot case, so it ought to be needed for due process liability in a pursuit case. Accordingly, we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.13The fault claimed on Smith's part in this case accordingly fails to meet the shocks-the-conscience test. In the count charging him with liability under § 1983, respondents' complaint alleges a variety of culpable states of mind: "negligently responsible in some manner," App. 11, Count one, , 8, "reckless and careless," id., at 12, '15, "recklessness, gross negligence and conscious disregard for [Lewis's] safety," id., at 13, n8, and "oppression, fraud and malice," ibid. The subsequent summary judgment proceedings revealed that the height of the fault actually claimed was "conscious disregard," the malice allegation having been made in aid of a request for punitive damages, but unsupported either in allegations of specific conduct or in any affidavit of fact offered on the motions for summary judgment. The Court of Appeals understood the claim to be one of deliberate indifference to Lewis's survival, which it treated as equivalent to one of reckless disregard for life. We agree with this reading of respondents' allegations, but consequently part company from the Court of Appeals, which found them sufficient to state a substantive due process claim, and from the District Court, which made the same assumption arguendo.1413 Cf. Checki v. Webb, 785 F.2d 534, 538 (CA5 1986) ("Where a citizen suffers physical injury due to a police officer's negligent use of his vehicle, no section 1983 claim is stated. It is a different story when a citizen suffers or is seriously threatened with physical injury due to a police officer's intentional misuse of his vehicle" (citation omitted)).14 To say that due process is not offended by the police conduct described here is not, of course, to imply anything about its appropriate treatment under state law. See Collins v. Harker Heights, 503 U. S. 115, 128-129 (1992) (decisions about civil liability standards that "involve a host of pol-855Smith was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause Willard's high-speed driving in the first place, nothing to excuse his flouting of the commonly understood law enforcement authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race through traffic at breakneck speed forcing other drivers out of their travel lanes. Willard's outrageous behavior was practically instantaneous, and so was Smith's instinctive response. While prudence would have repressed the reaction, the officer's instinct was to do his job as a law enforcement officer, not to induce Willard's lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive on his part.Regardless whether Smith's behavior offended the reasonableness held up by tort law or the balance struck in law enforcement's own codes of sound practice, it does not shock the conscience, and petitioners are not called upon to answer for it under § 1983. The judgment below is accordingly reversed.It is so ordered

OCTOBER TERM, 1997SyllabusCOUNTY OF SACRAMENTO ET AL. v. LEWIS, ET AL., PERSONAL REPRESENTATIVES OF THE ESTATEOF LEWIS, DECEASEDCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 96-1337. Argued December 9, 1997-Decided May 26,1998After petitioner James Smith, a county sheriff's deputy, responded to a call along with another officer, Murray Stapp, the latter returned to his patrol car and saw a motorcycle approaching at high speed, driven by Brian Willard, and carrying Philip Lewis, respondents' decedent, as a passenger. Stapp turned on his rotating lights, yelled for the cycle to stop, and pulled his car closer to Smith's in an attempt to pen the cycle in, but Willard maneuvered between the two cars and sped off. Smith immediately switched on his own emergency lights and siren and began high-speed pursuit. The chase ended after the cycle tipped over. Smith slammed on his brakes, but his car skidded into Lewis, causing massive injuries and death. Respondents brought this action under 42 U. S. C. § 1983, alleging a deprivation of Lewis's Fourteenth Amendment substantive due process right to life. The District Court granted summary judgment for Smith, but the Ninth Circuit reversed, holding, inter alia, that the appropriate degree of fault for substantive due process liability for high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person's right to life and personal security.Held: A police officer does not violate substantive due process by causing death through deliberate or reckless indifference to life in a highspeed automobile chase aimed at apprehending a suspected offender. Pp.840-855.(a) The "more-specific-provision" rule of Graham v. Connor, 490 U. S. 386, 395, does not bar respondents' suit. Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, the claim must be analyzed under the standard appropriate to that specific provision, not under substantive due process. E. g., United States v. Lanier, 520 U. S. 259, 272, n. 7. Substantive due process analysis is therefore inappropriate here only if, as amici argue, respondents' claim is "covered by" the Fourth Amendment. It is not. That Amendment covers only "searches and seizures," neither of which took place here. No one suggests that there was a search, and this Court's cases foreclose finding a seizure, since Smith did not terminate Lewis's freedom834Syllabusof movement through means intentionally applied. E. g., Brower v. County of Inyo, 489 U. S. 593, 597. Pp. 842-845.(b) Respondents' allegations are insufficient to state a substantive due process violation. Protection against governmental arbitrariness is the core of due process, e. g., Hurtado v. California, 110 U. S. 516, 527, including substantive due process, see, e. g., Daniels v. Williams, 474 U. S. 327, 331, but only the most egregious executive action can be said to be "arbitrary" in the constitutional sense, e. g., Collins v. Harker Heights, 503 U. S. 115, 129; the cognizable level of executive abuse of power is that which shocks the conscience, e. g., id., at 128; Rochin v. California, 342 U. S. 165, 172-173. The conscience-shocking concept points clearly away from liability, or clearly toward it, only at the ends of the tort law's culpability spectrum: Liability for negligently inflicted harm is categorically beneath the constitutional due process threshold, see, e. g., Daniels v. Williams, 474 U. S., at 328, while conduct deliberately intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscienceshocking level, see id., at 331. Whether that level is reached when culpability falls between negligence and intentional conduct is a matter for closer calls. The Court has recognized that deliberate indifference is egregious enough to state a substantive due process claim in one context, that of deliberate indifference to the medical needs of pretrial detainees, see City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239,244; cf. Estelle v. Gamble, 429 U. S. 97, 104, but rules of due process are not subject to mechanical application in unfamiliar territory, and the need to preserve the constitutional proportions of substantive due process demands an exact analysis of context and circumstances before deliberate indifference is condemned as conscience shocking, cf. Betts v. Brady, 316 U. S. 455, 462. Attention to the markedly different circumstances of normal pretrial custody and high-speed law enforcement chases shows why the deliberate indifference that shocks in the one context is less egregious in the other. In the circumstances of a highspeed chase aimed at apprehending a suspected offender, where unforeseen circumstances demand an instant judgment on the part of an officer who feels the pulls of competing obligations, only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the shocksthe-conscience test. Such chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to substantive due process liability. Cf. Whitley v. Albers, 475 U. S. 312, 320-321. The fault claimed on Smith's part fails to meet this test. Smith was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause Willard's high-speed driving in the first place, nothing to excuse his flouting of the commonly understood police835Full Text of Opinion

1984_84-233

JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner is a Delaware corporation which has its principal place of business in Oklahoma. During the 1970's it produced or purchased natural gas from leased land located in 11 different States, and sold most of the gas in interstate commerce. Respondents are some 28,000 of the royalty owners possessing rights to the leases from which petitioner produced the gas; they reside in all 50 States, the District of Columbia, and several foreign countries. Respondents brought a class action against petitioner in the Kansas state court, seeking to recover interest on royalty payments which had been delayed by petitioner. They recovered judgment in the trial court, and the Supreme Court of Kansas affirmed the judgment over petitioner's contentions that the Due Process Clause of the Fourteenth Amendment prevented Kansas from adjudicating the claims of all the respondents, and that the Due Process Clause and the Full Faith and Credit Clause of Article IV of the Constitution prohibited the application of Kansas law to all of the transactions between petitioner and respondents. 235 Kan.195, 679 P.2d 1159 (1984). We granted certiorari to consider these claims. 469 U.S. 879 (1984). We reject petitioner's jurisdictional claim, but sustain its claim regarding the choice of law.Because petitioner sold the gas to its customers in interstate commerce, it was required to secure approval for price increases from what was then the Federal Power Commission, and is now the Federal Energy Regulatory Commission. Under its regulations, the Federal Power Commission permitted petitioner to propose and collect tentative higher gas prices, subject to final approval by the Commission. If the Commission eventually denied petitioner's proposed price increase or reduced the proposed increase, petitioner would Page 472 U. S. 800 have to refund to its customers the difference between the approved price and the higher price charged, plus interest at a rate set by statute. See 18 CFR § 154.102 (1984).Although petitioner received higher gas prices pending review by the Commission, petitioner suspended any increase in royalties paid to the royalty owners because the higher price could be subject to recoupment by petitioner's customers. Petitioner agreed to pay the higher royalty only if the royalty owners would provide petitioner with a bond or indemnity for the increase, plus interest, in case the price increase was not ultimately approved and a refund was due to the customers. Petitioner set the interest rate on the indemnity agreements at the same interest rate the Commission would have required petitioner to refund to its customers. A small percentage of the royalty owners provided this indemnity and received royalties immediately from the interim price increases; these royalty owners are unimportant to this case.The remaining royalty owners received no royalty on the unapproved portion of the prices until the Federal Power Commission approval of those prices became final. Royalties on the unapproved portion of the gas price were suspended three times by petitioner, corresponding to its three proposed price increases in the mid-1970's. In three written opinions, the Commission approved all of petitioner's tentative price increases, so petitioner paid to its royalty owners the suspended royalties of $3.7 million in 1976, $4.7 million in 1977, and $2.9 million in 1978. Petitioner paid no interest to the royalty owners although it had the use of the suspended royalty money for a number of years.Respondents Irl Shutts, Robert Anderson, and Betty Anderson filed suit against petitioner in Kansas state court, seeking interest payments on their suspended royalties which petitioner had possessed pending the Commission's approval of the price increases. Shutts is a resident of Kansas, and the Andersons live in Oklahoma. Shutts and the Andersons Page 472 U. S. 801 own gas leases in Oklahoma and Texas. Over petitioner's objection the Kansas trial court granted respondents' motion to certify the suit as a class action under Kansas law. Kan.Stat.Ann. § 60-223 et seq. (1983). The class as certified was comprised of 33,000 royalty owners who had royalties suspended by petitioner. The average claim of each royalty owner for interest on the suspended royalties was $100.After the class was certified respondents provided each class member with notice through first-class mail. The notice described the action and informed each class member that he could appear in person or by counsel; otherwise each member would be represented by Shutts and the Andersons, the named plaintiffs. The notices also stated that class members would be included in the class and bound by the judgment unless they "opted out" of the lawsuit by executing and returning a "request for exclusion" that was included with the notice. The final class as certified contained 28, 100 members; 3,400 had "opted out" of the class by returning the request for exclusion, and notice could not be delivered to another 1,500 members, who were also excluded. Less than 1,000 of the class members resided in Kansas. Only a minuscule amount, approximately one quarter of one percent, of the gas leases involved in the lawsuit were on Kansas land.After petitioner's mandamus petition to decertify the class was denied, Phillips Petroleum v. Duckworth, No. 82-54608 (Kan. June 28, 1982), cert. denied, 459 U.S. 1103 (1983), the case was tried to the court. The court found petitioner liable under Kansas law for interest on the suspended royalties to all class members. The trial court relied heavily on an earlier, unrelated class action involving the same nominal plaintiff and the same defendant, Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied, 434 U.S. 1068 (1978). The Kansas Supreme Court had held in Shutts, Executor that a gas company owed interest to royalty owners for royalties suspended pending final Commission approval of a price increase. No federal statutes Page 472 U. S. 802 touched on the liability for suspended royalties, and the court in Shutts, Executor held as a matter of Kansas equity law that the applicable interest rates for computation of interest on suspended royalties were the interest rates at which the gas company would have had to reimburse its customers had its interim price increase been rejected by the Commission. The court in Shutts, Executor viewed these as the fairest interest rates because they were also the rates that petitioner required the royalty owners to meet in their indemnity agreements in order to avoid suspended royalties.The trial court in the present case applied the rule from Shutts, Executor, and held petitioner liable for prejudgment and postjudgment interest on the suspended royalties, computed at the Commission rates governing petitioner's three price increases. See 18 CFR § 154.102 (1984). The applicable interest rates were: 7% for royalties retained until October 1974; 9% for royalties retained between October 1974 and September 1979; and thereafter at the average prime rate. The trial court did not determine whether any difference existed between the laws of Kansas and other States, or whether another State's laws should be applied to non-Kansas plaintiffs or to royalties from leases in States other than Kansas. 235 Kan. at 221, 679 P.2d at 1180.Petitioner raised two principal claims in its appeal to the Supreme Court of Kansas. It first asserted that the Kansas trial court did not possess personal jurisdiction over absent plaintiff class members as required by International Shoe Co. v. Washington, 326 U. S. 310 (1945), and similar cases. Related to this first claim was petitioner's contention that the "opt-out" notice to absent class members, which forced them to return the request for exclusion in order to avoid the suit, was insufficient to bind class members who were not residents of Kansas or who did not possess "minimum contacts" with Kansas. Second, petitioner claimed that Kansas courts could not apply Kansas law to every claim in the dispute. The trial court should have looked to the laws of each State Page 472 U. S. 803 where the leases were located to determine, on the basis of conflict of laws principles, whether interest on the suspended royalties was recoverable, and at what rate.The Supreme Court of Kansas held that the entire cause of action was maintainable under the Kansas class action statute, and the court rejected both of petitioner's claims. 235 Kan.195, 679 P.2d 1159 (1984). First, it held that the absent class members were plaintiffs, not defendants, and thus the traditional minimum contacts test of International Shoe did not apply. The court held that nonresident class action plaintiffs were only entitled to adequate notice, an opportunity to be heard, an opportunity to opt out of the case, and adequate representation by the named plaintiffs. If these procedural due process minima were met, according to the court, Kansas could assert jurisdiction over the plaintiff class and bind each class member with a judgment on his claim. The court surveyed the course of the litigation and concluded that all of these minima had been met.The court also rejected petitioner's contention that Kansas law could not be applied to plaintiffs and royalty arrangements having no connection with Kansas. The court stated that generally the law of the forum controlled all claims unless "compelling reasons" existed to apply a different law. The court found no compelling reasons, and noted that "[t]he plaintiff class members have indicated their desire to have this action determined under the laws of Kansas." 235 Kan. at 222, 679 P.2d at 1181. The court affirmed as a matter of Kansas equity law the award of interest on the suspended royalties, at the rates imposed by the trial court. The court set the postjudgment interest rate on all claims at the Kansas statutory rate of 15%. Id. at 224, 679 P.2d at 1183.IAs a threshold matter we must determine whether petitioner has standing to assert the claim that Kansas did not possess proper jurisdiction over the many plaintiffs in the Page 472 U. S. 804 class who were not Kansas residents and had no connection to Kansas. Respondents claim that a party generally may assert only his own rights, and that petitioner has no standing to assert the rights of its adversary, the plaintiff class, in order to defeat the judgment in favor of the class.Standing to sue in any Article III court is, of course, a federal question which does not depend on the party's prior standing in state court. Doremus v. Board of Education, 342 U. S. 429, 342 U. S. 434 (1952); Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962). Generally stated, federal standing requires an allegation of a present or immediate injury in fact, where the party requesting standing has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues." Ibid. There must be some causal connection between the asserted injury and the challenged action, and the injury must be of the type "likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 454 U. S. 472 (1982). See Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 426 U. S. 41-42 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 429 U. S. 261 (1977).Additional prudential limitations on standing may exist even though the Article III requirements are met because"the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim."Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 441 U. S. 99-100 (1979). One of these prudential limits on standing is that a litigant must normally assert his own legal interests rather than those of third parties. See Singleton v. Wulff, 428 U. S. 106 (1976); Craig v. Boren, 429 U. S. 190 (1976).Respondents claim that petitioner is barred by the rule requiring that a party assert only his own rights; they point out that respondents and petitioner are adversaries and do Page 472 U. S. 805 not have allied interests such that petitioner would be a good proponent of class members' interests. They further urge that petitioner's interference is unneeded because the class members have had opportunity to complain about Kansas' assertion of jurisdiction over their claim, but none have done so. See Singleton, supra, at 428 U. S. 113-114.Respondents may be correct that petitioner does not possess standing jus tertii, but this is not the issue. Petitioner seeks to vindicate its own interests. As a class action defendant petitioner is in a unique predicament. If Kansas does not possess jurisdiction over this plaintiff class, petitioner will be bound to 28,100 judgment holders scattered across the globe, but none of these will be bound by the Kansas decree. Petitioner could be subject to numerous later individual suits by these class members because a judgment issued without proper personal jurisdiction over an absent party is not entitled to full faith and credit elsewhere and thus has no res judicata effect as to that party. Whether it wins or loses on the merits, petitioner has a distinct and personal interest in seeing the entire plaintiff class bound by res judicata just as petitioner is bound. The only way a class action defendant like petitioner can assure itself of this binding effect of the judgment is to ascertain that the forum court has jurisdiction over every plaintiff whose claim it seeks to adjudicate, sufficient to support a defense of res judicata in a later suit for damages by class members.While it is true that a court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment, petitioner has alleged that it would be obviously and immediately injured if this class action judgment against it became final without binding the plaintiff class. We think that such an injury is sufficient to give petitioner standing on its own right to raise the jurisdiction claim in this Court.Petitioner's posture is somewhat similar to the trust settlor defendant in Hanson v. Denckla, 357 U. S. 235 (1958), who we found to have standing to challenge the forum's personal Page 472 U. S. 806 jurisdiction over an out-of-state trust company which was an indispensable party under the forum State's law. Because the court could not proceed with the action without jurisdiction over the trust company, we observed that"any defendant affected by the court's judgment ha[d] that 'direct and substantial personal interest in the outcome' that is necessary to challenge whether that jurisdiction was in fact acquired."Id. at 357 U. S. 245, quoting Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77 (1958).IIReduced to its essentials, petitioner's argument is that unless out-of-state plaintiffs affirmatively consent, the Kansas courts may not exert jurisdiction over their claims. Petitioner claims that failure to execute and return the "request for exclusion" provided with the class notice cannot constitute consent of the out-of-state plaintiffs; thus Kansas courts may exercise jurisdiction over these plaintiffs only if the plaintiffs possess the sufficient "minimum contacts" with Kansas as that term is used in cases involving personal jurisdiction over out-of-state defendants. E.g., International Shoe Co. v. Washington, 326 U. S. 310 (1945); Shaffer v. Heitner, 433 U. S. 186 (1977); World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (1980). Since Kansas had no pre-litigation contact with many of the plaintiffs and leases involved, petitioner claims that Kansas has exceeded its jurisdictional reach and thereby violated the due process rights of the absent plaintiffs.In International Shoe we were faced with an out-of-state corporation which sought to avoid the exercise of personal jurisdiction over it as a defendant by a Washington state court. We held that the extent of the defendant's due process protection would depend "upon the quality and nature of the activity in relation to the fair and orderly administration of the laws. . . ." 326 U.S. at 326 U. S. 319. We noted that the Due Process Clause did not permit a State to make a binding judgment against a person with whom the State had no contacts, Page 472 U. S. 807 ties, or relations. Ibid. If the defendant possessed certain minimum contacts with the State, so that it was "reasonable and just, according to our traditional conception of fair play and substantial justice" for a State to exercise personal jurisdiction, the State could force the defendant to defend himself in the forum, upon pain of default, and could bind him to a judgment. Id. at 326 U. S. 320.The purpose of this test, of course, is to protect a defendant from the travail of defending in a distant forum, unless the defendant's contacts with the forum make it just to force him to defend there. As we explained in Woodson, supra, the defendant's contacts should be such that "he should reasonably anticipate being haled" into the forum. 444 U.S. at 444 U. S. 297. In Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 456 U. S. 702-703, and n. 10 (1982), we explained that the requirement that a court have personal jurisdiction comes from the Due Process Clause's protection of the defendant's personal liberty interest, and said that the requirement "represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." (Footnote omitted.)Although the cases like Shaffer and Woodson which petitioner relies on for a minimum contacts requirement all dealt with out-of-state defendants or parties in the procedural posture of a defendant, cf. New York Life Ins. Co. v. Dunlevy, 241 U. S. 518 (1916); Estin v. Estin, 334 U. S. 541 (1948), petitioner claims that the same analysis must apply to absent class action plaintiffs. In this regard petitioner correctly points out that a chose in action is a constitutionally recognized property interest possessed by each of the plaintiffs. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950). An adverse judgment by Kansas courts in this case may extinguish the chose in action forever through res judicata. Such an adverse judgment, petitioner claims, would be every bit as onerous to an absent plaintiff as an adverse judgment on the merits would be to a defendant. Page 472 U. S. 808 Thus, the same due process protections should apply to absent plaintiffs: Kansas should not be able to exert jurisdiction over the plaintiffs' claims unless the plaintiffs have sufficient minimum contacts with Kansas.We think petitioner's premise is in error. The burdens placed by a State upon an absent class action plaintiff are not of the same order or magnitude as those it places upon an absent defendant. An out-of-state defendant summoned by a plaintiff is faced with the full powers of the forum State to render judgment against it. The defendant must generally hire counsel and travel to the forum to defend itself from the plaintiff's claim, or suffer a default judgment. The defendant may be forced to participate in extended and often costly discovery, and will be forced to respond in damages or to comply with some other form of remedy imposed by the court should it lose the suit. The defendant may also face liability for court costs and attorney's fees. These burdens are substantial, and the minimum contacts requirement of the Due Process Clause prevents the forum State from unfairly imposing them upon the defendant.A class action plaintiff, however, is in quite a different posture. The Court noted this difference in Hansberry v. Lee, 311 U. S. 32, 311 U. S. 40-41 (1940), which explained that a "class" or "representative" suit was an exception to the rule that one could not be bound by judgment in personam unless one was made fully a party in the traditional sense. Ibid., citing Pennoyer v. Neff, 95 U. S. 714 (1878). As the Court pointed out in Hansberry, the class action was an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the litigation was too great to permit joinder. The absent parties would be bound by the decree so long as the named parties adequately represented the absent class and the prosecution of the litigation was within the common interest. [Footnote 1] 311 U.S. at 311 U. S. 41. Page 472 U. S. 809Modern plaintiff class actions follow the same goals, permitting litigation of a suit involving common questions when there are too many plaintiffs for proper joinder. Class actions also may permit the plaintiffs to pool claims which would be uneconomical to litigate individually. For example, this lawsuit involves claims averaging about $100 per plaintiff; most of the plaintiffs would have no realistic day in court if a class action were not available.In sharp contrast to the predicament of a defendant haled into an out-of-state forum, the plaintiffs in this suit were not haled anywhere to defend themselves upon pain of a default judgment. As commentators have noted, from the plaintiffs' point of view a class action resembles a "quasi-administrative proceeding, conducted by the judge." 3B J. Moore & J. Kennedy, Moore's Federal Practice �23.45 [4.-5] (1984); Kaplan, Continuing Work of the Civil Committee: 1966 Amendments to the Federal Rules of Civil Procedure (1), 81 Harv.L.Rev. 356, 398 (1967).A plaintiff class in Kansas and numerous other jurisdictions cannot first be certified unless the judge, with the aid of the named plaintiffs and defendant, conducts an inquiry into the common nature of the named plaintiffs' and the absent plaintiffs' claims, the adequacy of representation, the jurisdiction possessed over the class, and any other matters that will bear upon proper representation of the absent plaintiffs' interest. See, e.g., Kan.Stat.Ann. § 60-223 (1983); Fed.Rule Civ.Proc. 23. Unlike a defendant in a civil suit, a class action plaintiff is not required to fend for himself. See Kan.Stat.Ann. § 60-223(d) (1983). The court and named plaintiffs protect his interests. Indeed, the class action defendant itself has a great interest in ensuring that the absent plaintiffs' claims are properly before the forum. In this case, for Page 472 U. S. 810 example, the defendant sought to avoid class certification by alleging that the absent plaintiffs would not be adequately represented and were not amenable to jurisdiction. See Phillips Petroleum v. Duckworth, No. 82-54608 (Kan. June 28, 1982).The concern of the typical class action rules for the absent plaintiffs is manifested in other ways. Most jurisdictions, including Kansas, require that a class action, once certified, may not be dismissed or compromised without the approval of the court. In many jurisdictions such as Kansas the court may amend the pleadings to ensure that all sections of the class are represented adequately. Kan.Stat.Ann. § 60223(d) (1983); see also, e.g., Fed.Rule Civ.Proc. 23(d).Besides this continuing solicitude for their rights, absent plaintiff class members are not subject to other burdens imposed upon defendants. They need not hire counsel or appear. They are almost never subject to counterclaims or cross-claims, or liability for fees or costs. [Footnote 2] Absent plaintiff class members are not subject to coercive or punitive remedies. Nor will an adverse judgment typically bind an absent plaintiff for any damages, although a valid adverse judgment may extinguish any of the plaintiff's claims which were litigated.Unlike a defendant in a normal civil suit, an absent class action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protection. In most class actions an absent plaintiff is provided at least with an opportunity to "opt out" of the class, and if he takes advantage of that opportunity he is removed from the Page 472 U. S. 811 litigation entirely. This was true of the Kansas proceedings in this case. The Kansas procedure provided for the mailing of a notice to each class member by first-class mail. The notice, as we have previously indicated, described the action and informed the class member that he could appear in person or by counsel, in default of which he would be represented by the named plaintiffs and their attorneys. The notice further stated that class members would be included in the class and bound by the judgment unless they "opted out" by executing and returning a "request for exclusion" that was included in the notice.Petitioner contends, however, that the "opt out" procedure provided by Kansas is not good enough, and that an "opt in" procedure is required to satisfy the Due Process Clause of the Fourteenth Amendment. Insofar as plaintiffs who have no minimum contacts with the forum State are concerned, an "opt in" provision would require that each class member affirmatively consent to his inclusion within the class.Because States place fewer burdens upon absent class plaintiffs than they do upon absent defendants in nonclass suits, the Due Process Clause need not and does not afford the former as much protection from state court jurisdiction as it does the latter. The Fourteenth Amendment does protect "persons," not "defendants," however, so absent plaintiffs as well as absent defendants are entitled to some protection from the jurisdiction of a forum State which seeks to adjudicate their claims. In this case we hold that a forum State may exercise jurisdiction over the claim of an absent class action plaintiff, even though that plaintiff may not possess the minimum contacts with the forum which would support personal jurisdiction over a defendant. If the forum State wishes to bind an absent plaintiff concerning a claim for money damages or similar relief at law, [Footnote 3] it must provide minimal Page 472 U. S. 812 procedural due process protection. The plaintiff must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel. The notice must be the best practicable,"reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."Mullane, 339 U.S. at 399 U. S. 314-315; cf. Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 417 U. S. 174-175 (1974). The notice should describe the action and the plaintiffs' rights in it. Additionally, we hold that due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an "opt out" or "request for exclusion" form to the court. Finally, the Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members. Hansberry, 311 U.S. at 311 U. S. 42-43, 45.We reject petitioner's contention that the Due Process Clause of the Fourteenth Amendment requires that absent plaintiffs affirmatively "opt in" to the class, rather than be deemed members of the class if they do not "opt out." We think that such a contention is supported by little, if any precedent, and that it ignores the differences between class action plaintiffs, on the one hand, and defendants in nonclass civil suits on the other. Any plaintiff may consent to jurisdiction. Keeton v. Hustler Magazine, Inc., 465 U. S. 770 (1984). The essential question, then, is how stringent the requirement for a showing of consent will be.We think that the procedure followed by Kansas, where a fully descriptive notice is sent first-class mail to each class member, with an explanation of the right to "opt out," satisfies due process. Requiring a plaintiff to affirmatively Page 472 U. S. 813 request inclusion would probably impede the prosecution of those class actions involving an aggregation of small individual claims, where a large number of claims are required to make it economical to bring suit. See, e.g., Eisen, supra, at 417 U. S. 161. The plaintiff's claim may be so small, or the plaintiff so unfamiliar with the law, that he would not file suit individually, nor would he affirmatively request inclusion in the class if such a request were required by the Constitution. [Footnote 4] If, on the other hand, the plaintiff's claim is sufficiently large or important that he wishes to litigate it on his own, he will likely have retained an attorney or have thought about filing suit, and should be fully capable of exercising his right to "opt out."In this case over 3,400 members of the potential class did "opt out," which belies the contention that "opt out" procedures result in guaranteed jurisdiction by inertia. Another 1,500 were excluded because the notice and "opt out" form was undeliverable. We think that such results show that the "opt out" procedure provided by Kansas is by no means pro forma, and that the Constitution does not require more to protect what must be the somewhat rare species of class member who is unwilling to execute an "opt out" form, but whose claim is nonetheless so important that he cannot be presumed to consent to being a member of the class by his failure to do so. Petitioner's "opt in" requirement would require the invalidation of scores of state statutes and of the class action provision of the Federal Rules of Civil Procedure, [Footnote 5] Page 472 U. S. 814 and for the reasons stated we do not think that the Constitution requires the State to sacrifice the obvious advantages in judicial efficiency resulting from the "opt out" approach for the protection of the raris avis portrayed by petitioner.We therefore hold that the protection afforded the plaintiff class members by the Kansas statute satisfies the Due Process Clause. The interests of the absent plaintiffs are sufficiently protected by the forum State when those plaintiffs are provided with a request for exclusion that can be returned within a reasonable time to the court. See Insurance Corp. of Ireland, 456 U.S. at 456 U. S. 702-703, and n. 10. Both the Kansas trial court and the Supreme Court of Kansas held that the class received adequate representation, and no party disputes that conclusion here. We conclude that the Kansas court properly asserted personal jurisdiction over the absent plaintiffs and their claims against petitioner.IIIThe Kansas courts applied Kansas contract and Kansas equity law to every claim in this case, notwithstanding that Page 472 U. S. 815 over 99% of the gas leases and some 97% of the plaintiffs in the case had no apparent connection to the State of Kansas except for this lawsuit. [Footnote 6] Petitioner protested that the Kansas Page 472 U. S. 816 courts should apply the laws of the States where the leases were located, or at least apply Texas and Oklahoma law because so many of the leases came from those States. The Kansas courts disregarded this contention and found petitioner liable for interest on the suspended royalties as a matter of Kansas law, and set the interest rates under Kansas equity principles.Petitioner contends that total application of Kansas substantive law violated the constitutional limitations on choice of law mandated by the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Article IV, § 1. We must first determine whether Kansas law conflicts in any material way with any other law which could apply. There can be no injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit.Petitioner claims that Kansas law conflicts with that of a number of States connected to this litigation, especially Texas and Oklahoma. These putative conflicts range from the direct to the tangential, and may be addressed by the Supreme Court of Kansas on remand under the correct constitutional standard. For example, there is no recorded Page 472 U. S. 817 Oklahoma decision dealing with interest liability for suspended royalties: whether Oklahoma is likely to impose liability would require a survey of Oklahoma oil and gas law. Even if Oklahoma found such liability, petitioner shows that Oklahoma would most likely apply its constitutional and statutory 6% interest rate rather than the much higher Kansas rates applied in this litigation. Okla.Const., Art XIV, § 2; Okla.Stat., Tit. 15, § 266 (Supp.1984-1985); Rendezvous Trails of America, Inc. v. Ayers, 612 P.2d 1384, 1385 (Okla. App.1980); Smith v. Robinson, 594 P.2d 364 (Okla.1979); West Edmond Hunton Lime Unit v. Young, 325 P.2d 1047 (Okla.1958).Additionally, petitioner points to an Oklahoma statute which excuses liability for interest if a creditor accepts payment of the full principal without a claim for interest, Okla.Stat., Tit. 23, § 8 (1951). Cf. Webster Drilling Co. v. Sterling Oil of Oklahoma, Inc., 376 P.2d 236 (Okla.1962). Petitioner contends that by ignoring this statute the Kansas courts created liability that does not exist in Oklahoma.Petitioner also points out several conflicts between Kansas and Texas law. Although Texas recognizes interest liability for suspended royalties, Texas has never awarded any such interest at a rate greater than 6%, which corresponds with the Texas constitutional and statutory rate. [Footnote 7] Tex.Const., Art. 16, § 11; Tex.Rev.Civ.Stat.Ann., Art. 5069-1.03 (Vernon 1971). See Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978); Phillips Petroleum Co. v. Adams, 513 F.2d 355 (CA5), cert. denied, 423 U.S. 930 (1975); cf. Maxey v. Texas Commerce Bank, 580 S.W.2d 340, 341 (Tex.1979). Moreover, at least one court interpreting Texas law appears to have held that Texas excuses interest Page 472 U. S. 818 liability once the gas company offers to take an indemnity from the royalty owner and pay him the suspended royalty while the price increase is still tentative. Phillips Petroleum Co. v. Riverside Gas Compression Co., 409 F. Supp. 486, 495-496 (ND Tex.1976). Such a rule is contrary to Kansas law as applied below, but if applied to the Texas plaintiffs or leases in this case, would vastly reduce petitioner's liability.The conflicts on the applicable interest rates, alone -- which we do not think can be labeled "false conflicts" without a more thoroughgoing treatment than was accorded them by the Supreme Court of Kansas -- certainly amounted to millions of dollars in liability. We think that the Supreme Court of Kansas erred in deciding on the basis that it did that the application of its laws to all claims would be constitutional.Four Terms ago we addressed a similar situation in Allstate Ins. Co. v. Hague, 449 U. S. 302 (1981). In that case we were confronted with two conflicting rules of state insurance law. Minnesota permitted the "stacking" of separate uninsured motorist policies while Wisconsin did not. Although the decedent lived in Wisconsin, took out insurance policies and was killed there, he was employed in Minnesota, and after his death his widow moved to Minnesota for reasons unrelated to the litigation, and was appointed personal representative of his estate. She filed suit in Minnesota courts, which applied the Minnesota stacking rule.The plurality in Allstate noted that a particular set of facts giving rise to litigation could justify, constitutionally, the application of more than one jurisdiction's laws. The plurality recognized, however, that the Due Process Clause and the Full Faith and Credit Clause provided modest restrictions on the application of forum law. These restrictions required"that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair."Id. at 449 U. S. 312-313. The Page 472 U. S. 819 dissenting Justices were in substantial agreement with this principle. Id. at 449 U. S. 332 (opinion of POWELL, J., joined by BURGER, C.J., and REHNQUIST, J.). The dissent stressed that the Due Process Clause prohibited the application of law which was only casually or slightly related to the litigation, while the Full Faith and Credit Clause required the forum to respect the laws and judgments of other States, subject to the forum's own interests in furthering its public policy. Id. at 449 U. S. 335-336.The plurality in Allstate affirmed the application of Minnesota law because of the forum's significant contacts to the litigation which supported the State's interest in applying its law. See id. at 449 U. S. 313-329. Kansas' contacts to this litigation, as explained by the Kansas Supreme Court, can be gleaned from the opinion below.Petitioner owns property and conducts substantial business in the State, so Kansas certainly has an interest in regulating petitioner's conduct in Kansas. 235 Kan. at 210, 679 P.2d at 1174. Moreover, oil and gas extraction is an important business to Kansas, and although only a few leases in issue are located in Kansas, hundreds of Kansas plaintiffs were affected by petitioner's suspension of royalties; thus the court held that the State has a real interest in protecting "the rights of these royalty owners both as individual residents of [Kansas] and as members of this particular class of plaintiffs." Id. at 211-212, 679 P.2d at 1174. The Kansas Supreme Court pointed out that Kansas courts are quite familiar with this type of lawsuit, and "[t]he plaintiff class members have indicated their desire to have this action determined under the laws of Kansas." Id. at 211, 222, 679 P.2d at 1174, 1181. Finally, the Kansas court buttressed its use of Kansas law by stating that this lawsuit was analogous to a suit against a "common fund" located in Kansas. Id. at 201, 211-212, 679 P.2d at 1168, 1174.We do not lightly discount this description of Kansas' contacts with this litigation and its interest in applying its law. There is, however, no "common fund" located in Kansas that Page 472 U. S. 820 would require or support the application of only Kansas law to all these claims. See, e.g., Hartford Life Ins. Co. v. Ibs, 237 U. S. 662 (1915). As the Kansas court noted, petitioner commingled the suspended royalties with its general corporate accounts. 235 Kan. at 201, 679 P.2d at 1168. There is no specific identifiable res in Kansas, nor is there any limited amount which may be depleted before every plaintiff is compensated. Only by somehow aggregating all the separate claims in this case could a "common fund" in any sense be created, and the term becomes all but meaningless when used in such an expansive sense.We also give little credence to the idea that Kansas law should apply to all claims because the plaintiffs, by failing to opt out, evinced their desire to be bound by Kansas law. Even if one could say that the plaintiffs "consented" to the application of Kansas law by not opting out, plaintiff's desire for forum law is rarely, if ever controlling. In most cases, the plaintiff shows his obvious wish for forum law by filing there."If a plaintiff could choose the substantive rules to be applied to an action . . . the invitation to forum shopping would be irresistible."Allstate, supra, at 449 U. S. 337 (opinion of POWELL, J.). Even if a plaintiff evidences his desire for forum law by moving to the forum, we have generally accorded such a move little or no significance. John Hancock Mut. Life Ins. Co. v. Yates, 299 U. S. 178, 299 U. S. 182 (1936); Home Ins. Co. v. Dick, 281 U. S. 397, 281 U. S. 408 (1930). In Allstate, the plaintiff's move to the forum was only relevant because it was unrelated and prior to the litigation. 449 U.S. at 449 U. S. 318-319. Thus, the plaintiffs' desire for Kansas law, manifested by their participation in this Kansas lawsuit, bears little relevance.The Supreme Court of Kansas, in its opinion in this case, expressed the view that, by reason of the fact that it was adjudicating a nationwide class action, it had much greater latitude in applying its own law to the transactions in question than might otherwise be the case: Page 472 U. S. 821"The general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred. . . . Where a state court determines it has jurisdiction over a nationwide class action and procedural due process guarantees of notice and adequate representation are present, we believe the law of the forum should be applied unless compelling reasons exist for applying a different law. . . . Compelling reasons do not exist to require this court to look to other state laws to determine the rights of the parties involved in this lawsuit."235 Kan. at 221-222, 679 P.2d at 1181.We think that this is something of a "bootstrap" argument. The Kansas class action statute, like those of most other jurisdictions, requires that there be "common issues of law or fact." But while a State may, for the reasons we have previously stated, assume jurisdiction over the claims of plaintiffs whose principal contacts are with other States, it may not use this assumption of jurisdiction as an added weight in the scale when considering the permissible constitutional limits on choice of substantive law. It may not take a transaction with little or no relationship to the forum and apply the law of the forum in order to satisfy the procedural requirement that there be a "common question of law." The issue of personal jurisdiction over plaintiffs in a class action is entirely distinct from the question of the constitutional limitations on choice of law; the latter calculus is not altered by the fact that it may be more difficult or more burdensome to comply with the constitutional limitations because of the large number of transactions which the State proposes to adjudicate and which have little connection with the forum.Kansas must have a "significant contact or significant aggregation of contacts" to the claims asserted by each member of the plaintiff class, contacts "creating state interests," in order to ensure that the choice of Kansas law is not arbitrary Page 472 U. S. 822 or unfair. Allstate, 449 U.S. at 449 U. S. 312-313. Given Kansas' lack of "interest" in claims unrelated to that State, and the substantive conflict with jurisdictions such as Texas, we conclude that application of Kansas law to every claim in this case is sufficiently arbitrary and unfair as to exceed constitutional limits. [Footnote 8]When considering fairness in this context, an important element is the expectation of the parties. See Allstate, supra, at 449 U. S. 333 (opinion of POWELL, J.). There is no indication that, when the leases involving land and royalty owners outside of Kansas were executed, the parties had any idea that Kansas law would control. Neither the Due Process Clause nor the Full Faith and Credit Clause requires Kansas "to substitute for its own [laws], applicable to persons and events within it, the conflicting statute of another state," Pacific Employees Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493, 306 U. S. 502 (1939), but Kansas "may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them." Home Ins. Co. v. Dick, supra, at 281 U. S. 410.Here the Supreme Court of Kansas took the view that in a nationwide class action where procedural due process guarantees Page 472 U. S. 823 of notice and adequate representation were met, "the law of the forum should be applied unless compelling reasons exist for applying a different law." 235 Kan. at 221, 679 P.2d at 1181. Whatever practical reasons may have commended this rule to the Supreme Court of Kansas, for the reasons already stated we do not believe that it is consistent with the decisions of this Court. We make no effort to determine for ourselves which law must apply to the various transactions involved in this lawsuit, and we reaffirm our observation in Allstate that in many situations a state court may be free to apply one of several choices of law. But the constitutional limitations laid down in cases such as Allstate and Home Ins. Co. v. Dick, supra, must be respected even in a nationwide class action.We therefore affirm the judgment of the Supreme Court of Kansas insofar as it upheld the jurisdiction of the Kansas courts over the plaintiff class members in this case, and reverse its judgment insofar as it held that Kansas law was applicable to all of the transactions which it sought to adjudicate. We remand the case to that court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtPhillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985)Phillips Petroleum Co. v. ShuttsNo. 84-233Argued February 25, 1985Decided June 26, 1985472 U.S. 797SyllabusDuring the 1970's, petitioner produced or purchased natural gas from leased land located in 11 States. Respondents, royalty owners possessing rights to leases from which petitioner produced the gas, brought a class action against petitioner in a Kansas state court, seeking to recover interest on royalty payments that had been delayed by petitioner. The trial court certified a class consisting of 33,000 royalty owners. Respondents provided each class member with a notice by first-class mail describing the action and informing each member that he could appear in person or by counsel, that otherwise he would be represented by respondents, and that class members would be included in the class and bound by the judgment unless they "opted out" of the action by returning a "request for exclusion." The final class consisted of some 28,000 members, who reside in all 50 States, the District of Columbia, and several foreign countries. Notwithstanding that over 99% of the gas leases in question and some 97% of the plaintiff class members had no apparent connection to Kansas except for the lawsuit, the trial court applied Kansas contract and equity law to every claim, and found petitioner liable for interest on the suspended royalties to all class members. The Kansas Supreme Court affirmed over petitioner's contentions that the Due Process Clause of the Fourteenth Amendment prevented Kansas from adjudicating the claims of all the class members, and that that Clause and the Full Faith and Credit Clause prohibited application of Kansas law to all of the transactions between petitioner and the class members.Held:1. Petitioner has standing to assert the claim that Kansas did not have jurisdiction over the class members who were not Kansas residents and had no connection to Kansas. Whether it wins or loses on the merits, petitioner has a distinct and personal interest in seeing the entire plaintiff class bound by res judicata just as petitioner is bound. The only way petitioner can assure itself of this binding effect is to ascertain that the forum court has jurisdiction over every plaintiff whose claim it seeks to adjudicate, sufficient to support a res judicata defense in a later suit by class members. The alleged injury petitioner would incur if the class action judgment against it became final without binding the plaintiff class is sufficient to give petitioner standing on its own right to raise the jurisdiction claim in this Court. Pp. 472 U. S. 803-806. Page 472 U. S. 7982. The Kansas trial court properly asserted personal jurisdiction over the absent plaintiff class members and their claims against petitioner. The Due Process Clause requires notice, an opportunity to appear in person or by counsel, an opportunity to "opt out," and adequate representation. It does not require that absent class members affirmatively "opt in" to the class, rather than be deemed members of the class if they did not "opt out." The procedure followed by Kansas, where a fully descriptive notice is sent by first-class mail to each class member, with an explanation of the right to "opt out," satisfies due process. The interests of the absent plaintiff class members are sufficiently protected by the forum State when those plaintiffs are provided with a request for exclusion that can be returned within a reasonable time to the trial court. Pp. 472 U. S. 806-814.3. The Kansas Supreme Court erred in deciding that the application of Kansas law to all claims would be constitutional. Kansas must have a "significant contact or aggregation of contacts" to the claims asserted by each plaintiff class member in order to ensure that the choice of Kansas law was not arbitrary or unfair. Given Kansas' lack of "interest" in claims unrelated to that State, and the substantive conflict between Kansas law and the law of other States, such as Texas, where some of the leased land in question is located, application of Kansas law to every claim in this case was sufficiently arbitrary and unfair as to exceed constitutional limits. Pp. 472 U. S. 814-823.235 Kan.195, 679 P.2d 1159, affirmed in part, reversed in part, and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, and in Parts I and II of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 472 U. S. 823. POWELL, J., took no part in the decision of the case. Page 472 U. S. 799

1985_85-215

JUSTICE REHNQUIST delivered the opinion of the Court.We granted certiorari to consider the constitutionality, under the Due Process Clause of the Fourteenth Amendment and the jury trial guarantee of the Sixth Amendment, of Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa.Cons.Stat. § 9712 (1982) (the Act). Page 477 U. S. 81IThe Act was adopted in 1982. It provides that anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years' imprisonment if the sentencing judge finds, by a preponderance of the evidence, that the person "visibly possessed a firearm" during the commission of the offense. At the sentencing hearing, the judge is directed to consider the evidence introduced at trial and any additional evidence offered by either the defendant or the Commonwealth. § 9712(b). [Footnote 1] The Act operates to divest Page 477 U. S. 82 the judge of discretion to impose any sentence of less than five years for the underlying felony; it does not authorize a sentence in excess of that otherwise allowed for that offense.Each petitioner was convicted of, among other things, one of § 9712's enumerated felonies. Petitioner McMillan, who shot his victim in the right buttock after an argument over a debt, was convicted by a jury of aggravated assault. Petitioner Peterson shot and killed her husband and, following a bench trial, was convicted of voluntary manslaughter. Petitioner Dennison shot and seriously wounded an acquaintance and was convicted of aggravated assault after a bench trial. Petitioner Smalls robbed a seafood store at gunpoint; following a bench trial, he was convicted of robbery. In each case, the Commonwealth gave notice that, at sentencing, it would seek to proceed under the Act. No § 9712 hearing was held, however, because each of the sentencing judges before whom petitioners appeared found the Act unconstitutional; each imposed a lesser sentence than that required by the Act. [Footnote 2] Page 477 U. S. 83The Commonwealth appealed all four cases to the Supreme Court of Pennsylvania. That court consolidated the appeals and unanimously concluded that the Act is consistent with due process. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). Petitioners' principal argument was that visible possession of a firearm is an element of the crimes for which they were being sentenced, and thus must be proved beyond a reasonable doubt under In re Winship, 397 U. S. 358 (1970), and Mullaney v. Wilbur, 421 U. S. 684 (1975). After observing that the legislature had expressly provided that visible possession "shall not be an element of the crime," § 9712(b), and that the reasonable doubt standard "has always been dependent on how a state defines the offense'" in question, 508 Pa. at 34, 494 A.2d at 359, quoting Patterson v. New York, 432 U. S. 197, 432 U. S. 211, n. 12 (1977), the court rejected the claim that the Act effectively creates a new set of upgraded felonies of which visible possession is an "element." Section 9712, which comes into play only after the defendant has been convicted of an enumerated felony, neither provides for an increase in the maximum sentence for such felony nor authorizes a separate sentence; it merely requires a minimum sentence of five years, which may be more or less than the minimum sentence that might otherwise have been imposed. And consistent with Winship, Mullaney, and Patterson, the Act "creates no presumption as to any essential fact, and places no burden on the defendant"; it "in no way relieve[s] the prosecution of its burden of proving guilt." 508 Pa. at 35, 494 A.2d at 359.Petitioners also contended that, even if visible possession is not an element of the offense, due process requires more than proof by a preponderance of the evidence. The Supreme Court of Pennsylvania rejected this claim as well, holding that the preponderance standard satisfies due process under the approach set out in Addington v. Texas, 441 U. S. 418 (1979). The Commonwealth's interest in deterring the illegal use of firearms and in sure punishment for those who Page 477 U. S. 84 commit crimes with guns is as compelling as a convicted defendant's contervailing liberty interest, which has been substantially diminished by a guilty verdict. Moreover, the risk of error in the context of a § 9712 proceeding is comparatively slight -- visible possession is a simple, straightforward issue susceptible of objective proof. On balance, the court concluded, it is reasonable for the defendant and the Commonwealth to share equally in any risk of error. The court vacated petitioners' sentences and remanded for sentencing pursuant to the Act. One justice concurred and filed a separate opinion.We granted certiorari, 474 U.S. 815 (1985), and now affirm.IIPetitioners argue that, under the Due Process Clause as interpreted in Winship and Mullaney, if a State wants to punish visible possession of a firearm, it must undertake the burden of proving that fact beyond a reasonable doubt. We disagree. Winship held that"the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."397 U.S. at 397 U. S. 364. In Mullaney v. Wilbur, we held that the Due Process Clause"requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case."421 U.S. at 421 U. S. 704. But in Patterson, we rejected the claim that, whenever a State links the "severity of punishment" to "the presence or absence of an identified fact," the State must prove that fact beyond a reasonable doubt. 432 U.S. at 432 U. S. 214; see also id. at 432 U. S. 207 (State need not "prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment"). In particular, we upheld against a due process challenge New York's law placing on Page 477 U. S. 85 defendants charged with murder the burden of proving the affirmative defense of extreme emotional disturbance.Patterson stressed that in determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive:"[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged."Id. at 432 U. S. 210 (emphasis added). While "there are obviously constitutional limits beyond which the States may not go in this regard," ibid.,"[t]he applicability of the reasonable doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case,"id. at 432 U. S. 211, n. 12. Patterson rests on a premise that bears repeating here:"It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U. S. 128, 347 U. S. 134 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally""within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,""and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Speiser v. Randall, 357 U. S. 513, 357 U. S. 523 (1958)."Id. at 432 U. S. 201-202 (citations omitted).We believe that the present case is controlled by Patterson, our most recent pronouncement on this subject, rather than by Mullaney. As the Supreme Court of Pennsylvania observed, the Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of Page 477 U. S. 86 the crimes enumerated in the mandatory sentencing statute, § 9712(b), but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt. Indeed, the elements of the enumerated offenses, like the maximum permissible penalties for those offenses, were established long before the Mandatory Minimum Sentencing Act was passed. [Footnote 3] While visible possession might well have been included as an element of the enumerated offenses, Pennsylvania chose not to redefine those offenses in order to so include it, and Patterson teaches that we should hesitate to conclude that due process bars the State from pursuing its chosen course in the area of defining crimes and prescribing penalties.As Patterson recognized, of course, there are constitutional limits to the State's power in this regard; in certain limited circumstances, Winship's reasonable doubt requirement applies to facts not formally identified as elements of the offense charged. Petitioners argue that Pennsylvania has gone beyond those limits, and that its formal provision that visible possession is not an element of the crime is therefore of no effect. We do not think so. While we have never attempted to define precisely the constitutional limits noted in Patterson, i.e., the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases, and do not do so today, we are persuaded by several factors that Pennsylvania's Mandatory Minimum Sentencing Act does not exceed those limits.We note first that the Act plainly does not transgress the limits expressly set out in Patterson. Responding to the concern that its rule would permit States unbridled power to redefine crimes to the detriment of criminal defendants, the Patterson Court advanced the unremarkable proposition that Page 477 U. S. 87 the Due Process Clause precludes States from discarding the presumption of innocence:"'[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.' McFarland v. American Sugar Rfg. Co., 241 U. S. 79, 241 U. S. 86 (1916). The legislature cannot""validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.""Tot v. United States, 319 U. S. 463, 319 U. S. 469 (1943)."Patterson, 432 U.S. at 432 U. S. 210.Here, of course, the Act creates no presumptions of the sort condemned in McFarland v. American Sugar Rfg. Co., 241 U. S. 79 (1916) (presumption from price sugar refiner paid for sugar that refiner was party to a monopoly), or Tot v. United States, 319 U. S. 463 (1943) (presumption that convicted felon who possessed a weapon obtained it in interstate commerce). Nor does it relieve the prosecution of its burden of proving guilt; § 9712 only becomes applicable after a defendant has been duly convicted of the crime for which he is to be punished.The Court in Mullaney observed, with respect to the main criminal statute invalidated in that case, that, once the State proved the elements which Maine required it to prove beyond a reasonable doubt, the defendant faced "a differential in sentencing ranging from a nominal fine to a mandatory life sentence." 421 U.S. at 421 U. S. 700. In the present case, the situation is quite different. Of the offenses enumerated in the Act, third-degree murder, robbery as defined in 18 Pa.Cons.Stat. § 3701(a)(1) (1982), kidnaping, rape, and involuntary deviate sexual intercourse are first-degree felonies subjecting the defendant to a maximum of 20 years' imprisonment. § 1103(1). Voluntary manslaughter and aggravated assault as defined in § 2702(a)(1) are felonies of the second degree carrying a maximum sentence of 10 years. § 1103(2). Section 9712 neither alters the maximum penalty for the crime Page 477 U. S. 88 committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 "ups the ante" for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. [Footnote 4] The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is "really" an element of the offenses for which they are being punished -- that Pennsylvania has in effect defined a new set of upgraded felonies -- would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through "use of a dangerous weapon or device"), but it does not.Petitioners contend that this Court's decision in Specht v. Patterson, 386 U. S. 605 (1967), requires the invalidation of the Pennsylvania statute challenged here. Again, we think petitioners simply read too much into one of our previous decisions. Under the Colorado scheme at issue in Specht, conviction of a sexual offense otherwise carrying a maximum penalty of 10 years exposed a defendant to an indefinite term to and including life imprisonment if the sentencing judge made a post-trial finding that the defendant posed "a threat of bodily harm to members of the public, or is an habitual offender and mentally ill," id. at 386 U. S. 607. This finding could be made, without notice or any "hearing in the normal sense," Page 477 U. S. 89 based solely on a presentence psychiatric report. Id. at 386 U. S. 608. This Court held that the Colorado scheme failed to satisfy the requirements of due process, and that the defendant had a right to be present with counsel, to be heard, to be confronted with and to cross-examine the witnesses against him, and to offer evidence of his own.Petitioners suggest that, had Winship already been decided at the time of Specht, the Court would have also required that the burden of proof as to the post-trial findings be beyond a reasonable doubt. But even if we accept petitioners' hypothesis, we do not think it avails them here. The Court in Specht observed that, following trial, the Colorado defendant was confronted with "a radically different situation" from the usual sentencing proceeding. The same simply is not true under the Pennsylvania statute. The finding of visible possession of a firearm, of course, "ups the ante" for a defendant, or it would not be challenged here; but it does so only in the way that we have previously mentioned, by raising the minimum sentence that may be imposed by the trial court.Finally, we note that the specter raised by petitioners of States restructuring existing crimes in order to "evade" the commands of Winship just does not appear in this case [Footnote 5] As noted above, § 9712's enumerated felonies retain the same elements they had before the Mandatory Minimum Sentencing Act was passed. The Pennsylvania Legislature did not change the definition of any existing offense. It simply took one factor that has always been considered by sentencing courts to bear on punishment -- the instrumentality used in committing a violent felony -- and dictated the precise weight Page 477 U. S. 90 to be given that factor if the instrumentality is a firearm. Pennsylvania's decision to do so has not transformed against its will a sentencing factor into an "element" of some hypothetical "offense."Petitioners seek support for their due process claim by observing that many legislatures have made possession of a weapon an element of various aggravated offenses. [Footnote 6] But the fact that the States have formulated different statutory schemes to punish armed felons is merely a reflection of our federal system, which demands "[t]olerance for a spectrum of state procedures dealing with a common problem of law enforcement," Spencer v. Texas, 385 U. S. 554, 385 U. S. 566 (1967). That Pennsylvania's particular approach has been adopted in few other States does not render Pennsylvania's choice unconstitutional. [Footnote 7] See Patterson, 432 U.S. at 432 U. S. 211; cf. Spaziano v. Florida, 468 U. S. 447, 468 U. S. 464 (1984). Nor does the historical test advanced by the Patterson dissent, on which petitioners apparently also rely, materially advance their cause. While it is surely true that,"[f]or hundreds of years, some offenses have been considered more serious and the punishment made more severe if the offense was committed with a weapon or while armed,"Brief for Petitioners 17, n. 11, petitioners do not contend that the particular factor made relevant here -- visible possession of a firearm -- has historically been treated "in the Anglo-American legal tradition" as requiring proof beyond a reasonable doubt, Patterson, 432 U.S. at 432 U. S. 226 (POWELL, J., dissenting). See also id. at 432 U. S. 229, Page 477 U. S. 91 n. 14 (POWELL, J., dissenting) (approving new scheme under which State put burden on armed robbery defendant to prove that gun was unloaded or inoperative in order to receive lower sentence).We have noted a number of differences between this case and Winship, Mullaney, and Specht, and we find these differences controlling here. Our inability to lay down any "bright line" test may leave the constitutionality of statutes more like those in Mullaney and Specht than is the Pennsylvania statute to depend on differences of degree, but the law is full of situations in which differences of degree produce different results. We have no doubt that Pennsylvania's Mandatory Minimum Sentencing Act falls on the permissible side of the constitutional line.IIIHaving concluded that States may treat "visible possession of a firearm" as a sentencing consideration, rather than an element of a particular offense, we now turn to petitioners' subsidiary claim that due process nonetheless requires that visible possession be proved by at least clear and convincing evidence. Like the court below, we have little difficulty concluding that, in this case, the preponderance standard satisfies due process. Indeed, it would be extraordinary if the Due Process Clause, as understood in Patterson, plainly sanctioned Pennsylvania's scheme, while the same Clause explained in some other line of less clearly relevant cases imposed more stringent requirements. There is, after all, only one Due Process Clause in the Fourteenth Amendment. Furthermore, petitioners do not and could not claim that a sentencing court may never rely on a particular fact in passing sentence without finding that fact by "clear and convincing evidence." Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all. See Williams v. New York, 337 U. S. 241 (1949). Pennsylvania has deemed a particular fact relevant and prescribed a Page 477 U. S. 92 particular burden of proof. We see nothing in Pennsylvania's scheme that would warrant constitutionalizing burdens of proof at sentencing. [Footnote 8]Petitioners apparently concede that Pennsylvania's scheme would pass constitutional muster if only it did not remove the sentencing court's discretion, i.e., if the legislature had simply directed the court to consider visible possession in passing sentence. Brief for Petitioners 31-32. We have some difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide sentencing courts with additional guidance. Nor is there merit to the claim that a heightened burden of proof is required because visible possession is a fact "concerning the crime committed," rather than the background or character of the defendant. Ibid. Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment, and we have consistently approved sentencing schemes that mandate consideration of facts related to the crime, e.g., Proffitt v. Florida, 428 U. S. 242 (1976), without suggesting that those facts must be proved beyond a reasonable doubt. The Courts of Appeals have uniformly rejected due process challenges to the preponderance standard under the federal "dangerous special offender" statute, 18 Page 477 U. S. 93 U.S.C. § 3575, which provides for an enhanced sentence if the court concludes that the defendant is both "dangerous" and a "special offender." See United States v. Davis, 710 F.2d 104, 106 (CA3) (collecting cases), cert. denied, 464 U.S. 1001 (1983).IVIn light of the foregoing, petitioners' final claim -- that the Act denies them their Sixth Amendment right to a trial by jury -- merits little discussion. Petitioners again argue that the jury must determine all ultimate facts concerning the offense committed. Having concluded that Pennsylvania may properly treat visible possession as a sentencing consideration, and not an element of any offense, we need only note that there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact. See Spaziano v. Florida, 468 U.S. at 468 U. S. 459.For the foregoing reasons, the judgment of the Supreme Court of Pennsylvania is affirmed.It is so ordered

U.S. Supreme CourtMcMillan v. Pennsylvania, 477 U.S. 79 (1986)McMillan v. PennsylvaniaNo. 85-215Argued March 4, 1986Decided June 19, 1986477 U.S. 79SyllabusPennsylvania's Mandatory Minimum Sentencing Act (Act) provides that anyone convicted of certain enumerated felonies is subject to a mandatory minimum sentence of five years' imprisonment if the sentencing judge -- upon considering the evidence introduced at the trial and any additional evidence offered by either the defendant or the Commonwealth at the sentencing hearing -- finds, by a preponderance of the evidence, that the defendant "visibly possessed a firearm" during the commission of the offense. The Act, which also provides that visible possession shall not be an element of the crime, operates to divest the judge of discretion to impose any sentence of less than five years for the underlying felony, but does not authorize a sentence in excess of that otherwise allowed for the offense. Each of the petitioners was convicted of one of the Act's enumerated felonies, and in each case the Commonwealth gave notice that at sentencing it would seek to proceed under the Act. However, each of the sentencing judges found the Act unconstitutional and imposed a lesser sentence than that required by the Act. The Pennsylvania Supreme Court consolidated the Commonwealth's appeals, vacated petitioners' sentences, and remanded for sentencing pursuant to the Act. The court held that the Act was consistent with due process, rejecting petitioners' principal argument that visible possession of a firearm was an element of the crimes for which they were sentenced, and thus must be proved beyond a reasonable doubt under In re Winship, 397 U. S. 358, and Mullaney v. Wilbur, 421 U. S. 684.Held:1. A State may properly treat visible possession of a firearm as a sentencing consideration rather than an element of a particular offense that must be proved beyond a reasonable doubt. This case is controlled by Patterson v. New York, 432 U. S. 197, which rejected a claim that, whenever a State links the "severity of punishment" to the "presence or absence of an identified fact" the State must prove that fact beyond a reasonable doubt. While there are constitutional limits beyond which the States may not go in this regard, the applicability of the reasonable doubt standard is usually dependent on how a State defines the offense that is charged in any given case. Here, the Pennsylvania Legislature has made visible possession of a firearm a sentencing factor that comes into play only after the defendant has been found guilty of one of the Page 477 U. S. 80 enumerated crimes beyond a reasonable doubt, and the constitutional limits to a State's power are not exceeded by the Act, which only raises the minimum sentence that may be imposed and neither alters the maximum sentence nor creates a separate offense calling for a separate penalty. Specht v. Patterson, 386 U. S. 605, distinguished. Pp. 447 U. S. 84-91.2. There is no merit to petitioners' contention that, even though States may treat visible possession of a firearm as a sentencing consideration, rather than an element of a particular offense, due process nonetheless requires that visible possession be proved by at least clear and convincing evidence. The preponderance standard satisfies due process. Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all. Nothing in Pennsylvania's scheme warrants constitutionalizing burdens of proof at sentencing. Pp. 477 U. S. 91-93.3. Nor is there merit to petitioners' claim that the Act denies them their Sixth Amendment right to a trial by jury. There is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact. P. 477 U. S. 93.508 Pa. 25, 494 A.2d 354, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 93. STEVENS, J., filed a dissenting opinion, post, p. 477 U. S. 96.

1992_92-515

CounselLynn S. Adelman argued the cause for respondent. With him on the brief were Kenneth P. Casey and Susan Gellman. **Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Andrew S. Bergman, Assistant Attorney General, and Simon B. Karas, John Payton, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Charles E. Cole of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Robert A. Marks of Hawaii, Larry EchoHawk of Idaho, Roland W Burris of Illinois, Pamela Carter of Indiana, Bonnie J. Campbell of Iowa, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Robert J. Del Tufo of New Jersey, Tom Udall of New Mexico, Robert Abrams of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles W Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Christine O. Gregoire of Washington, Daryl V. McGraw of West Virginia, and Joseph B. Myer of Wyoming; for the city of Atlanta et al. by O. Peter Sherwood, Leonard J. Koerner, Lawrence S. Kahn, Linda H. Young, Burt Neuborne, Norman Dorsen, Neal M. Janey, Albert W Wallis, Lawrence Rosenthal, Benna Ruth Solomon, Julie P. Downey, Jessica R. Heinz, Judith E. Harris, Louise H. Renne, and Dennis Aftergut; for the American Civil Liberties Union by Steven R. Shapiro and John A. Powell; for the Anti-Defamation League et al. by David M. Raim, Jeffrey P. Sinensky, Steven M. Freeman, Michael Lieberman, and Robert H. Friebert; for the Appellate Committee of the California District Attorneys Association by Gil Garcetti and Harry B. Sondheim; for the California Association of Human Rights Organizations et al. by Henry J. Silberberg and Mark Solomon; for the Chicago Lawyers' Committee for Civil Rights479CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Todd Mitchell's sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim's race. The question presented in this case is whether this penalty enhancement is prohibited by the First and Fourteenth Amendments. We hold that it is not.On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartmentUnder Law, Inc., by Frederick J. Sperling and Roslyn C. Lieb; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Crown Heights Coalition et al. by Samuel Rabinove, Richard T. Foltin, Kenneth S. Stern, Elaine R. Jones, and Eric Schnapper; for the Jewish Advocacy Center by Barrett W Freedlander; for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area by Robert E. Borton; for the N ational Asian Pacific American Legal Consortium et al. by Angelo N. Ancheta; for the National Conference of State Legislatures et al. by Richard Ruda and Michael J. Wahoske; and for Congressman Charles E. Schumer et al. by Steven T. Catlett and Richard A. Cordray.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union of Ohio by Daniel T. Kobil and Benson A. Wolman; for California Attorneys for Criminal Justice by Robert R. Riggs, John T. Philipsborn, and Dennis P. Riordan; for the Center for Individual Rights by Gary B. Born and Michael P. McDonald; for the National Association of Criminal Defense Lawyers et al. by Harry R. Reinhart, John Pyle, Sean O'Brien, and William I. Aronwald; for the Ohio Public Defender by James Kura, Robert L. Lane, James R. Neuhard, Allison Connelly, Theodore A. Gottfried, Henry Martin, and James E. Duggan; for the Wisconsin Freedom of Information Council by Jeffrey J. Kassel; for the Reason Foundation by Robert E. Sutton; for the Wisconsin Association of Criminal Defense Lawyers by Ira Mickenberg; and for Larry Alexander et al. by Martin H. Redish.Briefs of amici curiae were filed for the Lawyers' Committee for Civil Rights Under Law by Paul Brest, Alan Cope Johnston, Herbert M. Wachtell, William H. Brown III, and Norman Redlich; and for the Wisconsin Inter-Racial and Inter-Faith Coalition for Freedom of Thought by Joan Kessler.480complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning," in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: "'Do you all feel hyped up to move on some white people?'" Brief for Petitioner 4. Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: "'You all want to fuck somebody up? There goes a white boy; go get him.'" Id., at 4-5. Mitchell counted to three and pointed in the boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.After a jury trial in the Circuit Court for Kenosha County, Mitchell was convicted of aggravated battery. Wis. Stat. §§ 939.05 and 940.19(lm) (1989-1990). That offense ordinarily carries a maximum sentence of two years' imprisonment. §§ 940.19(lm) and 939.50(3)(e). But because the jury found that Mitchell had intentionally selected his victim because of the boy's race, the maximum sentence for Mitchell's offense was increased to seven years under § 939.645. That provision enhances the maximum penalty for an offense whenever the defendant "[i]ntentionally selects the person against whom the crime ... is committed ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person .... " § 939.645(1)(b).11 At the time of Mitchell's trial, the Wisconsin penalty-enhancement statute provided:"(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):"(a) Commits a crime under chs. 939 to 948."(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property which is damaged or otherwise affected by the crime under par. (a) because of the race, religion, color,481The Circuit Court sentenced Mitchell to four years' imprisonment for the aggravated battery.Mitchell unsuccessfully sought postconviction relief in the Circuit Court. Then he appealed his conviction and sentence, challenging the constitutionality of Wisconsin's penalty-enhancement provision on First Amendment grounds.2 The Wisconsin Court of Appeals rejected Mitchell's challenge, 163 Wis. 2d 652, 473 N. W. 2d 1 (1991), but the Wisconsin Supreme Court reversed. The Supreme Courtdisability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property."(2)(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum period of imprisonment is one year in the county jail."(b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum period of imprisonment is 2 years."(c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum period of imprisonment prescribed by law for the crime may be increased by not more than 5 years."(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1)."(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime." Wis. Stat. § 939.645 (1989-1990).The statute was amended in 1992, but the amendments are not at issue in this case.2 Mitchell also challenged the statute on Fourteenth Amendment equal protection and vagueness grounds. The Wisconsin Court of Appeals held that Mitchell waived his equal protection claim and rejected his vagueness challenge outright. 163 Wis. 2d 652, 473 N. W. 2d 1 (1991). The Wisconsin Supreme Court declined to address both claims. 169 Wis. 2d 153, 158, n. 2, 485 N. W. 2d 807, 809, n. 2 (1992). Mitchell renews his Fourteenth Amendment claims in this Court. But since they were not developed below and plainly fall outside of the question on which we granted certiorari, we do not reach them either.482held that the statute "violates the First Amendment directly by punishing what the legislature has deemed to be offensive thought." 169 Wis. 2d 153, 163, 485 N. W. 2d 807, 811 (1992). It rejected the State's contention "that the statute punishes only the 'conduct' of intentional selection of a victim." Id., at 164, 485 N. W. 2d, at 812. According to the court, "[t]he statute punishes the 'because of' aspect of the defendant's selection, the reason the defendant selected the victim, the motive behind the selection." Ibid. (emphasis in original). And under R. A. v: v. St. Paul, 505 U. S. 377 (1992), "the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees." 169 Wis. 2d, at 171, 485 N. W. 2d, at 815.The Supreme Court also held that the penaltyenhancement statute was unconstitutionally overbroad. It reasoned that, in order to prove that a defendant intentionally selected his victim because of the victim's protected status, the State would often have to introduce evidence of the defendant's prior speech, such as racial epithets he may have uttered before the commission of the offense. This evidentiary use of protected speech, the court thought, would have a "chilling effect" on those who feared the possibility of prosecution for offenses subject to penalty enhancement. See id., at 174,485 N. W. 2d, at 816. Finally, the court distinguished antidiscrimination laws, which have long been held constitutional, on the ground that the Wisconsin statute punishes the "subjective mental process" of selecting a victim because of his protected status, whereas antidiscrimination laws prohibit "objective acts of discrimination." Id., at 176, 485 N. W. 2d, at 817.3We granted certiorari because of the importance of the question presented and the existence of a conflict of author-3 Two justices dissented. They concluded that the statute punished discriminatory acts, and not beliefs, and therefore would have upheld it. See 169 Wis. 2d, at 181,485 N. W. 2d, at 819 (Abrahamson, J.); id., at 187-195, 485 N. W. 2d, at 821-825 (Bablitch, J.).483ity among state high courts on the constitutionality of statutes similar to Wisconsin's penalty-enhancement provision,4 506 U. S. 1033 (1992). We reverse.Mitchell argues that we are bound by the Wisconsin Supreme Court's conclusion that the statute punishes bigoted thought and not conduct. There is no doubt that we are bound by a state court's construction of a state statute. R. A. V:, supra, at 381; New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982); Terminiello v. Chicago, 337 U. S. 1, 4 (1949). In Terminiello, for example, the Illinois courts had defined the term" 'breach of the peace,'" in a city ordinance prohibiting disorderly conduct, to include" 'stirs the public to anger ... or creates a disturbance.'" Id., at 4. We held this con-4 Several States have enacted penalty-enhancement provisions similar to the Wisconsin statute at issue in this case. See, e. g., Cal. Penal Code Ann. § 422.7 (West 1988 and Supp. 1993); Fla. Stat. § 775.085 (1991); Mont. Code Ann. § 45-5-222 (1992); Vt. Stat. Ann., Tit. 13, § 1455 (Supp. 1992). Proposed federal legislation to the same effect passed the House of Representatives in 1992, H. R. 4797, 102d Cong., 2d Sess. (1992), but failed to pass the Senate, S. 2522, 102d Cong., 2d Sess. (1992). The state high courts are divided over the constitutionality of penalty-enhancement statutes and analogous statutes covering bias-motivated offenses. Compare, e. g., State v. Plowman, 314 Ore. 157, 838 P. 2d 558 (1992) (upholding Oregon statute), with State v. Wyant, 64 Ohio St. 3d 566, 597 N. E. 2d 450 (1992) (striking down Ohio statute); 169 Wis. 2d 153,485 N. W. 2d 807 (1992) (case below) (striking down Wisconsin statute). According to amici, bias-motivated violence is on the rise throughout the United States. See, e. g., Brief for the National Asian Pacific American Legal Consortium et al. as Amici Curiae 5-11; Briefforthe Anti-Defamation League et al. as Amici Curiae 4-7; Brief for the City of Atlanta et al. as Amici Curiae 3-12. In 1990, Congress enacted the Hate Crimes Statistics Act, Pub. L. 101-275, § l(b)(I), 104 Stat. 140, codified at 28 U. S. C. § 534 (note) (1988 ed., Supp. III), directing the Attorney General to compile data "about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity." Pursuant to the Act, the Federal Bureau of Investigation reported in January 1993, that 4,558 bias-motivated offenses were committed in 1991, including 1,614 incidents of intimidation, 1,301 incidents of vandalism, 796 simple assaults, 773 aggravated assaults, and 12 murders. See Brief for the Crown Heights Coalition et al. as Amici Curiae lA-7A.484struction to be binding on us. But here the Wisconsin Supreme Court did not, strictly speaking, construe the Wisconsin statute in the sense of defining the meaning of a particular statutory word or phrase. Rather, it merely characterized the "practical effect" of the statute for First Amendment purposes. See 169 Wis. 2d, at 166-167, 485 N. W. 2d, at 813 ("Merely because the statute refers in a literal sense to the intentional 'conduct' of selecting, does not mean the court must turn a blind eye to the intent and practical effect of the law-punishment of motive or thought"). This assessment does not bind us. Once any ambiguities as to the meaning of the statute are resolved, we may form our own judgment as to its operative effect.The State argues that the statute does not punish bigoted thought, as the Supreme Court of Wisconsin said, but instead punishes only conduct. While this argument is literally correct, it does not dispose of Mitchell's First Amendment challenge. To be sure, our cases reject the "view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U. S. 367, 376 (1968); accord, R. A. V:, supra, at 385-386; Spence v. Washington, 418 U. S. 405, 409 (1974) (per curiam); Cox v. Louisiana, 379 U. S. 536, 555 (1965). Thus, a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment. See Roberts v. United States Jaycees, 468 U. S. 609, 628 (1984) ("[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection"); NAACP v. Claiborne Hardware Co., 458 U. S. 886, 916 (1982) ("The First Amendment does not protect violence").But the fact remains that under the Wisconsin statute the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected sta-485tus than if no such motive obtained. Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant's discriminatory motive for selecting his victim, Mitchell argues (and the Wisconsin Supreme Court held) that the statute violates the First Amendment by punishing offenders' bigoted beliefs.Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant. See Payne v. Tennessee, 501 U. S. 808, 820-821 (1991); United States v. Tucker, 404 U. S. 443, 446 (1972); Williams v. New York, 337 U. S. 241, 246 (1949). The defendant's motive for committing the offense is one important factor. See 1 W. LeFave & A. Scott, Substantive Criminal Law § 3.6(b), p. 324 (1986) ("Motives are most relevant when the trial judge sets the defendant's sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives"); cf. Tison v. Arizona, 481 U. S. 137, 156 (1987) ("Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished"). Thus, in many States the commission of a murder, or other capital offense, for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute. See, e. g., Ariz. Rev. Stat. Ann. § 13-703(F)(5) (1989); Fla. Stat. § 921.1415(f) (Supp. 1992); Miss. Code Ann. § 99-19-101(5)(f) (Supp. 1992); N. C. Gen. Stat. § 15A-2000(e)(6) (1992); Wyo. Stat. § 6-2-102(h)(vi) (Supp. 1992).But it is equally true that a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge. Dawson v. Delaware,486503 U. S. 159 (1992). In Dawson, the State introduced evidence at a capital sentencing hearing that the defendant was a member of a white supremacist prison gang. Because "the evidence proved nothing more than [the defendant's] abstract beliefs," we held that its admission violated the defendant's First Amendment rights. Id., at 167. In so holding, however, we emphasized that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." Id., at 165. Thus, in Barclay v. Florida, 463 U. S. 939 (1983) (plurality opinion), we allowed the sentencing judge to take into account the defendant's racial animus towards his victim. The evidence in that case showed that the defendant's membership in the Black Liberation Army and desire to provoke a "race war" were related to the murder of a white man for which he was convicted. See id., at 942-944. Because "the elements of racial hatred in [the] murder" were relevant to several aggravating factors, we held that the trial judge permissibly took this evidence into account in sentencing the defendant to death. Id., at 949, and n. 7.Mitchell suggests that Dawson and Barclay are inapposite because they did not involve application of a penaltyenhancement provision. But in Barclay we held that it was permissible for the sentencing court to consider the defendant's racial animus in determining whether he should be sentenced to death, surely the most severe "enhancement" of all. And the fact that the Wisconsin Legislature has decided, as a general matter, that bias-motivated offenses warrant greater maximum penalties across the board does not alter the result here. For the primary responsibility for fixing criminal penalties lies with the legislature. Rummel v. Estelle, 445 U. S. 263, 274 (1980); Gore v. United States, 357 U. S. 386, 393 (1958).487Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant's discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. See Roberts v. United States Jaycees, 468 U. S., at 628; Hishon v. King & Spalding, 467 U. S. 69, 78 (1984); Runyon v. McCrary, 427 U. S. 160, 176 (1976). Title VII of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee "because of such individual's race, color, religion, sex, or national origin." 42 U. S. C. § 2000e-2(a)(1) (emphasis added). In Hishon, we rejected the argument that Title VII infringed employers' First Amendment rights. And more recently, in R. A. v: v. St. Paul, 505 U. S., at 389-390, we cited Title VII (as well as 18 U. S. C. § 242 and 42 U. S. C. §§ 1981 and 1982) as an example of a permissible content-neutral regulation of conduct.Nothing in our decision last Term in R. A. v: compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of " 'fighting words' that insult, or provoke violence, 'on the basis of race, color, creed, religion or gender.' " 505 U. S., at 391 (quoting St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990)). Because the ordinance only proscribed a class of "fighting words" deemed particularly offensive by the city-i. e., those "that contain ... messages of 'bias-motivated' hatred," 505 U. S., at 392we held that it violated the rule against content-based discrimination. See id., at 392-394. But whereas the ordinance struck down in R. A. v: was explicitly directed at expression (i. e., "speech" or "messages"), id., at 392, the statute in this case is aimed at conduct unprotected by the First Amendment.Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought488to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. See, e. g., Brief for Petitioner 24-27; Brief for United States as Amicus Curiae 13-15; Brief for Lawyers' Committee for Civil Rights Under Law as Amicus Curiae 18-22; Brief for the American Civil Liberties Union as Amicus Curiae 17-19; Brief for the Anti-Defamation League et al. as Amici Curiae 9-10; Brief for Congressman Charles E. Schumer et al. as Amici Curiae 8-9. The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness." 4 W. Blackstone, Commentaries *16.Finally, there remains to be considered Mitchell's argument that the Wisconsin statute is unconstitutionally overbroad because of its "chilling effect" on free speech. Mitchell argues (and the Wisconsin Supreme Court agreed) that the statute is "overbroad" because evidence of the defendant's prior speech or associations may be used to prove that the defendant intentionally selected his victim on account of the victim's protected status. Consequently, the argument goes, the statute impermissibly chills free expression with respect to such matters by those concerned about the possibility of enhanced sentences if they should in the future commit a criminal offense covered by the statute. We find no merit in this contention.The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional "overbreadth" cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute,489these opinions will be offered at trial to establish that he selected his victim on account of the victim's protected status, thus qualifying him for penalty enhancement. To stay within the realm of rationality, we must surely put to one side minor misdemeanor offenses covered by the statute, such as negligent operation of a motor vehicle (Wis. Stat. § 941.01 (1989-1990)); for it is difficult, if not impossible, to conceive of a situation where such offenses would be racially motivated. We are left, then, with the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial if he commits a more serious offense against person or property. This is simply too speculative a hypothesis to support Mitchell's overbreadth claim.The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. Nearly half a century ago, in Haupt v. United States, 330 U. S. 631 (1947), we rejected a contention similar to that advanced by Mitchell here. Haupt was tried for the offense of treason, which, as defined by the Constitution (Art. III, § 3), may depend very much on proof of motive. To prove that the acts in question were committed out of "adherence to the enemy" rather than "parental solicitude," id., at 641, the Government introduced evidence of conversations that had taken place long prior to the indictment, some of which consisted of statements showing Haupt's sympathy with Germany and Hitler and hostility towards the United States. We rejected Haupt's argument that this evidence was improperly admitted. While "[s]uch 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," we held that "these490statements ... clearly were admissible on the question of intent and adherence to the enemy." Id., at 642. See also Price Waterhouse v. Hopkins, 490 U. S. 228, 251-252 (1989) (plurality opinion) (allowing evidentiary use of defendant's speech in evaluating Title VII discrimination claim); StreetFor the foregoing reasons, we hold that Mitchell's First Amendment rights were not violated by the application of the Wisconsin penalty-enhancement provision in sentencing him. The judgment of the Supreme Court of Wisconsin is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1992SyllabusWISCONSIN v. MITCHELLCERTIORARI TO THE SUPREME COURT OF WISCONSIN No. 92-515. Argued April 21, 1993-Decided June 11, 1993Pursuant to a Wisconsin statute, respondent Mitchell's sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim's race. The State Court of Appeals rejected his challenge to the law's constitutionality, but the State Supreme Court reversed. Relying on R. A. V. v. St. Paul, 505 U. S. 377, it held that the statute violates the First Amendment by punishing what the legislature has deemed to be offensive thought and rejected the State's contention that the law punishes only the conduct of intentional victim selection. It also found that the statute was unconstitutionally overbroad because the evidentiary use of a defendant's prior speech would have a chilling effect on those who fear they may be prosecuted for offenses subject to penalty enhancement. Finally, it distinguished antidiscrimination laws, which have long been held constitutional, on the ground that they prohibit objective acts of discrimination, whereas the state statute punishes the subjective mental process.Held: Mitchell's First Amendment rights were not violated by the application of the penalty-enhancement provision in sentencing him. Pp. 483-490.(a) While Mitchell correctly notes that this Court is bound by a state court's interpretation of a state statute, the State Supreme Court did not construe the instant statute in the sense of defining the meaning of a particular word or phrase. Rather, it characterized the statute's practical effect for First Amendment purposes. Thus, after resolving any ambiguities in the statute's meaning, this Court may form its own judgment about the law's operative effect. The State's argument that the statute punishes only conduct does not dispose of Mitchell's claim, since the fact remains that the same criminal conduct is more heavily punished if the victim is selected because of his protected status than if no such motive obtains. Pp. 483-485.(b) In determining what sentence to impose, sentencing judges have traditionally considered a wide variety of factors in addition to evidence bearing on guilt, including a defendant's motive for committing the offense. While it is equally true that a sentencing judge may not take into consideration a defendant's abstract beliefs, however obnoxious to most people, the Constitution does not erect a per se barrier to the477admission of evidence concerning one's beliefs and associations at sentencing simply because they are protected by the First Amendment. Dawson v. Delaware, 503 U. S. 159; Barclay v. Florida, 463 U. S. 939 (plurality opinion). That Dawson and Barclay did not involve the application of a penalty-enhancement provision does not make them inapposite. Barclay involved the consideration of racial animus in determining whether to sentence a defendant to death, the most severe "enhancement" of all; and the state legislature has the primary responsibility for fixing criminal penalties. Motive plays the same role under the state statute as it does under federal and state antidiscrimination laws, which have been upheld against constitutional challenge. Nothing in R. A. V. v. St. Paul, supra, compels a different result here. The ordinance at issue there was explicitly directed at speech, while the one here is aimed at conduct unprotected by the First Amendment. Moreover, the State's desire to redress what it sees as the greater individual and societal harm inflicted by bias-inspired conduct provides an adequate explanation for the provision over and above mere disagreement with offenders' beliefs or biases. Pp. 485-488.(c) Because the statute has no "chilling effect" on free speech, it is not unconstitutionally overbroad. The prospect of a citizen suppressing his bigoted beliefs for fear that evidence of those beliefs will be introduced against him at trial if he commits a serious offense against person or property is too speculative a hypothesis to support this claim. Moreover, the First Amendment permits the admission of previous declarations or statements to establish the elements of a crime or to prove motive or intent, subject to evidentiary rules dealing with relevancy, reliability, and the like. Haupt v. United States, 330 U. S. 631. pp. 488-490.169 Wis. 2d 153,485 N. W. 2d 807, reversed and remanded.REHNQUIST, C. J., delivered the opinion for a unanimous Court.James E. Doyle, Attorney General of Wisconsin, argued the cause for petitioner. With him on the briefs was Paul Lundsten, Assistant Attorney General.Michael R. Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Bryson, Acting Assistant Attorneys General Keeney and Turner, Kathleen A. Felton, and Thomas E. Chandler.478Full Text of Opinion

1995_95-5207

JUSTICE STEVENS delivered the opinion of the Court.In Oklahoma the defendant in a criminal prosecution is presumed to be competent to stand trial unless he proves his incompetence by clear and convincing evidence. Okla. Stat., Tit. 22, § 1175.4(B) (1991). Under that standard a defendant may be put to trial even though it is more likely than not that he is incompetent. The question we address in this case is whether the application of that standard to petitioner violated his right to due process under the Fourteenth Amendment.IIn 1989 petitioner was charged with the brutal killing of an 86-year-old man in the course of a burglary. After an Oklahoma jury found him guilty of first-degree murder and recommended punishment by death, the trial court imposed the death penalty. The Oklahoma Court of Criminal Appeals affirmed the conviction and sentence.Petitioner's competence was the focus of significant attention both before and during his trial. On five separate occasions a judge considered whether petitioner had the ability to understand the charges against him and to assist defense counsel. On the first occasion, a pretrial judge relied on the opinion of a clinical psychologist employed by the State to find petitioner incompetent. Based on that determination, he committed petitioner to a state mental health facility for treatment.Assistant Attorney General, and Carol Clawson, Solicitor General, John M. Bailey, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Michael C. Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Betty D. Montgomery of Ohio, Thomas W Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, and James S. Gilmore II I of Virginia.351Upon petitioner's release from the hospital some three months later, the trial judge heard testimony concerning petitioner's competence from two state-employed psychologists. These experts expressed conflicting opinions regarding petitioner's ability to participate in his defense. The judge resolved the dispute against petitioner, ordering him to proceed to trial.At the close of a pretrial hearing held one week before the trial was scheduled to begin, the lead defense attorney raised the issue of petitioner's competence for a third time. Counsel advised the court that petitioner was behaving oddly and refusing to communicate with him. Defense counsel opined that it would be a serious matter "if he's not faking." App. 6. After listening to counsel's concerns, however, the judge declined to revisit his earlier determination that petitioner was competent to stand trial.Petitioner's competence was addressed a fourth time on the first day of trial, when petitioner's bizarre behavior prompted the court to conduct a further competency hearing at which the judge observed petitioner and heard testimony from several lay witnesses, a third psychologist, and petitioner himself.1 The expert concluded that petitioner was1 During the hearing petitioner, who had refused to change out of prison overalls for the trial because the proffered clothes were "burning" him, Tr. of Pretrial Motions and Competency Hearings 3-4 (May 4-5, 1992), talked to himself and to an imaginary "spirit" who petitioner claimed gave him counsel. On the witness stand petitioner expressed fear that the lead defense attorney wanted to kill him.In his argument at the close of the proceeding, defense counsel reminded the court of an incident that occurred during petitioner's testimony:"Every time I would get close to his space where he is seated in this little witness enclave ... he would stand up and he would get away from me as far as he could and so I would back off and I'd give him a little space .... So, I've approached him from every side .... except I haven't approached him from the front. So yesterday, I approach him from the front. And that's the last thing I did. I regret doing that."He stood up and he got as far back against the rail behind the witness chair as he could get. I edged closer. He got as far back and he got up352presently incompetent and unable to communicate effectively with counsel, but that he could probably achieve competence within six weeks if treated aggressively. While stating that he did not dispute the psychologist's diagnosis, the trial judge ruled against petitioner. In so holding, however, the court voiced uncertainty:"Well, I think I've used the expression ... in the past that normal is like us. Anybody that's not like us is not normal, so I don't think normal is a proper definition that we are to use with incompetence. My shirtsleeve opinion of Mr. Cooper is that he's not normal. Now, to say he's not competent is something else."But you know, all things considered, I suppose it's possible for a client to be in such a predicament that he can't help his defense and still not be incompetent. I suppose that's a possibility, too."I think it's going to take smarter people than me to make a decision here. I'm going to say that I don't believe he has carried the burden by clear and convincing evidence of his incompetency and I'm going to say we're going to go to trial." Id., at 42-43.on that rail. So I've got him up on the rail and I'm thinking, hey, what can I lose? Let me just see what he does now because he can go no further back, but as the Court knows, there's a space of about two-and-ahalf feet behind this rail and a marble wall.''Without looking for his safety at all and looking what's behind him, when I moved the least bit and I didn't move very far towards him, he fell to get away from me. He fell. He hit his head. The thud on that marble when he jackknifed backward off of that railing into that marble could be heard at the back of that courtroom ....''We got him back up here in the witness enclave, he's just busted his head, tears are streaming down his eyes and he does not respond in any normal fashion." App.37-38.353Incidents that occurred during the trial,2 as well as the sordid history of petitioner's childhood that was recounted during the sentencing phase of the proceeding, were consistent with the conclusions expressed by the expert. In a final effort to protect his client's interests, defense counsel moved for a mistrial or a renewed investigation into petitioner's competence. After the court summarily denied these motions, petitioner was convicted and sentenced to death.In the Court of Criminal Appeals, petitioner contended that Oklahoma's presumption of competence, combined with its statutory requirement that a criminal defendant establish incompetence by clear and convincing evidence, Okla. Stat., Tit. 22, § 1175.4(B) (1991),3 placed such an onerous burden on him as to violate his right to due process of law. The appellate court rejected this argument. After noting that it can be difficult to determine whether a defendant is malingering, given "the inexactness and uncertainty attached to [competency] proceedings," the court held that the standard was justified because the "State has great interest in assuring its citizens a thorough and speedy judicial process," and because a "truly incompetent criminal defendant, through his attorneys and experts, can prove incompetency with relative ease." 889 P. 2d 293, 303 (1995). We granted certiorari to review the Court of Criminal Appeals' conclusion that appli-2 Petitioner did not communicate with or sit near defense counsel during the trial. Through much of the proceedings he remained in prison overalls, crouching in the fetal position and talking to himself.3 Section 1175.4(B) provides, in relevant part: "The court, at the hearing on the application [for determination of competency], shall determine, by clear and convincing evidence, if the person is incompetent. The person shall be presumed to be competent for the purposes of the allocation of the burden of proof and burden of going forward with the evidence."Section 1175.4 was amended in 1991, during the pretrial period of petitioner's prosecution. The amendment did not alter the text of subsection B.354cation of the clear and convincing evidence standard does not violate due process. 516 U. S. 910 (1995).IINo one questions the existence of the fundamental right that petitioner invokes. We have repeatedly and consistently recognized that "the criminal trial of an incompetent defendant violates due process." Medina v. California, 505 U. S. 437, 453 (1992); Drope v. Missouri, 420 U. S. 162, 171172 (1975); Pate v. Robinson, 383 U. S. 375, 378 (1966). Nor is the significance of this right open to dispute. As JUSTICE KENNEDY recently emphasized:"Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so. Drope v. Missouri, 420 U. S. 162, 171-172 (1975)." Riggins v. Nevada, 504 U. S. 127, 139-140 (1992) (opinion concurring in judgment).4The test for incompetence is also well settled. A defendant may not be put to trial unless he "'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.''' Dusky v. United States, 362 U. S. 402, 402 (1960) (per curiam}.54 Indeed, the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination. See Pate v. Robinson, 383 U. S. 375, 384 (1966).5 The Oklahoma statute defines competence as "the present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him and to effectively and355Our recent decision in Medina v. California, 505 U. S. 437 (1992), establishes that a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence. Id., at 449. In reaching that conclusion we held that the relevant inquiry was whether the presumption "'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Id., at 445 (quoting Patterson v. New York, 432 U. S. 197, 202 (1977)). We contrasted the "deep roots in our common-law heritage" underlying the prohibition against trying the incompetent with the absence of any settled tradition concerning the allocation of the burden of proof in a competency proceeding. 505 U. S., at 446. Our conclusion that the presumption of competence offends no recognized principle of "fundamental fairness" rested in part on the fact that the procedural rule affects the outcome "only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent." Id., at 449.6The question we address today is quite different from the question posed in Medina. Petitioner's claim requires us to consider whether a State may proceed with a criminal trial after the defendant has demonstrated that he is more likely than not incompetent. Oklahoma does not contend that it may require the defendant to prove incompetence beyond a reasonable doubt.7 The State maintains, however, that the clear and convincing standard provides a reasonable accom-rationally assist in his defense." Okla. Stat., Tit. 22, § 1175.1(1) (Supp. 1996).6 In her concurring opinion, JUSTICE O'CONNOR expressed the view that placing the burden on the defendant in this limited group of cases was permissible because it provided the defendant with an incentive to cooperate with the information-gathering process necessary to a reliable competency determination. Medina, 505 U. S., at 455.7 Tr. of Oral Arg. 46-48.356modation of the opposing interests of the State and the defendant. We are persuaded, by both traditional and modern practice and the importance of the constitutional interest at stake, that the State's argument must be rejected.III"Historical practice is probative of whether a procedural rule can be characterized as fundamental," Medina, 505 U. S., at 446. In this case, unlike in Medina, there is no indication that the rule Oklahoma seeks to defend has any roots in prior practice. Indeed, it appears that a rule significantly more favorable to the defendant has had a long and consistent application.We turn first to an examination of the relevant commonlaw traditions of England and this country. The prohibition against trying the incompetent defendant was well established by the time Hale and Blackstone wrote their famous commentaries. 4 W. Blackstone, Commentaries *24 ("[I]f a man in his sound memory commits a capital offence ... [a]nd if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence?"); 1 M. Hale, Pleas of the Crown *34-*35 (same). The English cases which predate our Constitution provide no guidance, however, concerning the applicable standard of proof in competency determinations. See Trial of Charles Bateman (1685), reported in 11 How. St. Tr. 464, 467 (1816), and Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 476 (1816) (noting that the court in the 1685 trial incurred "censure" for proceeding to trial with a doubt as to the defendant's competence); Kinloch's Case (1746), 18 How. St. Tr. 395, 411 (1813); King v. Steel, 1 Leach 452, 168 Eng. Rep. 328 (1787).Beginning in the late 18th century, cases appear which provide an inkling of the proper standard. In King v. Frith, 22 How. St. Tr. 307 (1790), for example, the court instructed357the jury to "diligently inquire ... whether John Frith, the now prisoner at the bar ... be of sound mind and understanding or not .... " Id., at 311. Some 50 years later the jurors received a nearly identical admonition in Queen v. Goode, 7 Ad. & E. 536, 112 Eng. Rep. 572 (K. B. 1837): "'You shall diligently inquire, and true presentment make ... whether John Goode ... be insane or not .... '" Id., at 536, n. (a), 112 Eng. Rep., at 572-573, n. (a)2.8 Similarly, in King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836), the court empaneled a jury to consider "whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial .... " Ibid. See also King v. Dyson, 73 Car. & P. 305, n. (a), 173 Eng. Rep. 135-136, n. (a) (1831); Queen v. Southey, 4 F. & F. 864, 895, 176 Eng. Rep. 825, 838 (1865); Queen v. Berry, 1 Q. B. Rep. 447, 449 (1876). Ibid.9These authorities, while still speaking less clearly than we might wish, are instructive. By phrasing the inquiry in a simple disjunctive, Frith, Goode, and Pritchard suggest that traditional practice required the jury to determine whether the defendant was "more likely than not" incompetent. Nothing in the jury instructions of these cases will bear the interpretation of a clear and convincing standard. What is more, the cases contain no indication that the use of a pre-8 Courts often referred to the prisoner's insanity (or present insanity) rather than incompetence, even when the proceeding concerned the defendant's competence to stand trial. Beginning with the earliest cases, the issue at a sanity or competency hearing has been "whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge." King v. Pritchard, 7 Car. & P. 303, 304, 173 Eng. Rep. 135 (1836).9 In 1800 England codified the common-law rule that a court could empanel a jury to determine whether a defendant charged with treason, murder, or a felony offense was competent to stand trial. Criminal Lunatics Act, 1800, 39 & 40, Geo. 3, ch. 94, § 2.358ponderance standard represented a departure from earlier (pre-Constitution) practice.10Modern English authority confirms our interpretation of these early cases as applying a preponderance standard. Relying on "principles ... laid down in a number of cases," including Pritchard and King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), the court in Queen v. Podola, 43 Crim. App. 220, 3 All E. R. 418 (1959), ruled:"If the contention that the accused is insane is put forward by the defence and contested by the prosecution, there is, in our judgment, a burden upon the defence of satisfying the jury of the accused's insanity. In such a case, as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused's insanity has been made out." Id., at 235, 3 All E. R., at 429.1110 Indeed, although in Medina we concluded that it is permissible for a State to require the defendant to shoulder the burden of demonstrating his incompetence, we noted that some 19th-century English authorities placed the burden on the prosecutor once competence was put in issue. Medina v. California, 505 U. S., at 447. See Queen v. Davies, 3 Car. & K. 328, 329, 175 Eng. Rep. 575, 575 (1853) (judge ruled that "[the prosecutor] should begin, and call his witnesses, to show that the prisoner is sane, and capable of pleading"); Ley's Case, 1 Lewin 239, 240, 168 Eng. Rep. 1026 (1828) (" 'If there be a doubt as to the prisoner's sanity ... you cannot say that he is in a fit state to be put upon his trial' "). See also Halsbury, 10 Laws of England 403 (3d ed. 1955) ("Where a jury is so empanelled [to determine competency], the onus is on the prosecution to prove the sanity of the defendant"). But see Queen v. Podola, 43 Crim. App. 220, 236, 3 All E. R. 418, 430 (1959) (explicitly rejecting the suggestion that the prosecutor must prove the defendant's competence to stand trial). Given the disagreement among English courts concerning which party bore the burden of proof, it is unlikely that in cases in which the burden was placed on the defendant that burden was as weighty as clear and convincing evidence.11 The Podola court opined that the tests laid down in Pritchard "have been followed so often that they may be said to be firmly embodied in our law." 43 Crim. App., at 238, 3 All E. R., at 431.359Likewise, we are aware of no decisional law from this country suggesting that any State employed Oklahoma's heightened standard until quite recently. Rather, the earliest available sources typically refer to English authorities, see, e. g., Freeman v. People, 47 Am. Dec. 216, 223-225 (N. Y. 1847), State v. Harris, 78 Am. Dec. 272, 272-275 (N. C. 1860) (adopting procedures outlined in King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), and King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836)), and employ the disjunctive language used by the English courts, see, e. g., Commonwealth v. Hathaway, 13 Mass. 299 (1816); People v. Kleim, 1 N. Y. 13, 15 (1845); Harris, 78 Am. Dec., at 275; United States v. Chisolm, 149 F.2d 4, 290 (SD Ala. 1906).12 By the turn of the 20th century, however, American courts were explicitly applying a preponderance standard. In 1896, Ohio juries were instructed that "[t]he burden is upon the prisoner to show by a preponderance of the proof that he is insane." State v. O'Grady, 5 Ohio Dec. 654, 655 (1896).13 Some 15 years later, the Tennessee Supreme Court described the competency determination as12 In Commonwealth v. Braley, 1 Mass. 102, 103 (1804), a case decided shortly after the Constitution was ratified, the court instructed the jury to consider "whether [the accused] neglected or refused to plead to the indictment against him for murder, of his free will and malice, or whether he did so neglect by the act of God." This instruction may be a precursor to the "sane or insane" disjunctive.13 See also State v. Tyler, 7 Ohio N. P. 443,444 (1898) ("What I mean by the preponderance of the evidence is that the accused must show that he is now at the time of this trial probably not sane"). Cf. People v. Ah Ying, 42 Cal. 18, 20 (1872) (jury should find defendant presently insane if "satisfied" by the evidence supporting that conclusion).Both Tyler and State v. O'Grady are instructive concerning the proper interpretation of the authorities which articulate no standard of proof but phrase the inquiry in the disjunctive. In each case the jury was told that its task was to determine whether the accused "is or is not sane," Tyler, 7 Ohio N. P., at 443, see also O'Grady, 5 Ohio Dec., at 654, and then explicitly instructed that the defendant bore the burden of proof by a preponderance of the evidence. Tyler, 7 Ohio N. P., at 443; O'Grady, 5 Ohio Dec., at 655.360"controlled by the preponderance of the proof," Jordan v. State, 124 Tenn. 81, 89, 135 S. W. 327, 329 (1911), and the highest court of Pennsylvania held that competence is "decided by a preponderance of the evidence," Commonwealth v. Simanowicz, 242 Pa. 402, 405, 89 A. 562, 563 (1913).14 These early authorities are bereft of language susceptible of supporting a clear and convincing evidence standard. 15Contemporary practice demonstrates that the vast majority of jurisdictions remain persuaded that the heightened standard of proof imposed on the accused in Oklahoma is not necessary to vindicate the State's interest in prompt and orderly disposition of criminal cases. Only 4 of the 50 States presently require the criminal defendant to prove his incompetence by clear and convincing evidence.16 None of the re-14 See also State v. Arnold, 12 Iowa 479, 484 (1861) ("A doubt must be raised whether at the time there is such mental impairment ... as to render it probable that the prisoner can not, as far as may devolve upon him, have a full, fair and impartial trial"); People v. McElvaine, 125 N. Y. 596, 608, 26 N. E. 929, 933 (1891) (the court "was familiar with the appearance and conduct of the prisoner during the period of that trial, and had sufficient grounds before it to judge as to the probability of his present sanity"). See also Crocker v. State, 19 N. W. 435, 436 (Wis. 1884); United States v. Chisolm, 149 F.2d 4, 290 (SD Ala. 1906).Several of the early cases explicitly mention the common-law roots of the State's statutory procedure for determining competency. See People v. McElvaine, 125 N. Y., at 608, 26 N. E., at 932 ("We do not think the Code of Criminal Procedure has made any radical change in the mode of procedure or the character of the [competency] proceedings"); French v. State, 67 N. W. 706, 710 (Wis. 1896) ("The statute ... providing for an inquisition, where there is a probability that the accused is, at the time of his trial, insane, and thereby incapacitated to act for himself, to determine whether he is so insane, is substantially a provision in affirmance of a power the court had at common law in such cases, as abundantly appears from the authorities").15 Oklahoma all but concedes that early common law and statutory decisions employed a standard of proof lower than clear and convincing. See Brief for Respondent 21-23.16 Conn. Gen. Stat. § 54-56d(b) (1995); Okla. Stat., Tit. 22, § 1175.4 (1991); 50 Pa. Cons. Stat. § 7403(a) (Supp. 1995); and R. 1. Gen. Laws § 40.1-5.3-3 (Supp. 1995). The adoption of the clear and convincing evidence standard361maining 46 jurisdictions imposes such a heavy burden on the defendantP Indeed, a number of States place no burden on the defendant at all, but rather require the prosecutor toby Oklahoma and Connecticut may have been a response to this Court's decision in Addington v. Texas, 441 U. S. 418 (1979). We discuss Addington infra, at 368-369.17See Lackey v. State, 615 So. 2d 145, 151-152 (Ala. Crim. App. 1992); M cCarlo v. State, 677 P. 2d 1268, 1272 (Alaska App. 1984); Cal. Penal Code Ann. § 1369(f) (West 1982); Colo. Rev. Stat. § 16-8-111(2) (1986); Diaz v. State, 508 A. 2d 861, 863 (Del. 1986); Flowers v. State, 353 So. 2d 1259, 1270 (Fla. App. 1978); Johnson v. State, 209 Ga. App. 514, 516, 433 S. E. 2d 717, 719 (1993); Haw. Rev. Stat. §§ 704-404 and 704-411 (1993); Ill. Compo Stat., ch. 725, § 5/104-11 (c) (1992); Montano V. State, 649 N. E. 2d 1053,1057-1058 (Ind. App. 1995); State V. Rhode, 503 N. W. 2d 27,35 (Iowa App. 1993); State V. Seminary, 165 La. 67, 72,115 So. 370, 372 (1927); Jolley V. State, 282 Md. 353, 365, 384 A. 2d 91, 98 (1978); Commonwealth V. Prater, 420 Mass. 569, 573-574, 651 N. E. 2d 833, 837 (1995); Minn. Rule Crim. Proc. 20.01 (1995); Griffin V. State, 504 So. 2d 186, 191 (Miss. 1987); State V. Zorzy, 136 N. H. 710, 714-715, 622 A. 2d 1217, 1219 (1993); State V. Lambert, 275 N. J. Super. 125, 129, 645 A. 2d 1189, 1191 (1994); State V. Chapman, 104 N. M. 324, 327, 721 P. 2d 392, 395 (1986); People V. Santos, 43 App. Div. 2d 73, 75, 349 N. Y. S. 2d 439, 442 (1973); State V. Heger, 326 N. W. 2d 855, 858 (N. D. 1982); Ohio Rev. Code Ann. § 2945.37 (1993); State V. Nance, 466 S. E. 2d 349, 351 (S. C. 1996); S. D. Codified Laws §23A-10A-6.1 (1988); Jordan V. State, 124 Tenn. 81, 89,135 S. W. 327,329 (1911); Blacklock V. State, 820 S. W. 2d 882, 886 (Tex. App. 1991); Utah Code Ann. § 77-15-5(10) (1995); Va. Code Ann. § 19.2-169.1(E) (1995); Wash. Rev. Code § 10.77.090 (1994); W. Va. Code §27-6A-2(b) (1992); Wis. Stat. § 971.14(4)(b) (1985 and Supp. 1995); Loomer V. State, 768 P. 2d 1042, 1045 (Wyo. 1989).The burden imposed in the remaining States is unclear. Nothing in the competency statutes or case law of these States suggests, however, that the defendant bears the burden of proving incompetence by clear and convincing evidence. See Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995); Mitchell V. State, 323 Ark. 116, 120, 913 S. W. 2d 264, 266 (1996); Idaho Code § 18-212 (1987); Kan. Stat. Ann. § 22-3302 (1995); Ky. Rev. Stat. Ann. § 504.100 (Michie 1990); Me. Rev. Stat. Ann., Tit. 15, § 101-B (Supp. 1995); Mich. Compo Laws § 330.2020 (1992); State V. Clark, 546 S. W. 2d 455, 468 (Mo. App. 1976); Mont. Code Ann. §46-14-221 (1992 and Supp. 1995); Neb. Rev. Stat. §29-1823 (1989); Nev. Rev. Stat. § 178.415 (1992); N. C. Gen. Stat. § 15A-1002 (1988); Ore. Rev. Stat. §§ 161.360-161.370 (Supp. 1994); and Vt. Stat. Ann., Tit. 13, §4817 (1974).362prove the defendant's competence to stand trial once a question about competency has been credibly raised.18 The situation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence. 18 U. s. C. §4241.The near-uniform application of a standard that is more protective of the defendant's rights than Oklahoma's clear and convincing evidence rule supports our conclusion that the heightened standard offends a principle of justice that is deeply "rooted in the traditions and conscience of our people." Medina v. California, 505 U. S., at 445 (internal quotation marks omitted). We turn next to a consideration of whether the rule exhibits "'fundamental fairness' in operation." Id., at 448 (quoting Dowling v. United States, 493 U. S. 342, 352 (1990)).IVContemporary and historical procedures are fully consistent with our evaluation of the risks inherent in Oklahoma's practice of requiring the defendant to prove incompetence by clear and convincing evidence. In Addington v. Texas, 441 U. S. 418, 423 (1979), we explained that:"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring)."The "more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision."18 See, e. g., Haw. Rev. Stat. §§ 704-404 and 704-411 (1993); Ill. Compo Stat., ch. 725, §5/104-11(c) (1992); S. D. Codified Laws §23A-10A-6.1 (1988); Wis. Stat. § 971.14(4)(b) (Supp. 1994 and Supp. II 1995).363Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 283 (1990). For that reason, we have held that due process places a heightened burden of proof on the State in civil proceedings in which the "individual interests at stake ... are both 'particularly important' and 'more substantial than mere loss of money.''' Santosky v. Kramer, 455 U. S. 745, 756 (1982) (termination of parental rights) (quoting Addington, 441 U. S., at 424).19Far from "jealously guard[ing]," Jacob v. New York City, 315 U. S. 752, 752-753 (1942), an incompetent criminal defendant's fundamental right not to stand trial, Oklahoma's practice of requiring the defendant to prove incompetence by clear and convincing evidence imposes a significant risk of an erroneous determination that the defendant is competent. In Medina we found no comparable risk because the presumption would affect only the narrow class of cases in which the evidence on either side was equally balanced.19 See also Addington v. Texas (involuntary civil commitment); Woodby v. INS, 385 U. S. 276, 285-286 (1966) (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118, 125 (1943) (denaturalization).Our opinions in Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990), and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990), are not to the contrary. In Cruzan we held that the Due Process Clause does not prohibit Missouri from requiring a third party who seeks to terminate life-sustaining treatment to demonstrate by clear and convincing evidence that the incompetent person receiving such treatment would wish that step to be taken. 497 U. S., at 280. We reasoned that the heightened standard of proof was permissible because the decisionmaker was a surrogate for the incompetent individual, id., at 280-281, and because the consequences of an erroneous decision were irreversible, id., at 283. In Akron Center for Reproductive Health we upheld an Ohio statute that required an unmarried, unemancipated minor woman who sought to obtain an abortion without notifying a parent to prove by clear and convincing evidence that judicial bypass of the notification requirement was appropriate in her case. We approved the heightened standard of proof in that case largely because the proceeding at issue was ex parte. 497 U. S., at 515-516.364"Once a State provides a defendant access to procedures for making a competency evaluation," we stated, there is "no basis for holding that due process further requires the State to assume the burden of vindicating the defendant's constitutional right by persuading the trier of fact that the defendant is competent to stand trial." 505 U. S., at 449. Unlike the presumption at issue in Medina, however, Oklahoma's clear and convincing evidence standard affects a class of cases in which the defendant has already demonstrated that he is more likely than not incompetent.For the defendant, the consequences of an erroneous determination of competence are dire. Because he lacks the ability to communicate effectively with counsel, he may be unable to exercise other "rights deemed essential to a fair trial." Riggins v. Nevada, 504 U. S., at 139 (KENNEDY, J., concurring in judgment). After making the "profound" choice whether to plead guilty, Godinez v. Moran, 509 U. S. 389, 398 (1993), the defendant who proceeds to trial"will ordinarily have to decide whether to waive his 'privilege against compulsory self-incrimination,' Boykin v. Alabama, 395 U. S. 238, 243 (1969), by taking the witness stand; if the option is available, he may have to decide whether to waive his 'right to trial by jury,' ibid.; and, in consultation with counsel, he may have to decide whether to waive his 'right to confront [his] accusers,' ibid., by declining to cross-examine witnesses for the prosecution." Ibid.With the assistance of counsel, the defendant also is called upon to make myriad smaller decisions concerning the course of his defense. The importance of these rights and decisions demonstrates that an erroneous determination of competence threatens a "fundamental component of our criminal justice system" 2°-the basic fairness of the trial itself.20 United States v. Cronic, 466 U. S. 648, 653 (1984).365By comparison to the defendant's interest, the injury to the State of the opposite error-a conclusion that the defendant is incompetent when he is in fact malingering-is modest. To be sure, such an error imposes an expense on the state treasury and frustrates the State's interest in the prompt disposition of criminal charges. But the error is subject to correction in a subsequent proceeding and the State may detain the incompetent defendant for "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competence] in the foreseeable future." Jackson v. Indiana, 406 U. S. 715, 738 (1972).21The Oklahoma Court of Criminal Appeals correctly observed that the "inexactness and uncertainty" that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering. 889 P. 2d, at 303. We presume, however, that it is unusual for even the most artful malingerer to feign incompetence successfully for a period of time while under professional care.22 In this regard it is worth reiterating that only four jurisdictions currently consider it necessary to impose on the criminal defendant the burden of proving incompetence by clear and convincing evidence. Moreover, there is no reason to believe that the art of dissimilation is new. Eighteenth and nineteenth century courts, for example, warned jurors charged with making competency determinations that "'there may be great fraud in this matter,'" King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep., at 136, n. (a) (quoting21 Under Jackson, if the defendant regains competence or is found to be malingering, the State may proceed to trial.22 Sir John Rawles, Solicitor General to King William III (who reigned from 1689-1702), noted that "there is a great difference between pretences and realities, and sana and non sana memoria hath been often tryed in capital matters, and the prisoners have reaped so little benefit by their pretences, it being always discovered, that we rarely hear of it." Rawles, Remarks on the Trial of Mr. Charles Bateman (1685), 11 Row. St. Tr. 474, 478 (1816).3661 Hale, Pleas of the Crown, at *35), and that "[i]t would be a reproach to justice if a guilty man ... postponed his trial upon a feigned condition of mind, as to his inability to aid in his defense," United States v. Chisolm, 149 F., at 288.23 Although they recognized this risk, the early authorities did not resort to a heightened burden of proof in competency proceedings. See Part III, supra.More fundamentally, while the difficulty of ascertaining where the truth lies may make it appropriate to place the burden of proof on the proponent of an issue, it does not justify the additional onus of an especially high standard of proof. As the Chisolm Court continued,"[I]t would be likewise a reproach to justice and our institutions, if a human being ... were compelled to go to trial at a time when he is not sufficiently in possession of his mental faculties to enable him to make a rational and proper defense. The latter would be a more grievous error than the former; since in the one case an individual would go unwhipped of justice, while in the other the great safeguards which the law adopts in the punishment of crime and the upholding of justice would be rudely invaded by the tribunal whose sacred duty it is to uphold the law in all its integrity." 149 F., at 288.A heightened standard does not decrease the risk of error, but simply reallocates that risk between the parties. See Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 283. In cases in which competence is at issue, we perceive no sound basis for allocating to the criminal defendant the large share of the risk which accompanies a clear and convincing evidence standard. We assume that questions of competence will arise in a range of cases including not only those in which one side will prevail with relative ease, but also those in which it is more likely than not that the defendant23 See also People v. Lake, 2 N. Y. 215, 220, 222 (1855); State v. Harris, 78 Am. Dec. 272, 274 (N. C. 1860); State v. Tyler, 7 Ohio N. P., at 444.367is incompetent but the evidence is insufficiently strong to satisfy a clear and convincing standard. While important state interests are unquestionably at stake, in these latter cases the defendant's fundamental right to be tried only while competent outweighs the State's interest in the efficient operation of its criminal justice system.vOklahoma makes two additional arguments in support of its procedural rule that warrant discussion. First, Oklahoma correctly reminds us that it is normally within the power of the State to establish the procedures through which its laws are given effect, including those related to the burden of producing evidence and the burden of persuasion. See Patterson v. New York, 432 U. S., at 201-202. In Patterson we upheld New York's requirement that in a prosecution for second-degree murder the defendant must bear the burden of proving the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. Id., at 207-208. After observing that the rule was consistent with common-law practice, id., at 202, we held that "[t]he Due Process Clause ... does not put New York to the choice of abandoning [statutory] defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment," id., at 207-208.Although we found no violation in Patterson, we noted that the State's power to regulate procedural burdens was subject to proscription under the Due Process Clause if it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," id., at 201-202 (internal quotation marks omitted). This case involves such a rule. Unlike Patterson, which concerned procedures for proving a statutory defense, we consider here whether a State's procedures for guaranteeing a fundamental constitutional right are sufficiently protective368of that right. The deep roots and fundamental character of the defendant's right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection.Finally, Oklahoma suggests that our decision in Addington v. Texas, 441 U. S. 418 (1979), in which we held that due process requires a clear and convincing standard of proof in an involuntary civil commitment proceeding, supports imposition of such a rule in competency proceedings. The argument is unpersuasive because commitment and competency proceedings address entirely different substantive issues. Although we have not had the opportunity to consider the outer limits of a State's authority to civilly commit an unwilling individual, O'Connor v. Donaldson, 422 U. S. 563, 573574 (1975), our decision in Donaldson makes clear that due process requires at a minimum a showing that the person is mentally ill and either poses a danger to himself or others or is incapable of "surviving safely in freedom," id., at 573576. The test for competence to stand trial, by contrast, is whether the defendant has the present ability to understand the charges against him and communicate effectively with defense counsel. Dusky v. United States, 362 U. S., at 402. Even if we were to uphold Oklahoma's imposition of the clear and convincing evidence rule in competency proceedings, the comparable standards in the two proceedings would not guarantee parallel results.24More importantly, our decision today is in complete accord with the basis for our ruling in Addington. Both cases concern the proper protection of fundamental rights in circumstances in which the State proposes to take drastic action against an individual. The requirement that the grounds for civil commitment be shown by clear and convincing evidence24 For example, a mentally retarded defendant accused of a nonviolent crime may be found incompetent to stand trial but not necessarily be subject to involuntary civil commitment.369protects the individual's fundamental interest in liberty. The prohibition against requiring the criminal defendant to demonstrate incompetence by clear and convincing evidence safeguards the fundamental right not to stand trial while incompetent. Because Oklahoma's procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process.25VIFor the foregoing reasons, the judgment is reversed, and the case is remanded to the Oklahoma Court of Criminal Appeals for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1995SyllabusCOOPER v. OKLAHOMACERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMANo. 95-5207. Argued January 17, 1996-Decided April 16, 1996Oklahoma law presumes that a criminal defendant is competent to stand trial unless he proves his incompetence by clear and convincing evidence. Applying that standard, a judge found petitioner Cooper competent on separate occasions before and during his trial for first-degree murder, despite his bizarre behavior and conflicting expert testimony on the issue. In affirming his conviction and death sentence, the Court of Criminal Appeals rejected his argument that the State's presumption of competence, combined with its clear and convincing evidence standard, placed such an onerous burden on him as to violate due process.Held: Because Oklahoma's procedural rule allows the State to try a defendant who is more likely than not incompetent, it violates due process. Pp.354-369.(a) It is well settled that the criminal trial of an incompetent defendant violates due process. Medina v. California, 505 U. S. 437, 449, establishes that a State may presume that the defendant is competent and require him to prove incompetence by a preponderance of the evidence. Such a presumption does not offend a "'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'" id., at 445, for it affects the outcome "only in a narrow class of cases ... where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent," id., at 449. This case, however, presents the quite different question whether a State may proceed with a criminal trial after a defendant has shown that he is more likely than not incompetent. Pp. 354-356.(b) Oklahoma's rule has no roots in historical practice. Both early English and American cases suggest that the common-law standard of proof was preponderance of the evidence. That this same standard is currently used by 46 States and the federal courts indicates that the vast majority of jurisdictions remain persuaded that Oklahoma's heightened standard is not necessary to vindicate the State's interest in prompt and orderly disposition of criminal cases. The near-uniform application of a standard that is more protective of the defendant's rights than Oklahoma's rule supports the conclusion that the heightened standard offends a deeply rooted principle of justice. pp. 356-362.349(c) Oklahoma's rule does not exhibit "fundamental fairness" in operation. An erroneous determination of competence has dire consequences for a defendant who has already demonstrated that he is more likely than not incompetent, threatening the basic fairness of the trial itself. A defendant's inability to communicate effectively with counsel may leave him unable to exercise other rights deemed essential to a fair trial--e. g., choosing to plead guilty, waiving his privilege against compulsory self-incrimination by taking the witness stand, or waiving his rights to a jury trial or to cross-examine witnesses-and to make a myriad of smaller decisions concerning the course of his defense. These risks outweigh the State's interest in the efficient operation of its criminal justice system. Difficulty in ascertaining whether a defendant is incompetent or malingering may make it appropriate to place the burden of proof on him, but it does not justify the additional onus of an especially high standard of proof. pp.362-367.(d) Although it is normally within a State's power to establish the procedures through which its laws are given effect, the power to regulate procedural burdens is subject to proscription under the Due Process Clause when, as here, the procedures do not sufficiently protect a fundamental constitutional right. Patterson v. New York, 432 U. S. 197, distinguished. The decision herein is in complete accord with the ruling in Addington v. Texas, 441 U. S. 418, that due process requires a clear and convincing evidence standard of proof in involuntary civil commitment proceedings. That ruling protects an individual's fundamental liberty interest, while the ruling in this case safeguards the fundamental right not to stand trial while incompetent. Pp. 367-369.889 P. 2d 293, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Robert A. Ravitz argued the cause and filed briefs for petitioner.W A. Drew Edmondson, Attorney General of Oklahoma, argued the cause for respondent. With him on the brief was Sandra D. Howard, Assistant Attorney General. **Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W Ellis and Barbara E. Bergman; and for the National Association of Criminal Defense Lawyers by Charles D. Weisselberg, Dennis E. Curtis, Denise Meyer, and Larry J. Fleming.A brief of amicus curiae urging affirmance was filed for the State of Utah et al. by Jan Graham, Attorney General of Utah, J. Kevin Murphy,350Full Text of Opinion

1997_96-1581

(d) Neither the 1894 Act's clause reserving sections of each township for schools nor its prohibition on liquor within the ceded lands supports the Tribe's position. The Court agrees with the State that the school sections clause reinforces the view that Congress intended to extinguish the reservation status of the unallotted land. See, e. g., Rosebud, supra, at 601; but see Solem, supra, at 474. Moreover, the most reasonable inference from the inclusion of the liquor prohibition is that Congress was aware that the opened, unallotted areas would henceforth not be "Indian country," where alcohol already had been banned. Rosebud, supra, at 613. Pp. 349-351.(e) Although the Act's historical context and the area's subsequent treatment are not such compelling evidence that, standing alone, they would indicate diminishment, neither do they rebut the "almost insurmountable presumption" that arises from the statute's plain terms. The manner in which the Government negotiated the transaction with the Tribe and the tenor of the legislative reports presented to Congress reveal a contemporaneous understanding that the 1894 Act modified the reservation. See Solem, supra, at 471. The legislative history itself adds little because Congress considered several surplus land sale agreements at the same time, but the few relevant references from the floor debates support a finding of diminishment. In addition, the Presidential Proclamation opening the lands to settlement contains language indicating that the Nation's Chief Executive viewed the reservation boundaries as altered. See Rosebud, supra, at 602-603. Pp. 351-354.(f) Despite the apparent contemporaneous understanding that the 1894 Act diminished the reservation, in the years since, both Congress and the Executive Branch have described the reservation in contradictory terms and treated the region in an inconsistent manner. The mixed record reveals no dominant approach, and it carries but little force in light of the strong textual and contemporaneous evidence of diminishment. E. g., Rosebud, supra, at 605, n. 27. Pp. 354-356.(g) Demographic factors also signify diminishment: The Yankton population in the region promptly and drastically declined after the 1894 Act, and the area remains predominantly populated by non-Indians with only a few surviving pockets of Indian allotments. Solem, supra, at 471, and n. 12. The Court's holding is further reinforced by the State's assumption of jurisdiction over the ceded territory almost immediately after the 1894 Act, and by the lack of evidence that the Tribe has attempted until recently to exercise jurisdiction over nontrust lands. 99 F.3d 1439, 1456. Finally, the Yankton Constitution, drafted in 1932 and amended in 1962, defines the Tribe's territory to include only those tribal lands within the 1858 boundaries "now owned" by the Tribe. Pp.356-357.332(h) The conflicting understandings about the status of the reservation, together with the fact that the Tribe continues to own land in common, caution the Court to limit its holding to the narrow question presented: whether unallotted, ceded lands were severed from the reservation. The Court need not determine whether Congress disestablished the reservation altogether in order to resolve this case, and accordingly declines to do so. See, e. g., Hagen, supra, at 421. pp. 357-358.99 F.3d 1439, reversed and remanded.O'CONNOR, J., delivered the opinion for a unanimous Court.Mark W Barnett, Attorney General of South Dakota, argued the cause for petitioner. With him on the briefs was John Patrick Guhin, Deputy Attorney General. Kenneth W Cotton filed a brief for the Southern Missouri Waste Management District, respondent under this Court's Rule 12.4, in support of petitioner.James G. Abourezk argued the cause for respondent Yankton Sioux Tribe et al. With him on the brief were BobbieBarbara McDowell argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Acting Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, and Edward J. Shawaker. **Briefs of amici curiae urging reversal were filed for Charles Mix County, South Dakota, by Tom D. Tobin and Matthew F. Gaffey; for the City of Dante et al. by Timothy R. Whalen; for Duchesne County, Utah, by Herbert Wm. Gillespie; and for Lewis County, Idaho, by Kimron R. Torgerson.Reid Peyton Chambers, Arthur Lazarus, Jr., and William R. Perry filed a brief for the Standing Rock Sioux Tribe et al. as amici curiae urging affirmance.A brief of amici curiae was filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, and Thomas F. Gede, Special Assistant Attorney General, Alan G. Lance, Attorney General of Idaho, and Steven W Strack, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Jeremiah W (Jay) Nixon of Missouri,333JUSTICE O'CONNOR delivered the opinion of the Court. This case presents the question whether, in an 1894 statute that ratified an agreement for the sale of surplus tribal lands, Congress diminished the boundaries of the Yankton Sioux Reservation in South Dakota. The reservation was established pursuant to an 1858 Treaty between the United States and the Yankton Sioux Tribe. Subsequently, under the Indian General Allotment Act, Act of Feb. 8, 1887, 24 Stat. 388, 25 U. S. C. § 331 (Dawes Act), individual members of the Tribe received allotments of reservation land, and the Government then negotiated with the Tribe for the cession of the remaining, unallotted lands. The issue we confront illustrates the jurisdictional quandaries wrought by the allotment policy: We must decide whether a landfill constructed on non-Indian fee land that falls within the boundaries of the original Yankton Reservation remains subject to federal environmental regulations. If the divestiture of Indian property in 1894 effected a diminishment of Indian territory, then the ceded lands no longer constitute "Indian country" as defined by 18 U. S. C. § 1151(a), and the State now has primary jurisdiction over them. In light of the operative language of the 1894 Act, and the circumstances surrounding its passage, we hold that Congress intended to diminish the Yankton Reservation and consequently that the waste site is not in Indian country.I AAt the outset of the 19th century, the Yankton Sioux Tribe held exclusive dominion over 13 million acres of land between the Des Moines and Missouri Rivers, near the boundary that currently divides North and South Dakota. H. Hoover, The Yankton Sioux 25 (1988). In 1858, theFrankie Sue Del Papa of Nevada, Jan Graham of Utah, and William U. Hill of Wyoming.334Yanktons entered into a treaty with the United States renouncing their claim to more than 11 million acres of their aboriginal lands in the north-central plains. Treaty of Apr. 19, 1858, 11 Stat. 743. Pursuant to the agreement, the Tribe ceded"all the lands now owned, possessed, or claimed by them, wherever situated, except four hundred thousand acres thereof, situated and described as follows, to wit-Beginning at the mouth of the Naw-izi-wa-koo-pah or Chouteau River and extending up the Missouri River thirty miles; thence due north to a point; thence easterly to a point on the said Chouteau River; thence down said river to the place of beginning, so as to include the said quantity of four hundred thousand acres." Art. I, id., at 744.The retained portion of the Tribe's lands, located in what is now the southeastern part of Charles Mix County, South Dakota, was later surveyed and determined to encompass 430,405 acres. See Letter from the Commissioner of Indian Affairs to the Secretary of the Interior (Dec. 9, 1893), reprinted in S. Exec. Doc. No. 27, 53d Cong., 2d Sess., 5 (1894) (hereinafter Letter). In consideration for the cession of lands and release of claims, the United States pledged to protect the Yankton Tribe in their "quiet and peaceable possession" of this reservation and agreed that "[n]o white person," with narrow exceptions, would "be permitted to reside or make any settlement upon any part of the [reservation]." Arts. IV, X, 11 Stat. 744, 747. The Federal Government further promised to pay the Tribe, or expend for the benefit of members of the Tribe, $1.6 million over a 50-year period, and appropriated an additional $50,000 to aid the Tribe in its transition to the reservation through the purchase of livestock and agricultural implements, and the construction of houses, schools, and other buildings.335Not all of this assistance was forthcoming, and the Tribe experienced severe financial difficulties in the years that followed, compounded by weather cycles of drought and devastating floods. When war broke out between the United States and the Sioux Nation in 1862, the Yankton Tribe alone sided with the Federal Government, a decision that isolated it from the rest of the Sioux Federation and caused severe inner turmoil as well. The Tribe's difficulties coincided with a period of rapid growth in the United States' population, increasing westward migration, and ensuing demands from non-Indians to open Indian holdings throughout the Western States to settlement.In response to these "familiar forces," DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425, 431 (1975), Congress retreated from the reservation concept and began to dismantle the territories that it had previously set aside as permanent and exclusive homes for Indian tribes. See Solem v. Bartlett, 465 U. S. 463, 466 (1984). The pressure from westward-bound homesteaders, and the belief that the Indians would benefit from private property ownership, prompted passage of the Dawes Act in 1887, 24 Stat. 388. The Dawes Act permitted the Federal Government to allot tracts of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement. Within a generation or two, it was thought, the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers. See Hearings on H. R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 428 (1934) (statement of D. S. Otis on the history of the allotment policy). With respect to the Yankton Reservation in particular, some Members of Congress speculated that "close contact with the frugal, moral, and industrious people who will settle [on the reservation] [would] stimulate individual effort and make [the Tribe's] progress much336more rapid than heretofore." Report of the Senate Committee on Indian Affairs, S. Rep. No. 196, 53d Cong., 2d Sess., 1 (1894).In accordance with the Dawes Act, each member of the Yankton Tribe received a 160-acre tract from the existing reservation, held in trust by the United States for 25 years. Members of the Tribe acquired parcels of land throughout the 1858 reservation, although many of the allotments were clustered in the southern part, near the Missouri River. By 1890, the allotting agent had apportioned 167,325 acres of reservation land, 95,000 additional acres were subsequently allotted under the Act of February 28, 1891, 26 Stat. 795, and a small amount of acreage was reserved for government and religious purposes. The surplus amounted to approximately 168,000 acres of unallotted lands. See Letter, at 5.In 1892, the Secretary of the Interior dispatched a threemember Yankton Indian Commission to Greenwood, South Dakota, to negotiate for the acquisition of these surplus lands. See Act of July 13, 1892, 27 Stat. 137 (appropriating funds to enable the Secretary to "negotiate with any Indians for the surrender of portions of their respective reservations"). When the Commissioners arrived on the reservation in October 1892, they informed the Tribe that they had been sent by the "Great Father" to discuss the cession of "this land that [members of the Tribe] hold in common," Council of the Yankton Indians (Oct. 8, 1892), transcribed in S. Exec. Doc. No. 27, at 48, and they abruptly encountered opposition to the sale from traditionalist tribal leaders. See Report of the Yankton Indian Commission (Mar. 31, 1893), reprinted in S. Exec. Doc. No. 27, at 9-11 (hereinafter Report). In the lengthy negotiations that followed, members of the Tribe raised concerns about the suggested price per acre, the preservation of their annuities under the 1858 Treaty, and other outstanding claims against the United States, but they did not discuss the future boundaries of the337reservation. Once the Commissioners garnered a measure of support for the sale of the unallotted lands, they submitted a proposed agreement to the Tribe.11 The text of the agreement provides in relevant part:"Article I."The Yankton tribe of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said Indians as aforesaid."Article II."In consideration for the lands ceded, sold, relinquished, and conveyed to the United States as aforesaid, the United States stipulates and agrees to pay to the said Yankton tribe of Sioux Indians the sum of six hundred thousand dollars ($600,000), as hereinbefore provided for."Article VII."In addition to the stipulations in the preceding articles, upon the ratification of this agreement by Congress, the United States shall pay to the Yankton tribe of Sioux Indians as follows: To each person whose name is signed to this agreement and to each other male member of the tribe who is eighteen years old or older at the date of this agreement, twenty dollars ($20) in one double eagle, struck in the year 1892 as a memorial of this agreement ...."Article VIII."Such part of the surplus lands hereby ceded and sold to the United States as may now be occupied by the United States for agency, schools, and other purposes, shall be reserved from sale to settlers until they are no longer required for such purposes. But all other lands included in this sale shall, immediately after the ratification of this agreement by Congress, be offered for sale through the proper land office, to be disposed of under the existing land laws of the United States, to actual bona fide settlers only."Article XV."The claim of fifty-one Yankton Sioux Indians, who were employed as scouts by General Alf. Sully in 1864, for additional compensation at the rate of two hundred and twenty-five dollars ($225) each, aggregating the sum of eleven thousand four hundred and seventy-five dollars ($11,475) is hereby recognized as just, and within ninety days (90) after the ratification338Article I of the agreement provided that the Tribe would "cede, sell, relinquish, and convey to the United States" all of the unallotted lands on the reservation. Pursuant to Article II, the United States agreed to compensate the Tribe in a single payment of $600,000, which amounted to $3.60 per acre.2 Much of the agreement focused on the payment and disposition of that sum. Article VII further provided that all the signatories and adult male members of the Tribe would receive a $20 gold piece to commemorate the agreement. Some members of the Tribe also sought unpaid wages from their service as scouts in the Sioux War, and in Article XV; the United States recognized their claim. The saving clause in Article XVIII, the core of the current disagreement between the parties to this case, stated that noth-of this agreement by Congress the same shall be paid in lawful money of the United States to the said scouts or to their heirs."Article XVII."No intoxicating liquors nor other intoxicants shall ever be sold or given away upon any of the lands by this agreement ceded and sold to the United States, nor upon any other lands within or comprising the reservations of the Yankton Sioux or Dakota Indians as described in the treaty between the said Indians and the United States, dated April 19th, 1858, and as afterwards surveyed and set off to the said Indians. The penalty for the violation of this provision shall be such as Congress may prescribe in the act ratifying this agreement."Article XVIII."Nothing in this agreement shall be construed to abrogate the treaty of April 19th, 1858, between the Yankton tribe of Sioux Indians and the United States. And after the signing of this agreement, and its ratification by Congress, all provisions of the said treaty of April 19th, 1858, shall be in full force and effect, the same as though this agreement had not been made, and the said Yankton Indians shall continue to receive their annuities under the said treaty of April 19th, 1858." 28 Stat. 314-318.2 In 1980, the Court of Claims concluded that the land ceded by the Tribe had a fair market value of $6.65 per acre, or $1,337,381.50, that the $600,000 paid pursuant to the 1892 agreement was "unconscionable and grossly inadequate," and that the Tribe was entitled to recover the difference. Yankton Sioux Tribe v. United States, 623 F.2d 159, 178.339ing in the agreement's terms "shall be construed to abrogate the treaty [of 1858]" and that "all provisions of the said treaty ... shall be in full force and effect, the same as though this agreement had not been made."By March 1893, the Commissioners had collected signatures from 255 of the 458 male members of the Tribe eligible to vote, and thus obtained the requisite majority endorsement. The Yankton Indian Commission filed its report in May 1893, but congressional consideration was delayed by an investigation into allegations of fraud in the procurement of signatures. On August 15, 1894, Congress finally ratified the 1892 agreement, together with similar surplus land sale agreements between the United States and the Siletz and Nez Perce Tribes. Act of Aug. 15, 1894, 28 Stat. 286. The 1894 Act incorporated the 1892 agreement in its entirety and appropriated the necessary funds to compensate the Tribe for the ceded lands, to satisfy the claims for scout pay, and to award the commemorative $20 gold pieces. Congress also prescribed the punishment for violating a liquor prohibition included in the agreement and reserved certain sections in each township for common-school purposes. Ibid.President Cleveland issued a proclamation opening the ceded lands to settlement as of May 21,1895, and non-Indians rapidly acquired them. By the turn of the century, 90 percent of the unallotted tracts had been settled. See Yankton Sioux Tribe v. United States, 623 F.2d 159, 171 (Ct. Cl. 1980). A majority of the individual allotments granted to members of the Tribe also were subsequently conveyed in fee by the members to non-Indians. Today, the total Indian holdings in the region consist of approximately 30,000 acres of allotted land and 6,000 acres of tribal land. Indian Reservations: A State and Federal Handbook 260 (1986).Although formally repudiated with the passage of the Indian Reorganization Act in 1934, 48 Stat. 984, 25 U. S. C. § 461, the policy favoring assimilation of Indian tribes through the allotment of reservation land left behind a last-340ing legacy. The conflict between the modern-day approach to tribal self-determination and the assimilation impetus of the allotment era has engendered "a spate of jurisdictional disputes between state and federal officials as to which sovereign has authority over lands that were opened by the [surplus land] Acts and have since passed out of Indian ownership." Solem, 465 U. S., at 467.BWe confront such a dispute in the instant case, in which tribal, federal, and state officials disagree as to the environmental regulations applicable to a proposed waste site. In February 1992, several South Dakota counties formed the Southern Missouri Recycling and Waste Management District (hereinafter Waste District) for the purpose of constructing a municipal solid waste disposal facility. The Waste District acquired the site for the landfill, which falls within the 1858 boundaries of the Yankton Sioux Reservation, in fee from a non-Indian. The predicate for the parties' claims in this case is that the waste site lies on land ceded in the 1894 Act, and the record supports that assumption.In the Tribe's complaint, the proposed landfill is described as "the south one-half north one-quarter (S% N'i4), Section 6, Township 96 North, Range 65 West (S6, T96N, R65W) of the Fifth Principal Meridan [sic], Charles Mix County, South Dakota." App. 24. That description corresponds to the account of a tract of land deeded to Lars K. Langeland under the Homestead Act in 1904. See App. to Brief for Respondent Southern Missouri Waste Management District 1a-2a. Because all of the land allotted to individual Indians on the Yankton Reservation was inalienable, pursuant to the Dawes Act, during a 25-year trust period, the tract acquired by a homesteader in 1904 and currently owned by the Waste District must consist of unallotted land ceded in the 1894 Act. (The Dawes Act was amended in 1906 by the Burke Act, 34 Stat. 182, 25 U. S. C. § 349, which permitted the issuance of341some fee-simple patents before the expiration of the 25-year trust period, but the restrictions on alienation remained in place as of 1904.)When the Waste District sought a state permit for the landfill, the Yankton Tribe intervened and objected on environmental grounds, arguing that the proposed compacted clay liner was inadequate to prevent leakage. After an administrative hearing in December 1993, the State Board of Minerals and the Environment granted the solid waste permit, finding that South Dakota regulations did not require the installation of the synthetic composite liner the Tribe had requested. The Sixth Judicial Circuit affirmed the Board's decision, and no appeal was taken to the State Supreme Court.In September 1994, the Tribe filed suit in the Federal District Court for the District of South Dakota to enjoin construction of the landfill, and the Waste District joined South Dakota as a third party so that the State could defend its jurisdiction to grant the permit. The Tribe also sought a declaratory judgment that the permit did not comport with Federal Environmental Protection Agency (EP A) regulations mandating the installation of a composite liner in the landfill. See 40 CFR § 258.40(b) (1997). The District Court held, in accordance with our decision in South Dakota v. Bourland, 508 U. S. 679, 692 (1993), that the Tribe itself could not assert regulatory jurisdiction over the non-Indian activity on fee lands. Furthermore, because the Tribe did not establish that the landfill would compromise the "political integrity, the economic security, or the health or welfare of the tribe," the court concluded that the Tribe could not invoke its inherent sovereignty under the exceptions in Montana v. United States, 450 U. S. 544, 566 (1981). Accordingly, the court declined to enjoin the landfill project, a decision the Tribe does not appeal. The District Court also determined, however, that the 1894 Act did not diminish the exterior boundaries of the reservation as delineated in the 1858342Treaty between the United States and the Tribe, and consequently that the waste site lies within an Indian reservation where federal environmental regulations apply.On appeal by the State,3 a divided panel of the Court of Appeals for the Eighth Circuit agreed that "Congress intended by its 1894 Act that the Yankton Sioux sell their surplus land to the government, but not their governmental authority over it." 99 F.3d 1439, 1457 (1996). The court relied primarily on the saving clause in Article XVIII, reasoning that, given its "unusually expansive language," other sections of the 1894 Act "should be read narrowly to minimize any conflict with the 1858 treaty." Id., at 1447. The court further concluded that neither the historical evidence nor the demographic development of the area could sustain a finding of diminishment. Id., at 1457.We granted certiorari to resolve a conflict between the decision of the Court of Appeals and a number of decisions of the South Dakota Supreme Court declaring that the reservation has been diminished.4 520 U. S. 1263 (1997). We now reverse the Eighth Circuit's decision and hold that the unallotted lands ceded as a result of the 1894 Act did not retain reservation status.3 The Waste District explains that it did not appeal because the District Court's decision allowed it to go forward with construction of the proposed landfill, but it filed a brief as a respondent supporting the petitioner State in this Court because "of the likelihood that the assertion of tribal jurisdiction will continue to affect the District in this or similar contexts." Brief for Respondent Southern Missouri Waste Management District 6, n. 6. With respect to the particular issue of the landfill's liner, the Waste District's concerns appear academic. The EPA has waived the requirement of a composite liner and has permitted construction to go forward with the compacted clay liner. See Yankton Sioux Tribe v. Environmental Protection Agency, 950 F. Supp. 1471, 1482 (SD 1996).4 See State v. Greger, 559 N. W. 2d 854 (S. D. 1997); see also State v.Thompson, 355 N. W. 2d 349, 350 (S. D. 1984); State v. Williamson, 87 S. D. 512, 515, 211 N. W. 2d 182, 184 (1973); Wood v. Jameson, 81 S. D. 12, 18-19, 130 N. W. 2d 95, 99 (1964).343IIStates acquired primary jurisdiction over unallotted opened lands where "the applicable surplus land Act freed that land of its reservation status and thereby diminished the reservation boundaries." Solem, 465 U. S., at 467. In contrast, if a surplus land Act "simply offered non-Indians the opportunity to purchase land within established reservation boundaries," id., at 470, then the entire opened area remained Indian country. Our touchstone to determine whether a given statute diminished or retained reservation boundaries is congressional purpose. See Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 615 (1977). Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights. See, e. g., Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978). Accordingly, only Congress can alter the terms of an Indian treaty by diminishing a reservation, United States v. Celestine, 215 U. S. 278, 285 (1909), and its intent to do so must be "clear and plain," United States v. Dion, 476 U. S. 734, 738-739 (1986).Here, we must determine whether Congress intended by the 1894 Act to modify the reservation set aside for the Yankton Tribe in the 1858 Treaty. Our inquiry is informed by the understanding that, at the turn of this century, Congress did not view the distinction between acquiring Indian property and assuming jurisdiction over Indian territory as a critical one, in part because "[t]he notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar," Solem, 465 U. S., at 468, and in part because Congress then assumed that the reservation system would fade over time. "Given this expectation, Congress naturally failed to be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation." Ibid.; see also Hagen v. Utah, 510 U. S. 399, 426 (1994) (Blackmun, J., dissenting) ("As a result of the patina history has placed on the allotment344Acts, the Court is presented with questions that their architects could not have foreseen"). Thus, although "[t]he most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands," we have held that we will also consider "the historical context surrounding the passage of the surplus land Acts," and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there. Id., at 411. Throughout this inquiry, "we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment." Ibid.AArticle I of the 1894 Act provides that the Tribe will "cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation"; pursuant to Article II, the United States pledges a fixed payment of $600,000 in return. This "cession" and "sum certain" language is "precisely suited" to terminating reservation status. See DeCoteau, 420 U. S., at 445. Indeed, we have held that when a surplus land Act contains both explicit language of cession, evidencing "the present and total surrender of all tribal interests," and a provision for a fixed-sum payment, representing "an unconditional commitment from Congress to compensate the Indian tribe for its opened land," a "nearly conclusive," or "almost insurmountable," presumption of diminishment arises. Solem, supra, at 470; see also Hagen, supra, at 411.The terms of the 1894 Act parallel the language that this Court found terminated the Lake Traverse Indian Reservation in DeCoteau, supra, at 445, and, as in DeCoteau, the 1894 Act ratified a negotiated agreement supported by a majority of the Tribe. Moreover, the Act we construe here more clearly indicates diminishment than did the surplus land Act at issue in Hagen, which we concluded diminished reservation lands even though it provided only that "all the345unallotted lands within said reservation shall be restored to the public domain." See 510 U. S., at 412.The 1894 Act is also readily distinguishable from surplus land Acts that the Court has interpreted as maintaining reservation boundaries. In both Seymour v. Superintendent of Wash. State Penitentiary, 368 U. S. 351, 355 (1962), and Mattz v. Arnett, 412 U. S. 481, 501-502 (1973), we held that Acts declaring surplus land "subject to settlement, entry, and purchase," without more, did not evince congressional intent to diminish the reservations. Likewise, in Solem, we did not read a phrase authorizing the Secretary of the Interior to "sell and dispose" of surplus lands belonging to the Cheyenne River Sioux as language of cession. See 465 U. S., at 472. In contrast, the 1894 Act at issue here-a negotiated agreement providing for the total surrender of tribal claims in exchange for a fixed payment-bears the hallmarks of congressional intent to diminish a reservation.BThe Yankton Tribe and the United States, appearing as amicus for the Tribe, rest their argument against diminishment primarily on the saving clause in Article XVIII of the 1894 Act. The Tribe asserts that because that clause purported to conserve the provisions of the 1858 Treaty, the existing reservation boundaries were maintained. The United States urges a similarly "holistic" construction of the agreement, which would presume that the parties intended to modify the 1858 Treaty only insofar as necessary to open the surplus lands for settlement, without fundamentally altering the treaty's terms.Such a literal construction of the saving clause, as the South Dakota Supreme Court noted in State v. Greger, 559 N. W. 2d 854, 863 (1997), would "impugn the entire sale." The unconditional relinquishment of the Tribe's territory for settlement by non-Indian homesteaders can by no means be reconciled with the central provisions of the 1858 Treaty,346which recognized the reservation as the Tribe's "permanent" home and prohibited white settlement there. See Oregon Dept. of Fish and Wildlife v. Klamath Tribe, 473 U. S. 753, 770 (1985) (discounting a saving clause on the basis of a "glaring inconsistency" between the original treaty and the subsequent agreement). Moreover, the Government's contention that the Tribe intended to cede some property but maintain the entire reservation as its territory contradicts the common understanding of the time: that tribal ownership was a critical component of reservation status. See Solem, supra, at 468. We "cannot ignore plain language that, viewed in historical context and given a fair appraisal, clearly runs counter to a tribe's later claims." Klamath, supra, at 774 (internal quotation marks and citation omitted).Rather than read the saving clause in a manner that eviscerates the agreement in which it appears, we give it a "sensible construction" that avoids this "absurd conclusion." See United States v. Granderson, 511 U. S. 39, 56 (1994) (internal quotation marks omitted). The most plausible interpretation of Article XVIII revolves around the annuities in the form of cash, guns, ammunition, food, and clothing that the Tribe was to receive in exchange for its aboriginal claims for 50 years after the 1858 Treaty. Along with the proposed sale price, these annuities and other unrealized Yankton claims dominated the 1892 negotiations between the Commissioners and the Tribe. The tribal historian testified, before the District Court, that the loss of their rations would have been "disastrous" to the Tribe, App. 589, and members of the Tribe clearly perceived a threat to the annuities. At a particularly tense point in the negotiations, when the tide seemed to turn in favor of forces opposing the sale, Commissioner John J. Cole warned:"I want you to understand that you are absolutely dependent upon the Great Father to-day for a living. Let the Government send out instructions to your agent to cease to issue these rations, let the Government instruct347your agent to cease to issue your clothes .... Let the Government instruct him to cease to issue your supplies, let him take away the money to run your schools with, and I want to know what you would do. Everything you are wearing and eating is gratuity. Take all this away and throw this people wholly upon their own responsibility to take care of themselves, and what would be the result? Not one-fourth of your people could live through the winter, and when the grass grows again it would be nourished by the dust of all the balance of your noble tribe." Council of the Yankton Indians (Dec. 10, 1892), transcribed in S. Exec. Doc. No. 27, at 74.Given the Tribe's evident concern with reaffirmance of the Government's obligations under the 1858 Treaty, and the Commissioners' tendency to wield the payments as an inducement to sign the agreement, we conclude that the saving clause pertains to the continuance of annuities, not the 1858 borders.The language in Article XVIII specifically ensuring that the "Yankton Indians shall continue to receive their annuities under the [1858 Treaty]" underscores the limited purpose and scope of the saving clause. It is true that the Court avoids interpreting statutes in a way that "renders some words altogether redundant." Gustafson v. Alloyd Co., 513 U. S. 561, 574 (1995). But in light of the fact that the record of the negotiations between the Commissioners and the Yankton Tribe contains no discussion of the preservation of the 1858 boundaries but many references to the Government's failure to fulfill earlier promises, see, e. g., Council of the Yankton Indians (Dec. 3, 1892), transcribed in S. Exec. Doc. No. 27, at 54-55, it seems most likely that the parties inserted and understood Article XVIII, including both the general statement regarding the force of the 1858 Treaty and the particular provision that payments would continue as specified therein, to assuage the Tribes' concerns about their past claims and future entitlements.348Indeed, apart from the pledge to pay annuities, it is hard to identify any provision in the 1858 Treaty that the Tribe might have sought to preserve, other than those plainly inconsistent with or expressly included in the 1894 Act. The Government points to Article XI of the treaty, in which the Tribe agreed to submit for federal resolution "all matters of dispute and difficulty between themselves and other Indians," 11 Stat. 747, and urges us to extrapolate from this provision that the Tribe implicitly retained jurisdiction over internal matters, and from there to apply the standard canon of Indian law that "[o]nce powers of tribal self-government or other Indian rights are shown to exist, by treaty or otherwise, later federal action which might arguably abridge them is construed narrowly in favor of retaining Indian rights." F. Cohen, Handbook of Federal Indian Law 224 (1982) (hereinafter Cohen). But the treaty's reference to tribal authority is indirect, at best, and it does not persuade us to view the saving clause as an agreement to maintain exclusive tribal governance within the original reservation boundaries.The Tribe further contends that because Article XVIII affirms that the 1858 Treaty will govern "the same as though [the 1892 agreement] had not been made," without reference to consistency between those agreements, it has more force than the standard saving clause. While the language of the saving clause is indeed unusual, we do not think it is meaningfully distinct from the saving clauses that have failed to move this Court to find that pre-existing treaties remain in effect under comparable circumstances. See, e. g., Klamath, 473 U. S., at 769-770; Montana, 450 U. S., at 548, 558-559; Rosebud, 430 U. S., at 623 (Marshall, J., dissenting). Furthermore, "it is a commonplace of statutory construction that the specific" cession and sum certain language in Articles I and II "governs the general" terms of the saving clause. See Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992).349Finally, the Tribe argues that, at a minimum, the saving clause renders the statute equivocal, and that confronted with that ambiguity we must adopt the reading that favors the Tribe. See Carpenter v. Shaw, 280 U. S. 363, 367 (1930). The principle according to which ambiguities are resolved to the benefit of Indian tribes is not, however, "a license to disregard clear expressions of tribal and congressional intent." DeCoteau, 420 U. S., at 447; see also South Carolina v. Catawba Tribe, Inc., 476 U. S. 498,506 (1986). In previous decisions, this Court has recognized that the precise cession and sum certain language contained in the 1894 Act plainly indicates diminishment, and a reasonable interpretation of the saving clause does not conflict with a like conclusion in this case.CBoth the State and the Tribe seek support for their respective positions in two other provisions of the 1894 Act: a clause reserving sections of each township for schools and a prohibition on liquor within the ceded lands. Upon ratification, Congress added that "the sixteenth and thirty-sixth sections in each Congressional township ... shall be reserved for common-school purposes and be subject to the laws of the State of South Dakota." 28 Stat. 319. This "school sections clause" parallels the enabling Act admitting South Dakota to the Union, which grants the State sections 16 and 36 in every township for the support of common schools, but expressly exempts reservation land "until the reservation shall have been extinguished and such lands restored to ... the public domain." Act of Feb. 22, 1889, 25 Stat. 679. When considering a similar provision included in the Act ceding the Rosebud Sioux Reservation in South Dakota, the Court discerned congressional intent to diminish the reservation, "thereby making the sections available for disposition to the State of South Dakota for 'school sections.'" Rosebud, supra, at 60l. The Tribe argues that the clause in the 1894 Act specifying the application of state law would be superfluous if Congress350intended to diminish the reservation. As the Court stated in DeCoteau, however, "the natural inference would be that state law is to govern the manner in which the 16th and 36th sections are to be employed 'for common school purposes,'" which "implies nothing about the presence or absence of state civil and criminal jurisdiction over the remainder of the ceded lands." 420 U. S., at 446, n. 33.Although we agree with the State that the school sections clause reinforces the view that Congress intended to extinguish the reservation status of the unallotted land, a somewhat contradictory provision counsels against finding the reservation terminated. Article VIII of the 1894 Act reserved from sale those surplus lands "as may now be occupied by the United States for agency, schools, and other purposes." In Solem, the Court noted with respect to virtually identical language that "[i]t is difficult to imagine why Congress would have reserved lands for such purposes if it did not anticipate that the opened area would remain part of the reservation." 465 U. S., at 474.The State's position is more persuasively supported by the liquor prohibition included in Article XVII of the agreement. The provision prohibits the sale or offering of "intoxicating liquors" on "any of the lands by this agreement ceded and sold to the United States" or "any other lands within or comprising the reservations of the Yankton Sioux or Dakota Indians as described in the [1858] treaty," 28 Stat. 318, thus signaling a jurisdictional distinction between reservation and ceded land. The Commissioners' report recommends that Congress "fix a penalty for the violation of this provision which will make it most effective in preventing the introduction of intoxicants within the limits of the reservation," Report, at 21, which could be read to suggest that ceded lands remained part of the reservation. We conclude, however, that "the most reasonable inference from the inclusion of this provision is that Congress was aware that the opened, unallotted areas would henceforth not be 'Indian351country.'" Rosebud, supra, at 613. By 1892, Congress already had enacted laws prohibiting alcohol on Indian reservations, see Cohen 306-307, and "[w]e assume that Congress is aware of existing law when it passes legislation," Miles v. Apex Marine Corp., 498 U. S. 19, 32 (1990). Furthermore, the Commissioner of Indian Affairs described the provision as prohibiting "the sale or disposition of intoxicants upon any of the lands now within the Yankton Reservation," Letter, at 6-7 (emphasis added), indicating that the lands would be severed from the reservation upon ratification of the agreement. In Perrin v. United States, 232 U. S. 478 (1914), we implied that the lands conveyed by the 1894 Act lost their reservation status when we construed Article XVII as applying to "ceded lands formerly included in the Yankton Sioux Indian Reservation." Id., at 480. We now reaffirm that the terms of the 1894 Act, including both the explicit language of cession and the surrounding provisions, attest to Congress' intent to diminish the Yankton Reservation.IIIAlthough we perceive congressional intent to diminish the reservation in the plain statutory language, we also take note of the contemporary historical context, subsequent congressional and administrative references to the reservation, and demographic trends. Even in the absence of a clear expression of congressional purpose in the text of a surplus land Act, unequivocal evidence derived from the surrounding circumstances may support the conclusion that a reservation has been diminished. See Solem, 465 U. S., at 471. In this case, although the context of the Act is not so compelling that, standing alone, it would indicate diminishment, neither does it rebut the "almost insurmountable presumption" that arises from the statute's plain terms. Id., at 470.AThe "manner in which the transaction was negotiated" with the Yankton Tribe and "the tenor of legislative Reports352presented to Congress" reveal a contemporaneous understanding that the proposed legislation modified the reservation. Id., at 471. In 1892, when the Commissioner of Indian Affairs appointed the Yankton Commission, he charged its members to "negotiate with the [Tribe] for the cession of their surplus lands" and noted that the funds exchanged for the "relinquishment" of those lands would provide a future income for the Tribe. Instructions to the Yankton Indian Commission (July 27, 1892), reprinted in App. 98-99. The negotiations themselves confirm the understanding that by surrendering its interest in the unallotted lands, the Tribe would alter the reservation's character. Commissioner J. C. Adams informed members of the Tribe that once surplus lands were sold to the "Great Father," the Tribe would "assist in making the laws which will govern [members of the Tribe] as citizens of the State and nation." Council of the Yankton Indians (Oct. 8, 1892), transcribed in S. Exec. Doc. No. 27, at 48. In terms that strongly suggest a reconception of the reservation, Commissioner Cole admonished the Tribe:"This reservation alone proclaims the old time and the old conditions .... The tide of civilization is as resistless as the tide of the ocean, and you have no choice but to accept it and live according to its methods or be destroyed by it. To accept it requires the sale of these surplus lands and the opening of this reservation to white settlement."You were a great and powerful people when your abilities and energies were directed in harmony with the conditions which surrounded you, but the wave of civilization which swept over you found you unprepared for the new conditions and you became weak. ... [Y]ou must accept the new life wholly. You must break down the barriers and invite the white man with all the elements of civilization, that your young men may have the same opportunities under the new conditions that your fathers353had under the old." Council of the Yankton Indians (Dec. 17, 1892), transcribed id., at 81.Cole's vivid language and entreaty to "break down the barriers" are reminiscent of the "picturesque" statement that Congress would "pull up the nails" holding down the outside boundary of the Uintah Reservation, which we viewed as evidence of diminishment in Hagen, 510 U. S., at 417.Moreover, the Commissioners' report of the negotiations signaled their understanding that the cession of the surplus lands dissolved tribal governance of the 1858 reservation. They observed that "now that [members of the Tribe] have been allotted their lands in severalty and have sold their surplus land-the last property bond which assisted to hold them together in their tribal interest and estate-their tribal interests may be considered a thing of the past." Report, at 19. And, in a March 1894 letter to the Chairman of the Senate Committee on Indian Affairs, several Yankton chiefs and members of the Tribe indicated that they concurred in such an interpretation of the agreement's impact. The letter urged congressional ratification of the agreement, explaining that the signatories "want[ed] the laws of the United States and the State that we live in to be recognized and observed," and that they did not view it as desirable to "keep up the tribal relation ... as the tribal relation on this reservation is an obstacle and hindrance to the advancement of civilization." S. Misc. Doc. No. 134, 53d Cong., 2d Sess., 1 (1894).The legislative history itself adds little because Congress considered the Siletz, Nez Perce, and Yankton surplus land sale agreements at the same time, but the few relevant references from the floor debates support a finding of diminishment. Some members noted that the cessions would restore the surplus lands to the "public domain," see 53 Congo Rec. 6425 (1894) (remarks of Rep. McCrae); id., at 6426 (remarks of Rep. Hermann), language that indicates congressional intent to diminish a reservation, see Hagen, supra, at 418;354Solem, 465 U. S., at 475. That same phrase appears in the annual report of the Commissioner on Indian Affairs that was released in September 1894, just after congressional ratification of the agreement. See Annual Report of the Commissioner on Indian Affairs 26 (Sept. 14, 1894), excerpted in App. 450-452 (noting that under the Siletz, Nez Perce, and Yankton agreements, "some 880,000 acres of land will be restored to the public domain").Finally, the Presidential Proclamation opening the lands to settlement declared that the Tribe had "ceded, sold, relinquished, and conveyed to the United States, all [its] claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said tribe by the first article [of the 1858 Treaty]." Presidential Proclamation (May 16, 1895), reprinted in App. 453. This Court has described substantially similar language as "an unambiguous, contemporaneous, statement by the Nation's Chief Executive, of a perceived disestablishment." Rosebud, 430 U. S., at 602-603.BDespite the apparent contemporaneous understanding that the 1894 Act diminished the reservation, in the years since, both Congress and the Executive Branch have described the reservation in contradictory terms and treated the region in an inconsistent manner. An 1896 statute, for example, refers to "homestead settlers upon the Yankton Indian Reservation," 29 Stat. 16, while in a Report included in the legislative history for that statute, the Commissioner of Indian Affairs discusses the "former" reservation, H. R. Rep. No. 100, 54th Cong., 1st Sess., 2 (1896). From the 1896 statutory reference to hearings on the Indian Gaming Regulatory Act nearly a century later, Congress has occasionally, though not invariably, referred to the "Yankton Sioux Reservation." 55 Hearings on Pub. L. 100-497, The Indian Gaming Regulatory Act of 1988, before the Subcommittee on Native American Mfairs of the House Committee on Natural Resources, 103d Cong., 2d Sess., 1 (1994) (held,355We have often observed, however, that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Philadelphia Nat. Bank, 374 U. S. 321, 348-349 (1963). Likewise, the scores of administrative documents and maps marshaled by the parties to support or contradict diminishment have limited interpretive value.6 We need not linger over whether the many references to the Yankton Reservation in legislativeaccording to the record, at the Fort Randall Casino Hotel on the "Yankton Sioux Reservation"); see, e. g., 143 Congo Rec. S9616 (Sept. 18, 1997) (discussion of the Marty Indian School "located on the Yankton Sioux Reservation"); 135 Congo Rec. 1656 (1989) (description of the Lake AndesWagner project, which irrigates "Indian-owned land located on the Yankton Sioux Reservation"). But see 35 Stat. 808 (referring to land "on the former Yankton Reservation").6 See, e. g., Exec. Order No. 5173 (Aug. 9, 1929) (extending the trust period on the allotted lands "on the Yankton Sioux Reservation"); Exec. Order No. 2363 (Apr. 30, 1916) (same); Letter to Chairman, Committee on Indian Mfairs, from Secretary of the Interior (Feb. 1, 1921), reprinted in App. 480 (stating that "Lake Andes is within the former Yankton-Sioux Indian Reservation"); Letter to Yankton Agency from the Commissioner of Indian Affairs (Aug. 20, 1930), reprinted in App. 481 (discussing lands "heretofore constituting a part of the reservation"); Bureau of the Census, U. S. Dept. of Commerce, Pub. No. 1990 CPH-1-43, p. 175 (1991), reprinted in App. 527 (listing population figures for the Yankton Reservation).The Tribe also highlights a 1941 opinion letter issued by Felix Cohen, then-acting Solicitor of the Department of the Interior, in which he concluded that the Yankton Reservation had not been altered by the 1894 Act because allotments were "scattered over all the reservation," and the Act was thus distinguishable from statutes that "ceded a definite part of the reservation and treated the remaining areas as a diminished reservation." See Letter of Aug. 7, 1941, reprinted in 1 U. S. Dept. of Interior, Opinions of the Solicitor of the Department of the Interior Relating to Indian Mfairs 1063, 1064 (1979). The letter has not been disavowed but was apparently ignored in subsequent determinations by the agency. A 1969 memorandum on tribal courts, for example, plainly stated that the 1894 Act "diminish[ed] the area over which the [Yankton] tribe might exercise its authority." Memorandum M-36783 from Associate Solicitor, Indian Mfairs, to Commissioner of Indian Affairs 1 (Sept. 10, 1969), reprinted in App.518.356and administrative materials utilized a convenient geographical description or reflected a considered jurisdictional statement. The mixed record we are presented with "reveals no consistent, or even dominant, approach to the territory in question," and it "carries but little force" in light of the strong textual and contemporaneous evidence of diminishment. Rosebud, supra, at 605, n. 27; see also Solem, 465 U. S., at 478 (finding subsequent treatment that was "rife with contradictions and inconsistencies" to be "of no help to either side").C"Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred." Id., at 471. This final consideration is the least compelling for a simple reason:Every surplus land Act necessarily resulted in a surge of non- Indian settlement and degraded the "Indian character" of the reservation, yet we have repeatedly stated that not every surplus land Act diminished the affected reservation. See id., at 468-469. The fact that the Yankton population in the region promptly and drastically declined after the 1894 Act does, however, provide "one additional clue as to what Congress expected," id., at 472. Today, fewer than 10 percent of the 1858 reservation lands are in Indian hands, non-Indians constitute over two-thirds of the population within the 1858 boundaries, and several municipalities inside those boundaries have been incorporated under South Dakota law. The opening of the tribal casino in 1991 apparently reversed the population trend; the tribal presence in the area has steadily increased in recent years, and the advent of gaming has stimulated the local economy. In addition, some acreage within the 1858 boundaries has reverted to tribal or trust land. See H. Hoover, Yankton Sioux Tribal Land History (1995), reprinted in App. 545-546. Nonetheless, the area remains "predominantly populated by non-357Indians with only a few surviving pockets of Indian allotments," and those demographics signify a diminished reservation. Solem, supra, at 471, n. 12.The State's assumption of jurisdiction over the territory, almost immediately after the 1894 Act and continuing virtually unchallenged to the present day, further reinforces our holding. As the Court of Appeals acknowledged, South Dakota "has quite consistently exercised various forms of governmental authority over the opened lands," 99 F. 3d, at 1455, and the "tribe presented no evidence that it has attempted until recently to exercise civil, regulatory, or criminal jurisdiction over nontrust lands." Id., at 1456. Finally, the Yankton Constitution, drafted in 1932 and amended in 1962, defines the Tribe's territory to include only those tribal lands within the 1858 boundaries "now owned" by the Tribe. Constitution and Bylaws of the Yankton Sioux Tribal Business and Claims Committee, Art. VI, § 1.IVThe allotment era has long since ended, and its guiding philosophy has been repudiated. Tribal communities struggled but endured, preserved their cultural roots, and remained, for the most part, near their historic lands. But despite the present-day understanding of a "governmentto-government relationship between the United States and each Indian tribe," see, e. g., 25 U. S. C. § 3601, we must give effect to Congress' intent in passing the 1894 Act. Here, as in DeCoteau, we believe that Congress spoke clearly, and although "[s]ome might wish [it] had spoken differently, ... we cannot remake history." 420 U. S., at 449.The 1894 Act contains the most certain statutory language, evincing Congress' intent to diminish the Yankton Sioux Reservation by providing for total cession and fixed compensation. Contemporaneous historical evidence supports that conclusion, and nothing in the ambiguous subsequent treatment of the region substantially controverts our358reasoning. The conflicting understandings about the status of the reservation, together with the fact that the Tribe continues to own land in common, caution us, however, to limit our holding to the narrow question presented: whether unallotted, ceded lands were severed from the reservation. We need not determine whether Congress disestablished the reservation altogether in order to resolve this case, and accordingly decline to do so. Our holding in Hagen was similarly limited, as was the State Supreme Court's description of the Yankton reservation in Greger. See 510 U. S., at 421; State v. Greger, 559 N. W. 2d, at 867.***In sum, we hold that Congress diminished the Yankton Sioux Reservation in the 1894 Act, that the unallotted tracts no longer constitute Indian country, and thus that the State has primary jurisdiction over the waste site and other lands ceded under the Act. Accordingly, we reverse the judgment of the Court of Appeals for the Eighth Circuit and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusSOUTH DAKOTA v. YANKTON SIOUX TRIBE ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo.96-1581. Argued December 8, 1997-Decided January 26,1998The Yankton Sioux Reservation in South Dakota was established pursuant to an 1858 Treaty between the United States and the Yankton Tribe. Congress subsequently retreated from the reservation concept and passed the 1887 Dawes Act, which permitted the Government to allot tracts of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement. In accordance with the Dawes Act, members of the respondent Tribe received individual allotments and the Government then negotiated with the Tribe for the cession of the remaining, unallotted reservation lands. An agreement reached in 1892 provided that the Tribe would "cede, sell, relinquish, and convey to the United States" all of its unallotted lands; in return, the Government agreed to pay the Tribe $600,000. Article XVIII of the agreement, a saving clause, stated that nothing in its terms "shall be construed to abrogate the [1858] treaty" and that "all provisions of the said treaty ... shall be in full force and effect, the same as though this agreement had not been made." Congress ratified the agreement in an 1894 statute, and non-Indians rapidly acquired the ceded lands.In this case, tribal, federal, and state officials disagree as to the environmental regulations applicable to a solid waste disposal facility that lies on unallotted, non-Indian fee land, but falls within the reservation's original 1858 boundaries. The Tribe and the Federal Government contend that the site remains part of the reservation and is therefore subject to federal environmental regulations, while petitioner State maintains that the 1894 divestiture of Indian property effected a diminishment of the Tribe's territory, such that the ceded lands no longer constitute "Indian country" under 18 U. S. C. § 1151(a), and the State now has primary jurisdiction over them. The District Court declined to enjoin construction of the landfill but granted the Tribe a declaratory judgment that the 1894 Act did not alter the 1858 reservation boundaries, and consequently that the waste site lies within an Indian reservation where federal environmental regulations apply. The Eighth Circuit affirmed.Held: The 1894 Act's operative language and the circumstances surrounding its passage demonstrate that Congress intended to diminish the Yankton Reservation. pp. 343-358.330(a) States acquired primary jurisdiction over unallotted opened lands if the applicable surplus land Act freed those lands of their reservation status and thereby diminished the reservation boundaries, Solem v. Bartlett, 465 U. S. 463,467, but the entire opened area remained Indian country if the Act simply offered non-Indians the opportunity to purchase land within established reservation boundaries, id., at 470. The touchstone to determine whether a given statute diminished or retained reservation boundaries is congressional purpose, see Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 615, and Congress' intent to alter an Indian treaty's terms by diminishing a reservation must be "clear and plain," United States v. Dion, 476 U. S. 734, 738-739. The most probative evidence of congressional intent is the statutory language, but the Court will also consider the historical context surrounding the Act's passage, and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there. Hagen v. Utah, 510 U. S. 399, 411. Ambiguities must be resolved in favor of the Indians, and the Court will not lightly find diminishment. Ibid. Pp. 343-344.(b) The plain language of the 1894 Act evinces congressional intent to diminish the reservation. Article 1's "cession" language-the Tribe will "cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands"-and Article II's "sum certain" language-whereby the United States pledges a fixed payment of $600,000 in return-is "precisely suited" to terminating reservation status. See DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425, 445. Indeed, when a surplus land Act contains both explicit cession language, evidencing "the present and total surrender of all tribal interests," and a provision for a fixed-sum payment, representing "an unconditional commitment from Congress to compensate the Indian tribe for its opened land," a "nearly conclusive," or "almost insurmountable," presumption of diminishment arises. See Solem, supra, at 470; see also Hagen, supra, at 411. Pp. 344-345.(c) The Court rejects the Tribe's argument that, because the 1894 Act's saving clause purported to conserve the 1858 Treaty, the existing reservation boundaries were maintained. Such a literal construction would eviscerate the 1892 agreement by impugning the entire sale. Rather, it seems most likely that the parties inserted Article XVIII, including both the general statement regarding the force of the 1858 Treaty and a particular provision ensuring that the "Yankton Indians shall continue to receive their annuities under [that treaty]," for the limited purpose of assuaging the Tribe's concerns about their entitlement to annuities. Discussion of the annuities figured prominently in the negotiations that led to the 1892 agreement, but no mention was made of the preservation of the 1858 boundaries. Pp. 345-349.331Full Text of Opinion

1971_71-300

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner brought suit in the state trial court of Georgia seeking damages for alleged "wrongful discharge" Page 406 U. S. 321 by the respondent. * He alleged that, prior to an auto accident in 1967, he had been an employee in good standing of the respondent, employed "under specified conditions and with a stipulated schedule of benefits." He alleged that, following the accident, he had fully recovered and was physically able to resume his work for respondent, but that respondent had refused to allow him to return to work, and that respondent's actions amounted to a wrongful discharge. He prayed for damages consisting of loss of past and future earnings and for attorneys' fees. Respondent removed the case to the United States District Court, and there moved to dismiss the complaint for failure to exhaust the remedies provided by the § 3 First (i) of the Railway Labor Act, 44 Stat. 579, as amended, 48 Stat. 1191, 45 U.S.C. § 153 First (i). See also 1966 amendments to § 3 Second, 80 Stat. 208. The District Court granted the motion, and the Court of Appeals for the Fifth Circuit affirmed. We granted certiorari, 404 U.S. 955, and are once more confronted with the question of whether Moore v. Illinois Central R. Co., 312 U. S. 630 (1941), should be overruled.Moore held that a railroad employee who elected to treat his employer's breach of the employment contract as a discharge was not required to resort to the remedies afforded under the Railway Labor Act for adjustment and arbitration of grievances, but was free to commence in state court an action based on state law for breach of contract. The result was supported by the Court's conclusion that the procedures for adjustment of "minor Page 406 U. S. 322 disputes" under the Railway Labor Act had been intended by Congress to be optional, not compulsory, and that, therefore, a State was free to accord an alternative remedy to a discharged railroad employee under its law of contracts. The basic holding of Moore was reaffirmed, and its state law aspects amplified, in Transcontinental & Western Air, Inc. v. Koppal, 345 U. S. 653 (1953). There, it was held that, if state law required the employee to exhaust administrative remedies provided for in his contract of employment before resorting to court, a federal diversity court should enforce that requirement.Later cases from this Court have repudiated the reasoning advanced in support of the result reached in Moore v. Illinois Central, supra. Fifteen years ago, in Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30, 353 U. S. 39 (1957), this Court canvassed the relevant legislative history and said:"This record is convincing that there was general understanding between both the supporters and the opponents of the 1934 amendment that the provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field."When the issue was again before the Court in Walker v. Southern R. Co., 385 U. S. 196 (1966), it was observed:"Provision for arbitration of a discharge grievance, a minor dispute, is not a matter of voluntary agreement under the Railway Labor Act; the Act compels the parties to arbitrate minor disputes before the National Railroad Adjustment Board established under the Act."385 U.S. at 385 U. S. 198.Thus, the notion that the grievance and arbitration procedures provided for minor disputes in the Railway Labor Act are optional, to be availed of as the employee or the carrier chooses, was never good history, and is no longer good law. Page 406 U. S. 323The related doctrine expressed in Moore and Koppal, that a railroad employee's action for breach of an employment contract is created and governed by state law, has been likewise undercut by later decisions. In Machinists v. Central Airlines, 372 U. S. 682 (1963), an agreement required under § 204 of the Railway Labor Act was said to be"like the Labor Management Relations Act § 301 contract . . . , a federal contract, and . . . therefore governed and enforceable by federal law in the federal courts."372 U.S. at 372 U. S. 692. A similar result was reached under § 301(a) of the Labor Management Relations Act in Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957).In Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), the Court deduced from the Labor Management Relations Act a preference for the settlement of disputes in accordance with contractually agreed-upon arbitration procedures. It accordingly held that, before a state court action could be maintained for breach of such a contract, the employee must first "attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress." 379 U.S. at 379 U. S. 652. In Maddox, the Court not only refused to extend Moore to save state court actions for breach of contract under § 301 of the Labor Management Relations Act, but intimated that its rule might well not survive even in Railway Labor Act cases. Indeed, since the compulsory character of the administrative remedy provided by the Railway Labor Act for disputes such as that between petitioner and respondent stems not from any contractual undertaking between the parties, but from the Act itself, the case for insisting on resort to those remedies is, if anything, stronger in cases arising under that Act than it is in cases arising under § 301 of the LMRA.The fact that petitioner characterizes his claim as one for "wrongful discharge" does not save it from the Act's Page 406 U. S. 324 mandatory provisions for the processing of grievances. Petitioner argues that his election to sever his connection with the employer and treat the latter's alleged breach of the employment contract as a "discharge" renders his claim sufficiently different from the normal disputes over the interpretation of a collective bargaining agreement to warrant carving out an exception to the otherwise mandatory rule for the submission of disputes to the Board. But the very concept of "wrongful discharge" implies some sort of statutory or contractual standard that modifies the traditional common law rule that a contract of employment is terminable by either party at will. Here, it is conceded by all that the only source of petitioner's right not to be discharged, and therefore to treat an alleged discharge as a "wrongful" one that entitles him to damages, is the collective bargaining agreement between the employer and the union. Respondent in this case vigorously disputes any intent on its part to discharge petitioner, and the pleadings indicate that the disagreement turns on the extent of respondent's obligation to restore petitioner to his regular duties following injury in an automobile accident. The existence and extent of such an obligation in a case such as this will depend on the interpretation of the collective bargaining agreement. Thus, petitioner's claim, and respondent's disallowance of it, stem from differing interpretations of the collective bargaining agreement. The fact that petitioner intends to hereafter seek employment elsewhere does not make his present claim against his employer any the less a dispute as to the interpretation of a collective bargaining agreement. His claim is therefore subject to the Act's requirement that it be submitted to the Board for adjustment.The constitutional issue discussed in the dissent was not set forth as a "question presented for review" in the Page 406 U. S. 325 petition for certiorari, and therefore our Rule 23(1)(c) precludes our consideration of it. "We do not reach for constitutional questions not raised by the parties." Mazer v. Stein, 347 U. S. 201, 347 U. S. 206 n. 5 (1954).The term "exhaustion of administrative remedies," in its broader sense, may be an entirely appropriate description of the obligation of both the employee and carrier under the Railway Labor Act to resort to dispute settlement procedures provided by that Act. It is clear, however, that, in at least some situations, the Act makes the federal administrative remedy exclusive, rather than merely requiring exhaustion of remedies in one forum before resorting to another. A party who has litigated an issue before the Adjustment Board on the merits may not relitigate that issue in an independent judicial proceeding. Union Pacific R. Co. v. Price, 360 U. S. 601 (1959). He is limited to the judicial review of the Board's proceedings that the Act itself provides. Gunther v. San Diego & A. E. R. Co., 382 U. S. 257 (1965). In such a case, the proceedings afforded by 45 U.S.C. § 153 First (i), will be the only remedy available to the aggrieved party.In Walker v. Southern R. Co., 385 U. S. 196 (1966), the Court noted that there had been complaints not only about the long delay in processing of grievances on the part of the Adjustment Boards, but also about the fact that a more extensive right of judicial review of Board action was accorded to carriers than to employees. The Court noted that Congress, by Public Law 89-456, 80 Stat. 208, effective June 20, 1966, had legislated to correct these difficulties, but observed that the employee in Walker had not had the benefit of these new procedures. It therefore declined, "in his case," 385 U.S. at 385 U. S. 199, to overrule Moore. Petitioner Andrews, however, would, in the prosecution of his claim before the Adjustment Board, have the benefit of these Page 406 U. S. 326 improved procedures. We now hold that he must avail himself of them, and, in so doing, we necessarily overrule Moore v. Illinois Central R. Co., supra.Affirmed

U.S. Supreme CourtAndrews v. Louisville & Nashville R. Co., 406 U.S. 320 (1972)Andrews v. Louisville & Nashville Railroad Co.No. 71-300Argued March 22, 1972Decided May 15, 1972406 U.S. 320SyllabusPetitioner, claiming that he was wrongfully discharged from his employment by respondent railroad, filed a state court action based on state law for breach of contract. The suit was removed to Federal District Court, which dismissed the complaint for failure to exhaust the remedies provided by the Railway Labor Act, and the Court of Appeals affirmed.Held: Since the source of petitioner's right not to be discharged and of his employer's obligation to restore him to his regular employment following an injury is the collective bargaining agreement, petitioner must follow the grievance and arbitration procedures set forth in the Railway Labor Act. Moore v. Illinois Central R. Co., 312 U. S. 630, overruled. Pp. 406 U. S. 321-326.441 F.2d 1222, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 406 U. S. 326. POWELL, J., took no part in the consideration or decision of the case.

1998_97-1230

JUSTICE KENNEDY delivered the opinion of the Court. We granted certiorari, 523 U. S. 1105 (1998), to consider in this case whether the Constitution requires a State or its local entities to give detailed and specific instructions or advice to owners who seek return of property lawfully seized but no longer needed for police investigation or criminal prosecution. Interpreting the Due Process Clause of the Fourteenth Amendment, the Court of Appeals for the Ninth Circuit imposed a series of specific notice requirements on the city responsible for the seizure. We conclude these requirements are not mandated by the Due Process Clause, and we reverse.IThe case began when police officers of petitioner, the city of West Covina, California (City), acting in accordance with law and pursuant to a valid search warrant, seized personal property. The property belonged to the owner of the searched home, respondent Lawrence Perkins, and to his family. The suspect in the crime was neither Perkins nor anyone in his family, but one Marcus Marsh. Marsh had been a boarder in the Perkins' home. After leaving their home, and unknown to them, he became the subject of a homicide investigation.During the search of respondents' home for evidence incriminating Marsh, the police seized a number of items, including photos of Marsh, an address book, a 12-gauge shotgun, a starter pistol, ammunition, and $2,629 in cash. 113 F.3d 1004, 1006 (CA9 1997). At the conclusion of the search, the officers left respondents a form entitled "Search Warrant: Notice of Service," which stated:"TO WHOM IT MAY CONCERN:"1. THESE PREMISES HAVE BEEN SEARCHED BY PEACE OFFICERS OF THE (name of searching agency) West Covina Police DEPARTMENT PURSUANT TO A SEARCH WARRANT ISSUED ON (date)2375-20-93, BY THE HONORABLE (name of magistrate) Dan Oki, JUDGE OF THE SUPERIOR/MUNICIPAL COURT, Citrus JUDICIAL DISTRICT."2. THE SEARCH WAS CONDUCTED ON (date) 5-21-93. A LIST OF THE PROPERTY SEIZED PURSUANT TO THE SEARCH WARRANT IS ATTACHED."3. IF YOU WISH FURTHER INFORMATION, YOU MAY CONTACT:(name of investigator) Det. Ferrari or Det. Meln'llk AT [telephone number]."LT. SCHIMANSKI [telephone number]." App. 76-77 (italicized characters represent those portions of the original document which were handwritten on the form).In accordance with the notice, the officers also left respondents an itemized list of the property seized. 113 F. 3d, at 1011-1012. The officers did not leave the search warrant number because the warrant was under seal to avoid compromising the ongoing investigation. Id., at 1007. In a public index maintained by the court clerk, however, the issuance of the warrant was recorded by the address of the home searched and the search warrant number. Ibid.Not long after the search, Perkins called Ferrari, one of the detectives listed on the notice, and inquired about return of the seized property. No. CV 93-7084 SVW (CD Cal., July 8, 1996), App. to Pet. for Cert. E3. One of the detectives told Perkins he needed to obtain a court order authorizing the property's return. Ibid.About a month after the search, Perkins went to the Citrus Municipal Court to see Judge Oki, who had issued the warrant. He learned Judge Oki was on vacation. Ibid. He tried to have another judge release his property but was told the court had nothing under Perkins' name. Ibid.Rather than continuing to pursue a court order releasing the property by filing a written motion with the court, mak-238ing other inquiries, or returning to the courthouse at some later date, ibid., respondents filed suit in United States District Court against the City and the officers who conducted the search. They alleged the officers had violated their Fourth Amendment rights by conducting a search without probable cause and exceeding the scope of the warrant. App. 7-9. They further alleged that the City had a policy of permitting unlawful searches. Id., at 10.The District Court granted summary judgment for the City and its officers. App. to Pet. for Cert. B1-B11. The court, however, invited supplemental briefing on an issue respondents had not raised: whether available remedies for the return of seized property were adequate to satisfy due process. Id., at B7. The parties submitted briefs on the issue, but the court did not rule on it. Respondents appealed the District Court's holding on their Fourth Amendment claims, but the Court of Appeals remanded the case to the District Court for resolution of the due process question. No. 94-56365 (CA9, Apr. 30, 1996), App. to Pet. for Cert. D1-D3.The District Court held on remand that the remedies provided by California law for return of the seized property satisfied due process, and it granted summary judgment for the City. No. CV 93-7084 SVW, supra, App. to Pet. for Cert. E2. In particular, the court rejected respondents' claim that the procedure for return of their property was unavailable to them because the City did not give them adequate notice of the remedy and the information needed to invoke it. Id., at E6.On appeal, the Court of Appeals reversed the grant of summary judgment for the City. 113 F. 3d, at 1006. As an initial matter, the court noted that, under Fuentes v. Shevin, 407 U. S. 67 (1972), respondents were entitled only to an adequate postdeprivation remedy, and not to a pre deprivation hearing prior to the seizure. 113 F. 3d, at 1010. The Court239of Appeals also agreed with the District Court that the postdeprivation remedies for return of property established by California statute and case law satisfied the requirements of due process. Id., at lOll.Nevertheless, the court held, by analogy to this Court's decision in Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 (1978), that the City was required to give respondents notice of the state procedures for return of seized property and the information necessary to invoke those procedures (including the search warrant number or a method for obtaining the number). 113 F. 3d, at 1012. While acknowledging that it was not the court's place "to specify the exact phrasing of an adequate notice," the court proceeded to explicate, in some detail, the content of the required notice:"In cases where property is taken under California law ... the notice should include the following: as on the present notice, the fact of the search, its date, and the searching agency; the date of the warrant, the issuing judge, and the court in which he or she serves; and the persons to be contacted for further information. In addition, the notice must inform the recipient of the procedure for contesting the seizure or retention of the property taken, along with any additional information required for initiating that procedure in the appropriate court. In circumstances such as those presented by this record, the notice must include the search warrant number or, if it is not available or the record is sealed, the means of identifying the court file. It also must explain the need for a written motion or request to the court stating why the property should be returned." Id., at 1013.This expansive requirement lacks support in our case law and mandates notice not now prescribed by the Federal Government or by anyone of the 50 States.240IIAt this stage, no one contests the right of the State to have seized the property in the first instance or its ultimate obligation to return it. So rules restricting the substantive power of the State to take property are not implicated by this case. What is at issue is the obligation of the State to provide fair procedures to ensure return of the property when the State no longer has a lawful right to retain it.Respondents acknowledge, as they must, that the City notified them of the initial seizure and gave them an inventory of the property taken. Accordingly, we need not decide how detailed the notice of the seizure must be or when the notice must be given. They also raise no independent challenge to the Court of Appeals' conclusion that California law provides adequate remedies for return of their property, including a motion under Cal. Penal Code Ann. § 1536 (West 1982) or a motion under § 1540. See 113 F. 3d, at 1011. Rather, they contend the City deprived them of due process by failing to provide them notice of their remedies and the factual information necessary to invoke the remedies under California law. When the police seize property for a criminal investigation, however, due process does not require them to provide the owner with notice of state-law remedies.A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful. See Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950) ("Th[e] right to be heard has little reality or worth unless one is informed that the matter [affecting one's property rights] is pending and can choose for himself whether to appear or default, acquiesce or contest"). It follows that when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return. Cf. Schroeder v. City of New York, 371 U. S. 208, 214 (1962) (requiring a city to provide adequate241notice of the deprivation-the city's condemnation of certain water rights-which created the property owner's right to pursue damages claims and triggered the statute of limitations on those claims). Individualized notice that the officers have taken the property is necessary in a case such as the one before us because the property owner would have no other reasonable means of ascertaining who was responsible for his loss.No similar rationale justifies requiring individualized notice of state-law remedies which, like those at issue here, are established by published, generally available state statutes and case law. Once the property owner is informed that his property has been seized, he can turn to these public sources to learn about the remedial procedures available to him. The City need not take other steps to inform him of his options. Cf. Reetz v. Michigan, 188 U. S. 505, 509 (1903) (holding that a statute fixing the time and place of meetings of a medical licensing board provided license applicants adequate notice of the procedure for obtaining a hearing on their applications because: "When a statute fixes the time and place of meeting of any board or tribunal, no special notice to parties interested is required. The statute is itself sufficient notice"); Atkins v. Parker, 472 U. S. 115, 131 (1985) (noting that "[t]he entire structure of our democratic government rests on the premise that the individual citizen is capable of informing himself about the particular policies that affect his destiny"). In prior cases in which we have held that postdeprivation state-law remedies were sufficient to satisfy the demands of due process and the laws were public and available, we have not concluded that the State must provide further information about those procedures. See, e. g., HudsonMemphis Light, the case on which the Court of Appeals relied, is not to the contrary. In Memphis Light, the Court held that a public utility must make available to its customers the opportunity to discuss a billing dispute with a utility242employee who has authority to resolve the matter before terminating utility service for nonpayment. 436 U. S., at 16-17. The Court also held that due process required the utility to inform the customer not only of the planned termination, but also of the availability and general contours of the internal administrative procedure for resolving the accounting dispute. Id., at 13-15. In requiring notice of the administrative procedures, however, we relied not on any general principle that the government must provide notice of the procedures for protecting one's property interests but on the fact that the administrative procedures at issue were not described in any publicly available document. A customer who was informed that the utility planned to terminate his service could not reasonably be expected to educate himself about the procedures available to protect his interests:"[T]here is no indication in the record that a written account of [the utility's dispute resolution] procedure was accessible to customers who had complaints about their bills. [The plaintiff's] case reveals that the opportunity to invoke that procedure, if it existed at all, depended on the vagaries of 'word of mouth referral.' " Id., at 14, n. 14.While Memphis Light demonstrates that notice of the procedures for protecting one's property interests may be required when those procedures are arcane and are not set forth in documents accessible to the public, it does not support a general rule that notice of remedies and procedures is required.The Court of Appeals' far-reaching notice requirement not only lacks support in our precedent but also conflicts with the well-established practice of the States and the Federal Government. The notice required by the Court of Appeals far exceeds that which the States and the Federal Government have traditionally required their law enforcement agencies to provide. Indeed, neither the Federal Govern-243ment nor any State requires officers to provide individualized notice of the procedures for seeking return of seized property. See Appendix, infra, p. 244.Federal Rule of Criminal Procedure 41(d), for example, requires federal agents seizing property pursuant to a warrant to "give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or [to] leave the copy and receipt at the place from which the property was taken." The Rule makes no provision for notifying property owners of the procedures for seeking return of their property. The Court of Appeals' analysis would render the notice required by this Federal Rule-and by every analogous state statute-inadequate as a constitutional matter. In the shadow of this unwavering state and federal tradition, the Court of Appeals' holding is all the more untenable; to sustain it, we would be required to find that due process requires notice that not one State or the Federal Government has seen fit to require, in the context of law enforcement practices that have existed for centuries.Respondents urge that if we cannot uphold the Court of Appeals' broad notice requirement, we should, at least, affirm the Court of Appeals' judgment on the narrower ground that the notice provided respondents was inadequate because it did not provide them with the factual information-specifically, the search warrant number-they needed to invoke their judicial remedies. The District Court, however, made an explicit factual finding that respondents failed to establish that they needed the search warrant number to file a court motion seeking return of their property:"Perkins argues that this [court] procedure was not available to him because he did not know the number of the warrant pursuant to which his property was seized. Unfortunately for Perkins, there is no evidence either way about whether one must have the warrant number in order to obtain a court order releasing seized prop-244Appendix to opinion of the Courterty. Defendants assert that it is not necessary, that as long as the claimant can sufficiently identify the property he seeks (i. e., by providing the date of the warrant, the name of the seizing agency and officer, and the identity of the issuing court and judge, all of which information was in Perkins' possession), the court will release it. Plaintiffs want the Court simply to assume that if Perkins had filed a request with the court, it would have been denied because he did not have the warrant number. But there is no evidence to support that speculation." No. CV 93-7084 SVW, App. to Pet. for Cert. E6.This finding undermines the factual predicate for respondents' alternative argument, and we need not discuss it further.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusCITY OF WEST COVINA v. PERKINS ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 97-1230. Argued November 3, 1998-Decided January 13, 1999Petitioner City's police officers lawfully seized respondents' personal property from their home, leaving a notice form specifying the fact of the search, its date, the searching agency, the warrant's date, the issuing judge and his court, and the persons to be contacted for information, and an itemized list of the property seized. The officers did not leave the search warrant number, but the warrant's issuance was recorded by respondents' address and the warrant number in a public index. After attempts to obtain return of the seized property failed, respondents filed this suit, and the Federal District Court ultimately granted the City summary judgment. In reversing, the Ninth Circuit held, by analogy to Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, that the Due Process Clause required that respondents be provided, in addition to the information set forth in the City's form, detailed notice of the state procedures for return of seized property and the information necessary to invoke those procedures, including the search warrant number or a method for obtaining it.Held: When police seize property for a criminal investigation, the Due Process Clause does not require them to provide the owner with notice of state-law remedies for the property's return. The Ninth Circuit's expansive notice requirement lacks support in this Court's precedent. Individualized notice that officers have taken property is necessary in a case such as this one because the owner has no other reasonable means of ascertaining who is responsible for his loss. However, no similar rationale justifies requiring notice of state-law remedies which, like those at issue here, are established by published, generally available state statutes and case law. Cf., e. g., Reetz v. Michigan, 188 U. S. 505, 509. Memphis, supra, is not to the contrary. See id., at 14, n. 14. To sustain the Ninth Circuit's holding, this Court would have to find that due process requires notice that not one State or the Federal Government has seen fit to require, in the context of law enforcement practices that have existed for centuries. Respondents' alternative argument that the notice given them was inadequate because it did not provide the vital search warrant number is undermined by the District Court's explicit finding that they failed to establish they needed the number to file a motion for return of their property. Pp. 240-244.113 F.3d 1004, reversed and remanded.235KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, post, p. 246.David D. Lawrence argued the cause for petitioner. With him on the briefs was Cindy S. Lee.Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae urging reversal. With him on the brief were Betty D. Montgomery, Attorney General of Ohio, Elise W Porter and Jeffrey B. Hartranft, Assistant Attorneys General, and the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Gus F. Diaz of Guam, Margery S. Bronster of Hawaii, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Charles M. Condon of South Carolina, Mark W Barnett of South Dakota, Jan Graham of Utah, Mark L. Earley of Virginia, and Christine O. Gregoire of Washington.Patrick S. Smith argued the cause and filed a brief for respondents. **Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Dreeben, and Irving L. Gornstein; for 62 named California Cities, Counties and Towns by Julia Hayward Biggs and Rufus C. Young, Jr.; and for the National League of Cities et al. by Richard Ruda and Clifford M. Sloan.236Full Text of Opinion

1984_84-351

JUSTICE POWELL delivered the opinion of the Court.This case presents the question whether States and state agencies are subject to suit in federal court by litigants seeking retroactive monetary relief under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, or whether such suits are proscribed by the Eleventh Amendment. Page 473 U. S. 236IRespondent, Douglas James Scanlon, suffers from diabetes mellitus and has no sight in one eye. In November, 1979, he filed this action against petitioners, Atascadero State Hospital and the California Department of Mental Health, in the United States District Court for the Central District of California, alleging that, in 1978, the hospital denied him employment as a graduate student assistant recreational therapist solely because of his physical handicaps. Respondent charged that the hospital's discriminatory refusal to hire him violated § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794, and certain state fair employment laws. Respondent sought compensatory, injunctive, and declaratory relief.Petitioners moved for dismissal of the complaint on the ground that the Eleventh Amendment barred the federal court from entertaining respondent's claims. Alternatively, petitioners argued that, in a suit for employment discrimination under § 504 of the Rehabilitation Act, a plaintiff must allege that the primary objective of the federal assistance received by the defendants is to provide employment, and that respondent's case should be dismissed because he did not so allege. In January, 1980, the District Court granted petitioners' motion to dismiss the complaint on the ground that respondent's claims were barred by the Eleventh Amendment. On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. Scanlon v. Atascadero State Hospital, 677 F.2d 1271 (1982). It did not reach the question whether the Eleventh Amendment proscribed respondent's suit. Rather, it affirmed the District Court on the ground that respondent failed to allege an essential element of a claim under § 504, namely, that a primary objective of the federal funds received by the defendants was to provide employment. Id. at 1272.Respondent then sought review by this Court. We granted certiorari, 465 U.S. 1095 (1984), vacated the judgment Page 473 U. S. 237 of the Court of Appeals, and remanded the case for further consideration in light of Consolidated Rail Corporation v. Darrone, 465 U. S. 624 (1984), in which we held that § 504's bar on employment discrimination is not limited to programs that receive federal aid for the primary purpose of providing employment. Id. at 465 U. S. 632-633. On remand, the Court of Appeals reversed the judgment of the District Court. It held that"the Eleventh Amendment does not bar [respondent's] action, because the State, if it has participated in and received funds from programs under the Rehabilitation Act, has implicitly consented to be sued as a recipient under 29 U.S.C. § 794."735 F.2d 359, 362 (1984). Although noting that the Rehabilitation Act did not expressly abrogate the States' Eleventh Amendment immunity, the court reasoned that a State's consent to suit in federal court could be inferred from its participation in programs funded by the Act. The court based its view on the fact that the Act provided remedies, procedures, and rights against "any recipient of Federal assistance" while implementing regulations expressly defined the class of recipients to include the States. Quoting our decision in Edelman v. Jordan, 415 U. S. 651, 415 U. S. 672 (1974), the court determined that the "threshold fact of congressional authorization to sue a class of defendants which literally includes [the] States'" was present in this case. 735 F.2d at 361.The court's decision in this case is in conflict with those of the Courts of Appeals for the First and Eighth Circuits. See Ciampa v. Massachusetts Rehabilitation Comm'n, 718 F.2d 1 (CA1 1983); Miener v. Missouri, 673 F.2d 969 (CA8), cert. denied, 459 U.S. 909 (1982). We granted certiorari to resolve this conflict, 469 U.S. 1032 (1984), and we now reverse.IIThe Eleventh Amendment provides:"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens Page 473 U. S. 238 or Subjects of any Foreign State."As we have recognized, the significance of this Amendment "lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III" of the Constitution. Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 465 U. S. 98 (1984) (Pennhurst II). Thus, in Hans v. Louisiana, 134 U. S. 1 (1890), the Court held that the Amendment barred a citizen from bringing a suit against his own State in federal court, even though the express terms of the Amendment do not so provide.There are, however, certain well-established exceptions to the reach of the Eleventh Amendment. For example, if a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action. See, e.g., Clark v. Barnard, 108 U. S. 436, 108 U. S. 447 (1883). [Footnote 1] Moreover, the Eleventh Amendment is "necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment," that is, by Congress' power "to enforce, by appropriate legislation, the substantive provisions of the Fourteenth Amendment." Fitzpatrick v. Bitzer, 427 U. S. 445, 427 U. S. 456 (1976). As a result, when acting pursuant to § 5 of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the States' consent. Ibid.But because the Eleventh Amendment implicates the fundamental constitutional balance between the Federal Government and the States, [Footnote 2] this Court consistently has held Page 473 U. S. 239 that these exceptions apply only when certain specific conditions are met. Thus, we have held that a State will be deemed to have waived its immunity"only where stated 'by Page 473 U. S. 240 the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.'"Edelman v. Jordan, 415 U.S. at 415 U. S. 673, quoting Murray v. Wilson Distilling Co., 213 U. S. 151, 213 U. S. 171 (1909). Likewise, in determining whether Congress, in exercising its Fourteenth Amendment powers, has abrogated the States' Eleventh Amendment immunity, we have required"an unequivocal expression of congressional intent to 'overturn the constitutionally guaranteed immunity of the several States.'"Pennhurst II, 465 U.S. at 465 U. S. 99, quoting Quern v. Jordan, 440 U. S. 332, 440 U. S. 342 (1979). Accord, Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279 (1973).In this case, we are asked to decide whether the State of California is subject to suit in federal court for alleged violations of § 504 of the Rehabilitation Act. Respondent makes three arguments in support of his view that the Eleventh Amendment does not bar such a suit: first, that the State has waived its immunity by virtue of Art. III, § 5, of the California Constitution; second, that, in enacting the Rehabilitation Act, Congress has abrogated the constitutional immunity of the States; third, that, by accepting federal funds under the Rehabilitation Act, the State has consented to suit in federal court. Under the prior decisions of this Court, none of these claims has merit. Page 473 U. S. 241IIIRespondent argues that the State of California has waived its immunity to suit in federal court, and thus the Eleventh Amendment does not bar this suit. See Clark v. Barnard, 108 U. S. 436 (1883). Respondent relies on Art. III, § 5, of the California Constitution, which provides: "Suits may be brought against the State in such manner and in such courts as shall be directed by law." In respondent's view, unless the California Legislature affirmatively imposes sovereign immunity, the State is potentially subject to suit in any court, federal as well as state.The test for determining whether a State has waived its immunity from federal court jurisdiction is a stringent one. Although a State's general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147, 450 U. S. 150 (1981) (per curiam). As we explained just last Term, "a State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." Pennhurst II, supra, at 465 U. S. 99. Thus, in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State's intention to subject itself to suit in federal court. See Smith v. Reeves, 178 U. S. 436, 178 U. S. 441 (1900); Great Northern Life Insurance Co. v. Read, 322 U. S. 47, 322 U. S. 54 (1944). In view of these principles, we do not believe that Art. III, § 5, of the California Constitution constitutes a waiver of the State's constitutional immunity. This provision does not specifically indicate the State's willingness to be sued in federal court. Indeed, the provision appears simply to authorize the legislature to waive the State's sovereign immunity. In the absence of an unequivocal waiver specifically applicable to federal court jurisdiction, we decline to find that California has waived its constitutional immunity. Page 473 U. S. 242IVRespondent also contends that, in enacting the Rehabilitation Act, Congress abrogated the States' constitutional immunity. In making this argument, respondent relies on the pre- and post-enactment legislative history of the Act and inferences from general statutory language. To reach respondent's conclusion, we would have to temper the requirement, well established in our cases, that Congress unequivocally express its intention to abrogate the Eleventh Amendment bar to suits against the States in federal court. Pennhurst II, supra, at 465 U. S. 99; Quern v. Jordan, supra, at 440 U. S. 342-345. We decline to do so, and affirm that Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. The fundamental nature of the interests implicated by the Eleventh Amendment dictates this conclusion.Only recently the Court reiterated that "the States occupy a special and specific position in our constitutional system. . . ." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 547 (1985). The "constitutionally mandated balance of power" between the States and the Federal Government was adopted by the Framers to ensure the protection of "our fundamental liberties." Id. at 469 U. S. 572 (POWELL, J., dissenting). By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance."Our reluctance to infer that a State's immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system."Pennhurst II, supra, at 465 U. S. 99.Congress' power to abrogate a State's immunity means that, in certain circumstances, the usual constitutional balance between the States and the Federal Government does not obtain."Congress may, in determining what is 'appropriate Page 473 U. S. 243 legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts."Fitzatrck, 427 U.S. at 427 U. S. 456. In view of this fact, it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides the guarantees of the Eleventh Amendment. The requirement that Congress unequivocally express this intention in the statutory language ensures such certainty.It is also significant that, in determining whether Congress has abrogated the States' Eleventh Amendment immunity, the courts themselves must decide whether their own jurisdiction has been expanded. Although it is of course the duty of this Court "to say what the law is," Marbury v. Madison, 1 Cranch 137, 5 U. S. 177 (1803), it is appropriate that we rely only on the clearest indications in holding that Congress has enhanced our power. See American Fire & Cas. Co. v. Finn, 341 U. S. 6, 341 U. S. 17 (1951) ("The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation . . . ").For these reasons, we hold -- consistent with Quern, Edelman, and Pennhurst II -- that Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself. [Footnote 3] Page 473 U. S. 244In light of this principle, we must determine whether Congress, in adopting the Rehabilitation Act, has chosen to override the Eleventh Amendment. [Footnote 4] Section 504 of the Rehabilitation Act provides in pertinent part: Page 473 U. S. 245"No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service."87 Stat. 394, as amended and as set forth in 29 U.S.C. § 794.Section 505, which was added to the Act in 1978, as set forth in 29 U.S.C. § 794a, describes the available remedies under the Act, including the provisions pertinent to this case:"(a)(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.""(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."The statute thus provides remedies for violations of § 504 by "any recipient of Federal assistance." There is no claim here that the State of California is not a recipient of federal Page 473 U. S. 246 aid under the statute. But given their constitutional role, the States are not like any other class of recipients of federal aid. A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically. Pennhurst II, 465 U.S. at 465 U. S. 99, citing Quern v. Jordan, 440 U. S. 332 (1979). Accordingly, we hold that the Rehabilitation Act does not abrogate the Eleventh Amendment bar to suits against the States.VFinally, we consider the position adopted by the Court of Appeals that the State consented to suit in federal court by accepting funds under the Rehabilitation Act. [Footnote 5] 735 F.2d at 361-362. In reaching this conclusion, the Court of Appeals relied on "the extensive provisions [of the Act] under which the states are the express intended recipients of federal assistance." Id. at 360. It reasoned that"this is a case in which a 'congressional enactment . . . by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities,' and 'the State, by its participation in the program authorized by Congress, had in effect consented to the abrogation of that immunity,'"id. at 361, citing Edelman v. Jordan, 415 U.S. at 415 U. S. 672. The Court of Appeals thus concluded that, if the State"has participated in and received funds from programs under the Rehabilitation Act, [it] has implicitly consented to be sued as a recipient under 29 U.S.C. § 794."735 F.2d at 362.The court properly recognized that the mere receipt of federal funds cannot establish that a State has consented to suit Page 473 U. S. 247 in federal court. Ibid., citing Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. at 450 U. S. 150; Edelman v. Jordan, supra, at 415 U. S. 673. The court erred, however, in concluding that, because various provisions of the Rehabilitation Act are addressed to the States, a State necessarily consents to suit in federal court by participating in programs funded under the statute. We have decided today that the Rehabilitation Act does not evince an unmistakable congressional purpose, pursuant to § 5 of the Fourteenth Amendment, to subject unconsenting States to the jurisdiction of the federal courts. The Act likewise falls far short of manifesting a clear intent to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity. Thus, were we to view this statute as an enactment pursuant to the Spending Clause, Art. I, § 8, see n 4, supra, we would hold that there was no indication that the State of California consented to federal jurisdiction.VIThe provisions of the Rehabilitation Act fall far short of expressing an unequivocal congressional intent to abrogate the States' Eleventh Amendment immunity. Nor has the State of California specifically waived its immunity to suit in federal court. In view of these determinations, the judgment of the Court of Appeals must be reversed.It is so ordered

U.S. Supreme CourtAtascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985)Atascadero State Hosp. v. ScanlonNo. 84-351Argued March 25, 1985Decided June 28, 1985473 U.S. 234SyllabusRespondent, who suffers from diabetes and has no sight in one eye, brought an action in Federal District Court against petitioners, alleging that petitioner California State Hospital denied him employment because of his physical handicap, in violation of § 504 of the Rehabilitation Act of 1973, and seeking compensatory, injunctive, and declaratory relief. Section 504 provides that no handicapped person shall, solely by reason of his handicap, be subjected to discrimination under any program receiving federal financial assistance under the Act. Section 505(a) makes available to any person aggrieved by any act of any recipient of federal assistance under the Act the remedies for employment discrimination set forth in Title VI of the Civil Rights Act of 1964. The District Court granted petitioners' motion to dismiss the complaint on the ground that respondent's claims were barred by the Eleventh Amendment. Ultimately, after initially affirming on other grounds and upon remand from this Court, the Court of Appeals reversed, holding that the Eleventh Amendment did not bar the action because the State by receiving funds under the Act had implicitly consented to be sued as a recipient under § 504.Held: Respondent's action is proscribed by the Eleventh Amendment. Pp. 473 U. S. 237-247.(a) Article III, § 5, of the California Constitution, which provides that "[s]uits may be brought against the State in such manner and in such courts as shall be directed by law" does not constitute a waiver of the State's Eleventh Amendment immunity from suit in federal court. In order for a state statute or constitutional provision to constitute such a waiver, it must specify the State's intent to subject itself to suit in federal court. Article III, § 5, does not specifically indicate the State's willingness to be sued in federal court, but appears simply to authorize the legislature to waive the State's sovereign immunity. P. 473 U. S. 241.(b) The Rehabilitation Act does not abrogate the Eleventh Amendment bar to suits against the States. Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself. Here, the general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. Pp. 473 U. S. 242-246. Page 473 U. S. 235(c) The State's acceptance of funds and participation in programs funded under the Rehabilitation Act are insufficient to establish that it consented to suit in federal court. The Act falls far short of manifesting a clear intention to condition participation in programs under the Act on a State's consent to waive its constitutional immunity. Pp. 473 U. S. 246-247.735 F.2d 359, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 473 U. S. 247. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 473 U. S. 302. STEVENS, J., filed a dissenting opinion, post, p. 473 U. S. 304.

1991_90-408

Jeffrey C. Sullivan argued the cause for petitioners in No. 90-408 and respondents in No. 90-577. With him on the briefs was John v: Staffan.R. Wayne Bjur argued the cause for respondent in No. 90-408 and petitioner in No. 90-577. With him on the brief was Tim Weaver.Edwin S. Kneedler argued the cause for the United States as amicus curiae in support of respondent in No. 90408 and petitioner in No. 90-577. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Peter R. Steen land, Jr., Robert L. Klarquist, and Edward J. Shawaker.tJUSTICE SCALIA delivered the opinion of the Court.The question presented by these consolidated cases is whether the County of Yakima may impose an ad valorem tax on so-called "fee-patented" land located within the Yakima Indian Reservation, and an excise tax on sales of such land.I AIn the late 19th century, the prevailing national policy of segregating lands for the exclusive use and control of thetBriefs of amici curiae were filed for the State of Montana et al. by Marc Racicot, Attorney General of Montana, Clay R. Smith, Solicitor, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, Hubert H. Humphrey III of Minnesota, Nicholas Spaeth of North Dakota, and Mark Barnett of South Dakota; for the State of Washington by Kenneth O. Eikenberry, Attorney General, Leland T. Johnson, Senior Assistant Attorney General, and Timothy R. Malone, Special Assistant Attorney General; for La Plata County et al. by Tom D. Tobin and Susan W Pahlke; for the Mashantucket Pequot Tribe et al. by Melody L. McCoy, Yvonne Teresa Knight, Kim Jerome Gottschalk, Jeanette Wolfley, Reid P. Chambers, Jeanne S. Whiteing, and Robert S. Thompson III; for the National Association of Counties et al. by Richard Ruda and David J. Burman; and for the Washington State Association of Counties by Barnett Kalikow and Robert P. Dick.254Indian tribes gave way to a policy of allotting those lands to tribe members individually. The objectives of allotment were simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large. See, e. g., In re Heff, 197 U. S. 488, 499 (1905). Congress was selective at first, allotting lands under differing approaches on a tribe-by-tribe basis. See F. Cohen, Handbook of Federal Indian Law 129130 (1982); Gates, Indian Allotments Preceding the Dawes Act, in The Frontier Challenge 141 (J. Clark ed. 1971). These early efforts were marked by failure, however. Because allotted land could be sold soon after it was received, see, e. g., Treaty with Wyandot Nation, Apr. 1, 1850, 9 Stat. 987, 992, many of the early allottees quickly lost their land through transactions that were unwise or even procured by fraud. See Cohen, supra, at 130. Even if sales were for fair value, Indian allottees divested of their land were deprived of an opportunity to acquire agricultural and other self-sustaining economic skills, thus compromising Congress' purpose of assimilation.Congress sought to solve these problems in the Indian General Allotment Act of 1887, also known as the Dawes Act, 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq., which empowered the President to allot most tribal lands nationwide without the consent of the Indian nations involved. The Dawes Act restricted immediate alienation or encumbrance by providing that each allotted parcel would be held by the United States in trust for a period of 25 years or longer; only then would a fee patent issue to the Indian allottee. 24 Stat. 389; see United States v. Mitchell, 445 U. S. 535, 543-544 (1980). Section 6 of the Act furthered Congress' goal of assimilation by providing that "each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside." 24 Stat. 390.255In In re Heff, supra, at 502-503, we held that this latter provision subjected Indian allottees to plenary state jurisdiction immediately upon issuance of a trust patent (and prior to the expiration of the 25-year trust period). Congress promptly altered that disposition in the Burke Act of 1906, 34 Stat. 182, decreeing that state civil and criminal jurisdiction would lie "at the expiration of the trust period ... when the lands have been conveyed to the Indians by patent in fee." A proviso, however, gave the President authority, when he found an allottee "competent and capable of managing his or her affairs," to "issu[e] ... a patent in fee simple" prior to the expiration of the relevant trust period. Upon such a premature patenting, the proviso specified (significantly for present purposes) not that the patentee would be subject to state civil and criminal jurisdiction but that "all restrictions as to sale, incumbrance, or taxation of said land shall be removed." Id., at 183.The policy of allotment came to an abrupt end in 1934 with passage of the Indian Reorganization Act. See 48 Stat. 984, 25 U. S. C. § 461 et seq. Returning to the principles of tribal self-determination and self-governance which had characterized the pre-Dawes Act era, Congress halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands. See §§ 461, 462. In addition, the Act provided for restoring unallotted surplus Indian lands to tribal ownership, see § 463, and for acquiring, on behalf of the tribes, lands "within or without existing reservations." § 465. Except by authorizing reacquisition of allotted lands in trust, however, Congress made no attempt to undo the dramatic effects of the allotment years on the ownership of former Indian lands. It neither imposed restraints on the ability of Indian allottees to alienate or encumber their fee-patented lands nor impaired the rights of those non-Indians who had acquired title to over two-thirds of the Indian lands allotted256under the Dawes Act. See W. Washburn, Red Man's Land/ White Man's Law 145 (1971).BThe Yakima Indian Reservation, which was established by treaty in 1855, see Treaty with Yakima Nation, 12 Stat. 951, covers approximately 1.3 million acres in southeastern Washington State. Eighty percent of the reservation's land is held by the United States in trust for the benefit of the Tribe or its individual members; 20 percent is owned in fee by Indians and non-Indians as a result of patents distributed during the allotment era. See Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 415 (1989) (pluralityopinion). Some of this fee land is owned by the Yakima Indian Nation itself.The reservation is located almost entirely within the confines of petitioner/cross-respondent Yakima County. Pursuant to Washington law, Yakima County imposes an ad valorem levy on taxable real property within its jurisdiction and an excise tax on sales of such land. Wash. Rev. Code §§ 84.52.030, 82.45.070 (1989). According to the county, these taxes have been levied on the Yakima Reservation's fee lands and collected without incident for some time. In 1987, however, as Yakima County proceeded to foreclose on properties throughout the county for which ad valorem and excise taxes were past due, including a number of reservation parcels in which the Tribe or its members had an interest, respondent! cross-petitioner Yakima Nation commenced this action for declaratory and injunctive relief, contending that federal law prohibited these taxes on fee-patented lands held by the Tribe or its members.On stipulated facts, the District Court awarded summary judgment to the Tribe and entered an injunction prohibiting the imposition or collection of the taxes on such lands. On appeal, the Court of Appeals for the Ninth Circuit agreed that the excise tax was impermissible, but held that the ad257valorem tax would be impermissible only if it would have a "'demonstrably serious'" impact on the "'political integrity, economic security, or the health and welfare of the tribe,'" and remanded to the District Court for that determination to be made. 903 F.2d 1207, 1218 (CA9 1990) (emphasis deleted) (quoting Brendale, supra, at 431). We granted certiorari. 500 U. S. 903 (1991).IIThe Court's earliest cases addressing attempts by States to exercise dominion over the reservation lands of Indians proceeded from Chief Justice Marshall's premise that the "several Indian nations [constitute] distinct political communities, having territorial boundaries, within which their authority is exclusive .... " Worcester v. Georgia, 6 Pet. 515, 556-557 (1832). Because Congress, pursuant to its constitutional authority both "[t]o regulate Commerce ... with the Indian Tribes" and to make treaties, U. S. Const., Art. I, § 8, cl. 3; Art II, § 2, cl. 2, had determined by law and treaty that "all intercourse with them [would] be carried on exclusively by the [Federal Government]," Worcester v. Georgia, supra, at 557, the Court concluded that within reservations state jurisdiction would generally not lie. The assertion of taxing authority was not excepted from this principle. E. g., The Kansas Indians, 5 Wall. 737, 755-757 (1867); The New York Indians, 5 Wall. 761, 771-772 (1867).The "platonic notions of Indian sovereignty" that guided Chief Justice Marshall have, over time, lost their independent sway. See McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 172, and n. 8 (1973); Organized Village of Kake v. Egan, 369 U. S. 60, 71-73 (1962). Congress abolished treatymaking with the Indian nations in 1871, Rev. Stat. § 2079, as amended, 25 U. S. C. § 71, and has itself subjected the tribes to substantial bodies of state and federal law. This Court's more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians 10-258cated on reservation lands. See, e. g., New York ex rel. Ray v. Martin, 326 U. S. 496 (1946); see also Cohen, Handbook of Federal Indian Law, at 352, and n. 39. We have even observed that state jurisdiction over the relations between reservation Indians and non-Indians may be permitted unless the application of state laws "would interfere with reservation self-government or impair a right granted or reserved by federal law." Organized Village of Kake, supra, at 75. In the area of state taxation, however, Chief Justice Marshall's observation that "the power to tax involves the power to destroy," McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), has counseled a more categorical approach: "[A]bsent cession of jurisdiction or other federal statutes permitting it," we have held, a State is without power to tax reservation lands and reservation Indians. Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973). And our cases reveal a consistent practice of declining to find that Congress has authorized state taxation unless it has "made its intention to do so unmistakably clear." Montana v. Blackfeet Tribe, 471 U. S. 759,765 (1985); see also California v. Cabazon Band of Mission Indians, 480 U. S. 202, 215, n. 17 (1987).Yakima County persuaded the Court of Appeals, and urges upon us, that express authority for taxation of fee-patented land is found in § 6 of the General Allotment Act, as amended.1 We have little doubt about the accuracy of that threshold assessment. Our decision in Goudy v. Meath, 2031 Section 6 provides in pertinent part:"At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee, ... then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside .... Provided, That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed." 25 U. S. C. § 349 (emphasis added).259u. S. 146, 149 (1906), without even mentioning the Burke Act proviso, held that state tax laws were "[a]mong the laws to which [Indian allottees] became subject" under § 6 upon the expiration of the Dawes Act trust period. And we agree with the Court of Appeals that by specifically mentioning immunity from land taxation "as one of the restrictions that would be removed upon conveyance in fee," Congress in the Burke Act proviso "manifest[ed] a clear intention to permit the state to tax" such Indian lands. 903 F. 2d, at 1211.Neither the Yakima Nation nor its principal amicus, the United States, vigorously disputes this.2 Instead, they contend that § 6 of that Act-the Burke Act proviso included-2 The Yakima Nation does, however, make a preliminary objection to the taxes on the ground that the Washington State Constitution permits land taxes to be imposed only on those Indians holding fee patents who have terminated their affiliations with the Tribe-which the Indian plaintiffs in these cases have not done. The provision at issue provides in pertinent part as follows:"That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States ... ; Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtainedfrom the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an extent as such act of congress may prescribe." Wash. Const., Art. XXVI, Second (emphasis added).We agree with the Court of Appeals that, under this text, the Indian lands not covered by the quoted proviso are not exempted from taxation, but merely committed to "the absolute jurisdiction and control of [Congress]." If Congress has permitted taxation, the provision is not violated.260is a dead letter, at least within the confines of an Indian reservation. The Tribe argues that, by terminating the allotment program and restoring tribal integrity through the Indian Reorganization Act of 1934, Congress impliedly repealed § 6's jurisdictional grant and returned the law to its pre-General Allotment Act foundations. Congress' subsequent actions, according to the Tribe, confirm this implication. In 1948, for instance, Congress defined "Indian country" to include all fee land within the boundaries of an existing reservation, whether or not held by an Indian, and pre-empted state criminal laws within "Indian country" insofar as offenses by and against Indians were concerned. See Act of June 25,1948,62 Stat. 757-758, as amended, 18 U. S. C. §§ 1151-1153; Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351 (1962). And in 1953, Congress once again signaled its belief in the dormition of § 6 by enacting Pub. L. 280, which authorized States to assume criminal and civil jurisdiction over Indians within Indian country in certain circumstances. See Act of Aug. 15, 1953, 67 Stat. 588.Though generally in agreement with the Tribe, the United States takes a slightly different tack. It claims that the General Allotment Act removed only those barriers to state jurisdiction that existed at the time of its enactment, e. g., those associated with tribal sovereignty and the trust status of allotted land. The General Allotment Act did not remove-indeed, the argument goes, could not have removed-a jurisdictional bar arising after the Act's passage. For just such an after-arising jurisdictional bar, the United States points to the same statutes on which the Tribe rests its position. In the United States' view, these enactments must be construed to pre-empt the application "of state laws (especially state tax laws) to Indians and their property within a reservation." Brief for United States as Amicus Curiae 14.261In support of their convergent arguments, the Yakima N ation and the United States cite this Court's unanimous decision in Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), which they contend repudiates the continuing jurisdictional force of the General Allotment Act. In that case, the State of Montana sought to impose its cigarette sales and personal property taxes, as well as vendorlicensing fees, on Indian residents of a reservation located entirely within the State. It relied for jurisdiction upon § 6 of the General Allotment Act, but did not limit its claim of taxing authority to the reservation's allottees or even to those activities taking place on allotted reservation fee land. Instead, the State made an "all or nothing" claim to reservation-wide jurisdiction (trust land included), arguing that any scheme of divided jurisdiction would be inequitable. Brief for Appellants in Moe, O. T. 1975, No. 74-1656, p. 17. We declined Montana's invitation to ignore the plain language of § 6, which "[b]y its terms [did] not reach Indians residing" or conducting business on trust lands. Moe, 425 U. S., at 478. The assertion of reservation-wide jurisdiction, we said, could not be sustained. But we went much further:In light of Congress' repudiation in 1934 of the policies behind the General Allotment Act, we concluded that the Act could no longer be read to provide Montana plenary jurisdiction even over those Indians residing on reservation fee lands:"The State has referred us to no decisional authorityand we know of none-giving the meaning for which it contends to § 6 of the General Allotment Act in the face of the many and complex intervening jurisdictional statutes directed at the reach of state law within reservation lands .... Congress by its more modern legislation has evinced a clear intent to eschew any such 'checkerboard' approach within an existing Indian reservation, and our cases have in turn followed Congress' lead in this area." Id., at 479.262Reasoning from Moe, the Yakima Nation and the United States argue that if § 6 no longer provides for plenary state jurisdiction over the owners of reservation fee lands, then it cannot support the exercise of the narrower jurisdiction asserted by Yakima County here. They concede, as they must, that in Moe the Court did not address the Burke Act proviso to § 6, which figures so prominently in Yakima County's analysis. But real property taxes were not at issue in M oe, they argue, making the proviso irrelevant. And because a proviso can only operate within the reach of the principal provision it modifies, cf. United States v. Morrow, 266 U. S. 531, 534-535 (1925), neither the language of § 6 proper nor the proviso can be considered effective after Moe.We think this view rests upon a misunderstanding of Moe and a misperception of the structure of the General Allotment Act. As to the former: The Tribe's and the United States' interpretation of our opinion in Moe reduces ultimately to the proposition that we held § 6 to have been repealed by implication. That is not supportable, however, since it is a "cardinal rule ... that repeals by implication are not favored," Posadas v. National City Bank, 296 U. S. 497, 503 (1936), and since we made no mention of implied repeal in our opinion. Moe was premised, instead, on the implausibility, in light of Congress' postallotment era legislation, of Montana's construction of § 6 that would extend the State's in personam jurisdiction beyond the section's literal coverage ("each and every allottee") to include subsequent Indian owners (through grant or devise) of the allotted parcels. This approach, we said, would create a "checkerboard" pattern in which an Indian's personal law would depend upon his parcel ownership; it would contradict "the many and complex intervening jurisdictional statutes" dealing with States' civil and criminal jurisdiction over reservation Indians; and it would produce almost surreal administrative problems, making the applicable law of civil relations depend not upon the locus of the transaction but upon the character of the263reservation land owned by one or both parties. See M oe, supra, at 478-479.Thus, even as to § 6 personal jurisdiction, Moe in no way contradicts Goudy v. Meath, which involved the personalliability for taxes of an Indian who not merely owned an allotted parcel, but was, as the language of § 6 requires, himself an allottee. See 203 U. S., at 147, 149. But (and now we come to the misperception concerning the structure of the General Allotment Act) Goudy did not rest exclusively, or even primarily, on the § 6 grant of personal jurisdiction over allottees to sustain the land taxes at issue. Instead, it was the alienability of the allotted lands-a consequence produced in these cases not by § 6 of the General Allotment Act, but by § 53-that the Court found of central significance. As the first basis of its decision, before reaching the "further" point of personal jurisdiction under § 6, id., at 149, the Goudy Court said that, although it was certainly possible for Congress to "grant the power of voluntary sale, while withholding the land from taxation or forced alienation," such an intent would not be presumed unless it was "clearly manifested." Ibid. For "it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic] from taxation." Ibid. Thus, when § 5 rendered the allotted lands alienable and en-3 Section 5 of the General Allotment Act provides in part:"[A]t the expiration of said [trust] period the United States will convey [the allotted lands] by patent to said Indian ... in fee, discharged of said trust and free of all charge or incumbrance whatsoever .... And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void .... " 25 U. S. C. §348.The negative implication of the last quoted sentence, of course, is that a conveyance of allotted land is permitted once the patent issues.264cumberable, it also rendered them subject to assessment and forced sale for taxes.The Burke Act proviso, enacted in 1906, made this implication of § 5 explicit, and its nature more clear. As we have explained, the purpose of the Burke Act was to change the outcome of our decision in In re Heff, 197 U. S. 488 (1905), so that § 6's general grant of civil and criminal jurisdiction over Indian allottees would not be effective until the 25-year trust period expired and patents were issued in fee. The proviso, however, enabled the Secretary of the Interior to issue fee patents to certain allottees before expiration of the trust period. Although such a fee patent would not subject its Indian owner to plenary state jurisdiction, fee ownership would free the land of "all restrictions as to sale, incumbrance, or taxation." 25 U. S. C. § 349. In other words, the proviso reaffirmed for such "prematurely" patented land what § 5 of the General Allotment Act implied with respect to patented land generally: subjection to state real estate taxes.4 And when Congress, in 1934, while putting an end to further allotment of reservation land, see 25 U. S. C. § 461, chose not to return allotted land to pre-General Allotment Act status, leaving it fully alienable by the allottees, their heirs, and assigns, see Brendale, 492 U. S., at 423 (plurality opinion); Hodel v. Irving, 481 U. S. 704, 708-709 (1987), it chose not to terminate state taxation upon those lands as well.The Yakima Nation and the United States deplore what they consider the impracticable, Moe-condemned "checkerboard" effect produced by Yakima County's assertion of ju-4 Since the proviso is nothing more than an acknowledgment (and clarification) of the operation of § 5 with respect to all fee-patented land, it is inconsequential that the trial record does not reflect "which (if any) of the parcels owned in fee by the Yakima Nation or individual members originally passed into fee status pursuant to the proviso, rather than at the expiration of the trust period .... " Brief for United States as Amicus Curiae 13, n. 10.265risdiction over reservation fee-patented land. But because the jurisdiction is in rem rather than in personam, it is assuredly not M oe-condemned; and it is not impracticable either. The parcel-by-parcel determinations that the State's tax assessor is required to make on the reservation do not differ significantly from those he must make off the reservation, to take account of immunities or exemptions enjoyed, for example, by federally owned, state-owned, and churchowned lands. We cannot resist observing, moreover, that the Tribe's and the United States' favored disposition also produces a "checkerboard," and one that is less readily administered: They would allow state taxation of only those fee lands owned (from time to time) by nonmembers of the Tribe. See Brief for Yakima Nation 16, n. 8; Brief for United States as Amicus Curiae 14, n. 12. See also Brendale, supra, at 422-425 (plurality opinion) (affirming "checkerboard" with respect to zoning power over reservation fee land).Turning away from the statutory texts altogether, the Yakima Nation argues that state jurisdiction over reservation fee land is manifestly inconsistent with the policies of Indian self-determination and self-governance that lay behind the Indian Reorganization Act and subsequent congressional enactments. This seems to us a great exaggeration. While the in personam jurisdiction over reservation Indians at issue in Moe would have been significantly disruptive of tribal self-government, the mere power to assess and collect a tax on certain real estate is not. In any case, these policy objections do not belong in this forum. If the Yakima Nation believes that the objectives of the Indian Reorganization Act are too much obstructed by the clearly retained remnant of an earlier policy, it must make that argument to Congress. Judges "are not at liberty to pick and choose among congressional enactments, and when two [or more] statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to266regard each as effective." Morton v. Mancari, 417 U. S. 535, 551 (1974).IIIYakima County sought to impose two separate taxes with respect to reservation fee lands, an ad valorem tax and an excise tax on sales. We discuss each in turn, in light of the principles set forth above.ALiability for the ad valorem tax flows exclusively from ownership of realty on the annual date of assessment. See Timber Traders, Inc. v. Johnston, 87 Wash. 2d 42, 47, 548 P. 2d 1080, 1083 (1976). The tax, moreover, creates a burden on the property alone. See Wash. Rev. Code § 84.60.020 (1989) ("The taxes assessed upon real property ... shall be a lien thereon from and including the first day of January in the year in which they are levied until the same are paid ... "); Clizer v. Krauss, 57 Wash. 26, 30-31, 106 P. 145, 146-147 (1910). See also Timber Traders, Inc., supra; In re Electric City, Inc., 43 B. R. 336, 341 (Bkrtcy. Ct. WD Wash. 1984) (dictum). The Court of Appeals held, the Tribe does not dispute, and we agree, that this ad valorem tax constitutes "taxation of ... land" within the meaning of the General Allotment Act and is therefore prima facie valid.The Court of Appeals, however, derived from our decision three Terms ago in Brendale the conclusion that the Yakima Nation has a "protectible interest" against imposition of the tax on Tribe members upon demonstration of the evils described in that opinion, and remanded to the District Court for further findings in that regard. N either of the parties supports this aspect of the Ninth Circuit's ruling, believing that the law affords an unconditional answer to permissibility of the tax. We agree.Brendale addressed a challenge to the Yakima Nation's assertion of authority to zone reservation fee land owned by non- Indians. The concept of "protectible interest" to which267JUSTICE WHITE'S opinion in the case referred, see 492 U. S., at 431, grew out of a long line of cases exploring the very narrow powers reserved to tribes over the conduct of nonIndians within their reservations. See Montana v. United States, 450 U. S. 544, 566 (1981) (citing cases). Even though a tribe's "inherent sovereign powers ... do not extend to the activities of nonmembers, ... [a] tribe may ... retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 565-566 (emphasis added). Brendale and its reasoning are not applicable to the present cases, which involve not a proposed extension of a tribe's inherent powers, but an asserted restriction of a State's congressionally conferred powers. Moreover, as the Court observed recently in California v. Cabazon Band of Mission Indians, 480 U. S., at 215, n. 17, we have traditionally followed "a per se rule" "[i]n the special area of state taxation of Indian tribes and tribal members." Though the rule has been most often applied to produce categorical prohibition of state taxation when there has been no "cession of jurisdiction or other federal [legislative permission]," Mescalero Apache Tribe, 411 U. S., at 148, we think it also applies to produce categorical allowance of state taxation when it has in fact been authorized by Congress. "Either Congress intended to pre-empt the state taxing authority or it did not. Balancing of interests is not the appropriate gauge for determining validity since it is that very balancing which we have reserved to Congress." Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 177 (1980) (opinion of REHNQUIST, J.). If the Ninth Circuit's Brendale test were the law, litigation would surely engulf the States' annual assessment and taxation process, with the validity of each levy dependent upon a multiplicity of factors that vary from year to year,268and from parcel to parcel. For reasons of practicality, as well as text, we adhere to our per se approach.BWe think the excise tax on sales of fee land is another matter, as did the Court of Appeals. While the Burke Act proviso does not purport to describe the entire range of in rem jurisdiction States may exercise with respect to feepatented reservation land, we think it does describe the entire range of jurisdiction to tax. And that description is "taxation of ... land." Yakima County seeks to expand this text by citing our statement in Squire v. Capoeman, 351 U. S. 1 (1956), to the effect that "[t]he literal language of the [Burke Act] proviso evinces a congressional intent to subject an Indian allotment to all taxes" after it has been patented in fee. Id., at 7-8 (emphasis added). This dictum was addressed, however, to the United States' assertion that the General Allotment Act barred only States and localities, and not the Federal Government, from levying taxes on Indian allotments during the trust period. "All taxes," in the sense of federal as well as local, in no way expands the text beyond "taxation of ... land."It does not exceed the bounds of permissible construction to interpret "taxation of land" as including taxation of the proceeds from sale of land; and it is even true that such a construction would be fully in accord with Goudy's emphasis upon the consequences of alienability, which underlay the Burke Act proviso. That is surely not, however, the phrase's unambiguous meaning-as is shown by the Washington Supreme Court's own observation that "a tax upon the sale of property is not a tax upon the subject matter of that sale." Mahler v. Tremper, 40 Wash. 2d 405, 409, 243 P. 2d 627, 629 (1952). It is quite reasonable to say, in other words, that though the object of the sale here is land, that does not make land the object of the tax, and hence does not269invoke the Burke Act proviso. When we are faced with these two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court's Indian jurisprudence: "[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Montana v. Blackfeet Tribe, 471 U. S., at 766. See also McClanahan v. Arizona State Tax Comm'n, 411 U. S., at 174.To render this a "taxation of land" in the narrow sense, it does not suffice that, under Washington law, the excise tax creates "a specific lien upon each piece of real property sold from the time of sale until the tax shall have been paid .... " Wash. Rev. Code § 82.45.070 (1989). A lien upon real estate to satisfy a tax does not convert the tax into a tax upon real estate-otherwise all sorts of state taxation of reservationIndian activities could be validated (even the cigarette sales tax disallowed in Moe) by merely making the unpaid tax assessable against the taxpayer's fee-patented real estate. Thus, we cannot even accept the county's narrower contention that the excise tax lien is enforceable against reservation fee property conveyed by an Indian seller to a non- Indian buyer. The excise tax remains a tax upon the Indian's activity of selling the land, and thus is void, whatever means may be devised for its collection. Cf., e. g., Washington v. Confederated Tribes of Colville Reservation, supra, at 154-159 (Indian proprietors may be compelled to pre collect taxes whose incidence legally falls on nonIndians); Moe, 425 U. S., at 482 (same).The short of the matter is that the General Allotment Act explicitly authorizes only "taxation of ... land," not "taxation with respect to land," "taxation of transactions involving land," or "taxation based on the value of land." Because it is eminently reasonable to interpret that language as not including a tax upon the sale of real estate, our cases require us to apply that interpretation for the benefit of the Tribe.270Opinion of BLACKMUN, J.Accordingly, Yakima County's excise tax on sales of land cannot be sustained.***We hold that the General Allotment Act permits Yakima County to impose an ad valorem tax on reservation land patented in fee pursuant to the Act, but does not allow the county to enforce its excise tax on sales of such land. The Yakima Nation contends it is not clear whether the parcels at issue in these cases were patented under the General Allotment Act, rather than under some other statutes in force prior to the Indian Reorganization Act. E. g., 25 U. S. C. §§ 320, 379, 404, 405. We leave for resolution on remand that factual point, and the prior legal question whether it makes any difference.The judgment is affirmed, and the cause is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusCOUNTY OF YAKIMA ET AL. v. CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 90-408. Argued November 5, 1991-Decided January 14, 1992*Yakima County, Washington, imposes an ad valorem levy on taxable real property within its jurisdiction and an excise tax on sales of such land. The county proceeded to foreclose on various properties for which these taxes were past due, including certain fee-patented lands held by the Yakima Indian Nation or its members on the Tribe's reservation within the county. Contending that federal law prohibited the imposition or collection of the taxes on such lands, the Tribe filed suit for declaratory and injunctive relief and was awarded summary judgment by the District Court. The Court of Appeals agreed that the excise tax was impermissible, but held that the ad valorem tax would be impermissible only if it would have a "'demonstrably serious'" impact on the Tribe's "'political integrity, economic security or ... health and welfare'" (quoting Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 431 (opinion of WHITE, J.)), and remanded to the District Court for that determination.Held: The Indian General Allotment Act of 1887 permits Yakima County to impose an ad valorem tax on reservation land patented in fee pursuant to the Act and owned by reservation Indians or the Yakima Indian Nation itself, but does not allow the county to enforce its excise tax on sales of such land. Pp. 257-270.(a) As the Court held in Goudy v. Meath, 203 U. S. 146, 149, the Indian General Allotment Act authorizes taxation of fee-patented land. This determination was explicitly confirmed in a 1906 amendment to the Act, known as the Burke Act, which includes a proviso authorizing the Secretary of the Interior, "whenever ... satisfied that any [Indian] allottee is competent ... [,] to ... issu[e] to such allottee a patent in fee simple," and provides that "thereafter all restrictions as to ... taxation of said land shall be removed." (Emphasis added.) Thus, the Indian General Allotment Act contains the unmistakably clear expression of intent that*Together with No. 90-577, Confederated Tribes and Bands of the Yakima Indian Nation v. County of Yakima et al., also on certiorari to the same court.252Syllabusis necessary to authorize state taxation of Indian lands. See, e. g., Montana v. Blackfeet Tribe, 471 U. S. 759,765. The contention of the Tribe and the United States that this explicit statutory conferral of taxing power has been repudiated by subsequent Indian legislation rests upon a misunderstanding of this Court's precedents, particularly Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463, and a misperception of the structure of the Indian General Allotment Act. pp. 257-266.(b) Because, under state law, liability for the ad valorem tax flows exclusively from ownership of realty on the annual assessment date, and the tax creates a burden on the property alone, this tax constitutes "taxation of ... land" within the meaning of the Indian General Allotment Act, and is therefore prima facie valid. Nevertheless, Brendale, supra, and its reasoning are inapplicable to the present cases, which involve an asserted restriction on a State's congressionally conferred powers over Indians rather than a proposed extension of a tribe's inherent powers over the conduct of non-Indians on reservation fee lands. Moreover, application of a balancing test under Brendale would contravene the per se approach traditionally followed by this Court in the area of state taxation of tribes and tribal members, under which taxation is categorically allowed or disallowed, as appropriate, depending exclusively upon whether it has in fact been authorized by Congress. Pp. 266-268.(c) However, the excise tax on sales of fee-patented reservation land cannot be sustained. The Indian General Allotment Act explicitly authorizes only "taxation of ... land," not "taxation with respect to land," "taxation of transactions involving land," or "taxation based on the value of land." Because it is eminently reasonable to interpret that language as not including a tax upon the activity of selling real estate, this Court's cases require that that interpretation be applied for the benefit of the Tribe. See, e. g., Blackfeet Tribe, supra, at 766. Pp. 268-270.(d) The factual question whether the parcels at issue were patented under the Indian General Allotment Act or some other federal allotment statute, and the legal question whether it makes any difference, are left for resolution on remand. P. 270.903 F.2d 1207, affirmed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, O'CONNOR, KENNEDY, SOUTER, and THOMAS, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 270.253Full Text of Opinion

1997_97-391

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Chapter 154 of 28 U. S. C., part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2261 et seq. (1994 ed., Supp. II), provides certain procedural advantages to qualifying States in federal habeas proceedings. This case requires us to decide whether state deathrow inmates may sue state officials for declaratory and injunctive relief limited to determining whether California qualifies under Chapter 154.Chapter 154 revises procedural rules for federal habeas proceedings in capital cases. Most notably, it provides for an expedited review process in proceedings brought against qualifying States. It imposes a 180-day limitation period for filing a federal habeas petition. § 2263(a). It treats an untimely petition as a successive petition for purposes of obtaining a stay of execution, § 2262(c), and it allows a prisoner to amend a petition after an answer is filed only where the prisoner meets the requirements for a successive petition, § 2266(b)(3)(B). Chapter 154 also obligates a federal district court to render a final judgment on any petition within 180 days of its filing, and a court of appeals to render a final determination within 120 days of the briefing. §§ 2266(a) and (c).As a general rule, Chapter 153-which has a i-year filing period, § 2244(d)(1), and lacks expedited review procedures-ster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Michael C. Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, John Knox Walkup of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Richard Cullen of Virginia, and Tom Udall of New Mexico.743governs federal habeas proceedings against a State. Chapter 154 will apply in capital cases only if the State meets certain conditions. A State must establish "a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel" in state postconviction proceedings, and "must provide standards of competency for the appointment of such counseL" § 2261(b) (States with separate postconviction review proceedings); § 2265(a) (States with unitary review procedures).l The State must offer counsel to all capital defendants, and the state court must enter an order concerning appointment of counsel. §§ 2261(b), 2265(b). If a State meets these criteria, then it may invoke Chapter 154.Various California officials, including petitioner Attorney General Lungren, publicly indicated that they thought California qualified under Chapter 154 and that they intended to invoke the chapter's protections. Respondent Troy Ashmus, a state prisoner sentenced to death, filed a class-action suit against petitioners. The class, which included all capital prisoners in California whose convictions were affirmed on direct appeal after June 6, 1989, sought declaratory and injunctive relief to resolve uncertainty over whether Chapter 154 applied.The District Court issued a declaratory judgment holding that California does not presently qualify for Chapter 154 and that Chapter 154 therefore does not apply to any class members. It also issued a preliminary injunction enjoining petitioners from "trying or seeking to obtain for the State of California the benefits of the provisions of Chapter 154 ... in any state or federal proceedings involving any class member." 935 F. Supp. 1048, 1076 (ND Cal. 1996).1 It is undisputed here that California is a unitary review State, which is a State that allows prisoners to raise collateral challenges in the course of direct review of the judgment, such that all claims may be raised in a single state appeal. See 28 U. S. C. § 2265(a) (1994 ed., Supp. II).744The Court of Appeals for the Ninth Circuit affirmed. 123 F.3d 1199 (1997). As a threshold matter, the Court of Appeals rejected petitioners' claim that the Eleventh Amendment barred respondent's suit as one against the State. The court concluded that the case falls within the Ex parte Young exception to Eleventh Amendment immunity, Ex parte Young, 209 U. S. 123 (1908), because respondent sufficiently alleged a continuing violation of federal law. 123 F. 3d, at 1204-1206. California's announced intention to invoke Chapter 154, without having complied with its requirements, threatened to violate the class members' right to thorough federal review of their first habeas petitions, pursuant to Chapter 153, and their right to assistance of counsel in federal habeas proceedings, pursuant to 21 U. S. C. § 848(q). By stating its intention to invoke Chapter 154, the Court of Appeals reasoned, California forced inmates to make an unacceptable choice: filing a pro se petition within 180 days in order to ensure compliance with Chapter 154, which may fail to raise substantial claims, or waiting until counsel is appointed, which may miss the 180-day filing deadline if Chapter 154 applies. 123 F. 3d, at 1204-1205.The Court of Appeals also determined that the District Court had authority to issue a declaratory judgment under 28 U. S. C. §2201(a). 123 F. 3d, at 1206-1207. It noted that a declaratory judgment plaintiff need only demonstrate an independent basis of federal jurisdiction and an actual case or controversy. Id., at 1206. The District Court had federal question jurisdiction under 28 U. S. C. § 1331 because the case challenged the interpretation of a federal Act. And the case-or-controversy requirement was satisfied, the court concluded, because "the State's threats to invoke Chapter 154 will significantly affect the plaintiff-class's ability to obtain habeas corpus review by a federal court." 123 F. 3d, at 1207.The Court of Appeals agreed in large part with the District Court's conclusion that California does not qualify, and745therefore found Chapter 154 inapplicable. In affirming the grant of injunctive relief, the Court of Appeals rejected petitioners' contention that enjoining their advocacy of a particular legal position violates the First Amendment. It thought the injunction did not interfere with the state officials' rights since they were free to voice their opinion that the decision was wrong-only not in court in order to invoke the benefits of Chapter 154. Id., at 1207-1209.Petitioners sought review in this Court. We granted certiorari on both the Eleventh Amendment and the First Amendment issues, 522 U. S. 1011 (1997), but in keeping with our precedents, have decided that we must first address whether this action for a declaratory judgment is the sort of "Article III" "case or controversy" to which federal courts are limited. See, e. g., FW/PBS, Inc. v. Dallas, 493 U. S. 215, 230-231 (1990).2Before the enactment of the federal Declaratory Judgment Act, this Court expressed the view that a "declaratory judgment" was not within that jurisdiction. Willing v. Chicago Auditorium Assn., 277 U. S. 274, 289 (1928). But in Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 (1933), the Court held that it did have jurisdiction to review a declaratory judgment granted by a state court. And in Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 (1937), we decided that the federal Declaratory Judgment Act validly conferred jurisdiction on federal courts to issue declaratory judgments in appropriate cases.That Act provides that "[i]n a case of actual controversy within its jurisdiction, ... any court of the United States ... may declare the rights and other legal relations of any inter-2 While the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court's judicial power, and therefore can be raised at any stage of the proceedings, we have recognized that it is not coextensive with the limitations on judicial power in Article III. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 267 (1997); Patsy v. Board of Regents of Fla., 457 U. S. 496, 515, n. 19 (1982).746ested party seeking such declaration, whether or not further relief is or could be sought." 28 U. S. C. § 2201. See also Fed. Rule Civ. Proc. 57. Thus, in Aetna Life Ins., we held that an insurance company could bring a declaratory judgment action to determine the validity of insurance policies. The company and the insured disputed whether the policies had lapsed and how much was currently payable, but the insured had not brought suit to recover benefits. 300 U. S., at 239-240. We observed that the controversy would admit "of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Id., at 241. See also Wallace, supra, at 262. We have thus recognized the potential for declaratory judgment suits to fall outside the constitutional definition of a "case" in Article III: a claim " 'brought before the court(s) for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs.'" Fairchild v. Hughes, 258 U. S. 126, 129 (1922).The underlying "controversy" between petitioners and respondent is whether respondent is entitled to federal habeas relief setting aside his sentence or conviction obtained in the California courts. But no such final or conclusive determination was sought in this action. Instead, respondent carved out of that claim only the question whether, when he sought habeas relief, California would be governed by Chapter 153 or by Chapter 154 in defending the action. Had he brought a habeas action itself, he undoubtedly would have obtained such a determination, but he seeks to have that question determined in anticipation of seeking habeas so that he will be better able to know, for example, the time limits that govern the habeas action.We think previous decisions of this Court bar the use of the Declaratory Judgment Act for this purpose. In Coffman v. Breeze Corps., 323 U. S. 316 (1945), a patent owner brought suit seeking to have the Royalty Adjustment Act747declared unconstitutional and to enjoin his licensee from paying accrued royalties to the government. The Court held that the action presented no case or controversy. The validity of the Act would properly arise only in a suit by the patent holder to recover the royalties, which could afford complete and adequate relief. In such a suit, if the licensee were to assert compliance with the Act as a defense to an obligation to pay the amounts due, the patent holder's right of recovery would then depend on a determination of the Act's validity. Id., at 322-323. The Court thus concluded that there was no justiciable question "unless and until [the patent owner] seeks recovery of the royalties, and then only if [the licensee] relies on the Act as a defense." Id., at 324. See also Public Servo Comm'n of Utah v. Wycoff Co., 344 U. S. 237, 245-246 (1952).As in Coffman, respondent here seeks a declaratory judgment as to the validity of a defense the State may, or may not, raise in a habeas proceeding. Such a suit does not merely allow the resolution of a "case or controversy" in an alternative format, as in Aetna Life Ins., supra, but rather attempts to gain a litigation advantage by obtaining an advance ruling on an affirmative defense, see Coffman, supra, at 322-324; Wycoff Co., supra, at 245-246. The "case or controversy" actually at stake is the class members' claims in their individual habeas proceedings. Any judgment in this action thus would not resolve the entire case or controversy as to anyone of them, but would merely determine a collaterallegal issue governing certain aspects of their pending or future suits.The disruptive effects of an action such as this are peculiarly great when the underlying claim must be adjudicated in a federal habeas proceeding. For we have held that any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. Preiser v. Rodriguez, 411 U. S. 475, 500 (1973). As that opinion pointed out, this means that a state prisoner is required to exhaust state rem-748edies before bringing his claim to a federal court. Id., at 489-491. But if respondent Ashmus is allowed to maintain the present action, he would obtain a declaration as to the applicable statute of limitations in a federal habeas action without ever having shown that he has exhausted state remedies. This aberration illustrates the need, emphasized in Coffman and Wycoff, to prevent federal-court litigants from seeking by declaratory judgment to litigate a single issue in a dispute that must await another lawsuit for complete resolution.If the class members file habeas petitions, and the State asserts Chapter 154, the members obviously can litigate California's compliance with Chapter 154 at that time.3 Any risk associated with resolving the question in habeas, rather than a pre-emptive suit, is no different from risks associated with choices commonly faced by litigants.When asked at oral argument what authority existed for allowing a declaratory judgment suit on an anticipated defense, respondent replied that Steffel v. Thompson, 415 U. S. 452 (1974), allows a declaratory judgment action to prevent interference with federal rights. See also Brief for Respondent 16. Although acknowledging that Steffel involved a continuing threat of arrest in violation of the First Amendment, respondent argued that the Court's decision did not distinguish types of threats. Here, according to respondent, the State's "threat" to assert Chapter 154 in habeas proceedings and the risk that the class members will thereby lose3 Respondent conceded this point in earlier briefings. Brief in Opposition 7. Respondent now contends, however, that habeas proceedings will not provide an effective remedy because the class members still will be put in the file-or-default dilemma and because a decision in one case will not relieve the other members of their continuing uncertainty. Brief for Respondent 35-36. But as explained, supra, at 747, the dilemma the class members face does not establish a case in the constitutional sense. And the inability to bind the government as to the whole class does not affect that determination.749their rights to application of Chapter 153 are sufficient to establish federal court jurisdiction.Steffel, however, falls within the traditional scope of declaratory judgment actions because it completely resolved a concrete controversy susceptible to conclusive judicial determination. In Steffel, protesters had twice been told they would be arrested for hand billing in front of a shopping center, and the plaintiff's companion had in fact been arrested after disregarding instructions to leave. Id., at 455-456. The imminent threat of state criminal prosecution and the consequent deterrence of the plaintiff's exercise of constitutionally protected rights established a case or controversy. Id., at 459. That controversy could have been completely resolved by the declaratory judgment sought by the plaintiff. Id., at 460-462.The differences between this case and Steffel are several.Here, California's assertions on Chapter 154 have no coercive impact on the legal rights or obligations of either party. It is the members of the class, and not the State, who anticipate filing lawsuits. Those habeas actions would challenge the validity of their state court convictions and sentences; the State will oppose such challenges. The present declaratory judgment action would not completely resolve those challenges, but would simply carve out one issue in the dispute for separate adjudication.We conclude that this action for a declaratory judgment and injunctive relief is not a justiciable case within the meaning of Article III. The judgment of the Court of Appeals accordingly is reversed, and the case is remanded with instructions that respondent's complaint be dismissed.It is so ordered

OCTOBER TERM, 1997SyllabusCALDERON, WARDEN, ET AL. v. ASHMUS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATEDCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo.97-391. Argued March 24, 1998-Decided May 26,1998Chapter 154 of 28 U. S. C., part of the Antiterrorism and Effective Death Penalty Act of 1996, provides, inter alia, an expedited review processincluding a 180-day filing period, 28 U. S. C. § 2263(a) (1994 ed., Supp. II)-for federal habeas proceedings in capital cases in States that meet certain conditions. Proceedings against other States are governed by Chapter 153, which has a I-year filing period, §2244(d)(1), and lacks expedited procedures. After California officials, including petitioner state attorney general, indicated that they would invoke Chapter 154's protections, respondent, a state capital prisoner, sought declaratory and injunctive relief to resolve whether the chapter applied to a class of capital prisoners whose convictions were affirmed after a particular date. The Federal District Court issued a declaratory judgment, holding that California did not qualify for Chapter 154 and therefore the chapter did not apply to the class, and enjoined petitioners from invoking the chapter in any proceedings involving class members. In affirming, the Ninth Circuit rejected petitioners' claim that the Eleventh Amendment barred respondent's suit; determined that the District Court had authority to issue a declaratory judgment under the federal Declaratory Judgment Act; and rejected petitioners' contention that the injunction violated the First Amendment. Before reaching the Eleventh and First Amendment issues on which certiorari was granted, this Court must address whether the action is the type of "Article III" "case or controversy" to which federal courts are limited. See, e. g., FW/PBS, Inc. v. Dallas, 493 U. S. 215, 230-231.Held: This action is not a justiciable case under Article III. The Declaratory Judgment Act validly confers jurisdiction on federal courts to enter declaratory judgments in cases where the controversy would admit "of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U. S. 227,241. Here, rather than seeking a final or conclusive determination of the underlying controversy-whether respondent is entitled to federal habeas relief-respondent carved out of that claim only the ques-741tion whether, when he sought habeas relief, California's defense would be governed by Chapter 153 or Chapter 154. He would have obtained such a determination in a habeas action itself, but he seeks instead to have an advance ruling on the collateral issue. The Declaratory Judgment Act cannot be used for this purpose. See, e. g., Coffman v. Breeze Corps., 323 U. S. 316. Such an action's disruptive effects are peculiarly great when the underlying claims must be adjudicated in federal habeas, for it would allow respondent to obtain a declaration as to the applicable limitations period without ever having shown that he has met the exhaustion-of-state-remedies requirement. If class members file habeas petitions and the State asserts Chapter 154, they can litigate California's compliance with the chapter at that time. The risk associated with resolving the issue in habeas rather than in a pre-emptive suit is no different from risks associated with choices that litigants commonly face. Respondent mistakenly relies on Steffel v. Thompson, 415 U. S. 452, for Steffel falls within the traditional scope of declaratory judgment actions: It completely resolved a concrete controversy susceptible to conclusive judicial determination. pp. 745-749.123 F.3d 1199, reversed and remanded.REHNQUIST, C. J., delivered the opinion for a unanimous Court.BREYER, J., filed a concurring opinion, in which SOUTER, J., joined, post, p.749.Ronald S. Matthias, Supervising Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, pro se, George Williamson, Chief Assistant Attorney General, and Ronald A. Bass and Dane R. Gillette, Senior Assistant Attorneys General.Michael Laurence argued the cause for respondent. With him on the brief were Gary D. Sowards and Jean R. Sternberg. ** A brief of amici curiae urging reversal was filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida and David P. Kennedy, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Grant Woods of Arizona, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Margery S. Bron-742Full Text of Opinion

1996_96-79

distributed, since those rights are based on the flawed theory that they had an interest in the undistributed benefits. Pp. 844-854.82 F.3d 90, reversed.KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined, and in which REHNQUIST, C. J., and GINSBURG, J., joined as to Part III. BREYER, J., filed a dissenting opinion, in which O'CONNOR, J., joined, and in which REHNQUIST, C. J., and GINSBURG, J., joined except as to Part II-B-3, post, p. 854.Marian Mysing Livaudais argued the cause for petitioner.With her on the briefs were John Catlett Christian, F. Pierre Livaudais, and James F. Willeford.Paul R. Q. Wolfson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, Nathaniel 1. Spiller, and Judith D. Heimlich.Edward J. Deano, Jr., argued the cause for respondents.With him on the brief were Guy L. Deano, Jr., and Theresa D. Bewig.*JUSTICE KENNEDY delivered the opinion of the Court.t We consider whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq., pre-empts a state law allowing a non-*Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Mary Ellen Signorille, Cathy VentrellMonsees, and Melvin Radowitz; and for the Employers Council on Flexible Compensation by Daniel B. Stone.Richard P. Ieyoub, Attorney General of Louisiana, Thomas S. Halligan, Assistant Attorney General, William A. Reppy, Jr., and Cynthia A. Samuel filed a brief for the State of Louisiana as amicus curiae urging affirmance.Robert E. Temmerman, Jr., Keith P. Bartel, Randolph B. Godshall, and Michael J. Jones filed a brief for the Estate Planning, Trust and Probate Law Section of the State Bar of California as amicus curiae.tTHE CHIEF JUSTICE and JUSTICE GINSBURG join Part III of this opinion.836participant spouse to transfer by testamentary instrument an interest in undistributed pension plan benefits. Given the pervasive significance of pension plans in the national economy, the congressional mandate for their uniform and comprehensive regulation, and the fundamental importance of community property law in defining the marital partnership in a number of States, the question is of undoubted importance. We hold that ERISA pre-empts the state law.IIsaac Boggs worked for South Central Bell from 1949 until his retirement in 1985. Isaac and Dorothy, his first wife, were married when he began working for the company, and they remained husband and wife until Dorothy's death in 1979. They had three sons. Within a year of Dorothy's death, Isaac married Sandra, and they remained married until his death in 1989.Upon retirement, Isaac received various benefits from his employer's retirement plans. One was a lump-sum distribution from the Bell System Savings Plan for Salaried Employees (Savings Plan) of $151,628.94, which he rolled over into an Individual Retirement Account (IRA). He made no withdrawals and the account was worth $180,778.05 when he died. He also received 96 shares of AT&T stock from the Bell South Employee Stock Ownership Plan (ESOP). In addition, Isaac enjoyed a monthly annuity payment during his retirement of $1,777.67 from the Bell South Service Retirement Program.The instant dispute over ownership of the benefits is between Sandra (the surviving wife) and the sons of the first marriage. The sons' claim to a portion of the benefits is based on Dorothy's will. Dorothy bequeathed to Isaac onethird of her estate, and a lifetime usufruct in the remaining two-thirds. A lifetime usufruct is the rough equivalent of a common-law life estate. See La. Civ. Code Ann., Art. 535 (West 1980). She bequeathed to her sons the naked owner-837ship in the remaining two-thirds, subject to Isaac's usufruct. All agree that, absent pre-emption, Louisiana law controls and that under it Dorothy's will would dispose of her community property interest in Isaac's undistributed pension plan benefits. A Louisiana state court, in a 1980 order entitled "Judgment of Possession," ascribed to Dorothy's estate a community property interest in Isaac's Savings Plan account valued at the time at $21,194.29.Sandra contests the validity of Dorothy's 1980 testamentary transfer, basing her claim to those benefits on her interest under Isaac's will and 29 U. S. C. § 1055. Isaac bequeathed to Sandra outright certain real property including the family home. His will also gave Sandra a lifetime usufruct in the remainder of his estate, with the naked ownership interest being held by the sons. Sandra argues that the sons' competing claim, since it is based on Dorothy's 1980 purported testamentary transfer of her community property interest in undistributed pension plan benefits, is pre-empted by ERISA. The Bell South Service Retirement Program monthly annuity is now paid to Sandra as the surviving spouse.After Isaac's death, two of the sons filed an action in state court requesting the appointment of an expert to compute the percentage of the retirement benefits they would be entitled to as a result of Dorothy's attempted testamentary transfer. They further sought a judgment awarding them a portion of: the IRA; the ESOP shares of AT&T stock; the monthly annuity payments received by Isaac during his retirement; and Sandra's survivor annuity payments, both received and payable.In response, Sandra Boggs filed a complaint in the United States District Court for the Eastern District of Louisiana, seeking a declaratory judgment that ERISA pre-empts the application of Louisiana's community property and succession laws to the extent they recognize the sons' claim to an interest in the disputed retirement benefits. The District838Court granted summary judgment against Sandra Boggs. 849 F. Supp. 462 (1994). It found that, under Louisiana community property law, Dorothy had an ownership interest in her husband's pension plan benefits built up during their marriage. The creation of this interest, the court explained, does not violate 29 U. S. C. § 1056(d)(1), which prohibits pension plan benefits from being "assigned" or "alienated," since Congress did not intend to alter traditional familial and support obligations. In the court's view, there was no assignment or alienation because Dorothy's rights in the benefits were acquired by operation of community property law and not by transfer from Isaac. Turning to Dorothy's testamentary transfer, the court found it effective because "[ERISA] does not display any particular interest in preserving maximum benefits to any particular beneficiary." 849 F. Supp., at 465.A divided panel of the Fifth Circuit affirmed. 82 F.3d 90 (1996). The court stressed that Louisiana law affects only what a plan participant may do with his or her benefits after they are received and not the relationship between the pension plan administrator and the plan beneficiary. Id., at 96. For the reasons given by the District Court, it found ERISA's pension plan anti-alienation provision, § 1056(d)(1), inapplicable to Louisiana's creation of Dorothy Boggs' community property interest in the pension plan benefits. It concluded that the transfer of the interest from Dorothy to her sons was not a prohibited assignment or alienation, as this transfer was "two steps removed from the disbursement of benefits." Id., at 97.Six members of the Court of Appeals dissented from the failure to grant rehearing en bane. 89 F.3d 1169 (1996). In their view, a testamentary transfer of an interest in undistributed retirement benefits frustrates ERISA's goals of securing national uniformity in pension plan administration and of ensuring that retirees, and their dependents, are the actual recipients of retirement income. They believed that839Congress' creation of the qualified domestic relations order (QDRO) mechanism in § 1056(d)(3), whose requirements were not met by the 1980 judgment of possession, further supported their position. (A QDRO is a limited exception to the pension plan anti-alienation provision and allows courts to recognize a nonparticipant spouse's community property interest in pension plans under specific circumstances.)The reasoning and holding of the Fifth Circuit's decision is in substantial conflict with the decision of the Court of Appeals for the Ninth Circuit in Ablamis v. Roper, 937 F.2d 1450 (1991), which held that ERISA pre-empts a testamentary transfer by a nonparticipant spouse of her community property interest in undistributed pension plan benefits. The division between the Circuits is significant, for the Fifth Circuit has jurisdiction over the community property States of Louisiana and Texas, while the Ninth Circuit includes the community property States of Arizona, California, Idaho, Nevada, and Washington. Having granted certiorari to resolve the issue, 519 U. S. 957 (1996), we now reverse.IIERISA pre-emption questions are recurrent, two other cases on the subject having come before the Court in the current Term alone, see California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316 (1997); De Buono v. NYSA-ILA Medical and Clinical Services Fund, ante, p. 806. In large part the number of ERISA pre-emption cases reflects the comprehensive nature of the statute, the centrality of pension and welfare plans in the national economy, and their importance to the financial security of the Nation's work force. ERISA is designed to ensure the proper administration of pension and welfare plans, both during the years of the employee's active service and in his or her retirement years.This case lies at the intersection of ERISA pension law and state community property law. None can dispute the840central role community property laws play in the nine community property States. It is more than a property regime. It is a commitment to the equality of husband and wife and reflects the real partnership inherent in the marital relationship. State community property laws, many of ancient lineage, "must have continued to exist through such lengths of time because of their manifold excellences and are not lightly to be abrogated or tossed aside." 1 W. de Funiak, Principles of Community Property 11 (1943). The community property regime in Louisiana dates from 1808 when the territorial legislature of Orleans drafted a civil code that adopted Spanish principles of community property. Id., at 85-89. Louisiana's community property laws, and the community property regimes enacted in other States, implement policies and values lying within the traditional domain of the States. These considerations inform our pre-emption analysis. See Hisquierdo v. Hisquierdo, 439 U. S. 572, 581 (1979).The nine community property States have some 80 million residents, with perhaps $1 trillion in retirement plans. See Brief for Estate Planning, Trust and Probate Law Section of the State Bar of California as Amicus Curiae 1. This case involves a community property claim, but our ruling will affect as well the right to make claims or assert interests based on the law of any State, whether or not it recognizes community property. Our ruling must be consistent with the congressional scheme to assure the security of plan participants and their families in every State. In enacting ERISA, Congress noted the importance of pension plans in its findings and declaration of policy, explaining:"[T]he growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; ... the continued well-being and security of millions of employees and their dependents are directly affected by these plans; ... they are affected with a national public interest [and] they have become an important factor affecting the stability of employment and841the successful development of industrial relations .... " 29 U. S. C. § 1001(a).ERISA is an intricate, comprehensive statute. Its federal regulatory scheme governs employee benefit plans, which include both pension and welfare plans. All employee benefit plans must conform to various reporting, disclosure, and fiduciary requirements, see §§ 1021-1031, 1101-1114, while pension plans must also comply with participation, vesting, and funding requirements, see §§ 1051-1086. The surviving spouse annuity and QDRO provisions, central to the dispute here, are part of the statute's mandatory participation and vesting requirements. These provisions provide detailed protections to spouses of plan participants which, in some cases, exceed what their rights would be were community property law the sole measure.ERISA's express pre-emption clause states that the Act "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan .... " § 1144(a). We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects. We hold that there is a conflict, which suffices to resolve the case. We need not inquire whether the statutory phrase "relate to" provides further and additional support for the pre-emption claim. Nor need we consider the applicability of field preemption, see Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982).We first address the survivor's annuity and then turn to the other pension benefits.IIISandra Boggs, as we have observed, asserts that federal law pre-empts and supersedes state law and requires the surviving spouse annuity to be paid to her as the sole beneficiary. We agree.842The annuity at issue is a qualified joint and survivor annuity mandated by ERISA. Section 1055(a) provides:"Each pension plan to which this section applies shall provide that-"(1) in the case of a vested participant who does not die before the annuity starting date, the accrued benefit payable to such participant shall be provided in the form of a qualified joint and survivor annuity."ERISA requires that every qualified joint and survivor annuity include an annuity payable to a nonparticipant surviving spouse. The survivor's annuity may not be less than 50% of the amount of the annuity which is payable during the joint lives of the participant and spouse. § 1055(d)(1). Provision of the survivor's annuity may not be waived by the participant, absent certain limited circumstances, unless the spouse consents in writing to the designation of another beneficiary, which designation also cannot be changed without further spousal consent, witnessed by a plan representative or notary public. § 1055(c)(2). Sandra Boggs, as the surviving spouse, is entitled to a survivor's annuity under these provisions. She has not waived her right to the survivor's annuity, let alone consented to having the sons designated as the beneficiaries.Respondents say their state-law claims are consistent with these provisions. Their claims, they argue, affect only the disposition of plan proceeds after they have been disbursed by the Bell South Service Retirement Program, and thus nothing is required of the plan. ERISA's concern for securing national uniformity in the administration of employee benefit plans, in their view, is not implicated. They argue Sandra's community property obligations, after she receives the survivor annuity payments, "fai[l] to implicate the regulatory concerns of ERISA." Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 15 (1987).843We disagree. The statutory object of the qualified joint and survivor annuity provisions, along with the rest of § 1055, is to ensure a stream of income to surviving spouses. Section 1055 mandates a survivor's annuity not only where a participant dies after the annuity starting date but also guarantees one if the participant dies before then. See §§ 1055(a)(2), (e). These provisions, enacted as part of the Retirement Equity Act of 1984 (REA), Pub. L. 98-397, 98 Stat. 1426, enlarged ERISA's protection of surviving spouses in significant respects. Before REA, ERISA only required that pension plans, if they provided for the payment of benefits in the form of an annuity, offer a qualified joint and survivor annuity as an option entirely within a participant's discretion. 29 U. S. C. §§ 1055(a), (e) (1982 ed.). REA modified ERISA to permit participants to designate a beneficiary for the survivor's annuity, other than the nonparticipant spouse, only when the spouse agrees. § 1055(c)(2). Congress' concern for surviving spouses is also evident from the expansive coverage of § 1055, as amended by REA. Section 1055's requirements, as a general matter, apply to all "individual account plans" and "defined benefit plans." § 1055(b)(1). The terms are defined, for § 1055 purposes, so that all pension plans fall within those two categories. See § 1002(35). While some individual account plans escape § 1055's surviving spouse annuity requirements under certain conditions, Congress still protects the interests of the surviving spouse by requiring those plans to pay the spouse the nonforfeitable accrued benefits, reduced by certain security interests, in a lump-sum payment. § 1055(b)(1)(C).ERISA's solicitude for the economic security of surviving spouses would be undermined by allowing a predeceasing spouse's heirs and legatees to have a community property interest in the survivor's annuity. Even a plan participant cannot defeat a nonparticipant surviving spouse's statutory entitlement to an annuity. It would be odd, to say the least, if Congress permitted a predeceasing nonparticipant spouse844to do so. Nothing in the language of ERISA supports concluding that Congress made such an inexplicable decision. Testamentary transfers could reduce a surviving spouse's guaranteed annuity below the minimum set by ERISA (defined as 50% of the annuity payable during the joint lives of the participant and spouse). In this case, Sandra's annuity would be reduced by approximately 20%, according to the calculations contained in the sons' state-court filings. There is no reason why testamentary transfers could not reduce a survivor's annuity by an even greater amount. Perhaps even more troubling, the recipient of the testamentary transfer need not be a family member. For instance, a surviving spouse's § 1055 annuity might be substantially reduced so that funds could be diverted to support an unrelated stranger.In the face of this direct clash between state law and the provisions and objectives of ERISA, the state law cannot stand. Conventional conflict pre-emption principles require pre-emption "where compliance with both federal and state regulations is a physical impossibility, ... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 98 (1992) (internal quotation marks and citation omitted). It would undermine the purpose of ERISA's mandated survivor's annuity to allow Dorothy, the predeceasing spouse, by her testamentary transfer to defeat in part Sandra's entitlement to the annuity § 1055 guarantees her as the surviving spouse. This cannot be. States are not free to change ERISA's structure and balance.Louisiana law, to the extent it provides the sons with a right to a portion of Sandra Boggs' § 1055 survivor's annuity, is pre-empted.IVBeyond seeking a portion of the survivor's annuity, respondents claim a percentage of: the monthly annuity pay-845ments made to Isaac Boggs during his retirement; the IRA; and the ESOP shares of AT&T stock. As before, the claim is based on Dorothy Boggs' attempted testamentary transfer to the sons of her community property interest in Isaac's undistributed pension plan benefits. Respondents argue further-and somewhat inconsistently-that their claim again concerns only what a plan participant or beneficiary may do once plan funds are distributed, without imposing any obligations on the plan itself. Both parties agree that the ERISA benefits at issue here were paid after Dorothy's death, and thus this case does not present the question whether ERISA would permit a nonparticipant spouse to obtain a devisable community property interest in benefits paid out during the existence of the community between the participant and that spouse.A brief overview of ERISA's design is necessary to put respondents' contentions in the proper context. The principal object of the statute is to protect plan participants and beneficiaries. See Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 90 (1983) ("ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans"). Section 1001(b) states that the policy of ERISA is "to protect ... the interests of participants in employee benefit plans and their beneficiaries." Section 1001(c) explains that ERISA contains certain safeguards and protections which help guarantee the "equitable character and the soundness of [private pension] plans" in order to protect "the interests of participants in private pension plans and their beneficiaries." The general policy is implemented by ERISA's specific provisions. Apart from a few enumerated exceptions, a plan fiduciary must "discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries." § 1l04(a)(1). The assets of a plan, again with certain exceptions, are "held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of846administering the plan." § 1l03(c)(1). The Secretary of Labor has authority to create exemptions to ERISA's prohibition on certain plan holdings, acquisitions, and transactions, but only if doing so is in the interests of the plan's "participants and beneficiaries." § 1l08(a)(2). Persons with an interest in a pension plan may bring a civil suit under ERISA's enforcement provisions only if they are either a participant or beneficiary. Section 1132(a)(1)(B), for instance, provides that a civil action may be brought "by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."ERISA confers beneficiary status on a nonparticipant spouse or dependent in only narrow circumstances delineated by its provisions. For example, as we have discussed, § 1055(a) requires provision of a surviving spouse annuity in covered pension plans, and, as a consequence, the spouse is a beneficiary to this extent. Section 1056's QDRO provisions likewise recognize certain pension plan community property interests of nonparticipant spouses and dependents. A QDRO is a type of domestic relations order that creates or recognizes an alternate payee's right to, or assigns to an alternate payee the right to, a portion of the benefits payable with respect to a participant under a plan. § 1056(d)(3)(B)(i). A domestic relations order, in turn, is any judgment, decree, or order that concerns "the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant" and is "made pursuant to a State domestic relations law (including a community property law)." § 1056(d)(3)(B)(ii). A domestic relations order must meet certain requirements to qualify as a QDRO. See §§ 1056(d)(3)(C)-(E). QDRO's, unlike domestic relations orders in general, are exempt from both the pension plan anti-alienation provision, § 1056(d)(3)(A), and ERISA's general pre-emption clause,847§ 1144(b)(7). In creating the QDRO mechanism Congress was careful to provide that the alternate payee, the "spouse, former spouse, child, or other dependent of a participant," is to be considered a plan beneficiary. §§ l056(d)(3)(K), (J). These provisions are essential to one of REA's central purposes, which is to give enhanced protection to the spouse and dependent children in the event of divorce or separation, and in the event of death the surviving spouse. Apart from these detailed provisions, ERISA does not confer beneficiary status on nonparticipants by reason of their marital or dependent status.Even outside the pension plan context and its antialienation restriction, Congress deemed it necessary to enact detailed provisions in order to protect a dependent's interest in a welfare benefit plan. Through a § 1169 "qualified medical child support order" a child's interest in his or her parent's group health care plan can be enforced. A "medical child support order" is defined as any judgment, decree, or order that concerns the provision of child support "made pursuant to a State domestic relations law (including a community property law) and relates to benefits under such plan." § 1169(a)(2)(B)(i). As with a QDRO, a "medical child support order" must satisfy certain criteria in order to qualify. See §§ 1169(a)(3)-(4). In accordance with ERISA's care in conforming entitlements to benefits with participant or beneficiary status, the statute treats a child subject to such a qualifying order as a participant for ERISA's reporting and disclosure requirements and as a beneficiary for other purposes. § 1169(a)(7).The surviving spouse annuity and QDRO provisions, which acknowledge and protect specific pension plan community property interests, give rise to the strong implication that other community property claims are not consistent with the statutory scheme. ERISA's silence with respect to the right of a nonparticipant spouse to control pension plan benefits by testamentary transfer provides powerful support848for the conclusion that the right does not exist. Cf. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 147-148 (1985). It should cause little surprise that Congress chose to protect the community property interests of separated and divorced spouses and their children, a traditional subject of domestic relations law, but not to accommodate testamentary transfers of pension plan benefits. As a general matter, "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." In re Burrus, 136 U. S. 586, 593-594 (1890). Support obligations, in particular, are "deeply rooted moral responsibilities" that Congress is unlikely to have intended to intrude upon. See Rose v. Rose, 481 U. S. 619, 632 (1987); see also id., at 636-640 (O'CONNOR, J., concurring). In accord with these principles, Congress ensured that state domestic relations orders, as long as they meet certain statutory requirements, are not pre-empted.We conclude the sons have no claim under ERISA to a share of the retirement benefits. To begin with, the sons are neither participants nor beneficiaries. A "participant" is defined as an "employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit." § 1002(7). A "beneficiary" is a "person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." § 1002(8). Respondents' claims are based on Dorothy Boggs' attempted testamentary transfer, not on a designation by Isaac Boggs or under the terms of the retirement plans. They do not even attempt to argue that they are beneficiaries by virtue of the judgment of possession qualifying as a QDRO.An amicus, the Estate Planning, Trust and Probate Law Section of the State Bar of California, in support of respondents' position, points to pre-REA case law holding that849ERISA does not pre-empt spousal community property interests in pension benefits, regardless of who is the plan participant or beneficiary. As did the District Court below, the amicus relies in particular upon In re Marriage of Campa, 89 Cal. App. 3d 113, 152 Cal. Rptr. 362 (1979), in which the California Court of Appeal for the First District held that ERISA does not bar California courts from joining pension funds in marriage dissolution proceedings and ordering the pension plan to divide pension payments between the employee and his or her former nonparticipant spouse. We dismissed the pension plan's appeal for want of a substantial federal question, 444 U. S. 1028 (1980), and, although not entitled to full precedential weight, see Edelman v. Jordan, 415 U. S. 651, 670-671 (1974), that disposition constitutes a decision on the merits, see Hicks v. Miranda, 422 U. S. 332, 344 (1975). The state court in Marriage of Campa was not alone in refusing to find ERISA pre-emption in the divorce context. See, e. g., Stone v. Stone, 450 F. Supp. 919 (ND Cal. 1978), aff'd, 632 F.2d 740 (CA9 1980), cert. denied, 453 U. S. 922 (1981); Savings and Profit Sharing Fund of Sears Employees v. Gago, 717 F.2d 1038 (CA7 1983); Eichelberger v. Eichelberger, 584 F. Supp. 899 (SD Tex. 1984). This judicial consensus, amicus argues, was codified by the QDRO provisions which were contained in the 1984 REA amendments. The amicus contends that since REA, or the pre-REA case law which it allegedly adopted, did not consider the community property rights of a nonparticipant spouse in the testamentary context, it should not be construed to pre-empt state law governing this different subject.We disagree with this reasoning. It is true that the subject of testamentary transfers is somewhat removed from domestic relations law. The QDRO provisions address the rights of divorced and separated spouses, and their dependent children, which are the traditional concern of domestic relations law. The pre-REA federal common-law extension of § 1002(8)'s definition of "beneficiary" by courts in the con-850text of marital dissolution was in part based on an appreciation of the fact that domestic relations law is primarily an area of state concern, see Marriage of Campa, supra, at 124, 152 Cal. Rptr., at 367-368, and the basic principle that a beneficiary's interest in a spendthrift trust, despite otherwise applicable protections, can be reached in the context of divorce and separation. See E. Griswold, Spendthrift Trusts 389-391 (2d ed. 1947) (summarizing state case law); Restatement (Second) of Trusts § 157 (1959). The state court in Marriage of Campa took its implicit determination that the nonparticipant spouse was a beneficiary to its logical conclusion, forcing the pension plan to join the marital dissolution proceedings as a party and compelling it to pay the spouse her share of the pension benefits. Whether or not this extension of the definition of "beneficiary" was consistent with the statute then in force, these authorities are not applicable in light of the REA amendments. The QDRO and the surviving spouse annuity provisions define the scope of a nonparticipant spouse's community property interests in pension plans consistent with ERISA.Respondents and their amicus in effect ask us to ignore § 1002(8)'s definition of "beneficiary" and, through case law, create a new class of persons for whom plan assets are to be held and administered. The statute is not amenable to this sweeping extratextual extension. It is unpersuasive to suggest that third parties could assert their claims without being counted as "beneficiaries." A plan fiduciary's responsibilities run only to participants and beneficiaries. § 1l04(a)(1). Assets of a plan are held for the exclusive purposes of providing benefits to participants and beneficiaries and defraying reasonable expenses of administration. § 1l03(c)(1). Reading ERISA to permit nonbeneficiary interests, even if not enforced against the plan, would result in troubling anomalies. Either pension plans would be run for the benefit of only a subset of those who have a stake in the plan or state law would have to move in to fill the appar-851ent gaps between plan administration responsibilities and ownership rights, resulting in a complex set of requirements varying from State to State. Neither result accords with the statutory scheme.The conclusion that Congress intended to pre-empt respondents' nonbeneficiary, nonparticipant interests in the retirement plans is given specific and powerful reinforcement by the pension plan anti-alienation provision. Section 1056(d)(1) provides that "[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated." Statutory anti-alienation provisions are potent mechanisms to prevent the dissipation of funds. In Hisquierdo we interpreted an anti-alienation provision to bar a divorced spouse's interest in her husband's retirement benefits. See 439 U. S., at 583-590. ERISA's pension plan antialienation provision is mandatory and contains only two explicit exceptions, see §§ 1056(d)(2), (d)(3)(A), which are not subject to judicial expansion. See Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U. S. 365, 376 (1990). The anti-alienation provision can "be seen to bespeak a pension law protective policy of special intensity: Retirement funds shall remain inviolate until retirement." J. Langbein & B. Wolk, Pension and Employee Benefit Law 547 (2d ed. 1995).Dorothy's 1980 testamentary transfer, which is the source of respondents' claimed ownership interest, is a prohibited "assignment or alienation." An "assignment or alienation" has been defined by regulation, with certain exceptions not at issue here, as "[a]ny direct or indirect arrangement whereby a party acquires from a participant or beneficiary" an interest enforceable against a plan to "all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary." 26 CFR § 1.401(a)13(c)(1)(ii) (1997). Those requirements are met. Under Louisiana law community property interests are enforceable against a plan. See Eskine v. Eskine, 518 So. 2d 505, 508 (La. 1988). If respondents' claims were allowed to succeed852they would have acquired, as of 1980, an interest in Isaac's pension plan at the expense of plan participants and beneficiaries.As was true with survivors' annuities, it would be inimical to ERISA's purposes to permit testamentary recipients to acquire a competing interest in undistributed pension benefits, which are intended to provide a stream of income to participants and their beneficiaries. See Guidry, supra, at 376 ("[The anti-alienation provision] reflects a considered congressional policy choice, a decision to safeguard a stream of income for pensioners ... and their dependents ... "). Pension benefits support participants and beneficiaries in their retirement years, and ERISA's pension plan safeguards are designed to further this end. See § 1001(c). Besides the anti-alienation provision, Congress has enacted other protective measures to guarantee that retirement funds are there when a plan's participants and beneficiaries expect them. There are, for instance, minimum funding standards for pension plans and a pension plan termination insurance program which guarantees benefits in the event a plan is terminated before being fully funded. See §§ 1082, 13011461. Under respondents' approach, retirees could find their retirement benefits reduced by substantial sums because they have been diverted to testamentary recipients. Retirement benefits and the income stream provided for by ERISA-regulated plans would be disrupted in the name of protecting a nonparticipant spouses' successors over plan participants and beneficiaries. Respondents' logic would even permit a spouse to transfer an interest in a pension plan to creditors, a result incompatible with a spendthrift provision such as § 1056(d)(1).Community property laws have, in the past, been preempted in order to ensure the implementation of a federal statutory scheme. See, e. g., McCune v. Essig, 199 U. S. 382 (1905); Wissner v. Wissner, 338 U. S. 655 (1950); Free v. Bland, 369 U. S. 663 (1962); Hisquierdo v. Hisquierdo, 439853u. S. 572 (1979); McCarty v. McCarty, 453 U. S. 210 (1981); Mansell v. Mansell, 490 U. S. 581 (1989); cf. Ridgway v. Ridgway, 454 U. S. 46 (1981). Free v. Bland, supra, is of particular relevance here. A husband had purchased United States savings bonds with community funds in the name of both spouses. Under Treasury regulations then in effect, when a co-owner of the bonds died, the surviving co-owner received the entire interest in the bonds. After the wife died, her son-the principal beneficiary of her will-demanded either one-half of the bonds or reimbursement for loss of the community property interest. The Court held that the regulations pre-empted the community property claim, explaining:"One of the inducements selected by the Treasury is the survivorship provision, a convenient method of avoiding complicated probate proceedings. Notwithstanding this provision, the State awarded full title to the coowner but required him to account for half of the value of the bonds to the decedent's estate. Viewed realistically, the State has rendered the award of title meaningless." Id., at 669.The same reasoning applies here. If state law is not preempted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit. The obligation to provide an accounting, moreover, as with the probate proceedings referred to in Free, is itself a burden of significant proportions. Under respondents' view, a pension plan participant could be forced to make an accounting of a deceased spouse's community property interest years after the date of death. If the couple had lived in several States, the accounting could entail complex, expensive, and time-consuming litigation. Congress could not have intended that pension benefits from pension plans would be given to accountants and attorneys for this purpose.854Respondents contend it is anomalous and unfair that a divorced spouse, as a result of a QDRO, will have more control over a portion of his or her spouse's pension benefits than a predeceasing spouse. Congress thought otherwise. The QDRO provisions, as well as the surviving spouse annuity provisions, reinforce the conclusion that ERISA is concerned with providing for the living. The QDRO provisions protect those persons who, often as a result of divorce, might not receive the benefits they otherwise would have had available during their retirement as a means of income. In the case of a predeceased spouse, this concern is not implicated. The fairness of the distinction might be debated, but Congress has decided to favor the living over the dead and we must respect its policy.The axis around which ERISA's protections revolve is the concepts of participant and beneficiary. When Congress has chosen to depart from this framework, it has done so in a careful and limited manner. Respondents' claims, if allowed to succeed, would depart from this framework, upsetting the deliberate balance central to ERISA. It does not matter that respondents have sought to enforce their rights only after the retirement benefits have been distributed since their asserted rights are based on the theory that they had an interest in the undistributed pension plan benefits. Their state-law claims are pre-empted. The judgment of the Fifth Circuit isReversed

OCTOBER TERM, 1996SyllabusBOGGS v. BOGGS ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 96-79. Argued January 15, 1997-Decided June 2, 1997Respondents are the sons of Isaac and Dorothy Boggs. After Dorothy's death in 1979, Isaac married petitioner Sandra Boggs. When Isaac retired in 1985, he received various benefits from his employer's retirement plans, including a lump-sum savings plan distribution, which he rolled over into an individual retirement account (IRA); shares of stock from the company's employee stock ownership plan (ESOP); and a monthly annuity payment. Following his death in 1989, this dispute over ownership of the benefits arose between Sandra and the sons. The sons' claim is based on Dorothy's purported testamentary transfer to them, under Louisiana law, of a portion of her community property interest in Isaac's undistributed pension plan benefits. Sandra contested the validity of that transfer, arguing that the sons' claim is pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. § 1001 et seq. The Federal District Court disagreed and granted summary judgment against Sandra, and the Fifth Circuit affirmed.Held: ERISA pre-empts a state law allowing a nonparticipant spouse to transfer by testamentary instrument an interest in undistributed pension plan benefits. Pp. 839-854.(a) In order to resolve this case, the Court need not interpret ERISA's pre-emption clause, § 1144(a), but can simply apply conventional conflict pre-emption principles, asking whether Louisiana's community property law conflicts with ERISA and frustrates its purposes. Pp.839-841.(b) To the extent Louisiana law provides the sons with a right to a portion of Sandra's survivor's annuity, it is pre-empted. That annuity is a qualified joint and survivor annuity mandated by § 1055, the object of which is to ensure a stream of income to surviving spouses. ERISA's solicitude for the economic security of such spouses would be undermined by allowing a predeceasing spouse's heirs and legatees to have a community property interest in the survivor's annuity. Even a plan participant cannot defeat a nonparticipant surviving spouse's statutory entitlement to such an annuity. See § 1055(c)(2). Nothing in ERISA's language supports the conclusion that Congress decided to permit a predeceasing nonparticipant spouse to do so. Testamentary transfers such834Syllabusas the one at issue could reduce the annuity below the ERISA minimum. See § 1055(d)(1). Perhaps even more troubling, the recipient of the transfer need not be a family member; e. g., the annuity might be substantially reduced so that funds could be diverted to support an unrelated stranger. In the face of this direct clash between state law and ERISA's provisions and objectives, the state law cannot stand. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 98. Pp. 841-844.(c) The sons' state-law claim to a portion of Isaac's monthly annuity payments, IRA, and ESOP shares is also pre-empted. ERISA's principal object is to protect plan participants and beneficiaries. See, e. g., §§ 1001(b), (c), 1l03(c)(1), 1l04(a)(1), 1l08(a)(2), 1132(a)(1)(B). The Act confers pension plan beneficiary status on a nonparticipant spouse or dependent only to the extent that a survivor's annuity is required in covered plans, § 1055(a), or a "qualified domestic relations order" awards the spouse or dependent an interest in a participant's benefits, §§ 1056(d)(3)(K) and (J). These provisions, which acknowledge and protect specific pension plan community property interests, give rise to the strong implication that other community property claims are not consistent with the statutory scheme. ERISA's silence with respect to the right of a nonparticipant spouse to control pension plan benefits by testamentary transfer provides powerful support for the conclusion that the right does not exist. Cf. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 147-148. The sons have no claim to a share of the benefits at issue because they are neither participants nor beneficiaries under §§ 1002(7) and (8), but base their claims on Dorothy's attempted testamentary transfer. It would be inimical to ERISA's purposes to permit them to prevail. Early cases holding that ERISA did not preempt spousal community property interests in pension benefits, regardless of who was the plan participant or beneficiary, are not applicable here in light of subsequent amendments to ERISA. Reading ERISA to permit nonbeneficiary interests, even if not enforced against the plan, would result in troubling anomalies that do not accord with the statutory scheme. That Congress intended to pre-empt respondents' interests is given specific and powerful reinforcement by § 1056(d)(1), which requires pension plans to specify that benefits "may not be assigned or alienated." Dorothy's testamentary transfer to her sons is such a prohibited "assignment or alienation" under the applicable regulations. Community property laws have, in the past, been pre-empted in order to prevent the diversion of retirement benefits. See, e. g., Free v. Bland, 369 U. S. 663, 669. It does not matter that respondents have sought to enforce their purported rights only after Isaac's benefits were835Full Text of Opinion

1997_96-843

class of plaintiffs before a plaintiff from that class could have standing under the APA to sue. Petitioners also mistakenly rely on Air Courier Conference v. Postal Workers, 498 U. S. 517, 519. Unlike the plaintiffs there who were denied standing, respondents here have "competitive and direct injury," id., at 528, n. 5, as well as an interest "arguably ... to be protected" by the statute in question. Under the Court's precedents, it is irrelevant that in enacting the FCUA, Congress did not specifically intend to protect commercial banks, as is the fact that respondents' objectives in this action are not eleemosynary in nature. Pp.495-499.2. The NCUA's interpretation of § 109-whereby a common bond of occupation must unite only the members of each unrelated employer group-is impermissible under the first step of the analysis set forth in Chevron, see 467 U. S., at 842-843, because that interpretation is contrary to the unambiguously expressed intent of Congress that the same common bond of occupation must unite each member of an occupationally defined federal credit union. Several considerations compel this conclusion. First, the NCUA's interpretation makes the statutory phrase "common bond" surplusage when applied to a federal credit union made up of multiple unrelated employer groups, because each such "group" already has its own "common bond," employment with a particular employer. If the phrase "common bond" is to be given any meaning when the employees in such groups are joined together, a different "common bond"-one extending to each and every employee considered together-must be found to unite them. Second, the interpretation violates the established canon of construction that similar language within the same statutory section must be accorded a consistent meaning. Section 109 consists of two parallel clauses: Federal credit union membership is limited "to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." The NCUA has never interpreted, and does not contend that it could interpret, the geographic limitation to permit a credit union to be composed of members from an unlimited number of unrelated geographic units. The occupational limitation must be interpreted in the same way. Finally, the NCUA's interpretation has the potential to read the words "shall be limited" out of the statute entirely. The interpretation would allow the chartering of a conglomerate credit union whose members included the employees of every company in the United States. Section 109 cannot be considered a limitation on credit union membership if at the same time it permits such a limitless result. Pp. 499-503.90 F.3d 525, affirmed.482THOMAS, J., delivered an opinion, which was for the Court except as to footnote 6. REHNQUIST, C. J., and KENNEDY and GINSBURG, JJ., joined that opinion in full, and SCALIA, J., joined except as to footnote 6. O'CONNOR, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 503.Solicitor General Waxman argued the cause for the federal petitioner. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, David C. Frederick, Douglas N. Letter, Jacob M. Lewis, Michael E. Robinson, and John K. Ianno. John G. Roberts, Jr., argued the cause for petitioner AT&T Family Federal Credit Union et al. With him on the briefs were Paul J. Lambert, Jonathan S. Franklin, and Brenda S. Furlow.Michael S. Helfer argued the cause for respondents.With him on the briefs were Louis R. Cohen, Christopher R. Lipsett, John J. Gill III, and Michael F. Crotty.tJUSTICE THOMAS delivered the opinion of the Court, except as to footnote 6. *Section 109 of the Federal Credit Union Act (FCUA), 48 Stat. 1219, 12 U. S. C. § 1759, provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups withintBriefs of amici curiae urging reversal were filed for the Ad Hoc Small Employers Group et al. by Paul G. Gaston, Richard J. Dines, and Christiane Gigi Hyland; for the California Credit Union League by Thomas H. GU, Craig A. Horowitz, Wayne D. Clayton, and Joseph A. McDonald; for the Consumer Federation of America, Inc., et al. by Joseph C. Zengerle; for the National Association of Federal Credit Unions by John F. Cooney, Ronald R. Glancz, Melissa Landau Steinman, William J. Donovan, and Fred M. Haden; and for the National Association of State Credit Union Supervisors by Stanley M. Gorinson, John Longstreth, and C. Stephen Trimmier.Leonard J. Rubin filed a brief for the Independent Bankers Association of America et al. as amici curiae urging affirmance.*JUSTICE SCALIA joins this opinion, except as to footnote 6.483a well-defined neighborhood, community, or rural district." Since 1982, the National Credit Union Administration (NCUA), the agency charged with administering the FCUA, has interpreted § 109 to permit federal credit unions to be composed of multiple unrelated employer groups, each having its own common bond of occupation. In this action, respondents, five banks and the American Bankers Association, have challenged this interpretation on the ground that § 109 unambiguously requires that the same common bond of occupation unite every member of an occupationally defined federal credit union. We granted certiorari to answer two questions. First, do respondents have standing under the Administrative Procedure Act to seek federal-court review of the NCUA's interpretation? Second, under the analysis set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), is the NCUA's interpretation permissible? We answer the first question in the affirmative and the second question in the negative. We therefore affirm.I AIn 1934, during the Great Depression, Congress enacted the FCU A, which authorizes the chartering of credit unions at the national level and provides that federal credit unions may, as a general matter, offer banking services only to their members. Section 109 of the FCUA, which has remained virtually unaltered since the FCU A's enactment, expressly restricts membership in federal credit unions. In relevant part, it provides:"Federal credit union membership shall consist of the incorporators and such other persons and incorporated and unincorporated organizations, to the extent permitted by rules and regulations prescribed by the Board, as may be elected to membership and as such shall each, subscribe to at least one share of its stock and pay the484initial installment thereon and a uniform entrance fee if required by the board of directors; except that Federal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759 (emphasis added).Until 1982, the NCUA and its predecessors consistently interpreted § 109 to require that the same common bond of occupation unite every member of an occupationally defined federal credit union. In 1982, however, the NCUA reversed its longstanding policy in order to permit credit unions to be composed of multiple unrelated employer groups. See IRPS 82-1,47 Fed. Reg. 16775 (1982). It thus interpreted § 109's common bond requirement to apply only to each employer group in a multiple-group credit union, rather than to every member of that credit union. See IRPS 82-3, 47 Fed. Reg. 26808 (1982). Under the NCUA's new interpretation, all of the employer groups in a multiple-group credit union had to be located "within a well-defined area," ibid., but the NCUA later revised this requirement to provide that each employer group could be located within "an area surrounding the [credit union's] home or a branch office that can be reasonably served by the [credit union] as determined by NCUA." IRPS 89-1, 54 Fed. Reg. 31170 (1989). Since 1982, therefore, the NCUA has permitted federal credit unions to be composed of wholly unrelated employer groups, each having its own distinct common bond.BAfter the NCUA revised its interpretation of § 109, petitioner AT&T Family Federal Credit Union (ATTF) expanded its operations considerably by adding unrelated employer groups to its membership. As a result, ATTF now has approximately 110,000 members nationwide, only 35% of485whom are employees of AT&T and its affiliates. See Brief for Petitioner NCUA 9. The remaining members are employees of such diverse companies as the Lee Apparel Company, the Coca-Cola Bottling Company, the Ciba-Geigy Corporation, the Duke Power Company, and the American Tobacco Company. See App. 54-79.In 1990, after the NCUA approved a series of amendments to ATTF's charter that added several such unrelated employer groups to ATTF's membership, respondents brought this action. Invoking the judicial review provisions of the Administrative Procedure Act (APA), 5 U. S. C. § 702, respondents claimed that the NCUA's approval of the charter amendments was contrary to law because the members of the new groups did not share a common bond of occupation with ATTF's existing members, as respondents alleged § 109 required. ATTF and petitioner Credit Union National Association were permitted to intervene in the action as defendants.The District Court dismissed the complaint. It held that respondents lacked prudential standing to challenge the NCUA's chartering decision because their interests were not within the "zone of interests" to be protected by § 109, as required by this Court's cases interpreting the AP A. First Nat. Bank & Trust Co. v. National Credit Union Admin., 772 F. Supp. 609 (DC 1991). The District Court rejected as irrelevant respondents' claims that the NCUA's interpretation had caused them competitive injury, stating that the legislative history of the FCUA demonstrated that it was passed "to establish a place for credit unions within the country's financial market, and specifically not to protect the competitive interest of banks." Id., at 612. The District Court also determined that respondents were not "suitable challengers" to the NCUA's interpretation, as that term had been used in prior prudential standing cases from the Court of Appeals for the District of Columbia Circuit. Ibid.486The Court of Appeals for the District of Columbia Circuit reversed. First Nat. Bank & Trust Co. v. National Credit Union Admin., 988 F.2d 1272, cert. denied, 510 U. S. 907 (1993). The Court of Appeals agreed that "Congress did not, in 1934, intend to shield banks from competition from credit unions," 988 F. 2d, at 1275, and hence respondents could not be said to be "intended beneficiaries" of § 109. Relying on two of our prudential standing cases involving the financial services industry, Investment Company Institute v. Camp, 401 U. S. 617 (1971), and Clarke v. Securities Industry Assn., 479 U. S. 388 (1987), the Court of Appeals nonetheless concluded that respondents' interests were sufficiently congruent with the interests of § 109's intended beneficiaries that respondents were "suitable challengers" to the NCVA's chartering decision; therefore, their suit could proceed. See 988 F. 2d, at 1276-1278.1On remand, the District Court applied the two-step analysis that we announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and held that the NCVA had permissibly interpreted § 109. 863 F. Supp. 9 (DC 1994). It first asked whether, in enacting § 109, Congress had spoken directly to the precise question at issue-whether the same common bond of occupation must unite members of a federal credit union composed of multiple employer groups. See id., at 12. It determined that because § 109 could plausibly be understood to permit an occupationally defined federal credit union to consist of several employer "groups," each having its own distinct common bond of occupation, Congress had not unambiguously addressed this question. See ibid. The District Court then1 The Court of Appeals' holding that respondents had prudential standing conflicted with a decision of the United States Court of Appeals for the Fourth Circuit reached prior to this Court's decision in Clarke v. Securities Industry Assn., 479 U. S. 388 (1987). See Branch Bank & Trust Co. v. National Credit Union Administration Bd., 786 F.2d 621 (1986), cert. denied, 479 U. S. 1063 (1987).487stated that it was unnecessary to decide, under the second step of Chevron, whether the NCVA's interpretation was reasonable, because respondents had not "seriously argued" that the interpretation was unreasonable. See 863 F. Supp., at 13-14. Accordingly, the District Court entered summary judgment against respondents. See ibid.The Court of Appeals again reversed. 90 F.3d 525 (CADC 1996). It held that the District Court had incorrectly applied the first step of Chevron: Congress had indeed spoken directly to the precise question at issue and had unambiguously indicated that the same common bond of occupation must unite members of a federal credit union composed of multiple employer groups. See 90 F. 3d, at 527. The Court of Appeals reasoned that because the concept of a "common bond" is implicit in the term "group," the term "common bond" would be surplusage if it applied only to the members of each constituent "group" in a multiple-group federal credit union. See id., at 528. It further noted that the NCVA had not interpreted § 109's geographical limitation to allow federal credit unions to comprise groups from multiple unrelated "neighborhood[s], communit[ies], or rural district[s]" and stated that the occupational limitation should not be interpreted differently. See id., at 528-529. The NCVA's revised interpretation of § 109 was therefore impermissible.2 See id., at 529. Because of the importance of the issues presented,3 we granted certiorari. 519 U. S. 1148 (1997).2 A panel of the Court of Appeals for the Sixth Circuit later reached a similar conclusion, with one judge dissenting. See First City Bank v. National Credit Union Administration Bd., 111 F.3d 433 (1997).3 According to the NCUA, since 1982, thousands of federal credit unions have relied on the NCUA's revised interpretation of § 109. See Pet. for Cert. in No. 96-843, p. 14. Moreover, following the Court of Appeals' decision on the merits, the United States District Court for the District of Columbia granted a nationwide injunction prohibiting the NCUA from approving the addition of unrelated employer groups to any federal credit union. See Brief for Petitioner ATTF 14, n. 5.488IIRespondents claim a right to judicial review of the NCVA's chartering decision under § 10(a) of the APA, which provides:"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U. S. C. § 702.We have interpreted § 10(a) of the APA to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury in fact. See, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152 (1970) (Data Processing).4 For a plaintiff to have prudential standing under the AP A, "the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute ... in question." Id., at 153.Based on four of our prior cases finding that competitors of financial institutions have standing to challenge agency action relaxing statutory restrictions on the activities of those institutions, we hold that respondents' interest in limiting the markets that federal credit unions can serve is arguably within the zone of interests to be protected by § 109. Therefore, respondents have prudential standing under the APA to challenge the NCVA's interpretation.AAlthough our prior cases have not stated a clear rule for determining when a plaintiff's interest is "arguably within the zone of interests" to be protected by a statute, they none-4 In this action, it is not disputed that respondents have suffered an injury in fact because the NCUA's interpretation allows persons who might otherwise be their customers to be members, and therefore customers, of ATTF.489theless establish that we should not inquire whether there has been a congressional intent to benefit the would-be plaintiff. In Data Processing, supra, the Office of the Comptroller of the Currency (Comptroller) had interpreted the National Bank Act's incidental powers clause, Rev. Stat. § 5136, 12 U. S. C. § 24 Seventh, to permit national banks to perform data processing services for other banks and bank customers. See Data Processing, supra, at 151. The plaintiffs, a data processing corporation and its trade association, alleged that this interpretation was impermissible because providing data processing services was not, as was required by the statute, "[an] incidental powe[r] ... necessary to carry on the business of banking." See 397 U. S., at 157, n. 2.In holding that the plaintiffs had standing, we stated that § 10(a) of the APA required only that "the interest sought to be protected by the complainant [be] arguably within the zone of interests to be protected or regulated by the statute ... in question." Id., at 153. In determining that the plaintiffs' interest met this requirement, we noted that although the relevant federal statutes-the National Bank Act, 12 U. S. C. § 24 Seventh, and the Bank Service Corporation Act, 76 Stat. 1132, 12 U. S. C. § 1864-did not "in terms protect a specified groupe,] ... their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable." Data Processing, 397 U. S., at 157. "[A]s competitors of national banks which are engaging in data processing services," the plaintiffs were within that class of "aggrieved persons" entitled to judicial review of the Comptroller's interpretation. Ibid.Less than a year later, we applied the "zone of interests" test in Arnold Tours, Inc. v. Camp, 400 U. S. 45 (1970) (per curiam) (Arnold Tours). There, certain travel agencies challenged a ruling by the Comptroller, similar to the one contested in Data Processing, that permitted national banks to operate travel agencies. See 400 U. S., at 45. In holding490that the plaintiffs had prudential standing under the AP A, we noted that it was incorrect to view our decision in Data Processing as resting on the peculiar legislative history of § 4 of the Bank Service Corporation Act, which had been passed in part at the behest of the data processing industry. See 400 U. S., at 46. We stated explicitly that "we did not rely on any legislative history showing that Congress desired to protect data processors alone from competition." Ibid. We further explained:"In Data Processing ... [w]e held that § 4 arguably brings a competitor within the zone of interests protected by it. Nothing in the opinion limited § 4 to protecting only competitors in the data-processing field. When national banks begin to provide travel services for their customers, they compete with travel agents no less than they compete with data processors when they provide data-processing services to their customers." Ibid. (internal citations and quotation marks omitted).A year later, we decided Investment Company Institute v. Camp, 401 U. S. 617 (1971) (ICI). In that case, an investment company trade association and several individual investment companies alleged that the Comptroller had violated, inter alia, § 21 of the Glass-Steagall Act, 1932,5 by permitting national banks to establish and operate what in essence were early versions of mutual funds. We held that the plaintiffs, who alleged that they would be injured by the competition resulting from the Comptroller's action, had standing under the AP A and stated that the case was controlled by Data Processing. See 401 U. S., at 621.5 Under § 21 of the Glass-Steagall Act, it is unlawful "[f]or any person, firm, [or] corporation ... engaged in the business of issuing ... securities, to engage at the same time to any extent whatever in the business of receiving deposits." § 21 of the Banking Act of 1933, 48 Stat. 189, 12 U. S. C. § 378(a).491Significantly, we found unpersuasive Justice Harlan's argument in dissent that the suit should be dismissed because "neither the language of the pertinent provisions of the Glass-Steagall Act nor the legislative history evince[d] any congressional concern for the interests of petitioners and others like them in freedom from competition." Id., at 640.Our fourth case in this vein was Clarke v. Securities Industry Assn., 479 U. S. 388 (1987) (Clarke). There, a securities dealers trade association sued the Comptroller, this time for authorizing two national banks to offer discount brokerage services both at their branch offices and at other locations inside and outside their home States. See id., at 391. The plaintiff contended that the Comptroller's action violated the McFadden Act, which permits national banks to carry on the business of banking only at authorized branches, and to open new branches only in their home States and only to the extent that state-chartered banks in that State can do so under state law. See id., at 391-392.We again held that the plaintiff had standing under the AP A. Summarizing our prior holdings, we stated that although the "zone of interests" test "denies a right of review if the plaintiff's interests are ... marginally related to or inconsistent with the purposes implicit in the statute," id., at 399, "there need be no indication of congressional purpose to benefit the would-be plaintiff," id., at 399-400 (citing ICI). We then determined that by limiting the ability of national banks to do business outside their home States, "Congress ha[d] shown a concern to keep national banks from gaining a monopoly control over credit and money." 479 U. S., at 403. The interest of the securities dealers in preventing national banks from expanding into the securities markets directly implicated this concern because offering discount brokerage services would allow national banks "access to more money, in the form of credit balances, and enhanced opportunities to lend money, viz., for margin purchases." Ibid. The case was thus analogous to Data Processing and ICI: "In those492cases the question was what activities banks could engage in at all; here, the question is what activities banks can engage in without regard to the limitations imposed by state branching law." 479 U. S., at 403.BOur prior cases, therefore, have consistently held that for a plaintiff's interests to be arguably within the "zone of interests" to be protected by a statute, there does not have to be an "indication of congressional purpose to benefit the would-be plaintiff." Id., at 399-400 (citing leI); see also Arnold Tours, 400 U. S., at 46 (citing Data Processing). The proper inquiry is simply "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected ... by the statute." Data Processing, 397 U. S., at 153 (emphasis added). Hence in applying the "zone of interests" test, we do not ask whether, in enacting the statutory provision at issue, Congress specifically intended to benefit the plaintiff. Instead, we first discern the interests "arguably ... to be protected" by the statutory provision at issue; we then inquire whether the plaintiff's interests affected by the agency action in question are among them.Section 109 provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759. By its express terms, § 109 limits membership in every federal credit union to members of definable "groups." Because federal credit unions may, as a general matter, offer banking services only to members, see, e. g., 12 U. S. C. §§ 1757(5)-(6), § 109 also restricts the markets that every federal credit union can serve. Although these markets need not be small, they unquestionably are limited. The link between § 109's regulation of federal credit union membership and its limitation on the markets that federal credit unions can serve is unmistakable. Thus, even if it cannot be said493that Congress had the specific purpose of benefiting commercial banks, one of the interests "arguably ... to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve.6 This interest is precisely the interest of respondents affected by the NCVA's interpretation of § 109. As competitors of federal credit unions, respondents certainly have an interest in limiting the markets that federal credit unions can serve, and the NCVA's interpretation6 The legislative history of § 109, upon which petitioners so heavily rely, supports this conclusion. Credit unions originated in mid-19th-century Europe as cooperative associations that were intended to provide credit to persons of small means; they were usually organized around some common theme, either geographic or associational. See General Accounting Office, Credit Unions: Reforms for Ensuring Future Soundness 24 (July 1991). Following the European example, in the 1920's many States passed statutes authorizing the chartering of credit unions, and a number of those statutes contained provisions similar to § 109's common bond requirement. See A. Burger & T. Dacin, Field of Membership: An Evolving Concept 6 (2d ed. 1992).During the Great Depression, in contrast to widespread bank failures at both the state and national level, there were no involuntary liquidations of state-chartered credit unions. See S. Rep. No. 555, 73d Cong., 2d Sess., 2 (1934). The cooperative nature of the institutions, which state-law common bond provisions reinforced, was believed to have contributed to this result. See Credit Unions: Hearing before a Subcommittee of the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 19-20, 26 (1933). A common bond provision was thus included in the District of Columbia Credit Union Act, which Congress passed in 1932; it was identical to the FCUA's common bond provision enacted two years later. When Congress enacted the FCUA, sponsors of the legislation emphasized that the cooperative nature of credit unions allowed them to make credit available to persons who otherwise would not qualify for loans. See S. Rep. No. 555, supra, at 1,3.The legislative history thus confirms that § 109 was thought to reinforce the cooperative nature of credit unions, which in turn was believed to promote their safety and soundness and allow access to credit to persons otherwise unable to borrow. Because, by its very nature, a cooperative institution must serve a limited market, the legislative history of § 109 demonstrates that one of the interests "arguably ... to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve.494has affected that interest by allowing federal credit unions to increase their customer base.7Section 109 cannot be distinguished from the statutory provisions at issue in Clarke, ICI, Arnold Tours, and Data Processing. Although in Clarke the McFadden Act appeared to be designed to protect only the interest of state banks in parity of treatment with national banks, we nonetheless determined that the statute also limited "the extent to which [national] banks [could] engage in the discount brokerage business and hence limit[ed] the competitive impact on nonbank discount brokerage houses." Clarke, 479 U. S., at 403. Accordingly, although Congress did not intend specifically to protect securities dealers, one of the interests "arguably ... to be protected" by the statute was an interest in restricting national bank market power. The plaintiff securities dealers, as competitors of national banks, had that interest, and that interest had been affected by the inter-7 Contrary to the dissent's contentions, see post, at 503, 509, our formulation does not "eviscerat[e]" or "abolis[h]" the zone of interests requirement. Nor can it be read to imply that, in order to have standing under the APA, a plaintiff must merely have an interest in enforcing the statute in question. The test we have articulated-discerning the interests "arguably ... to be protected" by the statutory provision at issue and inquiring whether the plaintiff's interests affected by the agency action in question are among them-differs only as a matter of semantics from the formulation that the dissent has accused us of "eviscerating" or "abolishing," see post, at 504 (stating that the plaintiff must establish that "the injury he complains of ... falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint" (internal quotation marks and citation omitted)).Our only disagreement with the dissent lies in the application of the "zone of interests" test. Because of the unmistakable link between § 109's express restriction on credit union membership and the limitation on the markets that federal credit unions can serve, there is objectively "some indication in the statute," post, at 517 (emphasis deleted), that respondents' interest is "arguably within the zone of interests to be protected" by § 109. Hence respondents are more than merely incidental beneficiaries of § 109's effects on competition.495pretation of the McFadden Act they sought to challenge, because that interpretation had allowed national banks to expand their activities and serve new customers. See ibid.Similarly, in ICI, even though in enacting the GlassSteagall Act, Congress did not intend specifically to benefit investment companies and may have sought only to protect national banks and their depositors, one of the interests "arguably ... to be protected" by the statute was an interest in restricting the ability of national banks to enter the securities business. The investment company plaintiffs, as competitors of national banks, had that interest, and that interest had been affected by the Comptroller's interpretation allowing national banks to establish mutual funds.So too, in Arnold Tours and Data Processing, although in enacting the National Bank Act and the Bank Service Corporation Act, Congress did not intend specifically to benefit travel agents and data processors and may have been concerned only with the safety and soundness of national banks, one of the interests "arguably ... to be protected" by the statutes was an interest in preventing national banks from entering other businesses' product markets. As competitors of national banks, travel agents and data processors had that interest, and that interest had been affected by the Comptroller's interpretations opening their markets to national banks. See also NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 (1995) (deciding that the Comptroller had permissibly interpreted 12 U. S. C. § 24 Seventh to allow national banks to act as agents in the sale of annuities; insurance agents' standing to challenge the interpretation not questioned).CPetitioners attempt to distinguish this action principally on the ground that there is no evidence that Congress, when496it enacted the FCUA, was at all concerned with the competitive interests of commercial banks, or indeed at all concerned with competition. See Brief for Petitioner ATTF 21-22. Indeed, petitioners contend that the very reason Congress passed the FCUA was that "[b]anks were simply not in the picture" as far as small borrowers were concerned, and thus Congress believed it necessary to create a new source of credit for people of modest means. See id., at 25.The difficulty with this argument is that similar arguments were made unsuccessfully in each of Data Processing, Arnold Tours, ICI, and Clarke. In Data Processing, the Comptroller argued against standing for the following reasons:"[P]etitioners do not contend that Section 24 Seventh had any purpose ... to protect the interest of potential competitors of national banks. The reason is clear: the legislative history of the Section dispels all possible doubt that its enactment in 1864 (13 Stat. 101) was for the express and sole purpose of creating a strong national banking system .... To the extent that the protection of a competitive interest was at the bottom of the enactment of Section 24 Seventh, it was the interest of national banks and not of their competitors." Brief for Comptroller of the Currency in Association of Data Processing Service Organizations, Inc. v. Camp, O. T. 1969, No. 85, pp. 19-20.Similarly, in Arnold Tours, the Comptroller contended that the position of the travel agents was "markedly different from that of the data processors," who could find in the legislative history "some manifestation of legislative concern for their competitive position." Memorandum for Comptroller of the Currency in Opposition in Arnold Tours, Inc. v. Camp, O. T. 1970, No. 602, pp. 3-4. And in ICI, the Comptroller again urged us not to find standing, because-497"[t]he thrust of the legislation, and the concern of the drafters, was to protect the banking public through the maintenance of a sound national banking system ...."There was no Congressional objective to protect mutual funds or their investment advisers or underwriters." Brief for Comptroller of Currency in Investment Company Institute v. Camp, O. T. 1970, No. 61, pp. 27-29 (internal quotation marks omitted)."Indeed, the Congressional attitude toward the investment bankers can only be characterized as one of distaste. For example, in discussing the private investment bankers, Senator Glass pointed out that many of them had 'unloaded millions of dollars of worthless investment securities upon the banks of this country.'" Id., at 30, n. 22 (citation omitted).Finally, in Clarke, the Comptroller contended that "[t]here is no doubt that Congress had only one type of competitive injury in mind when it passed the [McFadden] Act-the type that national and state banks might inflict upon each other." Brief for Federal Petitioner in Clarke v. Securities Industry Assn., O. T. 1985, No. 85-971, p. 24.In each case, we declined to accept the Comptroller's argument. In Data Processing, we considered it irrelevant that the statutes in question "d[id] not in terms protect a specified group," because "their general policy [was] apparent[,] and those whose interests [were] directly affected by a broad or narrow interpretation of [the statutes] [were] easily identifiable." 397 U. S., at 157. In Arnold Tours, we similarly believed it irrelevant that Congress had shown no concern for the competitive position of travel agents in enacting the statutes in question. See 400 U. S., at 46. In ICI, we were unmoved by Justice Harlan's comment in dissent that the Glass-Steagall Act was passed in spite of its positive effects on the competitive position of investment banks. See 401 U. S., at 640. And in Clarke, we did not debate whether498the Congress that enacted the McFadden Act was concerned about the competitive position of securities dealers. See 479 U. S., at 403. The provisions at issue in each of these cases, moreover, could be said merely to be safety-and-soundness provisions, enacted only to protect national banks and their depositors and without a concern for competitive effects. We nonetheless did not hesitate to find standing.We therefore cannot accept petitioners' argument that respondents do not have standing because there is no evidence that the Congress that enacted § 109 was concerned with the competitive interests of commercial banks. To accept that argument, we would have to reformulate the "zone of interests" test to require that Congress have specifically intended to benefit a particular class of plaintiffs before a plaintiff from that class could have standing under the APA to sue. We have refused to do this in our prior cases, and we refuse to do so today.Petitioners also mistakenly rely on our decision in Air Courier Conference v. Postal Workers, 498 U. S. 517 (1991). In Air Courier, we held that the interest of Postal Service employees in maximizing employment opportunities was not within the "zone of interests" to be protected by the postal monopoly statutes, and hence those employees did not have standing under the AP A to challenge a Postal Service regulation suspending its monopoly over certain international operations. See id., at 519. We stated that the purposes of the statute were solely to increase the revenues of the Post Office and to ensure that postal services were provided in a manner consistent with the public interest, see id., at 526527. Only those interests, therefore, and not the interests of Postal Service employees in their employment, were "arguably within the zone of interests to be protected" by the statute. Cf. Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990) (stating that an agency reporting company would not have prudential standing to challenge the agency's failure to comply with a statutory mandate to con-499duct hearings on the record). We further noted that although the statute in question regulated competition, the interests of the plaintiff employees had nothing to do with competition. See Air Courier, supra, at 528, n. 5 (stating that "[e]mployees have generally been denied standing to enforce competition laws because they lack competitive and direct injury"). In this action, not only do respondents have "competitive and direct injury," but, as the foregoing discussion makes clear, they possess an interest that is "arguably ... to be protected" by § 109.Respondents' interest in limiting the markets that credit unions can serve is "arguably within the zone of interests to be protected" by § 109. Under our precedents, it is irrelevant that in enacting the FCUA, Congress did not specifically intend to protect commercial banks. Although it is clear that respondents' objectives in this action are not eleemosynary in nature,S under our prior cases that, too, is beside the point.9IIITurning to the merits, we must judge the permissibility of the NCUA's current interpretation of § 109 by employing the analysis set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Under that analysis, we first ask whether Congress has "directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously8The data processing companies, travel agents, investment companies, and securities dealers that challenged the Comptroller's rulings in our prior cases certainly did not bring suit to advance the noble goal of maintaining the safety and soundness of national banks, or to promote the interests of national bank depositors.9Unlike some of our prudential standing cases, no suggestion is made in this action that Congress has sought to preclude judicial review of agency action. See, e. g., Block v. Community Nutrition Institute, 467 U. S. 340 (1984).500expressed intent of Congress." Id., at 842-843. If we determine that Congress has not directly spoken to the precise question at issue, we then inquire whether the agency's interpretation is reasonable. See id., at 843-844. Because we conclude that Congress has made it clear that the same common bond of occupation must unite each member of an occupationally defined federal credit union, we hold that the NCUA's contrary interpretation is impermissible under the first step of Chevron.As noted, § 109 requires that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." Respondents contend that because § 109 uses the article "a"-"i. e., one"in conjunction with the noun "common bond," the "natural reading" of § 109 is that all members in an occupationally defined federal credit union must be united by one common bond. See Brief for Respondents 33. Petitioners reply that because § 109 uses the plural noun "groups," it permits multiple groups, each with its own common bond, to constitute a federal credit union. See Brief for Petitioner NCUA 29-30.Like the Court of Appeals, we do not think that either of these contentions, standing alone, is conclusive. The article "a" could be thought to convey merely that one bond must unite only the members of each group in a multiple-group credit union, and not all of the members in the credit union taken together. See 90 F. 3d, at 528. Similarly, the plural word "groups" could be thought to refer not merely to multiple groups in a particular credit union, but rather to every single "group" that forms a distinct credit union under the FCUA. See ibid. Nonetheless, as the Court of Appeals correctly recognized, additional considerations compel the conclusion that the same common bond of occupation must unite all of the members of an occupationally defined federal credit union.501First, the NCVA's current interpretation makes the phrase "common bond" surplusage when applied to a federal credit union made up of multiple unrelated employer groups, because each "group" in such a credit union already has its own "common bond." See ibid. To use the facts of this action, the employees of AT&T and the employees of the American Tobacco Company each already had a "common bond" before being joined together as members of ATTF. The former were bonded because they worked for AT&T, and the latter were bonded because they worked for the American Tobacco Company. If the phrase "common bond" is to be given any meaning when these employees are joined together, a different "common bond"-one extending to each and every employee considered together-must be found to unite them. Such a "common bond" exists when employees of different subsidiaries of the same company are joined together in a federal credit union; it does not exist, however, when employees of unrelated companies are so joined. See ibid. Put another way, in the multiple employer group context, the NCVA has read the statute as though it merely stated that "[f]ederal credit union membership shall be limited to occupational groups," but that is simply not what the statute provides.Second, the NCVA's interpretation violates the established canon of construction that similar language contained within the same section of a statute must be accorded a consistent meaning. See Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 U. S. 214, 225 (1992). Section 109 consists of two parallel clauses: Federal credit union membership is limited "to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759 (emphasis added). The NCVA concedes that even though the second limitation permits geographically defined credit unions to have as members more than one "group," all of the groups must come from the same "neighborhood,502community, or rural district." See Brief for Petitioner NCUA 37. The reason that the NCUA has never interpreted, and does not contend that it could interpret, the geographical limitation to allow a credit union to be composed of members from an unlimited number of unrelated geographic units, is that to do so would render the geographicallimitation meaningless. Under established principles of statutory interpretation, we must interpret the occupational limitation in the same way.Petitioners have advanced one reason why we should interpret the occupational limitation differently. They contend that whereas the geographical limitation uses the word "within" and is thus "prepositional," the occupationallimitation uses the word "having" and is thus "participial" (and therefore less limiting). See Brief for Petitioner NCUA 31. There is, however, no reason why a participial phrase is inherently more open-ended than a prepositional one; indeed, certain participial phrases can narrow the relevant universe in an exceedingly effective manner-for example, "persons having February 29th as a wedding anniversary." Reading the two parallel clauses in the same way, we must conclude that, just as all members of a geographically defined federal credit union must be drawn from the same "neighborhood, community, or rural district," members of an occupationally defined federal credit union must be united by the same "common bond of occupation."Finally, by its terms, § 109 requires that membership in federal credit unions "shall be limited." The NCUA's interpretation-under which a common bond of occupation must unite only the members of each unrelated employer grouphas the potential to read these words out of the statute entirely. The NCUA has not contested that, under its current interpretation, it would be permissible to grant a charter to a conglomerate credit union whose members would include the employees of every company in the United States. Nor can it: Each company's employees would be a "group," and503each such "group" would have its own "common bond of occupation." Section 109, however, cannot be considered a limitation on credit union membership if at the same time it permits such a limitless result.For the foregoing reasons, we conclude that the NCUA's current interpretation of § 109 is contrary to the unambiguously expressed intent of Congress and is thus impermissible under the first step of Chevron.10 The judgment of the Court of Appeals is therefore affirmed.It is so ordered

OCTOBER TERM, 1997SyllabusNATIONAL CREDIT UNION ADMINISTRATION v.FIRST NATIONAL BANK & TRUST CO. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 96-843. Argued October 6, 1997-Decided February 25,1998*The National Credit Union Administration (NCUA) interprets § 109 of the Federal Credit Union Act (FCUA)-which provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district" -to permit federal credit unions to be composed of multiple, unrelated employer groups, each having its own distinct common bond of occupation. After the NCUA approved a series of charter amendments adding several unrelated employer groups to the membership of petitioner AT&T Family Federal Credit Union (ATTF), respondents, five commercial banks and the American Bankers Association, brought this action under § 10(a) of the Administrative Procedure Act (APA). They asserted that the NCUA's decision was contrary to law because § 109 unambiguously requires that the same common bond of occupation unite each member of an occupationally defined federal credit union. The District Court dismissed the complaint, holding that respondents lacked standing to challenge the decision because their interests were not within the "zone of interests" to be protected by § 109. The Court of Appeals for the District of Columbia Circuit disagreed and reversed. On remand, the District Court entered summary judgment against respondents, applying the analysis announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, and holding that the NCUA had permissibly interpreted § 109. The Court of Appeals again reversed, concluding that the District Court had incorrectly applied Chevron.Held:1. Respondents have prudential standing under the APA to seek federal-court review of the NCUA's interpretation of § 109. Pp. 488-499.(a) A plaintiff will have prudential standing under § 10(a) of the APA if the interest the plaintiff seeks to protect is arguably within the zone of interests to be protected or regulated by the statute in question.*Together with No. 96-847, AT&T Family Federal Credit Union et al. v. First National Bank & Trust Co. et al., also on certiorari to the same court.480SyllabusSee, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152-153. P. 488.(b) Although this Court's prior cases have not stated a clear rule for determining when a plaintiff's interest is "arguably within the zone of interests" to be protected by a statute, four of them have held that competitors of financial institutions have prudential standing to challenge agency action relaxing statutory restrictions on those institutions' activities. Data Processing, supra, at 157; Arnold Tours, Inc. v. Camp, 400 U. S. 45, 46 (per curiam); Investment Company Institute v. Camp, 401 U. S. 617, 621 (ICI); Clarke v. Securities Industry Assn., 479 U. S. 388, 403. Pp. 488-492.(c) In applying the "zone of interests" test, the Court does not ask whether Congress specifically intended the statute at issue to benefit the plaintiff, see, e. g., Clarke, supra, at 399-400. Instead, it discerns the interests "arguably ... to be protected" by the statutory provision and inquires whether the plaintiff's interests affected by the agency action in question are among them, see, e. g., Data Processing, supra, at 153. By its express terms, § 109 limits membership in every federal credit union to members of definable "groups." Because federal credit unions may, as a general matter, offer banking services only to members, see, e. g., 12 U. S. C. §§ 1757(5)-(6), § 109 also restricts the markets that every federal credit union can serve. Although these markets need not be small, they unquestionably are limited. The link between § 109's regulation of membership and its limitation on the markets that can be served is unmistakable. Thus, even if it cannot be said that Congress had the specific purpose of benefiting commercial banks, one of the interests "arguably ... to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve. This interest is precisely the interest of respondents affected by the NCUA's interpretation of § 109. As competitors of federal credit unions, respondents certainly have an interest in limiting the markets that federal credit unions can serve, and the NCUA's interpretation has affected that interest by allowing federal credit unions to increase their customer base. Section 109 cannot be distinguished in this regard from the statutory provisions at issue in Clarke, ICI, Arnold Tours, and Data Processing. Pp. 492-495.(d) Respondents' interest is therefore arguably within the zone of interests to be protected by § 109. Petitioners principally argue that respondents lack standing because there is no evidence that the Congress that enacted § 109 was concerned with commercial banks' competitive interests. This argument is misplaced. To accept that argument, the Court would have to reformulate the "zone of interests" test to require that Congress have specifically intended to benefit a particular481Full Text of Opinion

1986_85-693

JUSTICE O'CONNOR announced the judgment of the Court and delivered the unanimous opinion of the Court with respect to Part I, the opinion of the Court with respect to Part II-B, in which THE CHIEF JUSTICE, JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE STEVENS join, and an opinion with respect to Parts II-A and III, in which THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE SCALIA join.This case presents the question whether the mere awareness on the part of a foreign defendant that the components it manufactured, sold, and delivered outside the United States would reach the forum State in the stream of commerce constitutes "minimum contacts" between the defendant and the forum State such that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463 (1940).IOn September 23, 1978, on Interstate Highway 80 in Solano County, California, Gary Zurcher lost control of his Honda motorcycle and collided with a tractor. Zurcher was severely injured, and his passenger and wife, Ruth Ann Moreno, was killed. In September 1979, Zurcher filed a product liability action in the Superior Court of the State of Page 480 U. S. 106 California in and for the County of Solano. Zurcher alleged that the 1978 accident was caused by a sudden loss of air and an explosion in the rear tire of the motorcycle, and alleged that the motorcycle tire, tube, and sealant were defective. Zurcher's complaint named, inter alia, Cheng Shin Rubber Industrial Co., Ltd. (Cheng Shin), the Taiwanese manufacturer of the tube. Cheng Shin in turn filed a cross-complaint seeking indemnification from its codefendants and from petitioner, Asahi Metal Industry Co., Ltd. (Asahi), the manufacturer of the tube's valve assembly. Zurcher's claims against Cheng Shin and the other defendants were eventually settled and dismissed, leaving only Cheng Shin's indemnity action against Asahi.California's long-arm statute authorizes the exercise of jurisdiction "on any basis not inconsistent with the Constitution of this state or of the United States." Cal.Civ.Proc.Code Ann. § 410.10 (West 1973). Asahi moved to quash Cheng Shin's service of summons, arguing the State could not exert jurisdiction over it consistent with the Due Process Clause of the Fourteenth Amendment.In relation to the motion, the following information was submitted by Asahi and Cheng Shin. Asahi is a Japanese corporation. It manufactures tire valve assemblies in Japan and sells the assemblies to Cheng Shin, and to several other tire manufacturers, for use as components in finished tire tubes. Asahi's sales to Cheng Shin took place in Taiwan. The shipments from Asahi to Cheng Shin were sent from Japan to Taiwan. Cheng Shin bought and incorporated into its tire tubes 150,000 Asahi valve assemblies in 1978; 500,000 in 1979; 500,000 in 1980;100,000 in 1981; and 100,000 in 1982. Sales to Cheng Shin accounted for 1.24 percent of Asahi's income in 1981 and 0.44 percent in 1982. Cheng Shin alleged that approximately 20 percent of its sales in the United States are in California. Cheng Shin purchases valve assemblies from other suppliers as well, and sells finished tubes throughout the world. Page 480 U. S. 107In 1983, an attorney for Cheng Shin conducted an informal examination of the valve stems of the tire tubes sold in one cycle store in Solano County. The attorney declared that, of the approximately 115 tire tubes in the store, 97 were purportedly manufactured in Japan or Taiwan, and of those 97, 21 valve stems were marked with the circled letter "A", apparently Asahi's trademark. Of the 21 Asahi valve stems, 12 were incorporated into Cheng Shin tire tubes. The store contained 41 other Cheng Shin tubes that incorporated the valve assemblies of other manufacturers. Declaration of Kenneth B. Shepard in Opposition to Motion to Quash Subpoena, App. to Brief for Respondent 5-6. An affidavit of a manager of Cheng Shin whose duties included the purchasing of component parts stated:"In discussions with Asahi regarding the purchase of valve stem assemblies, the fact that my Company sells tubes throughout the world and specifically the United States has been discussed. I am informed and believe that Asahi was fully aware that valve stem assemblies sold to my Company and to others would end up throughout the United States and in California."39 Cal. 3d 35, 48, n. 4, 702 P.2d 543, 549-550, n. 4 (1985). An affidavit of the president of Asahi, on the other hand, declared that Asahi "has never contemplated that its limited sales of tire valves to Cheng Shin in Taiwan would subject it to lawsuits in California." Ibid. The record does not include any contract between Cheng Shin and Asahi. Tr. of Oral Arg. 24.Primarily on the basis of the above information, the Superior Court denied the motion to quash summons, stating:"Asahi obviously does business on an international scale. It is not unreasonable that they defend claims of defect in their product on an international scale."Order Denying Motion to Quash Summons, Zurcher v. Dunlop Tire & Rubber Co., No. 76180 (Super. Ct., Solano County, Cal., Apr. 20, 1983).The Court of Appeal of the State of California issued a peremptory writ of mandate commanding the Superior Court to quash service of summons. The court concluded that"it Page 480 U. S. 108 would be unreasonable to require Asahi to respond in California solely on the basis of ultimately realized foreseeability that the product into which its component was embodied would be sold all over the world, including California."App. to Pet. for Cert. B5-B6.The Supreme Court of the State of California reversed and discharged the writ issued by the Court of Appeal. 39 Cal. 3d 35, 702 P.2d 543 (1985). The court observed:"Asahi has no offices, property or agents in California. It solicits no business in California, and has made no direct sales [in California]."Id. at 48, 702 P.2d at 549. Moreover, "Asahi did not design or control the system of distribution that carried its valve assemblies into California." Id. at 49, 702 P.2d at 549. Nevertheless, the court found the exercise of jurisdiction over Asahi to be consistent with the Due Process Clause. It concluded that Asahi knew that some of the valve assemblies sold to Cheng Shin would be incorporated into tire tubes sold in California, and that Asahi benefited indirectly from the sale in California of products incorporating its components. The court considered Asahi's intentional act of placing its components into the stream of commerce -- that is, by delivering the components to Cheng Shin in Taiwan -- coupled with Asahi's awareness that some of the components would eventually find their way into California, sufficient to form the basis for state court jurisdiction under the Due Process Clause.We granted certiorari, 475 U.S. 1044 (1986), and now reverse.IIBThe Due Process Clause of the Fourteenth Amendment limits the power of a state court to exert personal jurisdiction over a nonresident defendant. "[T]he constitutional touchstone" of the determination whether an exercise of personal jurisdiction comports with due process "remains whether the defendant purposefully established minimum contacts' in the Page 480 U. S. 109 forum State." Burger King Corp. v. Rudzewicz, 471 U. S. 462, 471 U. S. 474 (1985), quoting International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 316. Most recently, we have reaffirmed the oft-quoted reasoning of Hanson v. Denckla, 357 U. S. 235, 357 U.S. 253 (1958), that minimum contacts must have a basis in"some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."Burger King, 471 U.S. at 471 U. S. 475."Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum State."Ibid., quoting McGee v. International Life Insurance Co., 355 U. S. 220, 355 U. S. 223 (1957) (emphasis in original).Applying the principle that minimum contacts must be based on an act of the defendant, the Court in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (1980), rejected the assertion that a consumer's unilateral act of bringing the defendant's product into the forum State was a sufficient constitutional basis for personal jurisdiction over the defendant. It had been argued in World-Wide Volkswagen that, because an automobile retailer and its wholesale distributor sold a product mobile by design and purpose, they could foresee being haled into court in the distant States into which their customers might drive. The Court rejected this concept of foreseeability as an insufficient basis for jurisdiction under the Due Process Clause. Id. at 444 U. S. 295-296. The Court disclaimed, however, the idea that "foreseeability is wholly irrelevant" to personal jurisdiction, concluding that"[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State."Id. at 444 U. S. 297-298 (citation omitted). The Court reasoned: Page 480 U. S. 110"When a corporation 'purposefully avails itself of the privilege of conducting activities within the forum State,' Hanson v. Denckla, 357 U.S. [235,] 357 U.S. 253 [(1958)], it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence, if the sale of a product of a manufacturer or distributor . . . is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owners or to others."Id. at 444 U. S. 297.In World-Wide Volkswagen itself, the state court sought to base jurisdiction not on any act of the defendant, but on the foreseeable unilateral actions of the consumer. Since World-Wide Volkswagen, lower courts have been confronted with cases in which the defendant acted by placing a product in the stream of commerce, and the stream eventually swept defendant's product into the forum State, but the defendant did nothing else to purposefully avail itself of the market in the forum State. Some courts have understood the Due Process Clause, as interpreted in World-Wide Volkswagen, to allow an exercise of personal jurisdiction to be based on no more than the defendant's act of placing the product in the stream of commerce. Other courts have understood the Due Process Clause and the above-quoted language in World-Wide Volkswagen to require the action of the defendant to be more purposefully directed at the forum State than the mere act of placing a product in the stream of commerce.The reasoning of the Supreme Court of California in the present case illustrates the former interpretation of World-Wide Volkswagen. The Supreme Court of California held that, because the stream of commerce eventually brought Page 480 U. S. 111 some valves Asahi sold Cheng Shin into California, Asahi's awareness that its valves would be sold in California was sufficient to permit California to exercise jurisdiction over Asahi consistent with the requirements of the Due Process Clause. The Supreme Court of California's position was consistent with those courts that have held that mere foreseeability or awareness was a constitutionally sufficient basis for personal jurisdiction if the defendant's product made its way into the forum State while still in the stream of commerce. See Bean Dredging Corp. v. Dredge Technology Corp., 744 F.2d 1081 (CA5 1984); Hedrick v. Daiko Shoji Co., 715 F.2d 1355 (CA9 1983).Other courts, however, have understood the Due Process Clause to require something more than that the defendant was aware of its product's entry into the forum State through the stream of commerce in order for the State to exert jurisdiction over the defendant. In the present case, for example, the State Court of Appeal did not read the Due Process Clause, as interpreted by World-Wide Volkswagen, to allow"mere foreseeability that the product will enter the forum state [to] be enough by itself to establish jurisdiction over the distributor and retailer."App. to Pet. for Cert. B5. In Humble v. Toyota Motor Co., 727 F.2d 709 (CA8 1984), an injured car passenger brought suit against Arakawa Auto Body Company, a Japanese corporation that manufactured car seats for Toyota. Arakawa did no business in the United States; it had no office, affiliate, subsidiary, or agent in the United States; it manufactured its component parts outside the United States and delivered them to Toyota Motor Company in Japan. The Court of Appeals, adopting the reasoning of the District Court in that case, noted that, although it "does not doubt that Arakawa could have foreseen that its product would find its way into the United States," it would be "manifestly unjust" to require Arakawa to defend itself in the United States. Id. at 710-711, quoting 578 F. Supp. 530, 533 (ND Iowa 1982). See also Hutson v. Fehr Bros., Page 480 U. S. 112 Inc., 584 F.2d 833 (CA8 1978); see generally Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 299 (CA3 1985) (collecting "stream of commerce" cases in which the "manufacturers involved had made deliberate decisions to market their products in the forum state").We now find this latter position to be consonant with the requirements of due process. The "substantial connection," Burger King, 471 U.S. at 471 U. S. 475; McGee, 355 U.S. at 355 U. S. 223, between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. Burger King, supra, at 471 U. S. 476; Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 465 U. S. 774 (1984). The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.Assuming, arguendo, that respondents have established Asahi's awareness that some of the valves sold to Cheng Shin would be incorporated into tire tubes sold in California, respondents have not demonstrated any action by Asahi to purposefully avail itself of the California market. Asahi does not do business in California. It has no office, agents, employees, or property in California. It does not advertise or otherwise solicit business in California. It did not create, control, or employ the distribution system that brought its valves to California. Cf. Hicks v. Kawasaki Heavy Industries, Page 480 U. S. 113 452 F. Supp. 130 (MD Pa. 1978). There is no evidence that Asahi designed its product in anticipation of sales in California. Cf. Rockwell International Corp. v. Costruzioni Aeronautiche Giovanni Agusta, 553 F. Supp. 328 (ED Pa. 1982). On the basis of these facts, the exertion of personal jurisdiction over Asahi by the Superior Court of California exceeds the limits of due process.BThe strictures of the Due Process Clause forbid a state court to exercise personal jurisdiction over Asahi under circumstances that would offend "traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 316, quoting Milliken v. Meyer, 311 U.S. at 311 U. S. 463.We have previously explained that the determination of the reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors. A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination"the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies."World-Wide Volkswagen, 444 U.S. at 444 U. S. 292 (citations omitted). Page 480 U. S. 114A consideration of these factors in the present case clearly reveals the unreasonableness of the assertion of jurisdiction over Asahi, even apart from the question of the placement of goods in the stream of commerce.Certainly the burden on the defendant in this case is severe. Asahi has been commanded by the Supreme Court of California not only to traverse the distance between Asahi's headquarters in Japan and the Superior Court of California in and for the County of Solano, but also to submit its dispute with Cheng Shin to a foreign nation's judicial system. The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant. In the present case, however, the interests of the plaintiff and the forum in California's assertion of jurisdiction over Asahi are slight. All that remains is a claim for indemnification asserted by Cheng Shin, a Tawainese corporation, against Asahi. The transaction on which the indemnification claim is based took place in Taiwan; Asahi's components were shipped from Japan to Taiwan. Cheng Shin has not demonstrated that it is more convenient for it to litigate its indemnification claim against Asahi in California, rather than in Taiwan or Japan.Because the plaintiff is not a California resident, California's legitimate interests in the dispute have considerably diminished. The Supreme Court of California argued that the State had an interest in "protecting its consumers by ensuring that foreign manufacturers comply with the state's safety standards." 39 Cal. 3d at 49, 702 P.2d at 550. The State Supreme Court's definition of California's interest, however, was overly broad. The dispute between Cheng Shin and Asahi is primarily about indemnification, rather than safety Page 480 U. S. 115 standards. Moreover, it is not at all clear at this point that California law should govern the question whether a Japanese corporation should indemnify a Taiwanese corporation on the basis of a sale made in Taiwan and a shipment of goods from Japan to Taiwan. Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 472 U. S. 821-822 (1985); Allstate Insurance Co. v. Hague, 449 U. S. 302, 449 U. S. 312-313 (1981). The possibility of being haled into a California court as a result of an accident involving Asahi's components undoubtedly creates an additional deterrent to the manufacture of unsafe components; however, similar pressures will be placed on Asahi by the purchasers of its components as long as those who use Asahi components in their final products, and sell those products in California, are subject to the application of California tort law.World-Wide Volkswagen also admonished courts to take into consideration the interests of the "several States," in addition to the forum State, in the efficient judicial resolution of the dispute and the advancement of substantive policies. In the present case, this advice calls for a court to consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the California court. The procedural and substantive interests of other nations in a state court's assertion of jurisdiction over an alien defendant will differ from case to case. In every case, however, those interests, as well as the Federal Government's interest in its foreign relations policies, will be best served by a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case, and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff or the forum State. "Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field." United States v. First National City Bank, 379 U. S. 378, 379 U. S. 404 (1965) (Harlan, J., dissenting). See Born, Reflections on Judicial Jurisdiction in International Cases, to be published in 17 Ga.J.Int'l & Comp.L. 1 (1987). Page 480 U. S. 116Considering the international context, the heavy burden on the alien defendant, and the slight interests of the plaintiff and the forum State, the exercise of personal jurisdiction by a California court over Asahi in this instance would be unreasonable and unfair.IIIBecause the facts of this case do not establish minimum contacts such that the exercise of personal jurisdiction is consistent with fair play and substantial justice, the judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtAsahi Metal Indus. v. Superior Court, 480 U.S. 102 (1987)Asahi Metal Indus. Co., Ltd. v. Superior Ct. of CaliforniaNo. 85-693Argued November 5, 1986Decided February 24, 1987480 U.S. 102SyllabusPetitioner manufactures tire valve assemblies in Japan and sells them to several tire manufacturers, including Cheng Shin Rubber Industrial Co. (Cheng Shin). The sales to Cheng Shin, which amounted to at least 100,000 assemblies annually from 1978 to 1982, took place in Taiwan, to which the assemblies were shipped from Japan. Cheng Shin incorporates the assemblies into its finished tires, which it sells throughout the world, including the United States, where 20 percent of its sales take place in California. Affidavits indicated that petitioner was aware that tires incorporating its assemblies would end up in California, but, on the other hand, that it never contemplated that its sales to Cheng Shin in Taiwan would subject it to lawsuits in California. Nevertheless, in 1979, a product liability suit was brought in California Superior Court arising from a motorcycle accident allegedly caused by defects in a tire manufactured by Cheng Shin, which in turn filed a cross-complaint seeking indemnification from petitioner. Although the main suit was eventually settled and dismissed, the Superior Court denied petitioner's motion to quash the summons issued against it. The State Court of Appeal then ordered that the summons be quashed, but the State Supreme Court reversed, finding that petitioner's intentional act of placing its assemblies into the stream of commerce by delivering them to Cheng Shin in Taiwan, coupled with its awareness that some of them would eventually reach California, were sufficient to support state court jurisdiction under the Due Process Clause.Held: The judgment is reversed, and the case is remanded.39 Cal. 3d 35, 702 P.2d 543, reversed and remanded.JUSTICE O'CONNOR delivered the opinion of the Court as to Parts I and II-B, concluding that the state court's exercise of personal jurisdiction over petitioner would be unreasonable and unfair, in violation of the Due Process Clause. Pp. 480 U. S. 113-116.(a) The burden imposed on petitioner by the exercise of state court jurisdiction would be severe, since petitioner would be required not only to traverse the distance between Japan and California, but also to submit Page 480 U. S. 103 its dispute with Cheng Shin to a foreign judicial system. Such unique burdens should have significant weight in assessing the reasonableness of extending personal jurisdiction over national borders. Pp. 480 U. S. 113-114.(b) The interests of Cheng Shin and the forum State in the exercise of jurisdiction over petitioner would be slight, and would be insufficient to justify the heavy burdens placed on petitioner. The only surviving question is whether a Japanese corporation should indemnify a Taiwanese corporation on the bases of a sale made in Taiwan and a shipment of goods from Japan to Taiwan. The facts do not demonstrate that it would be more convenient for Cheng Shin to litigate its claim in California, rather than in Taiwan or Japan, while California's interests are diminished by Cheng Shin's lack of a California residence and by the fact that the dispute is primarily about indemnity, rather than the safety of consumers. While the possibility of being sued in California might create an additional deterrent to petitioner's manufacture of unsafe assemblies, the same effect would result from pressures placed on petitioner by Cheng Shin, whose California sales would subject it to state tort law. Pp. 480 U. S. 114-115.(c) The procedural and substantive policies of other nations whose interests are affected by the forum State's assertion of jurisdiction over an alien defendant must be taken into account, and great care must be exercised when considering personal jurisdiction in the international context. Although other nations' interests will differ from case to case, those interests, as well as the Federal Government's interest in its foreign relations policies, will always be best served by a careful inquiry into the reasonableness of the particular assertion of jurisdiction, and an unwillingness to find an alien defendant's serious burdens outweighed where, as here, the interests of the plaintiff and the forum State are minimal. P. 480 U. S. 115.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE SCALIA, concluded in Parts II-A and III that, even assuming, arguendo, that petitioner was aware that some of the assemblies it sold to Cheng Shin would be incorporated into tires sold in California, the facts do not establish minimum contacts sufficient to render the State's exercise of personal jurisdiction consistent with fair play and substantial justice, as required by the Due Process Clause. Since petitioner does not do business, have an office, agents, employees, or property, or advertise or solicit business in California, and since it did not create, control, or employ the distribution system that brought its assemblies to, or design them in anticipation of sales in, California, it did not engage in any action to purposely avail itself of the California market. The "substantial connection" between a defendant and the forum State necessary for a finding of minimum contacts must derive from an action purposely directed toward the forum State, and the mere placement of a product Page 480 U. S. 104 into the stream of commerce is not such an act, even if done with an awareness that the stream will sweep the product into the forum State absent additional conduct indicating an intent to serve the forum state market. Pp. 480 U. S. 108-113, 116.JUSTICE BRENNAN, joined by JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN, agreed with the Court's conclusion in Part II-B that the exercise of jurisdiction over petitioner would not comport with "fair play and substantial justice," but disagreed with Part II-A's interpretation of the stream-of-commerce theory, and with the conclusion that petitioner did not purposely avail itself of the California market. As long as a defendant is aware that the final product is being marketed in the forum State, jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause, and no showing of additional conduct is required. Here, even though petitioner did not design or control the distribution system that carried its assemblies into California, its regular and extensive sales to a manufacturer it knew was making regular sales of the final product in California were sufficient to establish minimum contacts with California. Pp. 480 U. S. 116-121.JUSTICE STEVENS, joined by JUSTICE WHITE and JUSTICE BLACKMUN, agreed that the California Supreme Court's judgment should be reversed for the reasons stated in Part II-B of the Court's opinion, but did not join Part II-A, for the reasons that (1) the Court's holding that the State's exercise of jurisdiction over petitioner would be "unreasonable and unfair" alone requires reversal, and renders any examination of minimum contacts unnecessary; and (2) even assuming that the "purposeful availment" test should be formulated here, Part II-A misapplies it to the facts of this case, since, in its dealings with Cheng Shin, petitioner has arguably engaged in a higher quantum of conduct than the mere placement of a product into the stream of commerce. Pp. 480 U. S. 121-122.O'CONNOR, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part I, the opinion of the Court with respect to Part II-B, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Parts II-A and III, in which REHNQUIST, C.J., and POWELL and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in part and concurring in the judgment, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post, p. 480 U. S. 116. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which WHITE and BLACKMUN, JJ., joined, post, p. 480 U. S. 121. Page 480 U. S. 105

1972_71-1647

MR. JUSTICE MARSHALL delivered the opinion of the Court.Section 15 of the Shipping Act, 1916, 39 Stat. 733, as amended, 46 U.S.C. § 814, requires all persons subject to the Act to file with the Federal Maritime Commission [Footnote 1] Page 411 U. S. 727 every agreement within specified categories reached with any other person subject to the Act. The section further empowers the Commission to disapprove, cancel, or modify any such agreement which it finds to be unjustly discriminatory, to the detriment of the commerce of the United States, contrary to the public interest, or violative of the terms of the Act. [Footnote 2] The Commission is Page 411 U. S. 728 directed to approve all other agreements, and the statute expressly provides that agreements so approved are exempt from the antitrust laws. [Footnote 3] The question presently before us is whether a contract which calls for the acquisition of all the assets of one carrier by another carrier and which creates no ongoing obligations is an "agreement" within the meaning of this section. The question is of some importance, since, if such contracts are not approved by the Commission, the antitrust laws are fully applicable to them. See Carnation Co. v. Pacific Westbound Conference, 383 U. S. 213 (1966). Cf. United States v. Borden Co., 308 U. S. 188 (1939). But cf. United States Navigation Co. v. Cunard S.S. Co., 284 U. S. 474 (1932); Far East Conference v. United States, 342 U. S. 570 (1952). On the other hand, if they are within the Commission's jurisdiction, the Commission may approve them even though they are violative of the antitrust laws, although the Commission must take antitrust principles into account in reaching its decision. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U. S. 261, 390 U. S. 273-274 (1968); Page 411 U. S. 729 FMC v. Aktiebolaget Svenska Amerika Linien, 390 U. S. 238, 390 U. S. 244-246 (1968).In this case, the Court of Appeals for the District of Columbia Circuit concluded that § 15 did not confer jurisdiction upon the Commission to approve discrete acquisition of assets agreements. In so holding, it followed a prior District Court decision in United States v. R. J. Reynolds Tobacco Co., 325 F. Supp. 656 (NJ 1971), but declined to follow a Ninth Circuit holding that the Commission had such jurisdiction. See Matson Navigation Co. v. FMC, 405 F.2d 796 (CA9 1968). We granted certiorari in order to resolve this conflict and because the case posed an important issue concerning the interface between the antitrust laws and the Commission's regulatory powers. We conclude that, in enacting § 15, Congress did not intend to invest the Commission with the power to shield from antitrust liability merger or acquisition of assets agreements which impose no ongoing responsibilities. Rather, Congress intended to invest the Commission with jurisdiction over only those agreements, or those portions of agreements, which created ongoing rights and responsibilities and which, therefore, necessitated continuous Commission supervision. We therefore affirm the judgment below.IThis case was initiated when respondent Seatrain Lines, Inc. (Seatrain) filed a protest with the Commission against an agreement reached between Pacific Far East Lines, Inc. (PFEL) and Oceanic Steamship Co. (Oceanic), both of which are also respondents here, whereby Oceanic agreed to sell all its assets to PFEL. Under the terms of the agreement, Oceanic promised to transfer its entire fleet and all the related equipment, together with Oceanic's interest in two container ships then being constructed and all of Oceanic's employees, to Page 411 U. S. 730 PFEL. Although Oceanic did not formally merge with PFEL and retained its corporate existence, it was left as a shell corporation wholly without assets. However, Oceanic undertook no continuing obligation not to reenter the business and compete with PFEL. On October 6, 1970, Oceanic and PFEL notified the Commission of the agreement, but accompanied the notification with an express statement that, in their view, the agreement was not within the Commission's jurisdiction. The Commission published notice of the agreement, see 35 Fed.Reg. 16114, and allowed 10 days for interested parties to protest and request a hearing. Seatrain filed such a request on October 21, 1970, alleging that it was a potential competitor of PFEL and that the acquisition agreement would have anticompetitive consequences, and, hence, was contrary to the public interest standard of the statute.Instead of holding a hearing to investigate these allegations, however, the Commission issued a summary order denying the request for an investigation and approving the agreement. The Commission held that,"[w]hile section 15 of the Shipping Act, 1916, requires notice and opportunity for hearing, prior to agreement approval, there is no requirement of law that the mere filing of a protest is sufficient to require that a hearing be held before the Commission may grant approval of any protested agreement."Finding that"the likelihood of any impact at all upon [Seatrain's] operations which might result from approval of the agreement is a matter of mere speculation,"the Commission concluded that "Seatrain has no standing in this matter, and that its protest is without substance." [Footnote 4] Page 411 U. S. 731After Seatrain's petition to reopen was denied, it appealed the Commission's ruling to the Court of Appeals. [Footnote 5] Seatrain argued that the Commission was required to hold a hearing on its objection, while the United States, as statutory respondent, [Footnote 6] and Oceanic and PFEL, as intervenors, argued that the Commission lacked jurisdiction over the agreement. In a comprehensive opinion, the Court of Appeals found it unnecessary to reach the hearing issue, since it found that the Commission"lacks jurisdiction under Section 15 of the Shipping Act, 1916, to approve arrangements of the type involved here, which do not require the continued existence or participation of the parties in such arrangements."148 U.S.App.D.C. 424, 441, 460 F.2d 932, 949 (1972). The Court therefore vacated the Commission's decision and directed that the agreement be removed from its docket. The case then came here on the Commission's petition for certiorari. 409 U.S. 1058 (1972).IIAt the outset, it must be recognized that the statutory language neither clearly embraces nor clearly excludes discrete merger or acquisition of assets agreements. The situation is therefore fundamentally different from that posed in Volkswagenwerk Aktiengesellschaft v. FMC, relied upon heavily by petitioner, where we held in the context of an ongoing agreement that the Commission's ruling that the agreement was without its § 15 jurisdiction "simply does not square with the structure of the statute." 390 U.S. at 390 U. S. 275. In this case, the statute is ambiguous in its scope, and must therefore be read in Page 411 U. S. 732 light of its history and the governing statutory presumptions.By its terms, the statute requires those covered by it to"file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement . . . or modification or cancellation thereof"which falls into any one of seven categories. These are agreements"[1] fixing or regulating transportation rates or fares; [2] giving or receiving special rates, accommodations, or other special privileges or advantages; [3] controlling, regulating, preventing, or destroying competition; [4] pooling or apportioning earnings, losses, or traffic; [5] allotting ports or restricting or otherwise regulating the number and character of sailings between ports; [6] limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; [7] or in any manner providing for an exclusive, preferential, or cooperative working arrangement."None of these seven categories expressly refers to a one-time merger or acquisition of assets agreement which imposes no continuing obligation and which, indeed, effectively destroys one of the parties to the agreement. The Commission vigorously argues that such agreements can be interpreted as falling within the third category -- which concerns agreements "controlling, regulating, preventing, or destroying competition." [Footnote 7] Without more, we might be inclined to agree that many merger agreements probably Page 411 U. S. 733 fit within this category. But a broad reading of the third category would conflict with our frequently expressed view that exemptions from antitrust laws are strictly construed, see, e.g., United States v. McKesson & Robbins, Inc., 351 U. S. 305, 351 U. S. 316 (1956), and that"[r]epeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions."United States v. Philadelphia National Bank, 374 U. S. 321, 374 U. S. 350-351 (1963) (footnotes omitted). As we observed only recently:"When . . . relationships are governed in the first instance by business judgment, and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws."Otter Tail Power Co. v. United States, 410 U. S. 366, 410 U. S. 374 (1973). See also Silver v. New York Stock Exchange, 373 U. S. 341 (1963); Pan American World Airways, Inc. v. United States, 371 U. S. 296 (1963); California v. FPC, 369 U. S. 482 (1962); United States v. Borden Co., 308 U. S. 188 (1939). This principle has led us to construe the Shipping Act as conferring only a "limited antitrust exemption" in light of the fact that "antitrust laws represent a fundamental national economic policy." Carnation Co. v. Pacific Westbound Conference, 383 U.S. at 383 U. S. 219, 383 U. S. 218. [Footnote 8]Our reluctance to construe the third category of agreements broadly so as to include discrete merger arrangements is bolstered by the structure of the Act. It should be noted that, of the seven categories, six are expressly Page 411 U. S. 734 limited to ongoing arrangements in which both parties undertake continuing responsibilities. Indeed, even the third category refers to agreements,"controlling," "regulating" and "preventing" competition -- all of which are continuing activities. Only the reference to the destruction of competition supports the Commission's argument that the provision was intended to cover one-time, discrete transactions. But even this reference must be read in light of the final, comprehensive category which refers to agreements "in any manner providing for an exclusive, preferential, or cooperative working arrangement." As the Court of Appeals noted, this last category was clearly meant as a catchall provision, "intended . . . to summarize the type of agreements covered." 148 U.S.App.D.C. at 427, 460 F.2d at 935. Cf. FMB v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 492 (1958). It is, of course, a familiar canon of statutory construction that such clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated. See 2 J. Sutherland, Statutes and Statutory Construction § 4908 et seq. (3d ed.1943) and cases there cited. Since the summary provision is explicitly limited to "working arrangement[s]" (emphasis added), it is reasonable to conclude that Congress intended this limitation to apply to the specifically enumerated categories as well. [Footnote 9]This reading of the statute is especially compelling in light of the rest of the statutory scheme, which simply does not make sense if the statute is read to encompass one-time agreements creating no continuing obligations. For example, the statute directs the Commission to"disapprove, Page 411 U. S. 735 cancel or modify any agreement . . . whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter."(Emphasis added.) The statute thus envisions a continuing supervisory role for the Commission, and invests it with power to disallow an agreement after a period of time even though it had initially been permitted. But it is hard to see how the Commission can exercise this supervisory function when there are no continuing obligations to supervise. And we think it unlikely that Congress intended to permit the Commission to approve acquisition of assets agreements, allow them to go into effect, and then, sometime in the indefinite future, resuscitate the expired company and unscramble the assets under its continuing power to disapprove agreements previously approved.Similarly, the provision in the Act which provides that "[t]he Commission shall disapprove any . . . agreement . . . on a finding of inadequate policing of the obligations under it" makes no sense unless the agreements create continuing obligations to police. The statutory requirement that "continued approval" shall not be permitted for agreements"between carriers not members of the same conference or conferences of carriers serving different trades that would otherwise be naturally competitive, unless in the case of agreements between carriers, each carrier, or in the case of agreement between conferences, each conference, retains the right of independent action"suggests an ongoing relationship between the contracting parties. And the requirement that the contracting parties"adopt and maintain reasonable procedures for promptly and fairly Page 411 U. S. 736 hearing and considering shippers' requests and complaints"can only be understood in the context of a continuing relationship between the contracting parties.In short, while the statute neither expressly includes nor expressly excludes one-time acquisition of assets arrangements, the words must be read in context, and the context makes undeniably clear the ongoing, supervisory role which the Commission was intended to perform. As the Court of Appeals concluded,"[t]he whole structure of Section 15, not only the first paragraph listing the type agreement covered, shows an intent to grant the Commission authority to deal with agreements of a continuing nature."148 U.S.App.D.C. at 427, 460 F.2d at 935.IIIThis construction of the Shipping Act is strongly supported by the legislative history of the Act and by Congress' treatment of other industries in contemporaneous and related statutes. As this Court recognized in FMB v. Isbrandtsen Co., 356 U.S. at 356 U. S. 490, most of the legislative history of the Act is contained in the so-called Alexander Report, which culminated a comprehensive investigation into the shipping industry by the House Committee on the Merchant Marine and Fisheries chaired by Congressman Alexander. See House Committee on the Merchant Marine and Fisheries, Report on Steamship Agreements and Affiliations in the American Foreign and Domestic Trade, H.R.Doc. No. 805, 63d Cong., 2d Sess. (1914) (hereinafter Alexander Report). Although legislation designed to carry out the Report's recommendations initially failed to pass, see H.R. 17328, 63d Cong., 2d Sess., a substantially similar bill was enacted in the next Congress, and was clearly intended to write the Alexander proposals into law. See H.R.Rep. No. 659, 64th Cong., 1st Sess., 27; S.Rep. No. 689, 64th Cong., 1st Sess., 7. Page 411 U. S. 737After examining some 80 steamship agreements and conference arrangements, the Alexander Committee concluded that"practically all the established lines operating to and from American ports work in harmonious cooperation, either through written or oral agreements, conference arrangements, or gentlemen's understandings."Alexander Report 281. The Committee found that this network of agreements, many of them secret, provided a comprehensive system for fixing rates and suppressing competition. See id. at 282-295. As the Committee described the resulting competitive structure of the industry,"The primary object of [the] conferences and agreements is to prevent new lines from being organized in a trade and to crush existing lines which refuse to comply with conditions prescribed by the combination, or which, for other reasons, are not acceptable as members of the conference. The methods which have been adopted from time to time to eliminate competition show the futility of a weak line attempting to enter a trade in opposition to the combined power of the established lines when united by agreement. By resorting to the use of the 'fighting ship,' or to unlimited rate cutting, the conference lines soon exhaust the resources of their antagonists. By distributing the loss resulting from the rate war over the several members of the conference, each constituent line suffers proportionately a much smaller loss than the one line which is fighting the entire group. Moreover, the federated lines can conduct the competitive struggle with the comfortable assurance that, following the retirement of the competing line, they are in a position to reimburse themselves through an increase in rates. To allow conferences, therefore, generally means giving the trade to the lines now enjoying it. Only a powerful Page 411 U. S. 738 line can hope to fight its way into the trade, and with the inevitable result, if successful, that it will join the combination or be allowed to exist by virtue of some rate understanding."Alexander Report 304-305.Yet despite these findings, the Committee decided against recommending the outright banning of the conference system. Instead, it chose to place that system under government supervision, and to invest an administrative agency with the power to approve or disapprove various conference arrangements. The Committee's reasons for this decision are crucial to the issue presently before us. The Committee found that:"[O]pen competition cannot be assured for any length of time by ordering existing agreements terminated. The entire history of steamship agreements shows that, in ocean commerce, there is no happy medium between war and peace when several lines engage in the same trade. Most of the numerous agreements and conference arrangements discussed in the foregoing report were the outcome of rate wars, and represent a truce between the contending lines. To terminate existing agreements would necessarily bring about one of two results: the lines would either engage in rate wars which would mean the elimination of the weak and the survival of the strong, or, to avoid a costly struggle, they would consolidate through common ownership. Neither result can be prevented by legislation, and either would mean a monopoly fully as effective, and it is believed more so, than can exist by virtue of an agreement."Id. at 416.Thus, the Committee chose to permit continuation of the conference system, but to curb its abuses by requiring government approval of conference agreements. It did Page 411 U. S. 739 so because it feared that, if conferences were abolished, the result would be a net decrease in competition through the mergers and acquisition of assets agreements that would result from unregulated rate wars. It is readily apparent that the Commission's reading of the statute would frustrate this legislative purpose. The Committee gave the Commission power to insulate certain anticompetitive arrangements in order to prevent outright mergers. Yet the Commission would have us construe this authority in such a way as to allow it to shield the mergers themselves -- the very thing which Congress intended to prevent. Cf. Carnation Co. v. Pacific Westbound Conference, 383 U.S. at 383 U. S. 218-220.The illogical nature of the Commission's argument is especially apparent when one remembers that, at the time the Act was passed, the Commission was arguably not permitted to take antitrust policies into account when ruling on proposed agreements. We have construed the "public interest" standard contained in the Act as requiring the Commission to consider the antitrust implications of an agreement before approving it. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. at 390 U. S. 274 n. 20; FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. at 390 U. S. 242-244. Cf. Mediterranean Pools Investigation, 9 F.M.C. 264, 289 (1966). But the "public interest" criterion was not added to the Act until 1961. See 75 Stat. 763. Thus, under the petitioner's interpretation, at the time the Act was passed, the Commission was arguably required to approve merger agreements despite strong antitrust objections to them if the other criteria of the Act were met. We simply cannot believe that Congress intended to require approval of the very arrangements which, as the legislative history clearly shows, it wanted to prevent.The legislative history also demonstrates that the Alexander Committee used the term "agreements" as Page 411 U. S. 740 a word of art, and that mergers and other arrangements creating no continuing rights, and obligations were not included within its definition. As the District Court in United States v. R. J. Reynolds Tobacco Co. observed,"The catalog or 'full classification of these agreements' (i.e., the 'agreements' to which the Alexander Committee's attention was primarily directed and to which its recommendations were exclusively directed) does not include a single agreement of merger or other form of corporate reorganization. The 'agreements' represented in the Report are all 'on-going' in nature. Most of these 'agreements' are cooperative working arrangements. These 'agreements' describe practices or regular activities in which two or more shipping companies have agreed to participate over a considerable period of time. None of the 'agreements' studied by the Alexander Committee bears the slightest resemblance to an agreement of merger, which is essentially a single, discrete event, which transforms the relationship of the merging parties at the instant of merger."325 F. Supp. at 658-659 (footnotes omitted). [Footnote 10] Page 411 U. S. 741Moreover, in the few places where the Committee did discuss mergers, it distinguished sharply between such arrangements and the ongoing agreements to which its recommendations were directed. For example, in summarizing its findings, the Committee wrote:"The numerous methods of controlling competition between water carriers in the domestic trade, referred to in the preceding pages, may be grouped under three headings, viz., (1) control through the acquisition of water lines or the ownership of accessories to the lines; (2) control through agreements or understandings; and (3) control through special practices."Alexander Report 409 (emphasis added).As the Reynolds court concluded,"Consistently throughout the Report, mergers and other corporate reorganizations, when occasionally mentioned, are referred to by the terms 'consolidation by ownership' and 'control through acquisition,' or variations thereof. Never is the word 'agreement' used in the Report to refer to a merger agreement. Page 411 U. S. 742 It is clear that the Alexander Committee distinguished conceptually between agreements in the sense of ongoing, cooperative agreements and agreements of 'consolidation' or 'acquisition' (of which merger agreements are a form)."325 F. Supp. at 69 (footnotes omitted).Finally, an examination of contemporaneous and related statutes makes clear that, when Congress intended to bring acquisitions and mergers under control, it did so in unambiguous language. For example, only a few years prior to passage of the Shipping Act, Congress expressly dealt with mergers involving water carriers. In the Panama Canal Act, 49 U.S.C. § 5(14), Congress provided that"[I]t shall be unlawful for any carrier [as defined in the Interstate Commerce Act] . . . to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which such carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic."Similarly, when Congress meant to require agency approval for mergers and acquisitions, it did so unambiguously. Thus, the Interstate Commerce Act, 49 U.S.C. § 5(2)(a)(i) authorizes the Interstate Commerce Commission to give its approval"for two or more carriers to consolidate or merge their properties or franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties Page 411 U. S. 743 theretofore in separate ownership."In the same manner, the Federal Communications Act, 47 U.S.C. § 222(b)(1) provides:"It shall be lawful, upon application to and approval by the [Federal Communications] Commission as hereinafter provided, for any two or more domestic telegraph carriers to effect a consolidation or merger; and for any domestic telegraph carrier, as a part of any such consolidation or merger or thereafter, to acquire all or any part of the domestic telegraph properties, domestic telegraph facilities, or domestic telegraph operations of any carrier which is not primarily a telegraph carrier."Examination of the Federal Aviation Act is particularly instructive in this regard. Title 49 U.S.C. § 1382(a) requires air carriers to file with the Civil Aeronautics Board for prior approval"every contract or agreement . . . for pooling or apportioning earnings, losses, traffic, service, or equipment, or relating to the establishment of transportation rates, fares, charges, or classifications, . . . or otherwise eliminating destructive, oppressive, or wasteful competition, or for regulating stops, schedules, and character of service, or for other cooperative working arrangements."This provision closely parallels § 15 of the Shipping Act, and was obviously modeled after it. Yet Congress clearly thought the provision insufficient to bring discrete merger and acquisition agreements within the Civil Aeronautics Board's jurisdiction, since it enacted another, separate provision requiring Board approval when air carriers "consolidate or merge their properties." 49 U.S.C. § 1378(a)(1). [Footnote 11] Page 411 U. S. 744IVIn light of these specific grants of merger approval authority, we are unwilling to construe the ambiguous provisions of § 15 to serve this purpose a purpose for which it obviously was not intended. As the Court of Appeals found, the House Committee which wrote § 15 "neither sought information nor had discussion on ship sale agreements. They were neither part of the problem nor part of the solution." 148 U.S.App.D.C. at 432, 460 F.2d at 940. If, as petitioner contends, there is now a compelling need to fill the gap in the Commission's regulatory Page 411 U. S. 745 authority, the need should be met in Congress where the competing policy questions can be thrashed out and a resolution found. We are not ready to meet that need by rewriting the statute and legislative history ourselves.But the Commission contends that, since it is charged with administration of the statutory scheme, its construction of the statute over an extended period should be given great weight. See, e.g., NLRB v. Hearst Publications, Inc., 322 U. S. 111 (1944). This proposition may, as a general matter, be conceded, although it must be tempered with the caveat that an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate. In this case, however, there is a disjunction between the abstract principle and the empirical data. The court below made a detailed study of the prior Commission cases relied upon by petitioner to bolster its interpretation of the statute, and concluded that none of them involved assertion of jurisdiction over a case such as this, where the agreement in question imposed no ongoing obligations. We find it unnecessary to decide whether every prior case decided by the Commission can be reconciled with our opinion today. It is sufficient to note that the cases do not demonstrate the sort of longstanding, clearly articulated interpretation of the statute which would be entitled to great judicial deference, particularly in light of the clear indications that Congress did not intend to vest the Commission with the authority it is now seeking to assert. As this Court held in a related context,"The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a 'reasonable basis in law.' . . . But the courts are the final authorities on issues of Page 411 U. S. 746 statutory construction, FTC v. Colgate-Palmolive Co., 380 U. S. 374, 380 U. S. 385, and""are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.""NLRB v. Brown, 380 U. S. 278, 380 U. S. 291."Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. at 390 U. S. 272.In this case, we find that the Commission overstepped the limits which Congress placed on its jurisdiction. The judgment of the Court of Appeals must therefore beAffirmed

U.S. Supreme CourtFMC v. Seatrain Lines, Inc., 411 U.S. 726 (1973)Federal Maritime Commission v. Seatrain Lines, Inc.No. 71-1647Argued March 21, 1973Decided May 14, 1973411 U.S. 726SyllabusIn enacting § 15 of the Shipping Act, 1916, Congress conferred on the Federal Maritime Commission (FMC) the power to exempt from the antitrust laws agreements, or those portions of agreements, between carriers that create an ongoing arrangement in which both parties undertake continuing responsibilities, and which therefore necessitate continuous FMC supervision, but not one-time acquisition of assets agreements that result in one of the contracting parties ceasing to exist. Pp. 411 U. S. 731-746.148 U.S.App.D.C. 424, 460 F.2d 932, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court.

1990_89-1838

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad. The United States Court of Appeals for the Fifth Page 499 U. S. 247 Circuit held that it does not, and we agree with that conclusion.Petitioner Boureslan is a naturalized United States citizen who was born in Lebanon. The respondents are two Delaware corporations, Arabian. American Oil Company (Aramco), and its subsidiary, Aramco Service Company (ASC). Aramco's principal place of business is Dhahran, Saudi Arabia, and it is licensed to do business in Texas. ASC's principal place of business is Houston, Texas.In 1979, Boureslan was hired by ASC as a cost engineer in Houston. A year later, he was transferred, at his request, to work for Aramco in Saudi Arabia. Boureslan remained with Aramco in Saudi Arabia until he was discharged in 1984. After filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), he instituted this suit in the United States District Court for the Southern District of Texas against Aramco and ASC. He sought relief under both state law and Title VII of the Civil Rights Act of 1964, 78 Stat. 243, as amended, 42 U.S.C. §§ 2000a-2000h-6, on the ground that he was harassed and ultimately discharged by respondents on account of his race, religion, and national origin.Respondents filed a motion for summary judgment on the ground that the District Court lacked subject matter jurisdiction over Boureslan's claim because the protections of Title VII do not extend to United States citizens employed abroad by American employers. The District Court agreed, and dismissed Boureslan's Title VII claim; it also dismissed his state law claims for lack of pendent jurisdiction, and entered final judgment in favor of respondents. A panel for the Fifth Circuit affirmed. After vacating the panel's decision and rehearing the case en banc, the court affirmed the District Court's dismissal of Boureslan's complaint. Both Boureslan and the EEOC petitioned for certiorari. We granted both petitions for certiorari to resolve this important issue of statutory interpretation. Page 499 U. S. 248Both parties concede, as they must, that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States. Cf. Foley Bros., Inc. v. Filardo, 336 U. S. 281, 336 U. S. 284-285 (1949); Benz v. Compania Naviera Hidalgo, S.A., 353 U. S. 138, 353 U. S. 147 (1957). Whether Congress has in fact exercised that authority in this case is a matter of statutory construction. It is our task to determine whether Congress intended the protections of Title VII to apply to United States citizens employed by American employers outside of the United States.It is a longstanding principle of American law "that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Foley Bros., 336 U.S. at 336 U. S. 285. This "canon of construction . . . is a valid approach whereby unexpressed congressional intent may be ascertained." Ibid. It serves to protect against unintended clashes between our laws and those of other nations which could result in international discord. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 372 U. S. 20-22 (1963).In applying this rule of construction, we look to see whether"language in the [relevant act] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control."Foley Bros., supra, 336 U.S. at 336 U. S. 285. We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Therefore, unless there is "the affirmative intention of the Congress clearly expressed," Benz, supra, 353 U.S. at 353 U. S. 147, we must presume it "is primarily concerned with domestic conditions." Foley Bros., supra, 336 U.S. at 336 U. S. 285.Boureslan and the EEOC contend that the language of Title VII evinces a clearly expressed intent on behalf of Congress to legislate extraterritorially. They rely principally on two provisions of the statute. First, petitioners argue that the statute's definitions of the jurisdictional terms "employer" Page 499 U. S. 249 and "commerce" are sufficiently broad to include U.S. firms that employ American citizens overseas. Second, they maintain that the statute's "alien exemption" clause, 42 U.S.C. § 2000e-1, necessarily implies that Congress intended to protect American citizens from employment discrimination abroad. Petitioners also contend that we should defer to the EEOC's consistently held position that Title VII applies abroad. We conclude that petitioners' evidence, while not totally lacking in probative value, falls short of demonstrating the affirmative congressional intent required to extend the protections of the Title VII beyond our territorial borders.Title VII prohibits various discriminatory employment practices based on an individual's race, color, religion, sex, or national origin. See §§ 2000e-2, 2000e-3. An employer is subject to Title VII if it has employed 15 or more employees for a specified period and is "engaged in an industry affecting commerce." An industry affecting commerce is"any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry 'affecting commerce' within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [(LMRDA)] [29 U.S.C. § 401 et seq.]."§ 2000e(h). "Commerce," in turn, is defined as"trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof."§ 2000e(g).Petitioners argue that, by its plain language, Title VII's "broad jurisdictional language" reveals Congress's intent to extend the statute's protections to employment discrimination anywhere in the world by a U.S. employer who affects trade "between a State and any place outside thereof." More precisely, they assert that, since Title VII Page 499 U. S. 250 defines "States" to include States, the District of Columbia, and specified territories, the clause "between a State and any place outside thereof" must be referring to areas beyond the territorial limit of the United States. Reply Brief for Petitioner 3.Respondents offer several alternative explanations for the statute's expansive language. They contend that the "or between a State and any place outside thereof" clause"provide[s] the jurisdictional nexus required to regulate commerce that is not wholly within a single state, presumably as it affects both interstate and foreign commerce,"but not to "regulate conduct exclusively within a foreign country." Brief for Respondents 21, n. 14. They also argue that, since the definitions of the terms "employer," "commerce," and "industry affecting commerce" make no mention of "commerce with foreign nations," Congress cannot be said to have intended that the statute apply overseas. In support of this argument, petitioners point to Title II of the Civil Rights Act of 1964, governing public accommodation, which specifically defines commerce as it applies to foreign nations. Finally, respondents argue that, while language present in the first bill considered by the House of Representatives contained the terms "foreign commerce" and "foreign nations," those terms were deleted by the Senate before the Civil Rights Act of 1964 was passed. They conclude that these deletions "[are] inconsistent with the notion of a clearly expressed congressional intent to apply Title VII extraterritorially." Brief for Respondents 7.We need not choose between these competing interpretations, as we would be required to do in the absence of the presumption against extraterritorial application discussed above. Each is plausible, but no more persuasive than that. The language relied upon by petitioners -- and it is they who must make the affirmative showing -- is ambiguous, and does not speak directly to the question presented here. The intent of Congress as to the extraterritorial application of this Page 499 U. S. 251 statute must be deduced by inference from boilerplate language which can be found in any number of congressional acts, none of which have ever been held to apply overseas. See, e.g., Consumer Product Safety Act, 15 U.S.C. § 2052(a)(12); Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(b); Transportation Safety Act of 1974, 49 U.S.C.App. § 1802(1); Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq.; Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.Petitioners' reliance on Title VII's jurisdictional provisions also finds no support in our case law; we have repeatedly held that even statutes that contain broad language in their definitions of "commerce" that expressly refer to "foreign commerce" do not apply abroad. For example, in New York Central R. Co. v. Chisholm, 268 U. S. 29 (1925), we addressed the extraterritorial application of the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq. FELA provides that common carriers by railroad, while engaging in "interstate or foreign commerce" or commerce between "any of the States or territories and any foreign nation or nations," shall be liable in damages to its employees who suffer injuries resulting from their employment. 45 U.S.C. § 51. Despite this broad jurisdictional language, we found that the Act "contains no words which definitely disclose an intention to give it extraterritorial effect," Chisholm, supra, at 268 U. S. 31, and therefore there was no jurisdiction under FELA for a damages action by a U.S. citizen employed on a U.S. railroad who suffered fatal injuries at a point 30 miles north of the U.S. border into Canada.Similarly, in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), we addressed whether Congress intended the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-168, to apply overseas. Even though the NLRA contained broad language that referred by its terms to foreign commerce, 29 U.S.C. § 152(6), this Court refused to find a congressional intent to apply the statute abroad, Page 499 U. S. 252 because there was not "any specific language" in the Act reflecting congressional intent to do so. McCulloch, supra, at 372 U. S. 19.The EEOC places great weight on an assertedly similar "broad jurisdictional grant in the Lanham Act" that this Court held applied extraterritorially in Steele v. Bulova Watch Co., 344 U. S. 280, 344 U. S. 286 (1952). Brief for Petitioner in No. 89-1838, p. 12. In Steele, we addressed whether the Lanham Act, designed to prevent deceptive and misleading use of trademarks, applied to acts of a U.S. citizen consummated in Mexico. The Act defined commerce as "all commerce which may lawfully be regulated by Congress." 15 U.S.C. § 1127. The stated intent of the statute was "to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce." Ibid. While recognizing that "the legislation of Congress will not extend beyond the boundaries of the United States unless a contrary legislative intent appears," the Court concluded that, in light of the fact that the allegedly unlawful conduct had some effects within the United States, coupled with the Act's "broad jurisdictional grant" and its "sweeping reach into all commerce which may lawfully be regulated by Congress,'" the statute was properly interpreted as applying abroad. Steele, supra, 344 U.S. at 344 U. S. 285, 344 U. S. 287.The EEOC's attempt to analogize this case to Steele is unpersuasive. The Lanham Act, by terms, applies to "all commerce which may lawfully be regulated by Congress." The Constitution gives Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S.Const., Art. I, § 8, cl. 3. Since the Act expressly stated that it applied to the extent of Congress's power over commerce, the Court in Steele concluded that Congress intended that the statute apply abroad. By contrast, Title VII's more limited boilerplate "commerce" language does not support such an expansive construction of congressional intent. Moreover, unlike Page 499 U. S. 253 the language in the Lanham Act, Title VII's definition of "commerce" was derived expressly from the LMRDA, a statute that this Court had held, prior to the enactment of Title VII, did not apply abroad. McCulloch, supra, 372 U.S. at 372 U. S. 15.Thus, petitioner's argument based on the jurisdictional language of Title VII fails both as a matter of statutory language and of our previous case law. Many acts of Congress are based on the authority of that body to regulate commerce among the several States, and the parts of these acts setting forth the basis for legislative jurisdiction will obviously refer to such commerce in one way or another. If we were to permit possible, or even plausible interpretations of language such as that involved here to override the presumption against extraterritorial application, there would be little left of the presumption.Petitioners argue that Title VII's "alien exemption provision," 42 U.S.C. § 2000e-1, "clearly manifests an intention" by Congress to protect U.S. citizens with respect to their employment outside of the United States. The alien exemption provision says that the statute "shall not apply to an employer with respect to the employment of aliens outside any State." § 2000e-1. Petitioners contend that, from this language, a negative inference should be drawn that Congress intended Title VII to cover United States citizens working abroad for United States employers. There is "[no] other plausible explanation [that] the alien exemption exists," they argue, because,"[i]f Congress believed that the statute did not apply extraterritorially, it would have had no reason to include an exemption for a certain category of individuals employed outside the United States."Brief for Petitioner in No. 89-1838, pp. 12-13. Since "[t]he statute's jurisdictional provisions cannot possibly be read to confer coverage only upon aliens employed outside the United States," petitioners conclude that"Congress could not rationally have enacted an exemption for the employment of aliens abroad if it intended to foreclose Page 499 U. S. 254 all potential extraterritorial applications of the statute."Id. at 13.Respondents resist petitioners' interpretation of the alien exemption provision, and assert two alternative raisons d'etre for that language. First, they contend that, since aliens are included in the statute's definition of employee, and the definition of commerce includes possessions as well as "States," the purpose of the exemption is to provide that employers of aliens in the possessions of the United States are not covered by the statute. Thus, the "outside any State" clause means outside any State, but within the control of the United States. Respondents argue that "[t]his reading of the alien exemption provision is consistent with and supported by the historical development of the provision" because Congress's inclusion of the provision was a direct response to this Court's interpretation of the term "possessions" in the Fair Labor Standards Act in Vermilya-Brown Co. v. Connell, 335 U. S. 377 (1948), to include leased bases in foreign nations that were within the control of the United States. Brief for Respondents 27. They conclude that the alien exemption provision was included "to limit the impact of Vermilya-Brown by excluding from coverage employers of aliens in areas under U.S. control that" were not encompassed within Title VII's definition of the term "State." Id. at 29.Second, respondents assert that, by negative implication, the exemption "confirm[s] the coverage of aliens in the United States." Id. at 26. They contend that this interpretation Page 499 U. S. 255 is consistent with our conclusion in Espinoza v. Farah Mfg. Co., 414 U. S. 86 (1973), that aliens within the United States are protected from discrimination both because Title VII uses the term "individual," rather than "citizen," and because of the alien exemption provision.If petitioners are correct that the alien exemption clause means that the statute applies to employers overseas, we see no way of distinguishing in its application between United States employers and foreign employers. Thus, a French employer of a United States citizen in France would be subject to Title VII -- a result at which even petitioners balk. The EEOC assures us that, in its view, the term "employer" means only "American employer," but there is no such distinction in this statute, and no indication that EEOC, in the normal course of its administration, had produced a reasoned basis for such a distinction. Without clearer evidence of congressional intent to do so than is contained in the alien exemption clause, we are unwilling to ascribe to that body a policy which would raise difficult issues of international law by imposing this country's employment discrimination regime upon foreign corporations operating in foreign commerce.This conclusion is fortified by the other elements in the statute suggesting a purely domestic focus. The statute as a whole indicates a concern that it not unduly interfere with the sovereignty and laws of the States. See, e.g., 42 U.S.C. § 2000h-4 (stating that Title VII should not be construed to exclude the operation of state law or invalidate any state law unless inconsistent with the purposes of the act); § 2000e-5 (requiring the EEOC to accord substantial weight to findings of state or local authorities in proceedings under state or local law); § 2000e-7 (providing that nothing in Title VII shall affect the application of state or local law unless such law requires or permits practices that would be unlawful under Title VII); §§ 2000e-5(c), (d), and (e) (provisions addressing deferral to state discrimination proceedings). Page 499 U. S. 256 While Title VII consistently speaks in terms of "States" and state proceedings, it fails even to mention foreign nations or foreign proceedings.Similarly, Congress failed to provide any mechanisms for overseas enforcement of Title VII. For instance, the statute's venue provisions, § 2000e-5(f)(3), are ill-suited for extraterritorial application, as they provide for venue only in a judicial district in the state where certain matters related to the employer occurred or were located. And the limited investigative authority provided for the EEOC, permitting the Commission only to issue subpoenas for witnesses and documents from "anyplace in the United States or any Territory or possession thereof," § 2000e-9, suggests that Congress did not intend for the statute to apply abroad.It is also reasonable to conclude that, had Congress intended Title VII to apply overseas, it would have addressed the subject of conflicts with foreign laws and procedures. In amending the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. (ADEA), to apply abroad, Congress specifically addressed potential conflicts with foreign law by providing that it is not unlawful for an employer to take any action prohibited by the ADEA"where such practices involve an employee in a workplace in a foreign country, and compliance with [the ADEA] would cause such employer . . . to violate the laws of the country in which such workplace is located."29 U.S.C. § 623(f)(1). Title VII, by contrast, fails to address conflicts with the laws of other nations.Finally, the EEOC, as one of the two federal agencies with primary responsibility for enforcing Title VII, argues that we should defer to its "consistent" construction of Title VII, first formally expressed in a statement issued after oral argument but before the Fifth Circuit's initial decision in this case, Policy Statement No. N-915.033, EEOC Compl.Man. (BNA) § 605:0055 (Apr.1989), "to apply to discrimination against Page 499 U. S. 257 American citizens outside the United States." Brief for Petitioner in No. 891838, p. 22. Citing a 1975 letter from the EEOC's General Counsel, 1983 testimony by its Chairman, and a 1985 decision by the Commission, it argues that its consistent administrative interpretations "reinforce" the conclusion that Congress intended Title VII to apply abroad.In General Electric Co. v. Gilbert, 429 U. S. 125, 429 U. S. 140-146 (1976), we addressed the proper deference to be afforded the EEOC's guidelines. Recognizing that "Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations," we held that the level of deference afforded"'will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'"Id. at 429 U. S. 141, 429 U. S. 142 (quoting Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 140 (1944)).The EEOC's interpretation does not fare well under these standards. As an initial matter, the position taken by the Commission "contradicts the position which [it] had enunciated at an earlier date, closer to the enactment of the governing statute." General Electric Co., supra, 429 U.S. at 429 U. S. 142. The Commission's early pronouncements on the issue supported the conclusion that the statute was limited to domestic application. See 29 CFR § 1606.1(c) (1971) ("Title VII . . . protects all individuals, both citizen and noncitizens, domiciled or residing in the United States, against discrimination on the basis of race, color, religion, sex, or national origin.") While the Commission later intimated that the statute applied abroad, this position was not expressly reflected in its policy guidelines until some 24 years after the passage of the statute. Page 499 U. S. 258 The EEOC offers no basis in its experience for the change. The EEOC's interpretation of the statute here thus has been neither contemporaneous with its enactment nor consistent since the statute came into law. As discussed above, it also lacks support in the plain language of the statute. While we do not wholly discount the weight to be given to the 1988 guideline, its persuasive value is limited when judged by the standards set forth in Skidmore. Accord: Southeastern Community College v. Davis, 442 U. S. 397, 442 U. S. 411-412 (1979); SEC v. Sloan, 436 U. S. 103, 436 U. S. 117-118 (1978); Espinoza v. Farah Mfg. Co., 414 U.S. at 414 U. S. 93-94. We are of the view that, even when considered in combination with petitioners' other arguments, the EEOC's interpretation is insufficiently weighty to overcome the presumption against extraterritorial application.Our conclusion today is buttressed by the fact that "[w]hen it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute." Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 488 U. S. 440 (1989). Congress's awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occasions on which it has expressly legislated the extraterritorial application of a statute. See, e.g., the Export Administration Act of 1979, 50 U.S.C.App. §§ 2401-2420 (1982, and Supp. III ed.) (defining "United States person" to include "any domestic concern (including any permanent domestic establishment of any foreign concern) and any foreign subsidiary or affiliate (including any permanent foreign establishment) of any domestic concern which is controlled in fact by such domestic concern") § 2415(2); Coast Guard Act, 14 U.S.C. § 89(a) (Coast Guard searches and seizures upon the high seas); 18 U.S.C. § 7 (Criminal code extends to high seas); 19 U.S.C. § 1701 (Customs enforcement on the high seas); Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. §§ 5001-5116 (1982 ed. Supp. V) (definition of "national of the United States" as "a natural person who is a citizen of the United States . . .") § 5001(5)(A); the Logan Act, 18 U.S.C. § 953 (applying act to "[a]ny citizen . . . wherever he may be . . ."). Indeed, after several courts had held that the ADEA did not apply overseas, Congress amended § 11(f) to provide,"[t]he term 'employee' includes any individual who is a citizen of the United States employed Page 499 U. S. 259 by an employer in a workplace in a foreign country."29 U.S.C. § 630(f). Congress also amended § 4(g)(1), which states,"[i]f an employer controls a corporation whose place of incorporation is in a foreign country, any practice by such corporation prohibited under this section shall be presumed to be such practice by such employer."29 U.S.C. § 623(h)(1). The expressed purpose of these changes was to"mak[e] provisions of the Act apply to citizens of the United States employed in foreign countries by United States corporations or their subsidiaries."S.Rep. No. 98-467, p. 2 (1984), U.S. Code Cong. & Admin.News 1984, pp. 2974, 2975. Congress, should it wish to do so, may similarly amend Title VII and in doing so will be able to calibrate its provisions in a way that we cannot.Petitioners have failed to present sufficient affirmative evidence that Congress intended Title VII to apply abroad. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtEEOC v. Arabian American Oil Co., 499 U.S. 244 (1991)Equal Employment Opportunity Commission v.Arabian American Oil CompanyNos. 89-1838, 89-1845Argued Jan. 16, 1991Decided March 26, 1991499 U.S. 244SyllabusPetitioner Boureslan, a naturalized United States citizen born in Lebanon and working in Saudi Arabia, was discharged by his employer, respondent Arabian American Oil Company, a Delaware corporation. After filing a charge with petitioner Equal Employment Opportunity Commission (EEOC), he instituted suit in the District Court, seeking relief under, inter alia, Title VII of the Civil Rights Act of 1964, on the ground that he had been discriminated against because of his race, religion, and national origin. In dismissing this claim, the court ruled that it lacked subject matter jurisdiction because Title VII's protections do not extend to United States citizens employed abroad by American employers. The Court of Appeals affirmed.Held: Title VII does not apply extraterritorially to regulate the employment practices of United States firms that employ American citizens abroad. Petitioners' evidence, while not totally lacking in probative value, falls short of demonstrating the clearly expressed affirmative congressional intent that is required to overcome the well-established presumption against statutory extraterritoriality. Pp. 499 U. S. 249-259.(a) Petitioners argue unpersuasively that Title VII's "broad jurisdictional language" -- which extends the Act's protections to commerce "between a State and any place outside thereof" -- evinces a clear intent to legislate extraterritorially. The language relied on is ambiguous, does not speak directly to the question presented here, and constitutes boilerplate language found in any number of congressional Acts, none of which have been held to apply overseas. Petitioners' argument also finds no support in this Court's decisions, which have repeatedly held that even statutes containing broad language in their definitions of "commerce" that expressly refer to "foreign commerce" do not apply abroad. See, e.g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 372 U. S. 15, 372 U. S. 19. Steele v. Bulova Watch Co., 344 U. S. 280, 344 U. S. 286, distinguished. Pp. 499 U. S. 249-253. Page 499 U. S. 245(b) Petitioners also argue unpersuasively that Title VII's "alien exemption" clause -- which renders the statute inapplicable "to an employer with respect to the employment of aliens outside any State" -- clearly manifests the necessary congressional intent to cover employers of United States citizens working abroad. If petitioners were correct, there would be no statutory basis for distinguishing between American employers and foreign employers. Absent clearer evidence of congressional intent, this Court is unwilling to ascribe to Congress a policy which would raise difficult international law issues by imposing this country's employment discrimination regime upon foreign corporations operating in foreign commerce. This conclusion is fortified by other factors suggesting a purely domestic focus, including Title VII's failure even to mention foreign nations or proceedings, despite a number of provisions indicating a concern that the sovereignty and laws of States not be unduly interfered with, and the Act's failure to provide any mechanisms for its overseas enforcement. It is also reasonable to conclude that, had Congress intended Title VII to apply overseas, it would have addressed the subject of conflicts with foreign laws and procedures, as it did in amending the Age Discrimination in Employment Act of 1967 (ADEA) to apply abroad. Pp. 499 U. S. 253-256.(c) Petitioners' contention that this Court should defer to the EEOC's position that Title VII applies abroad is rejected. The EEOC's interpretation does not fare well under the deference standards set forth in General Electric Co. v. Gilbert, 429 U. S. 125, 429 U. S. 140-146, since the interpretation has been neither contemporaneous with Title VII's enactment nor consistent with an earlier contrary position enunciated by the EEOC closer to the date the statute came into law, since the EEOC offers no basis in its experience for the change, and since the interpretation lacks support in the statute's plain language. Although this Court does not wholly discount the interpretation, it is of insufficient weight, even when considered in combination with petitioners' other arguments, to overcome the presumption against extraterritorial application. Pp.499 U. S. 256-258.(d) Congress' awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occasions on which it has legislated extraterritoriality, including its amendment of the ADEA. Congress may similarly amend Title VII, and, in doing so, will be able to calibrate its provisions in a way that this Court cannot. Pp. 499 U. S. 258-259.892 F.2d 1271 (CA 5 1990), affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed an opinion Page 499 U. S. 246 concurring in part and concurring in the judgment, post at 499 U. S. 259. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined post at 499 U.S. 260.

1986_85-660

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In this case, the Supreme Court of Colorado held that the United States Constitution requires a court to suppress a confession when the mental state of the defendant, at the time he made the confession, interfered with his "rational intellect" and his "free will." Because this decision seemed to conflict with prior holdings of this Court, we granted certiorari. 474 U. S. 1050 (1986). We conclude that the admissibility of this kind of statement is governed by state rules of evidence, rather than by our previous decisions regarding coerced confessions and Miranda waivers. We therefore reverse. Page 479 U. S. 160IOn August 18, 1983, Officer Patrick Anderson of the Denver Police Department was in uniform, working in an off-duty capacity in downtown Denver. Respondent Francis Connelly approached Officer Anderson and, without any prompting, stated that he had murdered someone and wanted to talk about it. Anderson immediately advised respondent that he had the right to remain silent, that anything he said could be used against him in court, and that he had the right to an attorney prior to any police questioning. See Miranda v. Arizona, 384 U. S. 436 (1966). Respondent stated that he understood these rights, but he still wanted to talk about the murder. Understandably bewildered by this confession, Officer Anderson asked respondent several questions. Connelly denied that he had been drinking, denied that he had been taking any drugs, and stated that, in the past, he had been a patient in several mental hospitals. Officer Anderson again told Connelly that he was under no obligation to say anything. Connelly replied that it was "all right," and that he would talk to Officer Anderson because his conscience had been bothering him. To Officer Anderson, respondent appeared to understand fully the nature of his acts. Tr. 19.Shortly thereafter, Homicide Detective Stephen Antuna arrived. Respondent was again advised of his rights, and Detective Antuna asked him "what he had on his mind." Id. at 24. Respondent answered that he had come all the way from Boston to confess to the murder of Mary Ann Junta, a young girl whom he had killed in Denver sometime during November, 1982. Respondent was taken to police headquarters, and a search of police records revealed that the body of an unidentified female had been found in April, 1983. Respondent openly detailed his story to Detective Antuna and Sergeant Thomas Haney, and readily agreed to take the officers to the scene of the killing. Under Connelly's sole direction, the two officers and respondent proceeded Page 479 U. S. 161 in a police vehicle to the location of the crime. Respondent pointed out the exact location of the murder. Throughout this episode, Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness. Id. at 33-34.Respondent was held overnight. During an interview with the public defender's office the following morning, he became visibly disoriented. He began giving confused answers to questions, and for the first time, stated that "voices" had told him to come to Denver and that he had followed the directions of these voices in confessing. Id. at 42. Respondent was sent to a state hospital for evaluation. He was initially found incompetent to assist in his own defense. By March, 1984, however, the doctors evaluating respondent determined that he was competent to proceed to trial.At a preliminary hearing, respondent moved to suppress all of his statements. Dr. Jeffrey Metzner, a psychiatrist employed by the state hospital, testified that respondent was suffering from chronic schizophrenia and was in a psychotic state at least as of August 17, 1983, the day before he confessed. Metzner's interviews with respondent revealed that respondent was following the "voice of God." This voice instructed respondent to withdraw money from the bank, to buy an airplane ticket, and to fly from Boston to Denver. When respondent arrived from Boston, God's voice became stronger and told respondent either to confess to the killing or to commit suicide. Reluctantly following the command of the voices, respondent approached Officer Anderson Page 479 U. S. 162 and confessed.Dr. Metzner testified that, in his expert opinion, respondent was experiencing "command hallucinations." Id. at 56. This condition interfered with respondent's "volitional abilities -- that is, his ability to make free and rational choices." Ibid. Dr. Metzner further testified that Connelly's illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when Officer Anderson and Detective Antuna advised him that he need not speak. Id. at 56-57. Dr. Metzner admitted that the "voices" could in reality be Connelly's interpretation of his own guilt, but explained that, in his opinion, Connelly's psychosis motivated his confession.On the basis of this evidence, the Colorado trial court decided that respondent's statements must be suppressed because they were "involuntary." Relying on our decisions in Townsend v. Sain, 372 U. S. 293 (1963), and Culombe v. Connecticut, 367 U. S. 568 (1961), the court ruled that a confession is admissible only if it is a product of the defendant's rational intellect and "free will." Tr. 88. Although the court found that the police had done nothing wrong or coercive in securing respondent's confession, Connelly's illness destroyed his volition and compelled him to confess. Id. at 89. The trial court also found that Connelly's mental state vitiated his attempted waiver of the right to counsel and the privilege against compulsory self-incrimination. Accordingly, respondent's initial statements and his custodial confession were suppressed. Id. at 90.The Colorado Supreme Court affirmed. 702 P.2d 722 (1985). In that court's view, the proper test for admissibility is whether the statements are "the product of a rational intellect and a free will." Id. at 728. Indeed,"the absence of police coercion or duress does not foreclose a finding of involuntariness. One's capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure."Ibid. The court found that the very admission of the evidence in a court of law was sufficient state action to implicate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The evidence fully supported the conclusion that respondent's initial statement was not the product of a rational intellect and a free will. The court then considered respondent's attempted waiver of his constitutional rights and found that respondent's mental condition precluded his Page 479 U. S. 163 ability to make a valid waiver. Id. at 729. The Colorado Supreme Court thus affirmed the trial court's decision to suppress all of Connelly's statements.IIThe Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." Just last Term, in Miller v. Fenton, 474 U. S. 104, 474 U. S. 109 (1985), we held that, by virtue of the Due Process Clause,"certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned."See also Moran v. Burbine, 475 U. S. 412, 475 U. S. 432-434 (1986).Indeed, coercive government misconduct was the catalyst for this Court's seminal confession case, Brown v. Mississippi, 297 U. S. 278 (1936). In that case, police officers extracted confessions from the accused through brutal torture. The Court had little difficulty concluding that, even though the Fifth Amendment did not at that time apply to the States, the actions of the police were "revolting to the sense of justice." Id. at 297 U. S. 286. The Court has retained this due process focus, even after holding, in Malloy v. Hogan, 378 U. S. 1 (1964), that the Fifth Amendment privilege against compulsory self-incrimination applies to the States. See Miller v. Fenton, supra, at 474 U. S. 109-110.Thus, the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching. [Footnote 1] While each confession case Page 479 U. S. 164 has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. [Footnote 2] Respondent correctly notes that, as interrogators have turned to more subtle forms of psychological persuasion, courTs have found the mental condition of the defendant a more significant factor in the "voluntariness" calculus. See Spano v. New York, 360 U. S. 315 (1959). But this fact does not justify a conclusion that a defendant's mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional "voluntariness."Respondent relies on Blackburn v. Alabama, 361 U. S. 199 (1960), and Townsend v. Sain, 372 U. S. 293 (1963), for the proposition that the "deficient mental condition of the defendants in those cases was sufficient to render their confessions involuntary." Brief for Respondent 20. But respondent's reading of Blackburn and Townsend ignores the integral element of police overreaching present in both cases. In Blackburn, the Court found that the petitioner was probably insane at the time of his confession, and the police learned during the interrogation that he had a history of mental problems. Page 479 U. S. 165 The police exploited this weakness with coercive tactics:"the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn's friends, relatives, or legal counsel; [and] the composition of the confession by the Deputy Sheriff, rather than by Blackburn."361 U.S. at 361 U. S. 207-208. These tactics supported a finding that the confession was involuntary. Indeed, the Court specifically condemned police activity that "wrings a confession out of an accused against his will." Id. at 361 U. S. 206-207. Townsend presented a similar instance of police wrongdoing. In that case, a police physician had given Townsend a drug with truth serum properties. 372 U.S. at 372 U. S. 298-299. The subsequent confession, obtained by officers who knew that Townsend had been given drugs, was held involuntary. These two cases demonstrate that, while mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry.Our "involuntary confession" jurisprudence is entirely consistent with the settled law requiring some sort of "state action" to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P.2d at 728-729.The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent's constitutional argument is that it would expand our previous line of "voluntariness" cases into a far-ranging requirement that courts must divine a defendant's Page 479 U. S. 166 motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. See Walter v. United States, 447 U. S. 649, 447 U. S. 656 (1980); Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 487-488 (1971); Burdeau v. McDowell, 256 U. S. 465, 256 U. S. 476 (1921). We have also observed that"[j]urists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence."United States v. Janis, 428 U. S. 433, 428 U. S. 448-449 (1976). See also United States v. Havens, 446 U. S. 620, 446 U. S. 627 (1980); United States v. Calandra, 414 U. S. 338 (1974). Moreover, suppressing respondent's statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution. See United States v. Leon, 468 U. S. 897, 468 U. S. 906-913 (1984). Only if we were to establish a brand new constitutional right -- the right of a criminal defendant to confess to his crime only when totally rational and properly motivated -- could respondent's present claim be sustained.We have previously cautioned against expanding"currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries. . . ."Lego v. Twomey, 404 U. S. 477, 404 U. S. 488-489 (1972). We abide by that counsel now. "[T]he central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence," Delaware v. Van Arsdall, 475 U. S. 673, 475 U. S. 681 (1986), and, while we have previously held that exclusion of evidence may be necessary to protect constitutional guarantees, both the necessity for the collateral inquiry and the exclusion of evidence deflect a criminal trial from its basic purpose. Respondent would now have us require Page 479 U. S. 167 sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State. We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evidence, and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, see, e.g., Fed.Rule Evid. 601, and not by the Due Process Clause of the Fourteenth Amendment."The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false."Lisenba v. California, 314 U. S. 219, 314 U. S. 236 (1941).We hold that coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment. We also conclude that the taking of respondent's statements, and their admission into evidence, constitute no violation of that Clause.IIIThe Supreme Court of Colorado went on to affirm the trial court's ruling that respondent's later statements made while in custody should be suppressed because respondent had not waived his right to consult an attorney and his right to remain silent. That court held that the State must bear its burden of proving waiver of these Miranda rights by "clear and convincing evidence." 702 P.2d at 729. Although we have stated in passing that the State bears a "heavy" burden in proving waiver, Tague v. Louisiana, 444 U. S. 469 (1980) (per curiam); North Carolina v. Butler, 441 U. S. 369, 441 U. S. 373 (1979); Miranda v. Arizona, 384 U.S. at 384 U. S. 475, we have never Page 479 U. S. 168 held that the "clear and convincing evidence" standard is the appropriate one.In Lego v. Twomey, supra, this Court upheld a procedure in which the State established the voluntariness of a confession by no more than a preponderance of the evidence. We upheld it for two reasons. First, the voluntariness determination has nothing to do with the reliability of jury verdicts; rather, it is designed to determine the presence of police coercion. Thus, voluntariness is irrelevant to the presence or absence of the elements of a crime, which must be proved beyond a reasonable doubt. See In re Winship, 397 U. S. 358 (1970). Second, we rejected Lego's assertion that a high burden of proof was required to serve the values protected by the exclusionary rule. We surveyed the various reasons for excluding evidence, including a violation of the requirements of Miranda v. Arizona, supra, and we stated that,"[i]n each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts."Lego v. Twomey, 404 U.S. at 404 U. S. 488. Moreover, we rejected the argument that"the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond a reasonable doubt."Ibid. Indeed, the Court found that"no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence."Ibid.We now reaffirm our holding in Lego: whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence. See Nix v. Williams, 467 U. S. 431, 467 U. S. 444, and n. 5 (1984); United States v. Matlock, 415 U. S. 164, 415 U. S. 178, n. 14 (1974) ("[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence . . ."). Page 479 U. S. 169Cf. Moore v. Michigan, 355 U. S. 155, 355 U. S. 161-162 (1957). If, as we held in Lego v. Twomey, supra, the voluntariness of a confession need be established only by a preponderance of the evidence, then a waiver of the auxiliary protections established in Miranda should require no higher burden of proof."[E]xclusionary rules are very much aimed at deterring lawless conduct by police and prosecution, and it is very doubtful that escalating the prosecution's burden of proof in . . . suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence."Lego v. Twomey, supra, at 404 U. S. 489. See also United States v. Leon, 468 U.S. at 468 U. S. 906-913.BWe also think that the Supreme Court of Colorado was mistaken in its analysis of the question whether respondent had waived his Miranda rights in this case. [Footnote 3] Of course, a waiver must at a minimum be "voluntary" to be effective against an accused. Miranda, supra, at 384 U. S. 444, 384 U. S. 476; North Carolina v. Butler, supra, at 441 U. S. 373. The Supreme Court of Colorado, in addressing this question, relied on the testimony of the court-appointed psychiatrist to the effect that respondent was not capable of making a"free decision with respect to his constitutional right of silence . . . and his constitutional right to confer with a lawyer before talking to the police."702 P.2d at 729.We think that the Supreme Court of Colorado erred in importing into this area of constitutional law notions of "free will" that have no place there. There is obviously no reason to require more in the way of a "voluntariness" inquiry in the Page 479 U. S. 170 Miranda waiver context than in the Fourteenth Amendment confession context. The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. See United States v. Washington, 431 U. S. 181, 431 U. S. 187 (1977); Miranda, supra, at 479 U. S. 460. Indeed, the Fifth Amendment privilege is not concerned "with moral and psychological pressures to confess emanating from sources other than official coercion." Oregon v. Elstad, 470 U. S. 298, 470 U. S. 305 (1985). The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on "free choice" in any broader sense of the word. See Moran v. Burbine, 475 U.S. at 475 U. S. 421 ("[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice, rather than intimidation, coercion or deception. . . . [T]he record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements"); Fare v. Michael C., 442 U. S. 707, 442 U. S. 726-727 (1979) (The defendant was "not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit. . . . The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda").Respondent urges this Court to adopt his "free will" rationale, and to find an attempted waiver invalid whenever the defendant feels compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow from the police. But such a treatment of the waiver issue would "cut this Court's holding in [Miranda] completely loose from its own explicitly stated rationale." Beckwith v. United States, 425 U. S. 341, 425 U. S. 345 (1976). Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that. Respondent's perception of coercion flowing from the "voice of God," however important or significant such a Page 479 U. S. 171 perception may be in other disciplines, is a matter to which the United States Constitution does not speak.IVThe judgment of the Supreme Court of Colorado is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. [Footnote 4]It is so ordered

U.S. Supreme CourtColorado v. Connelly, 479 U.S. 157 (1986)Colorado v. ConnellyNo. 85-660Argued Oct. 8, 1986Decided Dec. 10, 1986479 U.S. 157SyllabusRespondent approached a Denver police officer and stated that he had murdered someone and wanted to talk about it. The officer advised respondent of his Miranda rights, and respondent said that he understood those rights, but still wanted to talk about the murder. Shortly thereafter, a detective arrived and again advised respondent of his rights. After respondent answered that he had come all the way from Boston to confess to the murder, he was taken to police headquarters. He then openly detailed his story to the police and subsequently pointed out the exact location of the murder. He was held overnight, and the next day he became visibly disoriented during an interview with the public defender's office and was sent to a state hospital for evaluation. Interviews with a psychiatrist revealed that respondent was following the "voice of God" in confessing to the murder. On the basis of the psychiatrist's testimony that respondent suffered from a psychosis that interfered with his ability to make free and rational choices and, although not preventing him from understanding his rights, motivated his confession, the trial court suppressed respondent's initial statements and custodial confession because they were "involuntary," notwithstanding the fact that the police had done nothing wrong or coercive in securing the confession. The court also found that respondent's mental state vitiated his attempted waiver of the right to counsel and the privilege against self-incrimination. The Colorado Supreme Court affirmed, holding that the Federal Constitution requires a court to suppress a confession when the defendant's mental state, at the time he confessed, interfered with his "rational intellect" and his "free will," the very admission of the evidence in a court of law being sufficient state action to implicate the Due Process Clause of the Fourteenth Amendment. The court further held that respondent's mental condition precluded his ability to make a valid waiver of his Miranda rights, and that the State had not met its burden of proving a waiver by "clear and convincing evidence."Held:1. Coercive police activity is a necessary predicate to finding that a confession is not "voluntary" within the meaning of the Due Process Clause. Here, the taking of respondent's statements and their admission into evidence constituted no violation of that Clause. While a defendant's mental condition may be a "significant" factor in the "voluntariness" Page 479 U. S. 158 calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional "voluntariness." Pp. 479 U. S. 163-167.2. Whenever the State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine, the State need prove waiver only by a preponderance of the evidence. Lego v. Twomey,, 404 U. S. 477, reaffirmed. Thus, the Colorado Supreme Court erred in applying a "clear and convincing evidence" standard. That court also erred in its analysis of the question whether respondent had waived his Miranda rights. Notions of "free will" have no place in this area of constitutional law. Respondent's perception of coercion flowing from the "voice of God" is a matter to which the Federal Constitution does not speak. Pp. 479 U. S. 167-171.702 P.2d 722, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined, and in all but Part III-A of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 479 U. S. 171. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479 U. S. 171. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 479 U. S. 174. Page 479 U. S. 159

1983_82-2056

JUSTICE WHITE delivered the opinion of the Court.Section 4(e) of the Federal Power Act (FPA), 41 Stat. 1066, as amended, 16 U.S.C. § 797(e), authorizes the Federal Energy Regulatory Commission (Commission) [Footnote 1] to issue licenses for the construction, operation and maintenance of hydroelectric project works located on the public lands and reservations of the United States, including lands held in trust for Indians. The conditions upon which such licenses may issue are contained in § 4(e) and other provisions of the FPA. The present case involves a dispute among the Commission, the Secretary of the Interior (Secretary), and several Bands of the Mission Indians over the role each is to play in determining what conditions an applicant must meet in order to obtain a license to utilize hydroelectric facilities located on or near six Mission Indian Reservations.IThe San Luis Rey River originates near the Palomar Mountains in northern San Diego County, Cal. In its natural condition, it flows through the reservations of the La Page 466 U. S. 768 Jolla, Rincon, and Pala Bands of Mission Indians. The reservations of the Pauma, Yuima, [Footnote 2] and three-quarters of the reservation of the San Pasqual Bands of Mission Indians are within the river's watershed. These six Indian reservations were permanently established pursuant to the Mission Indian Relief Act of 1891 (MIRA), ch. 65, 26 Stat. 712.Since 1895, petitioner Escondido Mutual Water Co. (Mutual) and its predecessor in interest have diverted water out of the San Luis Rey River for municipal uses in and around the cities of Vista and Escondido. The point of diversion is located within the La Jolla Reservation, upstream from the other reservations. Mutual conveys the water from the diversion point to Lake Wohlford, an artificial storage facility, by means of the Escondido canal, which crosses parts of the La Jolla, Rincon, and San Pasqual Reservations. [Footnote 3]In 1915, Mutual constructed the Bear Valley powerhouse downstream from Lake Wohlford. Neither Lake Wohlford nor the Bear Valley plant is located on a reservation. In 1916, Mutual completed construction of the Rincon powerhouse, which is located on the Rincon Reservation. Both of these powerhouses generate electricity by utilizing waters diverted from the river through the canal.Following the enactment of the Federal Water Power Act of 1920, ch. 285, 41 Stat. 1063 (codified as Part I of the FPA, Page 466 U. S. 769 16 U.S.C. § 791a et seq.), Mutual applied to the Commission for a license covering its two hydroelectric facilities. In 1924, the Commission issued a 50-year license covering the Escondido diversion dam and canal, Lake Wohlford, and the Rincon and Bear Valley powerhouses.The present dispute began when the 1924 license was about to expire. In 1971, Mutual and the city of Escondido filed an application with the Commission for a new license. In 1972, the Secretary requested that the Commission recommend federal takeover of the project after the original license expired. [Footnote 4] Later that year, the La Jolla, Rincon, and San Pasqual Bands, acting pursuant to § 15(b) of the FPA, [Footnote 5] applied for a nonpower license under the supervision of Interior, to take effect when the original license expired. The Pauma and Pala Bands eventually joined in this application.After lengthy hearings on the competing applications, [Footnote 6] an Administrative Law Judge concluded that the project was not subject to the Commission's licensing jurisdiction, because Page 466 U. S. 770 the power aspects of the project were insignificant in comparison to the project's primary purpose -- conveying water for domestic and irrigation consumption. 6 FERC � 63,008 (1977). [Footnote 7] The Commission, however, reversed that decision and granted a new 30-year license to Mutual, Escondido, and the Vista Irrigation District, which had been using the canal for some time to convey water pumped from Lake Henshaw, a lake located some nine miles above Mutual's diversion dam. 6 FERC � 61,189 (1979).In its licensing decision, the Commission made three rulings that are the focal point of this case. First, the Commission ruled that § 4(e) of the FPA did not require it to accept without modification conditions which the Secretary deemed necessary for the adequate protection and utilization of the reservations. [Footnote 8] Accordingly, despite the Secretary's insistence, the Commission refused to prohibit the licensees from interfering with the Bands' use of a specified quantity of water, id. at 61,415, and n. 146, or to require that water pumped from a particular groundwater basin [Footnote 9] not be transported through the licensed facilities without the written consent of the five Bands, id. at 61,145, and n. 147. Other conditions proposed by the Secretary were similarly rejected or modified. See id. at 61,414-61,417. Second, Page 466 U. S. 771 although it imposed some conditions on the licensees in order to"preclude any possible interference or inconsistency of the power license . . . with the purpose for which the La Jolla, Rincon, and San Pasqual reservations were created, [Footnote 10]"id. at 61,424-61,425, the Commission refused to impose similar conditions for the benefit of the Pala, Pauma, and Yuima Reservations, ruling that its § 4(e) obligation in that respect applies only to reservations that are physically occupied by project facilities. Finally, the Commission rejected the arguments of the Bands and the Secretary that a variety of statutes, including § 8 of the MIRA, required the licensees to obtain the "consent" of the Bands before the license could issue.On appeal, the Court of Appeals for the Ninth Circuit reversed each of these three rulings. Escondido Mutual Water Co. v. FERC, 692 F.2d 1223, amended, 701 F.2d 826 (1983). The court held that § 4(e) requires the Commission to accept without modification any license conditions recommended by the Secretary, subject to subsequent judicial review of the propriety of the conditions, that the Commission is required to satisfy its § 4(e) obligations with respect to all six of the reservations affected by the project, and not just the three through which the canal passes, and that § 8 of the MIRA requires the licensees to obtain right-of-way permits from the La Jolla, Rincon, and San Pasqual Bands before using the licensed facilities located on the reservations. [Footnote 11] Page 466 U. S. 772 Mutual, Escondido, and Vista filed the present petition for certiorari, which we granted, 464 U.S. 913 (1983), challenging all three of the Court of Appeals' rulings. [Footnote 12] We address each in turn.IISection 4(e) provides that licenses issued under that section"shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservations."16 U.S.C. § 797(e). The mandatory nature of the language chosen by Congress appears to require that the Commission include the Secretary's conditions in the license even if it disagrees with them. Nonetheless, petitioners [Footnote 13] argue that an examination of the statutory scheme and legislative history of the Act shows that Congress could not have meant what it said. We disagree.We first note the difficult nature of the task facing petitioners. Since it should be generally assumed that Congress expresses its purposes through the ordinary meaning of the words it uses, we have often stated that,"'[a]bsent a clearly expressed legislative intention to the contrary, [statutory] language must ordinarily be regarded as conclusive.'"North Dakota v. United States, 460 U. S. 300, 460 U. S. 312 (1983) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980)). Congress' apparent desire that the Secretary's conditions "shall" be included in the license must therefore be given effect unless there are clear expressions of legislative intent to the contrary. Page 466 U. S. 773Petitioners initially focus on the purpose of the legislation that became the relevant portion of the FPA. In 1920, Congress passed the Federal Water Power Act in order to eliminate the inefficiency and confusion caused by the "piecemeal, restrictive, negative approach" to licensing prevailing under prior law. First Iowa Hydro-Electric Cooperative v. FPC, 328 U. S. 152, 328 U. S. 180 (1946). See H.R.Rep. No. 61, 66th Cong., 1st Sess., 4-5 (1919). Prior to passage of the Act, the Secretaries of the Interior, War, and Agriculture each had authority to issue licenses for hydroelectric projects on lands under his respective jurisdiction. The Act centralized that authority by creating a Commission, consisting of the three Secretaries, [Footnote 14] vested with exclusive authority to issue licenses. Petitioners contend that Congress could not have intended to empower the Secretary to require that conditions be included in the license over the objection of the Commission, because that would frustrate the purpose of centralizing licensing procedures.Congress was no doubt interested in centralizing federal licensing authority into one agency, but it is clear that it did not intend to relieve the Secretaries of all responsibility for ensuring that reservations under their respective supervision were adequately protected. In a memorandum explaining the administration bill, the relevant portion of which was enacted without substantive change, [Footnote 15] O. C. Merrill, one of the chief draftsmen of the Act and later the first Commission Secretary, explained that creation of the Commission"will Page 466 U. S. 774 not interfere with the special responsibilities which the several Departments have over the National Forests, public lands and navigable rivers."Memorandum on Water Power Legislation from O. C. Merrill, Chief Engineer, Forest Service, dated October 31, 1917, App. 371. With regard to what became § 4(e), he wrote:"4. Licenses for power sites within the National Forests to be subject to such provisions for the protection of the Forests as the Secretary of Agriculture may deem necessary. Similarly, for parks and other reservations under the control of the Departments of the Interior and of War. Plans of structures involving navigable streams to be subject to the approval of the Secretary of War.""This provision is for the purpose of preserving the administrative responsibility of each of the three Departments over lands and other matters within their exclusive jurisdiction."Id. at 373-374.Similarly, during hearings on the bill, Secretary of Agriculture Houston explained that the Grand Canyon did not need to be exempted from the licensing provisions, stating:"I can see no special reason why the matter might not be handled safely under the provisions of the proposed measure, which requires that developments on Government reservations may not proceed except with the approval of the three heads of departments -- the commission -- with such safeguards as the head of the department immediately charged with the reservation may deem wise."Water Power: Hearings before the House Committee on Water Power, 65th Cong., 2d Sess., 677 (1918) (emphasis added).The Members of Congress understood that under the Act the Secretary of the Interior had authority with respect to licenses issued on Indian reservations over and above that Page 466 U. S. 775 possessed by the other Commission members. Senator Walsh of Montana, a supporter of the Act, explained:"[W]hen an application is made for a license to construct a dam within an Indian reservation, the matter goes before the commission, which consists of the Secretary of War, the Secretary of the Interior, and the Secretary of Agriculture. They all agree that it is in the public interest that the license should be granted, or a majority of them so agree. Furthermore, the head of the department must agree; that is to say, the Secretary of the Interior in the case of an Indian reservation must agree that the license shall be issued."59 Cong.Rec. 1564 (1920) (emphasis added). It is thus clear enough that, while Congress intended that the Commission would have exclusive authority to issue all licenses, it wanted the individual Secretaries to continue to play the major role in determining what conditions would be included in the license in order to protect the resources under their respective jurisdictions. The legislative history concerning § 4(e) plainly supports the conclusion that Congress meant what it said when it stated that the license"shall . . . contain such conditions as the Secretary . . . shall deem necessary for the adequate protection and utilization of such reservations. [Footnote 16] "Page 466 U. S. 776Petitioners next argue that a literal reading of the conditioning proviso of § 4(e) cannot be squared with other portions of the statutory scheme. In particular, they note that the same proviso that grants the Secretary the authority to qualify the license with the conditions he deems necessary also provides that the Commission must determine that "the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired." 16 U.S.C. § 797(e). Requiring the Commission to include the Secretary's conditions in the license over its objection, petitioners maintain, is inconsistent with granting the Commission the power to determine that no interference or inconsistency will result from issuance of the license, because it will allow the Secretary to "veto" the decision reached by the Commission. Congress could not have intended to "paralyze with one hand what it sought to promote with the other,'" American Paper Institute, Inc. v. American Page 466 U. S. 777 Electric Power Service Corp., 461 U. S. 402, 461 U. S. 421 (1983) (quoting Clark v. Uebersee Finanz-Korporation, A.G., 332 U. S. 480, 332 U. S. 489 (1947)), petitioners contend.This argument is unpersuasive, because it assumes the very question to be decided. All parties agree that there are limits on the types of conditions that the Secretary can require to be included in the license: [Footnote 17] the Secretary has no power to veto the Commission's decision to issue a license, and hence the conditions he insists upon must be reasonably related to the protection of the reservation and its people. [Footnote 18] The real question is whether the Commission is empowered to decide when the Secretary's conditions exceed the permissible limits. Petitioners' argument assumes that the Commission has the authority to make that decision. However, the statutory language and legislative history conclusively indicate that it does not; the Commission "shall" include in the license the conditions the Secretary deems necessary. It is then up to the courts of appeals to determine whether the conditions are valid. [Footnote 19]Petitioners contend that such a scheme of review is inconsistent with traditional principles of judicial review of administrative action. If the Commission is required to include the conditions in the license even though it does not agree with them, petitioners argue, the courts of appeals will not be Page 466 U. S. 778 in a position to grant deference to the Commission's findings and conclusions because those findings and conclusions will not be included in the license. However, that is apparently exactly what Congress intended. If the Secretary concludes that the conditions are necessary to protect the reservation, the Commission is required to adopt them as its own, and the court is obligated to sustain them if they are reasonably related to that goal, otherwise consistent with the FPA, and supported by substantial evidence. [Footnote 20] The fact that, in reality, it is the Secretary's, and not the Commission's, judgment to which the court is giving deference is not surprising, since the statute directs the Secretary, and not the Commission, to decide what conditions are necessary for the adequate protection of the reservation. [Footnote 21] There is nothing in the statute Page 466 U. S. 779 or the review scheme to indicate that Congress wanted the Commission to second-guess the Secretary on this matter. [Footnote 22]In short, nothing in the legislative history or statutory scheme is inconsistent with the plain command of the statute that licenses issued within a reservation by the Commission pursuant to § 4(e)"shall be subject to and contain such conditions as the Secretary . . . shall deem necessary for the adequate protection and utilization of such reservations."Since the Commission failed to comply with this statutory command when it issued the license in this case, the Court of Appeals correctly reversed its decision in this respect. [Footnote 23] Page 466 U. S. 780IIIThe Court of Appeals also concluded that the Commission's § 4(e) obligations to accept the Secretary's proposed conditions and to make findings as to whether the license is consistent with the reservation's purpose applied to the Pala, Yuima, and Pauma Reservations even though no licensed facilities were located on these reservations. Petitioners contend that this conclusion is erroneous. We agree.Again, the statutory language is informative and largely dispositive. Section 4(e) authorizes the Commission:"To issue licenses . . . for the purpose of constructing . . . dams . . . or other project works . . . upon any part of the public lands and reservations of the United States . . . Provided, That licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservations. . . ."If a project is licensed "within" any reservation, the Commission must make a "no interference or inconsistency" finding with respect to "such" reservation, and the Secretary may impose conditions for the protection of "such" reservation. Nothing in the section requires the Commission to Page 466 U. S. 781 make findings about, or the Secretary to impose conditions to protect, any reservation other than the one within which project works are located. The section imposes no obligation on the Commission or power on the Secretary with respect to reservations that may somehow be affected by, but will contain no part of, the licensed project works.The Court of Appeals, however, purported to discover an ambiguity in the term "within." Positing that the term "reservations" includes not only tribal lands, but also tribal water rights, the Court of Appeals reasoned that, since a project could not be "within" a water right, the term must have a meaning other than its literal one. This effort to circumvent the plain meaning of the statute by creating an ambiguity where none exists is unpersuasive.There is no doubt that "reservations" include "interests in lands owned by the United States" [Footnote 24] and that, for many purposes, water rights are considered to be interests in lands. See 1 R. Clark, Waters and Water Rights § 53.1 P. 345 (1967). But it does not follow that Congress intended the "reservations" spoken of in § 4(e) to include water rights. [Footnote 25] The section deals with project works to be located "upon" and "within" a reservation. As the Court of Appeals itself indicated, the section does tend to "paint a geographical picture in the mind of the reader," 692 F.2d at 1236, and we find the Page 466 U. S. 782 Court of Appeals' and respondents' construction of the section to be quite untenable. Congress intended the obligation of the Commission and the conditioning power of the Secretary to apply only with respect to the specific reservation upon which any project works were to be located, and not to other reservations that might be affected by the project.The Court of Appeals sought to bolster its conclusion by noting that a literal reading of the term "within" would leave a gap in the protection afforded the Bands by the FPA because"a project may turn a potentially useful reservation into a barren waste without ever crossing it in the geographical sense -- e.g., by diverting the waters which would otherwise flow through or percolate under it."Ibid. This is an unlikely event, for, in this respect, the Bands are adequately protected by other provisions of the statutory scheme. First, the Bands cannot be deprived of any water to which they have a legal right. The Commission is expressly forbidden to adjudicate water rights, 16 U.S.C. § 821, and the license applicant must submit satisfactory evidence that he has obtained sufficient water rights to operate the project authorized in the license, 16 U.S.C. § 802(b). Second, if the Bands are using water the rights to which are owned by the license applicant, the Commission is empowered to require that the license applicant continue to let the Bands use this water as a condition of the license if the Commission determines that the Bands' use of the water constitutes an overriding beneficial public use. 16 U.S.C. § 803(a). See California v. FPC, 345 F.2d 917, 923-924 (CA9), cert. denied, 382 U.S. 941 (1965). The Bands' interest in the continued use of the water will accordingly be adequately protected without requiring the Commission to comply with § 4(e) every time one of the reservations might be affected by a proposed project.Respondents additionally contend that, under other provisions of the FPA, the § 4(e) proviso at issue applies any time a reservation is "affected" by a licensed project, even if none of Page 466 U. S. 783 the licensed facilities is actually located on the reservation. They rely in particular on § 23(b), which provides that project works can be constructed without a license on nonnavigable waters over which Congress has jurisdiction under its Commerce Clause powers only if, among other things, [Footnote 26] "no public lands or reservations are affected." 16 U.S.C. § 817. Respondents argue that it would make no sense to conclude that Congress intended to require the Commission to exercise its licensing jurisdiction when a reservation is "affected" by such a project if it did not also intend to afford those reservations all of the protections outlined in § 4(e). However, that is exactly the conclusion that the language of § 4(e) compels, and, contrary to respondents' argument, there is nothing illogical about such a scheme.Under § 4(e), the Commission is authorized to license projects in two general types of situations -- when the project is located on waters (navigable or nonnavigable) over which Congress has jurisdiction under the Commerce Clause and when the project is located upon any public lands or reservations. It is clear that the Commission's obligations to make a "no inconsistency or no interference" determination and to include the Secretary's conditions in the license apply only in the latter situation -- when the license is issued "within any reservation." The fact that a person is required to obtain a license in the former situation any time a project on nonnavigable waters affects a reservation indicates only that Congress concluded that, in such circumstances, the possible disruptive effects of such a project were so great that the Commission should regulate the project through its licensing powers. That is not, as respondents seem to imply, a meaningless gesture if all of the provisions of § 4(e) do not apply. Page 466 U. S. 784Even if the Commission is not required to comply with all of the requirements of § 4(e) when it issues such a license, it is still required to shape the license so that the project is best adapted, among other things, for the improvement and utilization of water power development and for "other beneficial public uses, including recreational purposes." 16 U.S.C. § 803(a). In complying with that duty, the Commission is clearly entitled to consider how the project will affect any federal reservations and to require the licensee to structure the project so as to avoid any undue injury to those reservations. See Udall v. FPC, 387 U. S. 428, 387 U. S. 450 (1967). As noted supra at 466 U. S. 782, the Commission can even require that, as a condition of the license, the licensee surrender some of its water rights in order to protect such reservations if the Commission determines that such action would be in the public interest. However, it is clear that Congress concluded that reservations were not entitled to the added protection provided by the proviso of § 4(e) unless some of the licensed works were actually within the reservation.The scheme crafted by Congress in this respect is sufficiently clear to require us to hold that the Commission must make its "no inconsistency or interference" determination and include the Secretary's conditions in the license only with respect to projects located "within" the geographical boundaries of a federal reservation.IVThe final issue presented for review is whether § 8 of the MIRA requires licensees to obtain the consent of the Bands before they operate licensed facilities located on reservation lands. Section 8 provides in relevant part:"Subsequent to the issuance of any tribal patent, [Footnote 27] or of any individual trust patent . . any citizen of the United States, firm, or corporation may contract with the tribe, Page 466 U. S. 785 band, or individual for whose use and benefit any lands are held in trust by the United States, for the right to construct a flume, ditch, canal, pipe, or other appliances for the conveyance of water over, across, or through such lands, which contract shall not be valid unless approved by the Secretary of the Interior under such conditions as he may see fit to impose."26 Stat. 714. The Court of Appeals concluded that this provision, which by its terms authorizes private parties to enter into a contract with the Bands, precludes the Commission from licensing those parts of the project that occupy reservation land without the consent of the Indians. When the legislative histories of § 8 and of the FPA are considered, however, the Court of Appeals' interpretation cannot stand.Section 8 appeared in the MIRA just prior to its passage. Several irrigation companies were seeking rights-of-way across the reservations. The Secretary had concluded that irrigation ditches and flumes would benefit both the settlers and the Indians. H.R.Rep. No. 3282, 50th Cong., 1st Sess., 3-4 (1888). Two Attorneys General, however, had ruled that only Congress could authorize the alienation of Indian lands. Lemhi Indian Reservation, 18 Op.Atty.Gen. 563 (1887); Dam at Lake Winnibigoshish, 16 Op.Atty.Gen. 562 (1880). In light of these opinions, the Secretary prepared an amendment to the bill, authorizing the Bands to contract for the sale of rights-of-way, subject to Interior's approval. H.R.Rep. No. 3282, supra, at 2. Section 8 was therefore designed to authorize the Indians and the Secretary to grant rights-of-way to third parties; it was not intended to act as a limit on the sovereign authority of the Federal Government to acquire or grant rights-of-way over public lands and reservations.In essence, § 8 increased the Bands' authority over its land, so that they had almost the same rights as other private landowners. [Footnote 28] The Bands were authorized to negotiate with any Page 466 U. S. 786 private party wishing to acquire rights-of-way and to enter into any agreement with those parties, something they were previously unable to do. And until some overriding authority was invoked, the Bands, like private landowners, had complete discretion whether to grant rights-of-way for hydroelectric project facilities. However, there is no indication that, once Congress exercised its sovereign authority to use the land for such purposes, the Bands were to have more power to stop such action than would a private landowner in the same situation -- both are required to permit such use upon payment of just compensation. [Footnote 29] Therefore, the only question is whether Congress decided to exercise that authority with respect to Indian lands when it enacted the FPA. The answer to that inquiry was clearly articulated in a somewhat different context more than 20 years ago."The Federal Power Act constitutes a complete and comprehensive plan . . . for the development, transmission and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction under its commerce powers, and upon the public lands and reservations of the United States under its property powers. See § 4(e). It neither overlooks nor excludes Indians or lands owned or occupied by them. Instead, as has been shown, the Act specifically defines and treats with lands occupied by Indians -- 'tribal lands embraced within Indian reservations.' See §§ 3(2) and 10(e). The Act gives every indication that, within its comprehensive plan, Congress intended to include lands owned or occupied by any person or persons, including Indians."FPC v. Tuscarora Indian Nation, 362 U. S. 99, 362 U. S. 118 (1960). Page 466 U. S. 787It is equally clear that, when enacting the FPA, Congress did not intend to give Indians some sort of special authority to prevent the Commission from exercising the licensing authority it was receiving from Congress. Indeed, Congress squarely considered and rejected such a proposal. During the course of the debate concerning the legislation, the Senate amended the bill to require tribal consent for some projects. Section 4(e) of the Senate version of the bill provided that,"in respect to tribal lands embraced within Indian reservations, which said lands were ceded to Indians by the United States by treaty, no license shall be issued except by and with the consent of the council of the tribe."59 Cong.Rec. 1534 (1920). However, that amendment was stricken from the bill by the Conference, the conferees stating that they"saw no reason why water power use should be singled out from all other uses of Indian reservation land for special action of the council of the tribe."H.R.Conf.Rep. No. 910, 66th Cong., 2d Sess., 8 (1920).In short, while § 8 of the MIRA gave the Bands extensive authority to determine whether to grant rights-of-way for water projects, that authority did not include the power to override Congress' subsequent decision that all lands, including tribal lands, could, upon compliance with the provisions of the FPA, be utilized to facilitate licensed hydroelectric projects. Under the FPA, the Secretary, with the duty to safeguard reservations, may condition, but may not veto, the issuance of a license for project works on an Indian reservation. We cannot believe that Congress nevertheless intended to leave a veto power with the concerned tribe or tribes. The Commission need not, therefore, seek the Bands' permission before it exercises its licensing authority with respect to their lands. [Footnote 30] Page 466 U. S. 788VThe Court of Appeals correctly determined that the Commission was required to include in the license any conditions which the Secretary of the Interior deems necessary for the protection and utilization of the three reservations in which project works are located. It was in error, however, in concluding that the Commission was required to fulfill this and its other § 4(e) obligations with respect to the other three reservations affected by the project, and that § 8 of the MIRA empowered the Bands to prevent the licensing of facilities on their lands. The court's judgment is affirmed in part and reversed in part, and the case is remanded to the court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtEscondido Water Co. v. La Jolla Indians, 466 U.S. 765 (1984)Escondido Mutual Water Co. v.La Jolla Band of Mission IndiansNo. 82-2056.Argued March 26, 1984Decided May 15, 1984466 U.S. 765SyllabusSection 4(e) of the Federal Power Act (FPA) authorizes the Federal Energy Regulatory Commission Commission to issue licenses for the construction, operation, and maintenance of hydroelectric project works located on the public lands and reservations of the United States, including lands held in trust for Indians. The section contains a proviso that such licenses shall be issued "within any reservation" only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which the reservation was created or acquired, and"shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservations."Section 8 of the Mission Indian Relief Act of 1891 (MIRA), pursuant to which six reservations were established for respondent Indian Bands (respondents), provides that any United States citizen, firm, or corporation may contract with the Bands for the right to construct a flume, ditch, canal, pipe, or other appliances for the conveyance of water over, across, or through their reservations, which contract shall not be valid unless approved by the Secretary of the Interior (Secretary) under such conditions as he may see fit to impose. When the original license covering hydroelectric facilities located on or near the six reservations, including a canal that crosses respondent La Jolla, Rincon, and San Pasqual Bands' reservations, was about to expire, petitioner Escondido Mutual Water Co. (Mutual) and petitioner city of Escondido filed an application with the Commission for a new license. Thereafter the Secretary requested that the Commission recommend federal takeover of the project, and respondents applied for a nonpower license. After hearings on the competing applications, an Administrative Law Judge concluded that the project was not subject to the Commission's licensing jurisdiction. The Commission reversed and granted a license to Mutual, Escondido, and petitioner Vista Irrigation District, which had been using the canal in question. The Court of Appeals in turn reversed the Commission, holding, contrary to the Commission, (1) that § 4(e) of the FPA required the Commission to accept without modification any license conditions recommended by the Secretary; (2) that the Commission was required to satisfy its § 4(e) obligations with respect to all six of the reservations, Page 466 U. S. 766 and not just the three through which the canal passes; and (3) that § 8 of the MIRA required the licensees to obtain right-of-way permits from respondent La Jolla, Rincon, and San Pasqual Bands before using the license facilities located on their reservations.Held:1. The plain command of § 4(e) of the FPA requires the Commission to accept without modification conditions that the Secretary deems necessary for the adequate protection and utilization of the reservations. Nothing in the legislative history or statutory scheme is inconsistent with this plain command. Pp. 466 U. S. 772-779.2. But the Commission must make its "no inconsistency or interference" findings and include the Secretary's conditions in the license only with respect to projects located "within" the geographical boundaries of a federal reservation. It is clear that Congress concluded that reservations were not entitled to the protection of § 4(e)'s proviso unless some of the licensed works were actually within the reservation. Thus, the Court of Appeals erred in holding that the Commission's § 4(e) obligation to accept the Secretary's conditions and to make such findings applied to the three reservations on which no licensed facilities were located. Pp. 466 U. S. 780-78.3. Section 8 of the MIRA does not require licensees to obtain respondents' consent before they operate licensed facilities located on reservation lands. While § 8 gave respondents authority to determine whether to grant rights-of-way for water projects, that authority did not include the power to override Congress' subsequent decision in enacting the FPA that all lands, including tribal land, could, upon compliance with the FPA, be utilized to facilitate licensed hydroelectric projects. Pp. 466 U. S. 784-787.692 F.2d 1223 and 701 F.2d 826, affirmed in part, reversed in part, and remanded.WHITE, J., delivered the opinion for a unanimous Court. Page 466 U. S. 767

1988_87-1277

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In this case, a reviewing court set aside a defendant's conviction of enhanced sentence because certain evidence was erroneously admitted against him, and further held that the Double Jeopardy Clause forbade the State to retry him as a habitual offender because the remaining evidence adduced at trial was legally insufficient to support a conviction. Nothing in the record suggests any misconduct in the prosecutor's submission of the evidence. We conclude that, in cases such as this, where the evidence offered by the State and admitted by the trial court -- whether erroneously or not -- would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.Respondent Johnny Lee Nelson pleaded guilty in Arkansas state court to burglary, a class B felony, and misdemeanor theft. He was sentenced under the State's habitual criminal Page 488 U. S. 35 statute, which provides that a defendant who is convicted of a class B felony and "who has previously been convicted of . . . [or] found guilty of four [4] or more felonies," may be sentenced to an enhanced term of imprisonment of between 20 and 40 years. Ark.Stat.Ann. § 41-1001(2)(b) (1977) (current version at Ark.Code Ann. § 5-4-501 (1987)). To have a convicted defendant's sentence enhanced under the statute, the State must prove beyond a reasonable doubt, at a separate sentencing hearing, that the defendant has the requisite number of prior felony convictions. § 41-1005 (current version at Ark.Code Ann. § 5-4-502 (1987)); § 41-1003 (current version at Ark.Code Ann. § 5-4-504 (1987)). Section 41-1003 of the statute sets out the means by which the prosecution may prove the prior felony convictions, providing that"[a] previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty,"and that three types of documents, including "a duly certified copy of the record of a previous conviction or finding of guilt by a court of record," are "sufficient to support a finding of a prior conviction or finding of guilt." § 41-1003 (current version at Ark.Code Ann. § 5-4-504 (1987)). [Footnote 1] The defendant is entitled to challenge the State's evidence of his prior convictions and to rebut it with evidence Page 488 U. S. 36 of his own. § 41-1005(2) (current version at Ark.Code Ann. § 5-4-502(2) (1987)).At respondent's sentencing hearing, the State introduced, without objection from the defense, certified copies of four prior felony convictions. Unbeknownst to the prosecutor, one of those convictions had been pardoned by the Governor several years after its entry. Defense counsel made no objection to the admission of the pardoned conviction, because he too was unaware of the Governor's action. On cross-examination, respondent indicated his belief that the conviction in question had been pardoned. The prosecutor suggested that respondent was confusing a pardon with a commutation to time served. Under questioning from the court, respondent agreed that the conviction had been commuted, rather than pardoned, and the matter was not pursued any further. [Footnote 2] The case was submitted to the jury, [Footnote 3] which found that the State had met its burden of proving four prior convictions, and imposed an enhanced sentence. The state courts upheld the enhanced sentence on both direct and collateral review, despite respondent's protestations that one of the convictions relied upon by the State had been pardoned. [Footnote 4] Page 488 U. S. 37Several years later, respondent sought a writ of habeas corpus in the United States District Court, contending once again that the enhanced sentence was invalid because one of the prior convictions used to support it had been pardoned. When an investigation undertaken by the State at the District Court's request revealed that the conviction in question had in fact been pardoned, the District Court declared the enhanced sentence to be invalid. The State announced its intention to resentence respondent as a habitual offender, using another prior conviction not offered or admitted at the initial sentencing hearing, and respondent interposed a claim of double jeopardy. After hearing arguments from counsel, the District Court decided that the Double Jeopardy Clause prevented the State from attempting to resentence respondent as a habitual offender on the burglary charge. 641 F. Supp. 174 (1986). [Footnote 5] The Court of Appeals for the Eighth Circuit affirmed. 828 F.2d 446 (1987). The Court of Appeals reasoned that the pardoned conviction was not admissible under state law, and that "[w]ithout [it], the state has failed to provide sufficient evidence" to sustain the enhanced sentence. Id. at 449-450. We granted certiorari to review this interpretation of the Double Jeopardy Clause. 485 U.S. 904 (1988). [Footnote 6] Page 488 U. S. 38The Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, see Benton v. Maryland, 395 U. S. 784 (1969), provides that no person shall "be subject for the same offence to be twice put in jeopardy." It has long been settled, however, that the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. United States v. Ball, 163 U. S. 662 (1896) (retrial permissible following reversal of conviction on direct appeal); United States v. Tateo, 377 U. S. 463 (1964) (retrial permissible when conviction declared invalid on collateral attack). This rule, which is a "well-established part of our constitutional jurisprudence," id. at 377 U. S. 465, is necessary in order to ensure the "sound administration of justice":"Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction."Id. at 377 U. S. 466. Page 488 U. S. 39 Permitting retrial after a conviction has been set aside also serves the interests of defendants, for"it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution."Ibid.In Burks v. United States, 437 U. S. 1 (1978), we recognized an exception to the general rule that the Double Jeopardy Clause does not bar the retrial of a defendant who has succeeded in getting his conviction set aside for error in the proceedings below. Burks held that, when a defendant's conviction is reversed by an appellate court on the sole ground that the evidence was insufficient to sustain the jury's verdict, the Double Jeopardy Clause bars a retrial on the same charge. Id. at 18; see Greene v. Massey, 437 U. S. 19, 437 U. S. 24 (1978); Hudson v. Louisiana, 450 U. S. 40, 450 U. S. 42-43 (1981).Burks was based on the view that an appellate court's reversal for insufficiency of the evidence is, in effect, a determination that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury. Burks, 437 U.S. at 437 U. S. 16-17. Because the Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for the same offense, it ought to do the same for the defendant who obtains an appellate determination that the trial court should have entered a judgment of acquittal. Id. at 437 U. S. 10-11, 437 U. S. 16. The fact that the determination of entitlement to a judgment of acquittal is made by the appellate court, rather than the trial court, should not, we thought, affect its double jeopardy consequences; to hold otherwise "would create a purely arbitrary distinction" between defendants based on the hierarchical level at which the determination was made. Id. at 437 U. S. 11. Page 488 U. S. 40The question presented by this case -- whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction -- was expressly reserved in Greene v. Massey, supra, at 437 U. S. 26, n. 9, decided the same day as Burks. We think the logic of Burks requires that the question be answered in the affirmative.Burks was careful to point out that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary "trial errors" as the "incorrect receipt or rejection of evidence." 437 U.S. at 437 U. S. 14-16. While the former is, in effect, a finding "that the government has failed to prove its case" against the defendant, the latter "implies nothing with respect to the guilt or innocence of the defendant," but is simply "a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect." Id. at 437 U. S. 15 (emphasis added).It appears to us to be beyond dispute that this is a situation described in Burks as reversal for "trial error" -- the trial court erred in admitting a particular piece of evidence, and without it there was insufficient evidence to support a judgment of conviction. But clearly, with that evidence, there was enough to support the sentence: the court and jury had before them certified copies of four prior felony convictions, and that is sufficient to support a verdict of enhancement under the statute. See Ark.Stat.Ann. § 41-1003 (1977) (current version at Ark.Code Ann. § 5-4-504 (1987)). The fact that one of the convictions had been later pardoned by the Governor vitiated its legal effect, but it did not deprive the certified copy of that conviction of its probative value under the statute. [Footnote 7] It is quite clear from our opinion in Page 488 U. S. 41 Burks that a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause -- indeed, that was the ratio decidendi of Burks, see 437 U.S. at 437 U. S. 16-17 -- and the overwhelming majority of appellate courts considering the question have agreed. [Footnote 8] The basis for the Burks exception to the general rule is that a reversal for insufficiency of the evidence should be treated no differently than a trial court's granting a judgment of acquittal at the close of all the evidence. A trial court in passing on such a Page 488 U. S. 42 motion considers all of the evidence it has admitted, and to make the analogy complete it must be this same quantum of evidence which is considered by the reviewing court.Permitting retrial in this instance is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to "obtai[n] a fair readjudication of his guilt free from error." Burks, supra, at 437 U. S. 15; see Tibbs v. Florida, 457 U. S. 31, 457 U. S. 40 (1982); United States v. DiFrancesco, 449 U. S. 117, 449 U. S. 131 (1980); United States v. Scott, 437 U. S. 82, 437 U. S. 91 (1978). Had the defendant offered evidence at the sentencing hearing to prove that the conviction had become a nullity by reason of the pardon, the trial judge would presumably have allowed the prosecutor an opportunity to offer evidence of another prior conviction to support the habitual offender charge. Our holding today thus merely recreates the situation that would have been obtained if the trial court had excluded the evidence of the conviction because of the showing of a pardon. Cf. our discussion in Burks, supra, at 437 U. S. 6-7.The judgment of the Court of Appeals is accordinglyReversed

U.S. Supreme CourtLockhart v. Nelson, 488 U.S. 33 (1988)Lockhart v. NelsonNo. 87-1277Argued October 3, 1988Decided November 14, 1988488 U.S. 33SyllabusArkansas' habitual criminal statute provides that a defendant who is convicted of a class B felony may be sentenced to an enhanced term of imprisonment if the State proves beyond a reasonable doubt, at a separate sentencing hearing, that he has at least four prior felony convictions. At respondent's sentencing hearing following his guilty plea to a class B felony, the State introduced certified copies of four prior felony convictions, one of which, unbeknownst to the prosecutor, had been pardoned by the Governor. The case was submitted to the jury, which found that the State had met its burden of proving four prior felony convictions and imposed an enhanced sentence. Several years later, respondent sought a writ of habeas corpus in the United States District Court, contending that the enhanced sentence was invalid because one of the convictions used to support it had been pardoned. The District Court determined that the conviction in question had in fact been pardoned, and set aside the enhanced sentence. The District Court then held, in reliance on Burks v. United States, 437 U. S. 1 (1978), that the Double Jeopardy Clause prohibited the State from attempting to resentence respondent as a habitual offender on the basis of another prior conviction not offered or admitted at the initial sentencing hearing. The Court of Appeals affirmed, reasoning that the pardoned conviction was inadmissible under state law, and that the Double Jeopardy Clause forbade retrial because the remaining evidence adduced at trial was legally insufficient to sustain the jury's verdict of enhancement.Held: When a reviewing court determines that a defendant's conviction must be set aside because certain evidence was erroneously admitted against him, and further finds that, once that evidence is discounted, there is insufficient evidence to support the conviction, the Double Jeopardy Clause does not forbid his retrial so long as the sum of the evidence offered by the State and admitted by the trial court -- whether erroneously or not -- would have been sufficient to sustain a guilty verdict. The general rule is that the Double Jeopardy Clause does not preclude the retrial of a defendant who succeeds in getting his conviction set aside for such "trial errors" as the incorrect receipt or rejection of evidence. The Burks exception to that rule is based on the view that a reversal for Page 488 U. S. 34 evidentiary insufficiency is the functional equivalent of a trial court's granting a judgment of acquittal at the close of all the evidence. Because a trial court, in passing on such a motion, considers all of the evidence it has admitted, it must be this same quantum of evidence which is considered in deciding whether retrial is permissible under the Double Jeopardy Clause. Permitting retrial in this instance is not the sort of oppression at which the Double Jeopardy Clause is aimed, but simply affords the defendant an opportunity to obtain a fair adjudication of his guilt free from error. Pp. 488 U. S. 38-42.828 F.2d 446, reversed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 488 U. S. 42.

1988_87-1868

JUSTICE MARSHALL delivered the opinion of the Court.Today we decide whether, upon termination of a defined benefit plan, § 4044(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 1025, as amended, 29 U.S.C. § 1344(a) (1982 ed. and Supp. V), requires a plan administrator to pay plan participants unreduced early retirement benefits provided under the plan before residual assets may revert to an employer. Page 490 U. S. 717IACongress enacted ERISA in 1974 in part to prevent plan terminations from depriving employees and their beneficiaries of anticipated benefits. 29 U.S.C. § 10O1(a). Titles I and II provide requirements for plan participation, benefit accrual and vesting, and plan funding. Title III contains general administrative provisions. Title IV covers the termination of private pension plans, establishes a system of insurance for benefits provided by such plans, and creates a "body corporate" within the Department of Labor, the Pension Benefit Guaranty Corporation (PBGC), to administer that system. § 1302. The PBGC guarantees certain nonforfeitable benefits provided by qualified defined benefit pension plans. § 1322. [Footnote 1]A defined benefit plan is one which sets forth a fixed level of benefits. See § 1002(35). Contributions to a defined benefit plan are calculated on the basis of a number of actuarial assumptions about such things as employee turnover, mortality rates, compensation increases, and the rate of return on invested plan assets. See Stein, Raiders of the Corporate Pension Plan: The Reversion of Excess Plan Assets to the Employer, 5 Am.J.Tax Policy 117, 121-122, and n.19 (1986).When an employer voluntarily terminates a single-employer defined benefit plan, all accrued benefits automatically vest, notwithstanding the plan's particular vesting provisions. 26 U.S.C. § 411(d)(3). Title IV of ERISA requires that plan assets be distributed to participants in accordance with the six-tier allocation scheme set forth in § 4044(a), 29 U.S.C. § 1344(a). Section 4044(a) provides that plan administrators first distribute nonforfeitable benefits guaranteed by the Page 490 U. S. 718 PBGC, 29 U.S.C. §§ 1344(a)(1)-(4) (1982 ed. and Supp. V); [Footnote 2] then "all other nonforfeitable benefits under the plan," § 1344(a)(5); and finally "all other benefits under the plan," § 1344(a)(6). [Footnote 3] If the plan assets are not sufficient to cover the benefits in categories 1-4, the PBGC will make up the difference. § 1361. The employer must then reimburse the PBGC for the unfunded benefit liabilities. § 1362. If funds remain after "all liabilities of the plan to participants and their beneficiaries have been satisfied," they may be recouped by the employer. § 1344(d)(1)(A). Similarly, the Internal Revenue Code (Code) conditions favorable tax treatment of the plan on satisfaction of "all liabilities with respect to employees and their beneficiaries under the [plan]" before plan assets may be diverted to others. 26 U.S.C. § 401(a)(2).BRespondents B. E. Tilley, William L. Crotts, Chrisley H. Reed, J. C. Weddle, and William D. Goode were employees Page 490 U. S. 719 of the Lynchburg Foundry Company (Foundry), formerly a wholly owned subsidiary of petitioner The Mead Corporation (Mead). [Footnote 4] The five were covered by the Mead Industrial Products Salaried Retirement Plan (Plan). The Plan was funded entirely by Mead's contributions.As a single-employer defined benefit plan, the Plan set forth a fixed level of benefits for employees. Plan participants who completed 10 years of service attained a vested right to accrued benefits, that is, those benefits earned under the Plan. App. 30 (Plan, Art. I, § 13). These benefits included normal retirement benefits, payable at age 65 and calculated with reference to a participant's earnings and years of service. Id. at 37-41 (Plan, Arts. IV, § 1(b), V). At age 55, participants were eligible for early retirement benefits, calculated in the same manner as normal retirement benefits, but reduced by five percent for each year by which a participant's retirement preceded the normal retirement age. Id. at 37, 38-39 (Plan, Arts. IV, § 2, V, § 2(a)). A subsidized or unreduced early retirement benefit, i.e., a benefit equal to that payable at age 65, was available to participants who had 30 or more years of service and elected to retire after age 62. Id. at 39 (Plan, Art. V § 2(b)). The Plan did not provide for any benefits payable solely upon plan termination.In 1983, Mead sold Foundry and terminated the Plan. [Footnote 5] Mead paid unreduced early retirement benefits only to those Page 490 U. S. 720 employees who had met both the age and years of service requirements. At the time Mead terminated the Plan, four respondents had over 30 years of credited service, and a fifth had 28. None had reached the age of 62. Thus, each respondent received payment equal to the present value, determined as of the date of distribution, of the normal retirement benefit to which he would have been entitled had he retired at age 65. [Footnote 6] Had Mead paid the present value of the unreduced early retirement benefits, each respondent would have received on average $9,000 more. App. to Brief for Respondents 1. After Mead finished distributing plan assets to plan participants, nearly $11 million remained in the Plan's fund. Mead recouped this money pursuant to Article XIII, § 4(f), of the Plan. App. 63. [Footnote 7]In 1984, respondents filed suit in the Circuit Court of the City of Radford, Virginia, alleging, inter alia, that the failure to pay the present value of the unreduced early retirement benefits violated ERISA, 29 U.S.C. §§ 1103(c), 1104(a)(1)(A), 1106(b), and 1344. Mead removed the case to the United States District Court for the Western District of Virginia. The District Court granted summary judgment in favor of Mead, concluding that"[t]he Plan's language, the legislative history, and the case law in the fourth circuit . . . clearly demonstrate that early retirement benefits are not 'accrued Page 490 U. S. 721 benefits' under ERISA."Civ. Action No. 84-0751 (WD Va., Apr. 18, 1986). It therefore held that respondents were not entitled to additional sums under the Plan, and that the assets remaining in the fund could revert to Mead pursuant to 29 U.S.C. § 1344(d)(1) and Article XIII, § 4(f), of the Plan.The Court of Appeals for the Fourth Circuit reversed. 815 F.2d 989 (1987). Adopting the reasoning of the Court of Appeals for the Second Circuit in Amato v. Western Union Int'l, Inc., 773 F.2d 1402 (1985), cert. dism'd, 474 U. S. 1113 (1986), the court concluded that, before plan assets may revert to an employer, § 4044(a)(6) requires payment of early retirement benefits to plan participants "even if those benefits were not accrued at the time of termination." 815 F.2d at 991. That conclusion, the court stated, was dictated by the language of the statute, its legislative history, and agency interpretation. Id. at 992. Finally, the court provided a formula for determining respondents' damages and specified that the money should be paid in a lump sum.Because the question decided by the Court of Appeals for the Fourth Circuit is an important one over which the Courts of Appeals have differed, [Footnote 8] we granted certiorari. 488 U.S. 815 (1988). We now reverse.IIRespondents concede that, at the time the Plan was terminated, they had not satisfied both the age and service requirements for unreduced early retirement benefits. Nevertheless, they claim that they are entitled to such benefits because, in their view, contingent early retirement benefits, even if unaccrued, are "benefits under the plan" under category 6, § 4044(a)(6), and therefore must be distributed before Page 490 U. S. 722 the employer can recoup any residual plan assets. Brief for Respondents 4.We note preliminarily that the PBGC has flatly rejected respondents' argument. In the PBGC's view, § 4044(a)"does not create additional benefit entitlements. It merely provides for the orderly distribution of benefits already earned under the terms of a defined benefit plan or otherwise required at termination by other provisions of ERISA."Brief for PBGC as Amicus Curiae 9. The PBGC consistently has expressed this view in Opinion Letters addressing proposed plan terminations. See, e.g., PBGC Opinion Letters Nos. 87-11 (Oct. 22, 1987); 86-5 (Mar. 6, 1986); 86-1 (Jan. 15, 1986). The Department of Labor and the IRS, the other agencies responsible for administering ERISA, agree that category 6 is limited to benefits created elsewhere. See PBGC, IRS, and Labor Department Guidelines on Asset Reversions, 11 BPR 724 (1984).When we interpret a statute construed by the administering agency, we ask first"whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; . . . [but] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U. S. 837, 467 U. S. 842-843 (1984); see also INS v. Cardozagronseca, 480 U. S. 421, 480 U. S. 446-448 (1987). Thus, we turn first to the language of the statute. See, e.g., Blum v. Stenson, 465 U. S. 886, 465 U. S. 896 (1984); Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980); Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 446 U. S. 373-374 (1980). Section 4044(a) in no way indicates an intent to confer a right upon plan participants to recover unaccrued benefits. On the contrary, the language of § 4044(a)(6) -- "benefits under the plan" -- can refer only to the allocation of benefits provided by the terms of the terminated Page 490 U. S. 723 plan. The limited function of § 4044(a) as an allocation mechanism is made clear by its introductory language, which reads:"In the case of the termination of a single-employer plan, the plan administrator shall allocate the assets of the plan (available to provide benefits) among the participants and beneficiaries of the plan in the following order."Finally, any possible ambiguity is resolved against respondents by the title of § 4044(a) -- "[a]llocation of assets." FTC v. Mandel Bros., Inc., 359 U. S. 385, 359 U. S. 388-389 (1959).That § 4044(a) is a distribution mechanism, and not a source for new entitlements, also is illustrated by the structure of the statute. Title I of ERISA sets forth elaborate provisions to determine an employee's right to benefits. Those provisions describe in detail the accrual of benefits and the vesting of accrued benefits after service of a fixed number of years. Title IV, which contains § 4044(a), simply provides for insurance for benefits created elsewhere. It is inconceivable that this section was designed to modify the carefully crafted provisions of Title I.To counter the plain language and clear structure of the statute, respondents rely heavily on legislative history. They contend that Congress' failure to include in category 6 the word "accrued," which appeared in a House version of the statute but did not survive the Conference Committee amendments, evinces an intent to require the provision of unaccrued as well as accrued benefits. We disagree. We do not attach decisive significance to the unexplained disappearance of one word from an unenacted bill because "mute intermediate legislative maneuvers" are not reliable indicators of congressional intent. Trailmobile Co. v. Whirls, 331 U. S. 40, 331 U. S. 61 (1947); see also Drummond Coal Co. v. Watt, 735 F.2d 469, 474 (CA11 1984). There is simply nothing in the legislative history suggesting that Congress intended § 4044(a) to be a source of benefit entitlements rather than an allocation scheme. Neither the House nor the Senate bill provided for allocation of assets on plan termination to benefits Page 490 U. S. 724 that were not created elsewhere. [Footnote 9] Because the Conference Committee discussed fully the areas where ERISA altered prior law or where the final version of the statute differed from the predecessor bills, [Footnote 10] it is reasonable to assume that, had the Conference Committee intended to make § 4044(a) a source of benefit entitlements, it would have discussed the change in the Conference Report.Respondents offer an alternative statutory argument. They suggest that, because all accrued benefits vest upon plan Page 490 U. S. 725 termination pursuant to 26 U.S.C. § 411(d)(3), they are nonforfeitable benefits which fall within category 5 of the allocation scheme. Thus, they argue, if category 6 did not cover forfeitable benefits such as the contingent early retirement benefits at issue here, it would serve no purpose.Respondents are mistaken. The PBGC has consistently maintained that, for purposes of its guarantee and of asset allocation under § 4044(a), the characterization of benefits as forfeitable or nonforfeitable depends upon their status before plan termination. See 29 CFR §§ 2613.6(b) and 2618.2 (1987) ("[B]enefits that become nonforfeitable solely as a result of the termination of a plan [are] considered forfeitable"). Soon after the enactment of ERISA, the PBGC stated that "priority category 6 will contain the value of accrued forfeitable benefits of a participant." 40 Fed.Reg. 51370 (1975). Thus, according to the PBGC, category 6 provides for the allocation of benefits that are forfeitable before plan termination, as well as benefits provided under the plan for payment solely upon plan termination. See 29 CFR § 2618.16 (1987). Respondents have failed to persuade us that the PBGC's views are unreasonable. On the contrary, it is respondents' interpretation which cannot be squared with the statute. For if category 5 included benefits that were forfeitable before plan termination as well as those that were nonforfeitable, there would be no guarantee that nonforfeitable benefits would be paid before forfeitable benefits in cases where plan assets are insufficient to cover both. This result would contravene the clear directive of the allocation scheme to give priority to nonforfeitable benefits.IIIWe hold that § 4044(a)(6) does not create benefit entitlements, but simply provides for the orderly distribution of plan assets required by the terms of a defined benefit plan or other provisions of ERISA. Because the Court of Appeals relied exclusively on § 4044(a)(6) as the grounds for respondents' entitlement Page 490 U. S. 726 to unreduced retirement benefits upon plan termination, we reverse that judgment. Respondents, however, offer two alternative grounds for concluding that ERISA requires payment of unreduced early retirement benefits before surplus assets revert to the employer: first, unreduced early retirement benefits may qualify as "accrued benefits" under ERISA; and, second, unreduced early retirement benefits may be "liabilities" within the meaning of § 4044(d)(1)(A), 29 U.S.C. § 1344(d)(1)(A). Because the Court of Appeals concluded that § 4044(a)(6) was a source of entitlement for unaccrued benefits, it did not reach these questions. We therefore remand for a determination whether respondents are entitled to damages on the basis of either of these alternative theories. In deciding these issues, the Court of Appeals should consider the views of the PBGC and the IRS. For a court to attempt to answer these questions without the views of the agencies responsible for enforcing ERISA would be to "embar[k] upon a voyage without a compass." Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 444 U. S. 568 (1980). [Footnote 11] Page 490 U. S. 727Because § 4044(a)(6) is solely an allocation provision, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtMead Corp. v. Tilley, 490 U.S. 714 (1989)Mead Corp. v. TilleyNo. 87-1868Argued February 22, 1989Decided June 5, 1989490 U.S. 714SyllabusUnder the Employee Retirement Income Security Act of 1974 (ERISA), the Pension Benefit Guaranty Corporation (PBGC) guarantees certain nonforfeitable benefits provided by qualified defined benefit pension plans. When an employer voluntarily terminates a single-employer defined benefit plan, all accrued benefits automatically vest, notwithstanding the plan's particular vesting provisions. Plan assets are then distributed to participants in accordance with a six-category allocation scheme set forth in § 4044(a), which requires that plan administrators first distribute nonforfeitable benefits guaranteed by the PBGC, §§ 4044 (a)(1-4); then "all other nonforfeitable benefits under the plan," § 4044 (a)(5); and finally "all other benefits under the plan." § 4044(a)(6). Any remaining funds may be recouped by the employer. § 4044(d)(1)(A). Respondents, five employees of the Lynchburg Foundry Company (Foundry), formerly a wholly owned subsidiary of petitioner Mead Corp. (Mead), were covered by the Mead Industrial Salaried Retirement Plan (Plan), a single-employer defined benefit plan funded entirely by the employer. Plan benefits included normal retirement benefits payable at age 65, early retirement benefits payable at age 55 but reduced for each year by which retirement preceded normal retirement age, and unreduced early retirement benefits available to participants who had 30 or more years of service and elected to retire after age 62. When Mead sold Foundry and terminated the Plan, it paid unreduced early retirement benefits only to those who had met both the age and years of service requirements for such benefits. Respondents -- all under age 62 -- received pay equal to the present value of the normal retirement benefit to which they would have been entitled had they retired at age 65, a sum less than the present value of unreduced early retirement payments. After distribution, Mead recouped nearly $11 million in plan assets. Respondents filed a suit in Virginia state court, which was later removed to the Federal District Court, alleging, inter alia, that the failure to pay the present value of the unreduced early retirement benefits violated ERISA. The District Court granted Mead summary judgment, concluding that, since early retirement benefits are not "accrued benefits" under ERISA, respondents were not entitled to any additional sums under the Plan, and that the remaining fund assets could revert to Mead. Page 490 U. S. 715 The Court of Appeals reversed, holding that, before plan assets may revert to an employer, § 4044(a)(6) requires payment of early retirement benefits to plan participants even if those benefits were not accrued at the time of termination.Held:1. Upon termination of a defined benefit plan, § 4044(a) does not require a plan administrator to pay plan participants unreduced early retirement benefits provided under the plan before residual assets may revert to an employer. Section 4044(a)(6) does not create benefit entitlements, but simply provides for the orderly distribution of plan assets required by ERISA's provisions. Pp. 490 U. S. 721-725.(a) Neither § 4044(a)'s plain language nor its legislative history in any way indicates an intent to confer a right upon plan participants to recover benefits not provided for elsewhere. Contrary to respondents' argument -- that contingent unreduced early retirement benefits, even if unaccrued, are benefits "under the plan" under category 6 and must be distributed before an employer can recoup residual assets -- the "under the plan" language refers only to allocation of benefits provided by the terms of the terminated plan. That § 4044(a) is a distribution mechanism is also illustrated by ERISA's structure, since it is inconceivable that Title IV -- which simply provides for insurance for benefits generated elsewhere -- was designed to modify the carefully crafted provisions of Title I, which determine the employee's right to benefits. The PBGC, whose views are accepted in light of ERISA's language and legislative history, as well as the IRS and the Labor Department, agrees that category 6 is limited to benefits created elsewhere. Pp. Pp. 490 U. S. 721-724.(b) Respondents are also mistaken in their alternative statutory argument that, because all accrued benefits vest upon plan termination, they are nonforfeitable benefits falling within category 5, and, thus, category 6 would serve no purpose if it did not cover forfeitable benefits such as those at issue. The PBGC has consistently maintained that, for the purposes of § 4044(a) allocation, the characterization of benefits as forfeitable or nonforfeitable depends upon their status before plan termination. Respondents' contrary interpretation cannot be squared with the plain meaning of the statute, since including both forfeitable and nonforfeitable benefits in category 5 would contravene the clear directive of the allocation scheme to give priority to nonforfeitable benefits. Pp. 490 U. S. 724-725.2. On remand for a determination whether respondents are entitled to damages based on either of their two alternative grounds for concluding that ERISA requires payment of unreduced early retirement benefits before surplus assets revert to the employer -- that unreduced early retirement benefits may qualify as "accrued benefits" under ERISA, Page 490 U. S. 716 and that such benefits may be "liabilities" within the meaning of § 4044(d)(1)(A) -- the Court of Appeals should consider the views of the PBGC and the IRS. Pp. 490 U. S. 725-726.815 F.2d 989, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 490 U. S. 727.

1988_87-6571

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.This case requires us to decide what constitutional standard governs a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other "seizure" of his person. We hold that such claims are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard.In this action under 42 U.S.C. § 1983, petitioner Dethorne Graham seeks to recover damages for injuries allegedly sustained when law enforcement officers used physical force against him during the course of an investigatory stop. Because the case comes to us from a decision of the Court of Appeals affirming the entry of a directed verdict for respondents, we take the evidence hereafter noted in the light most favorable to petitioner. On November 12, 1984, Graham, a diabetic, felt the onset of an insulin reaction. He asked a friend, William Berry, to drive him to a nearby convenience store so he could purchase some orange juice to counteract the reaction. Berry agreed, but when Graham entered the store, he saw a number of people ahead of him in the checkout Page 490 U. S. 389 line. Concerned about the delay, he hurried out of the store and asked Berry to drive him to a friend's house instead.Respondent Connor, an officer of the Charlotte, North Carolina, Police Department, saw Graham hastily enter and leave the store. The officer became suspicious that something was amiss, and followed Berry's car. About one-half mile from the store, he made an investigative stop. Although Berry told Connor that Graham was simply suffering from a "sugar reaction," the officer ordered Berry and Graham to wait while he found out what, if anything, had happened at the convenience store. When Officer Connor returned to his patrol car to call for backup assistance, Graham got out of the car, ran around it twice, and finally sat down on the curb, where he passed out briefly.In the ensuing confusion, a number of other Charlotte police officers arrived on the scene in response to Officer Connor's request for backup. One of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring Berry's pleas to get him some sugar. Another officer said:"I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the M.F. but drunk. Lock the S.B. up."App. 42. Several officers then lifted Graham up from behind, carried him over to Berry's car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to "shut up" and shoved his face down against the hood of the car. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham's brought some orange juice to the car, but the officers refused to let him have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers drove him home and released him. Page 490 U. S. 390At some point during his encounter with the police, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder; he also claims to have developed a loud ringing in his right ear that continues to this day. He commenced this action under 42 U.S.C. § 1983 against the individual officers involved in the incident, all of whom are respondents here, [Footnote 1] alleging that they had used excessive force in making the investigatory stop, in violation of "rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983." Complaint � 10, App. 5. [Footnote 2] The case was tried before a jury. At the close of petitioner's evidence, respondents moved for a directed verdict. In ruling on that motion, the District Court considered the following four factors, which it identified as "[t]he factors to be considered in determining when the excessive use of force gives rise to a cause of action under § 1983": (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) "[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm." 644 F. Supp. 246, 248 (WDNC 1986). Finding that the amount of force used by the officers was "appropriate under the circumstances," that "[t]here was no discernible injury inflicted," and that the force used "was not applied maliciously or sadistically for the very purpose of causing harm," but in "a good faith effort to maintain or restore order in the face of a potentially explosive Page 490 U. S. 391 situation," id. at 248-249, the District Court granted respondents' motion for a directed verdict.A divided panel of the Court of Appeals for the Fourth Circuit affirmed. 827 F.2d 945 (1987). The majority ruled first that the District Court had applied the correct legal standard in assessing petitioner's excessive force claim. Id. at 948-949. Without attempting to identify the specific constitutional provision under which that claim arose, [Footnote 3] the majority endorsed the four-factor test applied by the District Court as generally applicable to all claims of "constitutionally excessive force" brought against governmental officials. Id. at 948. The majority rejected petitioner's argument, based on Circuit precedent, [Footnote 4] that it was error to require him to prove that the allegedly excessive force used against him was applied "maliciously and sadistically for the very purpose of causing harm." [Footnote 5] Ibid. Finally, the majority held that a reasonable jury applying the four-part test it had just endorsed Page 490 U. S. 392 to petitioner's evidence "could not find that the force applied was constitutionally excessive." Id. at 949-950. The dissenting judge argued that this Court's decisions in Terry v. Ohio, 392 U. S. 1 (1968), and Tennessee v. Garner, 471 U. S. 1 (1985), required that excessive force claims arising out of investigatory stops be analyzed under the Fourth Amendment's "objective reasonableness" standard. 827 F.2d at 950-952. We granted certiorari, 488 U.S. 816 (1988), and now reverse.Fifteen years ago, in Johnson v. Glick, 481 F.2d 1028 (CA2), cert. denied, 414 U.S. 1033 (1973), the Court of Appeals for the Second Circuit addressed a § 1983 damages claim filed by a pretrial detainee who claimed that a guard had assaulted him without justification. In evaluating the detainee's claim, Judge Friendly applied neither the Fourth Amendment nor the Eighth, the two most textually obvious sources of constitutional protection against physically abusive governmental conduct. [Footnote 6] Instead, he looked to "substantive due process," holding that,"quite apart from any 'specific' of the Bill of Rights, application of undue force by Page 490 U. S. 393 law enforcement officers deprives a suspect of liberty without due process of law."481 F.2d at 1032. As support for this proposition, he relied upon our decision in Rochin v. California, 342 U. S. 165 (1952), which used the Due Process Clause to void a state criminal conviction based on evidence obtained by pumping the defendant's stomach. 481 F.2d at 1032-1033. If a police officer's use of force which "shocks the conscience" could justify setting aside a criminal conviction, Judge Friendly reasoned, a correctional officer's use of similarly excessive force must give rise to a due process violation actionable under § 1983. Ibid. Judge Friendly went on to set forth four factors to guide courts in determining "whether the constitutional line has been crossed" by a particular use of force -- the same four factors relied upon by the courts below in this case. Id. at 1033.In the years following Johnson v. Glick, the vast majority of lower federal courts have applied its four-part "substantive due process" test indiscriminately to all excessive force claims lodged against law enforcement and prison officials under § 1983, without considering whether the particular application of force might implicate a more specific constitutional right governed by a different standard. [Footnote 7] Indeed, many courts have seemed to assume, as did the courts below in this case, that there is a generic "right" to be free from excessive force, grounded not in any particular constitutional provision, but rather in "basic principles of § 1983 jurisprudence." [Footnote 8]We reject this notion that all excessive force claims brought under § 1983 are governed by a single generic standard. As we have said many times, § 1983 "is not itself a Page 490 U. S. 394 source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U. S. 137, 443 U. S. 144, n. 3 (1979). In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. See id. at 443 U. S. 140 ("The first inquiry in any § 1983 suit" is "to isolate the precise constitutional violation with which [the defendant] is charged"). [Footnote 9] In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures of the person or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct. The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force" standard. See Tennessee v. Garner, supra, at 471 U. S. 7-22 (claim of excessive force to effect arrest analyzed under a Fourth Amendment standard); Whitley v. Albers, 475 U. S. 312, 475 U. S. 318-326 (1986) (claim of excessive force to subdue convicted prisoner analyzed under an Eighth Amendment standard).Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable . . . seizures" of the person. This much is clear from our decision in Tennessee v. Garner, supra. In Garner, we addressed a claim that the use of deadly force to apprehend a fleeing suspect who did not appear to be armed or otherwise dangerous violated the suspect's constitutional rights, notwithstanding the existence of probable cause to arrest. Page 490 U. S. 395 Though the complaint alleged violations of both the Fourth Amendment and the Due Process Clause, see 471 U.S. at 471 U. S. 5, we analyzed the constitutionality of the challenged application of force solely by reference to the Fourth Amendment's prohibition against unreasonable seizures of the person, holding that the "reasonableness" of a particular seizure depends not only on when it is made, but also on how it is carried out. Id. at 471 U. S. 7-8. Today we make explicit what was implicit in Garner's analysis, and hold that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims. [Footnote 10] Page 490 U. S. 396Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests'" against the countervailing governmental interests at stake. Id. at 471 U. S. 8, quoting United States v. Place, 462 U. S. 696, 462 U. S. 703 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S. at 392 U. S. 22-27. Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U. S. 520, 441 U. S. 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S. at 471 U. S. 8-9 (the question is "whether the totality of the circumstances justifie[s] a particular sort of. . . seizure").The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 392 U. S. 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U. S. 797 (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U. S. 79 (1987). With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," Johnson v. Glick, 481 F.2d at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody Page 490 U. S. 397 allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U. S. 128, 436 U. S. 137-139 (1978); see also Terry v. Ohio, supra, at 392 U. S. 21 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra, at 436 U. S. 138, citing United States v. Robinson, 414 U. S. 218 (1973).Because petitioner's excessive force claim is one arising under the Fourth Amendment, the Court of Appeals erred in analyzing it under the four-part Johnson v. Glick test. That test, which requires consideration of whether the individual officers acted in "good faith" or "maliciously and sadistically for the very purpose of causing harm," is incompatible with a proper Fourth Amendment analysis. We do not agree with the Court of Appeals' suggestion, see 827 F.2d at 948, that the "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances. Whatever the empirical correlations between "malicious and sadistic" behavior and objective unreasonableness may be, the fact remains that the "malicious and sadistic" factor puts in issue the subjective motivations of the individual officers, which our prior cases make clear has no bearing on whether a particular seizure is "unreasonable" under the Fourth Amendment. Nor do we agree with the Page 490 U. S. 398 Court of Appeals' conclusion, see id. at 948, n. 3, that, because the subjective motivations of the individual officers are of central importance in deciding whether force used against a convicted prisoner violates the Eighth Amendment, see Whitley v. Albers, 475 U.S. at 475 U. S. 320-321, [Footnote 11] it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee violates the Fourth Amendment. Differing standards under the Fourth and Eighth Amendments are hardly surprising: the terms "cruel" and "punishment" clearly suggest some inquiry into subjective state of mind, whereas the term "unreasonable" does not. Moreover, the less protective Eighth Amendment standard applies "only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Ingraham v. Wright, 430 U. S. 651, 430 U. S. 671, Page 490 U. S. 399 n. 40 (1977). The Fourth Amendment inquiry is one of "objective reasonableness" under the circumstances, and subjective concepts like "malice" and "sadism" have no proper place in that inquiry. [Footnote 12]Because the Court of Appeals reviewed the District Court's ruling on the motion for directed verdict under an erroneous view of the governing substantive law, its judgment must be vacated and the case remanded to that court for reconsideration of that issue under the proper Fourth Amendment standard.It is so ordered

U.S. Supreme CourtGraham v. Connor, 490 U.S. 386 (1989)Graham v. ConnorNo. 87-6571Argued February 21, 1989Decided May 15, 1989490 U.S. 386SyllabusPetitioner Graham, a diabetic, asked his friend, Berry, to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend's house instead. Respondent Connor, a city police officer, became suspicious after seeing Graham hastily enter and leave the store, followed Berry's car, and made an investigative stop, ordering the pair to wait while he found out what had happened in the store. Respondent backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham's condition. During the encounter, Graham sustained multiple injuries. He was released when Conner learned that nothing had happened in the store. Graham filed suit in the District Court under 42 U.S.C. § 1983 against respondents, alleging that they had used excessive force in making the stop, in violation of "rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983." The District Court granted respondents' motion for a directed verdict at the close of Graham's evidence, applying a four-factor test for determining when excessive use of force gives rise to a § 1983 cause of action, which inquires, inter alia, whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. Johnson v. Glick, 481 F.2d 1028. The Court of Appeals affirmed, endorsing this test as generally applicable to all claims of constitutionally excessive force brought against government officials, rejecting Graham's argument that it was error to require him to prove that the allegedly excessive force was applied maliciously and sadistically to cause harm, and holding that a reasonable jury applying the Johnson v. Glick test to his evidence could not find that the force applied was constitutionally excessive.Held: All claims that law enforcement officials have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard. Pp. 490 U. S. 392-399.(a) The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected. Instead, courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then judge the claim by reference to the specific constitutional standard which governs that right. Pp. 490 U. S. 393-394.(b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard. Pp. 490 U. S. 394-395.(c) The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. Pp. 490 U. S. 396-397.(d) The Johnson v. Glick test applied by the courts below is incompatible with a proper Fourth Amendment analysis. The suggestion that the test's "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances is rejected. Also rejected is the conclusion that, because individual officers' subjective motivations are of central importance in deciding whether force used against a convicted prisoner violates the Eighth Amendment, it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee violates the Fourth Amendment. The Eighth Amendment terms "cruel" and "punishment" clearly suggest some inquiry into subjective state of mind, whereas the Fourth Amendment term "unreasonable" does not. Moreover, the less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. Pp. 490 U. S. 397-399.827 F.2d 945, vacated and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 490 U. S. 399. Page 490 U. S. 388

1973_72-851

MR. JUSTICE WHITE delivered the opinion of the Court.Both § 1331 and § 1362 of Title 28 of the United States Code confer jurisdiction on the district courts to hear cases "aris[ing] under the Constitution, laws, or treaties of the United States." [Footnote 1] Section 1331 requires that the amount in controversy exceed $10,000. Under § 1362, Indian tribes may bring such suits without regard to the amount in controversy. The question now before us is whether the District Court had jurisdiction over this case under either of these sections.IThe complaint was filed in the United States District Court for the Northern District of New York by the Oneida Indian Nation of New York State and the Oneida Indian Nation of Wisconsin against the Counties of Oneida and Madison in the State of New York. [Footnote 2] The Page 414 U. S. 664 complaint alleged that, from time immemorial down to the time of the American Revolution, the Oneidas had owned and occupied some six million acres of land in the State of New York. The complaint also alleged that, in the 1780's and 1790's, various treaties had been entered into between the Oneidas and the United States confirming the Indians' right to possession of their lands until purchased by the United States, [Footnote 3] and that, in 1790, the treaties had been implemented by federal statute, the Nonintercourse Act, 1 Stat. 137, forbidding the conveyance of Indian lands without the consent of the United States. It was then alleged that, in 1788, the Oneidas had ceded five million acres to the State of New York, 300,000 acres being withheld as a reservation, and that, in 1795, a portion of these reserved lands was also ceded to the State. Assertedly, the 1795 cession was without the consent of the United States, and hence ineffective to terminate the Page 414 U. S. 665 Indians' right to possession under the federal treaties and the applicable federal statutes. Also alleging that the 1795 cession was for an unconscionable and inadequate price and that portions of the premises were now in possession of and being used by the defendant counties, the complaint prayed for damages representing the fair rental value of the land for the period January 1, 1968, through December 31, 1969.The District Court ruled that the cause of action, regardless of the label given it, was created under state law, and required only allegations of the plaintiffs' possessory rights and the defendants' interference therewith. The possible necessity of interpreting a federal statute or treaties to resolve a potential defense was deemed insufficient to sustain federal question jurisdiction. The complaint was accordingly dismissed for want of subject matter jurisdiction for failure of the complaint to raise a question arising under the laws of the United States within the meaning of either § 1331 or § 1362.The Court of Appeals affirmed, with one judge dissenting, ruling that the jurisdictional claim "shatters on the rock of the well pleaded complaint' rule for determining federal question jurisdiction." 464 F.2d 916, 918 (CA2 1972). Although"[d]ecision would ultimately turn on whether the deed of 1795 complied with what is now 25 U.S.C. § 177 and what the consequences would be if it did not,"id. at 919, this alone did not establish "arising under" jurisdiction, because the federal issue was not one of the necessary elements of the complaint, which was read as essentially seeking relief based on the right to possession of real property. The Court of Appeals thought Taylor v. Anderson, 234 U. S. 74 (1914), directly in point. There, a complaint in ejectment did not state a claim arising under the laws of the United States even though it alleged that the defendants were claiming under a deed that was void under acts of Congress restraining Page 414 U. S. 666 the alienation of lands allotted to Choctaw and Chickasaw Indians. The Court applied the principle that whether a case arises under federal law or purposes of the jurisdictional statute"must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose."Id. at 234 U. S. 75-76. Because the only essential allegations were plaintiffs' rights to possession, defendants' wrongful holding and the damage claim, the complaint did not properly assert a federal issue, however likely it might be that it would be relevant to or determinative of a defense. In the present case, noting that the District Judge was correct in holding that, under New York law, these allegations would suffice to state a cause of action in ejectment, the Court of Appeals considered Taylor to be dispositive.Both the District Court and the Court of Appeals were in error, and we reverse the judgment of the Court of Appeals.IIAccepting the premise of the Court of Appeals that the case was essentially a possessory action, we are of the view that the complaint asserted a current right to possession conferred by federal law, wholly independent of state law. The threshold allegation required of such a well pleaded complaint -- the right to possession -- was plainly enough alleged to be based on federal law. The federal law issue, therefore, did not arise solely in anticipation of a defense. Moreover, we think that the basis for petitioners' assertion that they had a federal right to possession governed wholly by federal law cannot be said to be so insubstantial, implausible, foreclosed by prior decision of this Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be Page 414 U. S. 667 the ultimate resolution of the federal issues on the merits. See, e.g., The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 228 U. S. 25 (1913); Montana Catholic Missions v. Missoula County, 200 U. S. 118, 200 U. S. 130 (1906); Levering & Garrigues Co. v. Morrin, 289 U. S. 103, 289 U. S. 105-106 (1933); Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U. S. 246, 341 U. S. 249 (1951). Given the nature and source of the possessory rights of Indian tribes to their aboriginal lands, particularly when confirmed by treaty, it is plain that the complaint asserted a controversy arising under the Constitution, laws, or treaties of the United States within the meaning of both § 1331 and § 1362.It very early became accepted doctrine in this Court that, although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign -- first the discovering European nation and later the original States and the United States -- a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act. Once the United States was organized and the Constitution adopted, these tribal rights to Indian lands became the exclusive province of the federal law. Indian title, recognized to be only a right of occupancy, was extinguishable only by the United States. The Federal Government took early steps to deal with the Indians through treaty, the principal purpose often being to recognize and guarantee the rights of Indians to specified areas of land. This the United States did with respect to the various New York Indian tribes, including the Oneidas. The United States also asserted the primacy of federal law in the first Nonintercourse Act, passed in 1790, 1 Stat. 137, 138, which provided that"no sale of lands made by any Indians . . . within the United States, shall be valid to any person . . . or to any Page 414 U. S. 668 state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States. [Footnote 4]"This has remained the policy of the United States to this day. See 25 U.S.C. § 177.In United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 314 U. S. 345 (1941), a unanimous Court succinctly summarized the essence of past cases in relevant respects:"'Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.' Cramer v. United States, 261 U. S. 219, 261 U. S. 227. This policy was first recognized in Johnson v. M'Intosh, 8 Wheat. 543, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515; Mitchel v. United States, 9 Pet. 711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211; Buttz v. Northern Pacific Railroad\[, 119 U. S. 55]; United States v. Shoshone Tribe, 304 U. S. 111. As stated in Mitchel v. United States, supra, p. 34 U. S. 746, Indian 'right of occupancy Page 414 U. S. 669 is considered as sacred as the fee simple of the whites.'"The Santa Fe case also reaffirmed prior decisions to the effect that a tribal right of occupancy, to be protected, need not be "based upon a treaty, statute, or other formal government action." Id. at 314 U. S. 347. Tribal rights were nevertheless entitled to the protection of federal law, and, with respect to Indian title based on aboriginal possession, the "power of Congress . . . is supreme." Ibid.As indicated in Santa Fe, the fundamental propositions which it restated were firmly rooted in earlier cases. In Johnson v. M'Intosh, 8 Wheat. 543 (1823), the Court refused to recognize land titles originating in grants by Indians to private parties in 1773 and 1775; those grants were contrary to the accepted principle that Indian title could be extinguished only by or with the consent of the general government. The land in question, when ceded to the United States by the State of Virginia, was"occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted."Id. at 21 U. S. 586. See also id. at 21 U. S. 591-597, 21 U. S. 603. The possessory and treaty rights of Indian tribes to their lands have been the recurring theme of many other cases. [Footnote 5] Page 414 U. S. 670The rudimentary propositions that Indian title is a matter of federal law and can be extinguished only with federal consent apply in all of the States, including the original 13. It is true that the United States never held fee title to the Indian lands in the original States, as it did to almost all the rest of the continental United States, and that fee title to Indian lands in these States, or the preemptive right to purchase from the Indians, was in the State, Fletcher v. Peck, 6 Cranch 87 (1810). [Footnote 6] But this reality did not alter the doctrine that federal law, treaties, and statutes protected Indian occupancy, and that its termination was exclusively the province of federal law.For example, in Worcester v. Georgia, 6 Pet. 515 (1832), the State of Georgia sought to prosecute a white man for residing in Indian country contrary to the laws of the State. This Court held the prosecution a nullity, the Chief Justice referring to the treaties with the Cherokees and to the"universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent: that their territory was separated from that of any state within whose chartered limits they might reside, by a boundary Page 414 U. S. 671 line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere, and that the whole power of regulating the intercourse with them was vested in the United States."Id. at 31 U. S. 560. The Cherokee Nation was said to be occupying its own territory, "in which the laws of Georgia can have no force. . . ." The Georgia law was declared unconstitutional because it interfered with the relations"between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union."Id. at 31 U. S. 561.There are cases of similar import with respect to the New York Indians. These cases lend substance to petitioners' assertion that the possessory right claimed is a federal right to the lands at issue in this case. Fellows v. Blacksmith, 19 How. 366, 60 U. S. 372 (1857), which concerned the Seneca Indians, held that the"forcible removal [of Indians] must be made, if made at all, under the direction of the United States, [and] that this interpretation is in accordance with the usages and practice of the Government in providing for the removal of Indian tribes from their ancient possessions."In The New York Indians, 5 Wall. 761 (1867), the State sought to tax the reservation lands of the Senecas. The Court held the tax void. The Court referred to the Indian right of occupancy as creating"an indefeasible title to the reservations that may extend from generation to generation, and will cease only by the dissolution of the tribe, or their consent to sell to the party possessed of the right of preemption,"id. at 72 U. S. 771, and noted that New York "possessed no power to deal with Indian rights or title," id. at 72 U. S. 769. Of major importance, however, was the treaty of 1794, in which the United States acknowledged Page 414 U. S. 672 certain territory to be the property of the Seneca Nation and promised that "it shall remain theirs until they choose to sell the same to the people of the United States. . . ." Id. at 72 U. S. 766-767. The rights of the Indians to occupy those lands"do not depend on . . . any . . . statutes of the State, but upon treaties, which are the supreme law of the land; it is to these treaties we must look to ascertain the nature of these rights, and the extent of them."Id. at 72 U. S. 768. [Footnote 7] The State's attempt to tax reservation lands was invalidated as an interference with Indian possessory rights guaranteed by the Federal Government.Much later, in United States v. Forness, 125 F.2d 928 (CA2), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694 (1942), [Footnote 8] the Government sued Page 414 U. S. 673 to set aside certain leases granted by the Seneca tribe on certain reservation lands. It was argued in opposition that the suit was merely an action for ejectment Page 414 U. S. 674 which under state law could be defeated by a tender; but the Court of Appeals for the Second Circuit held that the Indian rights were federal, and that"state law cannot be invoked to limit the rights in lands granted by the United States to the Indians, because, as the court below recognized, state law does not apply to the Indians except so far as the United States has given its consent."Id. at 932. There being no federal statute making the statutory or decisional law of the State of New York applicable to the reservations, the controlling law remained federal law; and, absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law. [Footnote 9] Page 414 U. S. 675IIIEnough has been said, we think, to indicate that the complaint in this case asserts a present right to possession under federal law. The claim may fail at a later stage for a variety of reasons; but for jurisdictional purposes, this is not a case where the underlying right or obligation arises only under state law and federal law is merely alleged as a barrier to its effectuation, as was the case in Gully v. First National Bank, 299 U. S. 109 (1936). There, the suit was on a contract having its Page 414 U. S. 676 genesis in state law, and the tax that the defendant had promised to pay was imposed by a state statute. The possibility that a federal statute might bar its collection was insufficient to make the case one arising under the laws of the United States.Nor, in sustaining the jurisdiction of the District Court, do we disturb the well pleaded complaint rule of Taylor v. Anderson, supra, and like cases. [Footnote 10] Here, the right to possession itself is claimed to arise under federal law in the first instance. Allegedly, aboriginal title of an Indian tribe guaranteed by treaty and protected by statute has never been extinguished. In Taylor, the plaintiffs were individual Indians, not an Indian tribe; and the suit concerned lands allocated to individual Indians, not tribal rights to lands. See 32 Stat. 641. Individual patents had been issued with only the right to alienation being restricted for a period of time. Cf. Minnesota v. United States, 305 U. S. 382, 305 U. S. 386 n. 1 (1939); McKay v. Kalyton, 204 U. S. 458 (1907). Insofar as the underlying right to possession is concerned, Taylor is more like those cases indicating that"a controversy in respect of lands has never been regarded as presenting a Federal question merely because one of the parties to it has derived his title under an act of Congress."Shulthis v. McDougal, 225 U. S. 561, 225 U. S. 570 (1912). [Footnote 11] Once patent issues, the incidents of ownership are, for the most part, matters of local property law to be vindicated in local courts, and in such situations it is normally insufficient for "arising under" jurisdiction merely to allege that ownership Page 414 U. S. 677 or possession is claimed under a United States patent. Joy v. City of St. Louis, 201 U. S. 332, 201 U. S. 342-343 (1906). As the Court stated in Packer v. Bird, 137 U. S. 661, 137 U. S. 669 (1891):"The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the States for their grants; but whatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the States, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee."In the present case, however, the assertion of a federal controversy does not rest solely on the claim of a right to possession derived from a federal grant of title whose scope will be governed by state law. Rather, it rests on the not insubstantial claim that federal law now protects, and has continuously protected from the time of the formation of the United States, possessory right to tribal lands, wholly apart from the application of state law principles which normally and separately protect a valid right of possession.For the same reasons, we think the complaint before us satisfies the additional requirement formulated in some cases that the complaint reveal a "dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends." Shulthis v. McDougal, supra, at 225 U. S. 569; Gold-Washing Water Co. v. Keyes, 96 U. S. 199, 96 U. S. 203 (1878). [Footnote 12] Here, the Oneidas assert a present right to possession based in part on their aboriginal right of occupancy which was not terminable except by act of the United States. Page 414 U. S. 678 Their claim is also asserted to arise from treaties guaranteeing their possessory right until terminated by the United States, and "it is to these treaties [that] we must look to ascertain the nature of these [Indian] rights, and the extent of them." The New York Indians, 5 Wall. at 72 U. S. 768. Finally, the complaint asserts a claim under the Nonintercourse Acts which put in statutory form what was or came to be the accepted rule that the extinguishment of Indian title required the consent of the United States. To us, it is sufficiently clear that the controversy stated in the complaint arises under the federal law within the meaning of the jurisdictional statutes and our decided cases.IVThis is not to ignore the obvious fact that New York had legitimate and far-reaching connections with its Indian tribes antedating the Constitution, and that the State has continued to play a substantial role with respect to the Indians in that State. [Footnote 13] There has been recurring tension between federal and state law; state authorities have not easily accepted the notion that federal law and federal courts must be deemed the controlling considerations in dealing with the Indians. Fellows v. Blacksmith, The New York Indians, United States v. Forness, and the Tuscarora litigation are sufficient evidence that the reach and exclusivity of federal law with respect to reservation lands and reservation Indians did not go unchallenged, and it may be that they are, to some extent, challenged here. But this only Page 414 U. S. 679 underlines the legal reality that the controversy alleged in the complaint may well depend on what the reach and impact of the federal law will prove to be in this case.We are also aware that New York and federal authorities eventually reached partial agreement in 1948, when criminal jurisdiction over New York Indian reservations was ceded to the State. 62 Stat. 1224, 25 U.S.C. § 232. In addition, in 1950, civil disputes between Indians or between Indians and others were placed within the jurisdiction of the state courts"to the same extent as the courts of the State shall have jurisdiction in other civil actions and proceedings, as now or hereafter defined by the laws of such State."64 Stat. 845, 25 U.S.C. § 233. [Footnote 14] The latter statute, however, provided for the Page 414 U. S. 680 preservation of tribal laws and customs and saved Indian reservation lands from taxation and, with certain exceptions, from execution to satisfy state court judgments. Furthermore, it provided that nothing in the statute"shall be construed as authorizing the alienation from any Indian nation, tribe, or band of Indians of any lands within any Indian reservation in the State of New York,"or as"conferring jurisdiction on the courts of the State of New York or making applicable the laws of the State of New York in civil actions involving Indian lands or claims with respect thereto which relate to transactions or events transpiring prior to September 13, 1952."The Senate report on the bill disclaimed any intention of "impairing any of their property or rights under existing treaties with the United States." S.Rep. No. 1836, 81st Cong., 2d Sess., 2 (1950). Under the penultimate proviso the matter of alienating tribal reservation lands would appear to have been left precisely where it was prior to the Act. [Footnote 15] Moreover, the final proviso of the statute Page 414 U. S. 681 negativing the application of state law with respect to transactions prior to the adoption of the Act was added by amendment on the floor of the Senate, and its purpose was explained by the gentleman who offered it to be as follows:"Mr. Chairman, I do not think there will be any objection from any source with regard to this particular amendment. This just assures the Indians of an absolutely fair and impartial determination of any claims they might have had growing out of any relationship they have had with the great State of New York in regard to their lands.""I think there will be no objection to that; they certainly ought to have a right to have those claims properly adjudicated. . . . "Page 414 U. S. 682"In addition thereto, of course, they may go into the Federal courts and adjudicate any differences they have had between themselves and the great State of New York relative to their lands, or claims in regard thereto, and I am sure that the State of New York should have, and no doubt will have, no objection to such provision."96 Cong.Rec. 12460 (1950) (remarks of Congressman Morris). Our conclusion that this case arises under the laws of the United States is, therefore, wholly consistent with and in furtherance of the intent of Congress as expressed by its grant of civil jurisdiction to the State of New York with the indicated exceptions. [Footnote 16]The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtOneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974)Oneida Indian Nation of New York v. County of Oneida, New YorkNo. 72-851Argued November 6-7, 1973Decided January 21, 1974414 U.S. 661SyllabusPetitioners brought this action for the fair rental value for a specified period of certain land in New York that the Oneidas had ceded to the State in 1795, alleging, inter alia, that the Oneidas had owned and occupied the land from time immemorial to the time of the American Revolution; that, in the 1780's and 1790's, various treaties with the United States had confirmed their right to possession of the land until purchased by the United States; that, in 1790, the treaties had been implemented by the Nonintercourse Act forbidding the conveyance of Indian lands without the United States' consent; and that the 1795 cession was without such consent, and hence ineffective to terminate the Oneidas' right to possession under the treaties and applicable federal statutes. The District Court, ruling that the action arose under state law, dismissed the complaint for failure to raise a question arising under the laws of the United States within the meaning of either 28 U.S.C. § 1331 or 28 U.S.C. § 1362. The Court of Appeals, relying on the "well pleaded complaint rule" of Taylor v. Anderson, 234 U. S. 74, affirmed and held that, although the decision would ultimately depend on whether the 1795 cession complied with the Nonintercourse Act, and what the consequences would be if it did not, this alone did not establish "arising under" jurisdiction because the federal issue was not one of the necessary elements of the complaint, which essentially sought relief based on the right to possession of real property.Held: The complaint states a controversy arising under the Constitution, laws, or treaties of the United States sufficient to invoke the jurisdiction of the District Court under 28 U.S.C. §§ 1331 and 1362. Pp. 414 U. S. 666-682.(a) Petitioners asserted a current right to possession conferred by federal law, wholly independent of state law, the threshold allegation required of such a well pleaded complaint -- the right to possession -- being plainly enough alleged to be based on federal law so that the federal law issue did not arise solely in anticipation of a defense. Pp. 414 U. S. 666, 414 U. S. 677. Page 414 U. S. 662(b) Petitioners' claim of a federal right to possession governed wholly by federal law is not so insubstantial or devoid of merit as to preclude a federal controversy within the District Court's jurisdiction, regardless of how the federal issue is ultimately resolved. Pp. 414 U. S. 666-667.(c) Indian title is a matter of federal law, and can be extinguished only with federal consent. Pp. 414 U. S. 670-674.(d) This is not a case where the underlying right or obligation arises only under state law and federal law is merely alleged as a barrier to its effectuation. Gully v. First National Bank, 299 U. S. 109, distinguished. Pp. 414 U. S. 675-676.(e) In sustaining the District Court's jurisdiction, the well pleaded complaint rule of Taylor v. Anderson, supra, is not disturbed, since here the right to possession itself is claimed to arise under federal law in the first instance, and allegedly aboriginal title of an Indian tribe guaranteed by treaty and protected by statute has never been extinguished. P. 414 U. S. 676.(f) The complaint satisfies the requirement that it reveal a dispute or controversy respecting the validity, construction, or effect of a federal law upon the determination of which the result depends. Pp. 414 U. S. 677-678.(g) The conclusion that this case arises under the laws of the United States comports with the language and legislative history of 25 U.S.C. § 233 granting to New York civil jurisdiction over disputes between Indians or between Indians and others. Pp. 414 U. S. 678-682.464 F.2d 916, reversed and remanded.WHITE, J., delivered the opinion for a unanimous Court. REHNQUIST, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 414 U. S. 682. Page 414 U. S. 663

1973_72-403

(b) Considering the disruptive effect that the grant of temporary relief here was likely to have on the administrative process, and in view of the historical denial of all equitable relief by federal courts in disputes involving discharge of Government employees, the well established rule that the Government be granted the widest latitude in handling it own internal affairs, and the traditional unwillingness of equity courts to enforce personal service contracts, the Court of Appeals erred in routinely applying the traditional standards governing more orthodox "stays," and respondent, at the very least, must show irreparable injury sufficient in kind and degree to override the foregoing factors. Pp. 415 U. S. 78-84.(c) Viewing the order at issue as a preliminary injunction, the Court of Appeals erred in suggesting that, at this stage of the proceeding, the District Court need not have concluded that there was actually irreparable injury, and in intimating that, as alleged in respondent's unverified complaint, either loss of earning or damage to reputation might afford a basis for a finding of irreparable injury. Pp. 415 U. S. 84-92.149 U.S.App.D.C. 256, 462 F.2d 871, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 415 U. S. 92. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 415 U. S. 97.MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent is a probationary employee in the Public Buildings Service of the General Services Administration (GSA). In May, 1971, approximately four months Page 415 U. S. 63 after her employment with GSA began, she was advised in writing by the Acting Commissioner of the Public Buildings Service, W. H. Sanders, that she would be discharged from her position on May 29, 1971. She then filed this action in the United States District Court for the District of Columbia, seeking to temporarily enjoin her dismissal pending her pursuit of an administrative appeal to the Civil Service Commission. The District Court granted a temporary restraining order, and after an adversary hearing extended the interim injunctive relief in favor of respondent until the Acting Commissioner of the Public Buildings Service testified about the reasons for respondent's dismissal.A divided Court of Appeals for the District of Columbia Circuit affirmed, [Footnote 1] rejecting the Government's contention that the District Court had no authority whatever to grant temporary injunctive relief in this class of cases, and holding that the relief granted by the District Court in this particular case was within the permissible bounds of its discretion. We granted certiorari sub nom. Kunzi v. Murray, 410 U.S. 981 (1973). We agree with the Court of Appeals that the District Court is not totally without authority to grant interim injunctive relief to a discharged Government employee, but conclude that, judged by the standards which we hold must govern the issuance of such relief, the issuance of the temporary injunctive relief by the District Court in this case cannot be sustained.IRespondent was hired as a program analyst by the Public Buildings Service after previous employment in the Defense Intelligence Agency. Under the regulations Page 415 U. S. 64 of the Civil Service Commission, this career conditional appointment was subject to a one-year probationary period. [Footnote 2] Applicable regulations provided that respondent, during this initial term of probation, could be dismissed without being afforded the greater procedural advantages available to permanent employees in the competitive service. [Footnote 3] The underlying dispute between the parties arises over whether the more limited procedural requirements applicable to probationary employees were satisfied by petitioners in this case.The procedural protections which the regulations accord to most dismissed probationary employees are limited. Commonly, a Government agency may dismiss a probationary employee found unqualified for continued employment simply "by notifying him in writing as to why he is being separated and the effective date of the action." [Footnote 4] More elaborate procedures are specified when the ground for terminating a probationary employee is "for conditions arising before appointment." [Footnote 5] In such cases, the regulations require that the employee receive "an advance written notice stating the reasons, specifically and in detail, for the proposed action"; that the employee be given an opportunity to respond in writing and to furnish affidavits in support of his response; that the agency "consider" any answer filed by the employee in reaching its decision; and that the employee be notified of the agency's decision at the earliest practicable date. [Footnote 6] Respondent contends that her termination Page 415 U. S. 65 was based in part on her activities while in the course of her previous employment in the Defense Intelligence Agency, and that, therefore, she was entitled to an opportunity to file an answer under this latter provision.The letter which respondent received from the Acting Commissioner, notifying her of the date of her discharge, stated that the reason for her discharge was her "complete unwillingness to follow office procedure and to accept direction from [her] supervisors." After receipt of the letter, respondent's counsel met with a GSA personnel officer to discuss her situation and, in the course of the meeting, was shown a memorandum prepared by an officer of the Public Buildings Service upon which Sanders apparently based his decision to terminate respondent's employment. The memorandum contained both a discussion of respondent's conduct in her job with the Public Buildings Service and a discussion of her conduct during her previous employment at the Defense Page 415 U. S. 66 Intelligence Agency. Relying upon the inclusion of the information concerning her previous employment, respondent's counsel requested that she be given a detailed statement of the charges against her and an opportunity to reply -- the procedures to which she would be entitled under the regulations if, in fact, the basis of her discharge had been conduct during her previous employment. This request was denied.Respondent then filed an administrative appeal with the Civil Service Commission pursuant to the provisions of 5 CFR § 315.806(c), alleging that her termination was subject to § 315.805 and was not effected in accordance with the procedural requirements of that section. [Footnote 7] While her administrative appeal was pending undecided, she filed this action. Her complaint alleged that the agency had failed to follow the appropriate Civil Service regulations, alleged that her prospective discharge would deprive her of income and cause her to suffer the embarrassment of being wrongfully discharged, and requested a temporary restraining order and interim injunctive relief against her removal from employment pending agency determination of her appeal. The District Court granted the temporary restraining order at the time of the filing of respondent's complaint, and set a hearing on the application for a temporary injunction for the following week.At the hearing, on the temporary injunction, the District Court expressed its desire to hear the testimony of Sanders in person, and refused to resolve the controversy on the basis of his affidavit which the Government offered to furnish. When the Government declined Page 415 U. S. 67 to produce Sanders, the court ordered the temporary injunctive relief continued, stating that"Plaintiff may suffer immediate and irreparable injury, loss and damage before the Civil Service Commission can consider Plaintiff's claim. [Footnote 8]"The Government, desiring to test the authority of the District Court to enter such an order, has not produced Sanders, and the interim relief awarded respondent continues in effect at this time.On the Government's appeal to the Court of Appeals for the District of Columbia Circuit, the order of the District Court was affirmed. Although recognizing that"Congress presumably could remove the jurisdiction of the District Courts to grant such equitable interim relief, in light of the remedies available, [Footnote 9]"the court found that the District Court had the power to grant relief in the absence of an explicit prohibition from Congress. The Court of Appeals decided that the District Court acted within the bounds of permissible discretion in requiring Sanders to appear and testify [Footnote 10] and in continuing the temporary injunctive relief until he was produced as a witness by the Government. Page 415 U. S. 68IIWhile it would doubtless be intellectually neater to completely separate the question whether a District Court has authority to issue any temporary injunctive relief at the behest of a discharged Government employee from the question whether the relief granted in this case was proper, we do not believe the questions may be thus bifurcated into two water-tight compartments. We believe the basis for our decision can best be illuminated by taking up the various arguments which the parties urge upon us.Petitioners point out, and the Court of Appeals below apparently recognized, that Congress has given the District Courts no express statutory authorization to issue temporary "stays" in Civil Service cases. Although Congress has often specifically conferred such authority when it so desired -- for example, in the enabling statutes establishing the NLRB, [Footnote 11] the FTC, [Footnote 12] the FPC, [Footnote 13] and the SEC [Footnote 14] -- the statutes governing the Civil Service Commission are silent on the question. [Footnote 15] The rules and regulations Page 415 U. S. 69 promulgated pursuant to a broad grant of statutory authority likewise make no provision for interlocutory judicial intervention.The Court of Appeals nevertheless found that the district courts had traditional power to grant stays in such personnel cases. Commenting upon the Government's arguments for reversal below, the court stated:"It is asserted that the Civil Service Commission has been given exclusive review jurisdiction. But, as noted initially, there is no statutory power in the Civil Service Commission to grant a temporary stay of discharge. Prior to the Civil Service Act, a United States District Court would certainly have had jurisdiction and power to grant such temporary relief. The statute did not explicitly take it away, nor implicitly by conferring such jurisdiction and power on the CSC; we hold the District Court still has jurisdiction, and may exercise the power under established standards in appropriate circumstances. [Footnote 16]"If the issue were to turn solely on the earlier decisions of this Court examining the authority of federal courts to intervene in disputes about governmental employment, we think this assumption of the Court of Appeals is wrong. In Keim v. United States, 177 U. S. 290 (1900), this Court held that the Court of Claims had no authority to award damages to an employee who claimed he Page 415 U. S. 70 had been wrongfully discharged by his federal employer. [Footnote 17] In White v. Berry, 171 U. S. 366 (1898), a Government employee had sought to enjoin his employer from dismissing him from office, alleging that the removal would violate both the Civil Service Act and the applicable regulations. [Footnote 18] The Circuit Court assumed jurisdiction and issued an order prohibiting the defendant from interfering Page 415 U. S. 71 with the plaintiff's discharge of his duty"'until he shall be removed therefrom by proper proceedings had under the Civil Service Act and the rules and regulations made thereunder or by judicial proceedings at law. . . .' [Footnote 19]"This Court reversed. Discussing the apparently well established principle that "a court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee," [Footnote 20] the Court held that "the Circuit Court, sitting in equity, was without jurisdiction to grant the relief asked." [Footnote 21]Respondent's case, then, must succeed, if at all, despite earlier established principles regarding equitable intervention in disputes over tenure of governmental employees, and not because of them. Much water has flowed over the dam since 1898, and cases such as Service v. Dulles, 354 U. S. 363 (1957), cited by the District Court in its memorandum opinion in this case, establish that federal courts do have authority to review the claim of a discharged governmental employee that the agency effectuating the discharge has not followed administrative regulations. [Footnote 22] In that case, however, judicial proceedings Page 415 U. S. 72 were not commenceed until the administrative remedy had been unsuccessfully pursued. [Footnote 23] The fact that Government personnel decision are now ultimately subject to the type of judicial review sought in Service v. Dulles, supra, does not, without more, create the authority to issue interim injunctive relief which was held lacking in cases such as White v. Berry, supra.The Court of Appeals found support for its affirmance of the District Court's grant of injunctive relief in Scripps-Howard Radio v. FCC, 316 U. S. 4 (1942). In Scripps-Howard, the licensee of a Cincinnati radio station petitioned the FCC to vacate an order permitting a Columbus radio station to change its frequency and to increase its broadcasting power. The licensee also requested a hearing. When the Commission denied the petition, the licensee filed a statutory appeal in the Court of Appeals for the District of Columbia and, in conjunction with the docketing of the appeal, asked the court to stay the FCC order pending its decision. The Court of Appeals, apparently departing from a longstanding policy of issuing such stays, [Footnote 24] declined to do so in this case and ultimately certified the question of its power to this Court. [Footnote 25] Page 415 U. S. 73This Court held that the Court of Appeals had power to issue the stay, analogizing it to the traditional stay granted by an appellate court pending review of an inferior court's decision:"It has always been held, therefore, that, as part of its traditional equipment for the administration of justice,[*] a federal court can stay the enforcement of a judgment pending the outcome of an appeal. [Footnote 26]"But in Scripps-Howard, the losing party before the agency sought an interim stay of final agency action pending statutory judicial review. [Footnote 27] A long progression of cases in this Court had established the authority of a court, empowered by statute to exercise appellate jurisdiction, to issue appropriate writs in aid of that jurisdiction. [Footnote 28] The All Writs Act, first enacted as a part of the Judiciary Act of 1789, provided statutory confirmation of this Page 415 U. S. 74 authority. [Footnote 29] This Court in Scripps-Howard held that the same principles governed the authority of courts charged by statute with judicial review of agency decisions, and that the authority to grant a stay exists in such a court even though not expressly conferred by the statute which confers appellate jurisdiction.Scripps-Howard, supra, of course, is not the instant case. The authority of the District Court to review agency action under Service v. Dulles, supra, does not come into play until it may be authoritatively said that the administrative decision to discharge an employee does, in fact, fail to conform to applicable regulations. [Footnote 30] Until administrative action has become final, no court is in a position to say that such action did or did not conform to applicable regulations. Here respondent had obtained no administrative determination of her appeal at the time she brought the action in the District Court. She was, in effect, asking that court to grant her, on an interim basis, relief which the administrative agency charged with review of her employer's action could grant her only after it had made a determination on the merits.While both the District Court and the Court of Appeals characterized the District Court's intervention as a "stay," the mandatory retention of respondent in the position from which she was dismissed actually served to provide the most extensive relief which she might conceivably obtain from the agency after its review on the merits. It may well be that the Civil Service Commission, should it have agreed with respondent's version of the basis for her dismissal, would prohibit the final Page 415 U. S. 75 separation of respondent unless and until proper procedures had been followed. But this is not to say that it would hold respondent to be entitled to full reinstatement with the attendant tension with her superiors that the agency intended to avoid by dismissing her. Congress has provided that a wrongfully dismissed employee shall receive full payment and benefits for any time during which the employee was wrongfully discharged from employment. [Footnote 31] The Civil Service Commission could conceivably accommodate the conflicting claims in this case by directing respondent's superiors to provide her with an opportunity to reply by affidavit, and by ordering that she receive backpay for any period of her dismissal prior to the completion of the type of dismissal procedure required by the regulations.The Court in Scripps-Howard recognized that certain forms of equitable relief could not properly be granted by federal courts. The Court specifically contrasted the stay of a license grant and the stay of a license denial, finding that the latter would have no effect:"Of course, no court can grant an applicant an authorization which the Commission has refused. Page 415 U. S. 76 No order that the Court of Appeals could make would enable an applicant to go on the air when the Commission has denied him a license to do so. A stay of an order denying an application would, in the nature of things, stay nothing. It could not operate as an affirmative authorization of that which the Commission has refused to authorize. [Footnote 32]"Surely that conclusion would not vary depending upon whether the radio station had started broadcasting on its own initiative and sought to stay a Commission order directing it to cease. Yet here the District Court did authorize, on an interim basis, relief which the Civil Service Commission had neither considered nor authorized -- the mandatory reinstatement of respondent in her Government position. We are satisfied that Scripps-Howard, involving as it did the traditional authority of reviewing courts to grant stays, provides scant support for the injunction issued here.The Court of Appeals also relied upon FTC v. Dean Foods Co., 384 U. S. 597 (1966), in reaching its decision. There, a closely divided Court held that a Court of Appeals having ultimate jurisdiction to review orders of the Federal Trade Commission might, upon the Commission's application, [Footnote 33] grant a Page 415 U. S. 77 temporary injunction to preserve the controversy before the agency. The Commission's application alleged, [Footnote 34] and the court accepted, [Footnote 35] that refusal to grant the injunction would result in the practical disappearance of one of the entities whose merger the Commission sought to challenge. The disappearance, in turn, would mean that the agency, and the court entrusted by statute with authority to review the agency's decision, would be incapable of implementing their statutory duties by fashioning effective relief. Thus, invocation of the All Writs Act, as a preservative of jurisdiction, was considered appropriate.Neither the reviewing jurisdiction of the Civil Service Commission nor that of the District Court would be similarly frustrated by a decision of the District Court remitting respondent to her administrative remedy. Certainly the Civil Service Commission will be able to weigh respondent's contentions, and to order necessary relief without the aid of the District Court injunction. In direct contrast to the claim of the FTC in Dean Foods that its jurisdiction would be effectively defeated by Page 415 U. S. 78 denial of relief, the Commission here has argued that judicial action interferes with the normal agency processes. [Footnote 36] And we see nothing in the record to suggest that any judicial review available under the doctrine of Service v. Dulles would be defeated in the same manner as review in Dean Foods.We are therefore unpersuaded that the temporary injunction granted by the District Court in this case was justified either by our prior decisions dealing with the availability of injunctive relief to discharged federal employees, or by those dealing with the authority of reviewing courts to grant temporary stays or injunctions pending full appellate review. If the order of the District Court in this case is to be upheld, the authority must be found elsewhere.IIIThis Court observed in Scripps-Howard that "[t]he search for significance in the silence of Congress is too often the pursuit of a mirage," 316 U.S. at 316 U. S. 11, and this observation carries particular force when a statutory scheme grants broad regulatory latitude to an administrative agency. In Scripps-Howard, a careful review of the relevant statutory provisions and legislative history persuaded this Court that Congress had not intended to nullify the power of an appellate court, [Footnote 37] having assumed jurisdiction after an agency decision, to issue stays in aid of its jurisdiction. The Court noted, in Page 415 U. S. 79 particular, that stays were allowed in other cases processed through the FCC, [Footnote 38] and that the Court of Appeals had routinely issued stays in similar cases before undertaking an unexpected shift in policy. [Footnote 39] But, at the other end of the spectrum, in Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 (1963), this Court held that a specific congressional grant of power to the ICC to suspend proposed rate modifications precluded the District Court from extending the suspension by temporary injunction. This was true despite arguments that district courts traditionally had such power, and that Congress did not explicitly revoke the power by statute. [Footnote 40] The Court there said:"The more plausible inference is that Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be Page 415 U. S. 80 out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction. [Footnote 41]"The overall scheme governing employees of the Federal Government falls neatly within neither of these precedents. Unlike Scripps-Howard, traditional stay practice lends little support to the sort of relief which the District Court granted respondent here, and the precedents dealing with the availability of equitable relief to discharged Government employees are quite unfavorable to respondent. Unlike Arrow Transportation, supra, the administrative structure is far more a creature of agency regulations than of statute. We are thus not prepared to conclude that Congress in this class of cases has wholly divested the district courts of their customary authority to grant temporary injunctive relief, and, to that extent, we agree with the Court of Appeals. But merely because the factors relied upon by the Government do not establish that the district courts are wholly bereft of the authority claimed for them here does not mean, as the Court of Appeals appeared to believe, that temporary injunctive relief in this class of cases is to be dispensed without regard to those factors. While considerations similar to those found sufficient in Arrow Transportation to totally deprive the district courts of equitable authority do not have that force here, they nonetheless are entitled to great weight in the equitable balancing process which attends the grant of injunctive relief.We are dealing in this case not with a permanent Government employee, a class for which Congress has specified certain substantive and procedural protections, [Footnote 42] but with a probationary employee, a class which Congress Page 415 U. S. 81 has specifically recognized as entitled to less comprehensive procedures. Title 5 U.S.C. § 3321, derived from the original Pendleton Act, [Footnote 43] requires the creation of this classification:"The President may prescribe rules, which shall provide, as nearly as conditions of good administration warrant, that there shall be a period of probation before an appointment in the competitive service becomes absolute."It is also clear from other provisions in the Civil Service statutory framework that Congress expected probationary employees to have fewer procedural rights than permanent employees in the competitive service. For example, preference eligibles, [Footnote 44] commonly veterans, are entitled to hearing procedures extended to persons in the competitive service only after they have completed "a probationary or trial period." [Footnote 45] Persons suspended for national security reasons are given expanded protection provided they have completed a trial or probationary period. [Footnote 46]The Civil Service regulations are consistent with these statutes. These regulations are promulgated by the Civil Service Commission as authorized by Congress in Page 415 U. S. 82 5 U.S.C. § 1301-1302. [Footnote 47] Part 752, the regulations governing adverse agency actions, provides certain procedural safeguards for employees but, as did the statutes cited above, exempts "employee[s] currently serving a probationary or trial period." [Footnote 48] Such employees are remitted to the procedures specified in subpart H of Part 315, [Footnote 49] the procedures at issue here. Under § 752.202 of the regulations, permanent competitive service employees are to be retained in an active duty status only during the required 30-day notice period, and the Commission is given no authority to issue additional stays. [Footnote 50] It cannot prevent the dismissal of an employee or order his reinstatement prior to hearing and determining his appeal on the merits. Reasonably, a probationary employee could be entitled to no more than retention on active duty for the period preceding the effective date of his discharge.Congress has also provided a broad remedy for cases of improper suspension or dismissal. The Back Pay Act of 1948 [Footnote 51] supplemented the basic Lloyd-LaFollette Act Page 415 U. S. 83 of 1912 and provided that any person in the competitive Civil Service who was unjustifiably discharged and later restored to his position was entitled to full backpay for the time he was out of work. The benefits of this Act were extended to additional employees, including probationary employees, in 1966. [Footnote 52] Respondent was eligible for full compensation for any period of improper discharge under this section.As we have noted, respondent's only substantive claim, either before the District Court or in her administrative appeal, was that petitioners had violated the regulations promulgated by the Civil Service Commission. Those same regulations provided for an appeal to the agency which promulgated the regulations, and further provided that, until that appeal had been heard on the merits, the employer's discharge of the employee was to remain in effect. Respondent, however, sought judicial intervention before fully utilizing the administrative scheme.The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded here was likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, 171 U. S. 366 (1898), the well established rule that the Government has traditionally been granted the widest latitude in the "dispatch of its own internal affairs," Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 896 (1961), and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee, 5A A. Corbin, Contracts § 1204 (1964), we think that the Court of Appeals was quite wrong in routinely applying to this case the traditional Page 415 U. S. 84 standards governing more orthodox "stays." See Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (198). [Footnote 53] Although we do not hold that Congress has wholly foreclosed the granting of preliminary injunctive relief in such cases, we do believe that respondent, at the very least, must make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases. We now turn to the showing made to the District Court on that issue, and to the Court of Appeals' treatment of it.IVThe Court of Appeals said in its opinion:"Without passing on the merits of Mrs. Murray's contention that she will suffer irreparable harm if the sought-for relief is not granted (a task for the District Court here), we note that there was a determination that such a loss of employment could be 'irreparable harm' in Reeber v. Rossell (1950), a case quite similar to that at bar. We agree with the Reeber court that such a loss of employment can amount to irreparable harm, and that injunctive relief may be a proper remedy pending the final administrative determination of the validity of the discharge by the Civil Service Commission. [Footnote 54] "Page 415 U. S. 85At another point in its opinion, the Court of Appeals said:"As the District Court here felt that the hearing on the motion for the preliminary injunction could not be completed until Mr. Sanders was produced to testify, it was proper for him to continue the stay in order to preserve the status quo pending the completion of the hearing. [Footnote 55]"The court, in its supplemental opinion filed after the Government's petition for rehearing, further expanded its view of this aspect of the case:"The court's opinion does not hold, and the trial judge has not yet held, that interim relief is proper in Mrs. Murray's case, but we do hold that the trial judge may consider granting such relief, as this is inherent in his historical equitable role. [Footnote 56]"In form, the order entered by the District Court now before us is a continuation of the temporary restraining order originally issued by that court. [Footnote 57] It is clear from the Court of Appeals' opinion that that court so construed it. But since the order finally settled upon by the District Court was in no way limited in time, the provisions of Fed.Rule Civ.Proc. 65 come into play. That Rule states, in part:"(b) A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before Page 415 U. S. 86 the adverse party or his attorney can be heard in opposition. . . . Every temporary restraining order granted without notice . . . shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire, by its terms, within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period."The Court of Appeals whose judgment we are reviewing has held that a temporary restraining order continued beyond the time permissible under Rule 65 must be treated as a preliminary injunction, and must conform to the standards applicable to preliminary injunctions. National Mediation Board v. Airline Pilots Assn., 116 U.S.App.D.C. 300, 323 F.2d 305 (1963). We believe that this analysis is correct, at least in the type of situation presented here, and comports with general principles imposing strict limitations on the scope of temporary restraining orders. [Footnote 58] A district Page 415 U. S. 87 court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over tie parties in all injunctive proceeding. In this case, where an adversary hearing has been held, and the court's basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified. Therefore we Page 415 U. S. 88 view the order at issue here as a preliminary injunction. We believe that the Court of Appeals was quite wrong in suggesting that, at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury. [Footnote 59] This Court has stated that "[t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies," Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 359 U. S. 506-507 (1959), and the Court of Appeals itself in Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), has recognized as much. Yet the record before us indicates that no witnesses were heard on the issue of irreparable injury, that respondent's complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury [Footnote 60] We are therefore somewhat puzzled Page 415 U. S. 89 about the basis for the District Court's conclusion that respondent "may suffer immediate and irreparable injury." The Government has not specifically urged this procedural issue here, however, and the Court of Appeals in its opinion discussed the elements upon which it held that the District Court might base a conclusion of irreparable injury. Respondent's unverified complaint alleged that she might be deprived of her income for an indefinite period of time, that spurious and unrebutted charges against her might remain on the record, and that she would suffer the embarrassment of being wrongfully discharged in the presence of her coworkers. [Footnote 61] The Court of Appeals intimated that either loss of earnings or damage to reputation might afford a basis for a finding of irreparable injury and provide a basis for temporary injunctive relief. [Footnote 62] We disagree. [Footnote 63] Page 415 U. S. 90Even under the traditional standards of Virginia Petroleum Jobbers, supra, it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury. [Footnote 64] In that case, the court stated:"The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. [Footnote 65]"This premise is fortified by the Back Pay Act, discussed above. [Footnote 66] This Act not only affords monetary relief which will prevent the loss of earnings on a periodic basis from being "irreparable injury" in this type of case, but Page 415 U. S. 91 its legislative history suggests that Congress contemplated that it would be the usual, if not the exclusive, remedy for wrongful discharge. The manager of the bill on the floor of the Senate, Senator Langer, commented on the bill at the time of its passage:"[It] . . . provides that an agency or department of the Government may remove any employee at any time, but that the employee shall then have a right of appeal. When he is removed, he is, of course, off the payroll. If he wins the appeal, it is provided that he shall be paid for the time during which he was suspended. [Footnote 67]"Respondent's complaint also alleges, as a basis for relief, the humiliation and damage to her reputation which may ensue. As a matter of first impression, it would seem that no significant loss of reputation would be inflicted by procedural irregularities in effectuating respondent's discharge, and that whatever damage might occur would be fully corrected by an administrative determination requiring the agency to conform to the applicable regulations. Respondent's claim here is not that she could not as a matter of statutory or administrative right be discharged, but only that she was entitled to additional procedural safeguards in effectuating the discharge.Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the Page 415 U. S. 92 issuance of a temporary injunction in this type of case. [Footnote 68] We therefore reverse the decision of the Court of Appeals which approved the action of the District Court.It is so ordered

U.S. Supreme CourtSampson v. Murray, 415 U.S. 61 (1974)Sampson v. MurrayNo. 72-403Argued November 14, 1973Decided February 19, 1974415 U.S. 61CERTIORARI TO THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUITUpon being notified that she was going to be discharged on a specific date from her position as a probationary Government employee, respondent filed this action claiming that the applicable Civil Service regulations for discharge of probationary employees had not been followed, and seeking a temporary injunction against her dismissal pending an administrative appeal to the Civil Service Commission (CSC). The District Court granted a temporary restraining order, and, after an adversary hearing at which the Government declined to produce the discharging official as a witness to testify as to the reasons for the dismissal, ordered the temporary injunctive relief continued. The Court of Appeals affirmed, rejecting the Government's contention that the District Court had no authority to grant temporary injunctive relief in this class of cases, and holding that the relief granted was within the permissible bounds of the District Court's discretion.Held: While the District Court is not totally without authority to grant interim injunctive relief to a discharged Government employee, nevertheless under the standards that must govern the issuance of such relief, the District Court's issuance of the temporary injunctive relief here cannot be sustained. Pp. 415 U. S. 68-92.(a) The District Court's authority to review agency action, Service v. Dulles, 354 U. S. 363, does not come into play until it may be authoritatively said that the administrative decision to discharge an employee does, in fact, fail to conform to the applicable regulations, and until administrative action has become final, no court is in a position to say that such action did or did not conform to the regulations. Here, the District Court authorized, on an interim basis, relief that the CSC had neither considered nor authorized -- the mandatory reinstatement of respondent in her Government position. Scripps-Howard Radio v. FCC, 316 U. S. 4; FTC v. Dean Foods Co., 384 U. S. 597, distinguished. Pp. 415 U. S. 71-78. Page 415 U. S. 62

1990_89-1714

JUSTICE BLACKMUN delivered the opinion of the Court.The black lung benefits program, created by Congress, was to be administered first by the Social Security Administration (SSA) under the auspices of the then-existent Department of Health, Education, and Welfare (HEW), and later by the Department of Labor (DOL). Congress authorized these Departments, during their respective tenures, to adopt interim regulations governing the adjudication of claims for black lung benefits, but constrained the Secretary of Labor by providing that the DOL regulations "shall not be more restrictive than" HEW's. This litigation calls upon us to determine whether the Secretary of Labor has complied with that constraint.IAThe black lung benefits program was enacted originally as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 83 Stat. 792, 30 U.S.C. § 901 et seq., to provide benefits for miners totally disabled due at least in Page 501 U. S. 684 part to pneumoconiosis arising out of coal mine employment, and to the dependents and survivors of such miners. See Pittston Coal Group v. Sebben, 488 U. S. 105, 488 U. S. 108 (1988); Mullins Coal Co. v. Director, OWCP, 484 U. S. 135, 484 U. S. 138 (1987).Through FCMHSA, Congress established a bifurcated system of compensating miners disabled by pneumoconiosis. [Footnote 1] Part B thereof created a temporary program administered by the Social Security Administration under the auspices of the Secretary of Health, Education, and Welfare. This program was intended for the processing of claims filed on or before December 31, 1972. Benefits awarded under part B were paid by the Federal Government. For claims filed after 1972, part C originally authorized a permanent program, administered by the Secretary of Labor, to be coordinated with federally approved state workmen's compensation programs. Benefits awarded under part C were to be paid by the claimants' coal mining employers.Under FCMHSA, the Secretary of HEW was authorized to promulgate permanent regulations regarding the determination and adjudication of part B claims. 30 U.S.C. § 921(b). The Secretary's discretion was limited, however, by three statutory presumptions defining eligibility under the part B program. § 921(c). For a claimant suffering from pneumoconiosis who could establish 10 years of Page 501 U. S. 685 coal mine employment, there "shall be a rebuttable presumption that his pneumoconiosis arose out of such employment." § 921(c)(1). Similarly, for a miner with at least 10 years of coal mine employment who "died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis." § 921(c)(2). Finally, there was an irrebuttable presumption that a miner presenting medical evidence demonstrating complicated pneumoconiosis was totally disabled as a result of that condition. § 921(c)(3). Consistent with these presumptions, HEW promulgated permanent regulations prescribing the methods and standards for establishing entitlement to black lung benefits under part B. See 20 CFR §§ 410.401 to 410.476 (1990).Dissatisfied with the increasing backlog of unadjudicated claims and the relatively high rate of claim denials resulting from the application of the HEW permanent regulations, Congress in 1972 amended FCMSHA and redesignated Title IV of that Act as the Black Lung Benefits Act of 1972. 86 Stat. 150. See S.Rep. No. 92-743 (1972), U.S.Code Cong. & Admin.News 1972, p. 2305. See also Comptroller General of the United States, General Accounting Office, Report to the Congress: Achievements, Administrative Problems, and Costs in Paying Black Lung Benefits to Coal Miners and Their Widows 16-18 (September 5, 1972) (nationally, as of December 31, 1971, claims filed were 347,716, claims processed were 322,582, and rate of claim denial was 50.5 percent). In addition to extending the coverage of part B to those claims filed by living miners prior to July 1, 1973, and those filed by survivors before January 1, 1974, the 1972 amendments liberalized in several ways the criteria and procedures applicable to part B claims. First, the amendments added a fourth statutory presumption of total disability due to pneumoconiosis for claimants unable to produce X-ray evidence of the disease. This presumption applied to a claimant with 15 years of coal mine employment who presented evidence of a totally disabling respiratory or pulmonary impairment. Congress expressly limited rebuttal of the presumption to a showing that the miner did not Page 501 U. S. 686 have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of employment in a coal mine. 30 U.S.C. § 921(c)(4). Second, the 1972 amendments redefined "total disability" to permit an award of benefits on a showing that a miner was unable to perform his coal mining duties or other comparable work -- as opposed to the prior requirement that the miner demonstrate that he was unable to perform any job, see § 902(f) -- and prohibited HEW from denying a claim for benefits solely on the basis of a negative X-ray. § 923(b). Third, the 1972 amendments made it easier for survivors of a deceased miner who had been disabled due to pneumoconiosis but had died from a cause unrelated to the disease to demonstrate eligibility for benefits. See § 901. Finally, the amendments made clear that, "[i]n determining the validity of claims under [part B], all relevant evidence shall be considered." § 923(b).In response to these amendments, the Secretary of HEW adopted interim regulations"designed to 'permit prompt and vigorous processing of the large backlog of claims' that had developed during the early phases of administering part B."Sebben, 488 U.S. at 488 U. S. 109 quoting 20 CFR § 410.490(a) (1973). [Footnote 2] These interim regulations established adjudicatory rules for processing part B claims that permit the invocation of a presumption of eligibility upon demonstration by the claimant of specified factors, and a subsequent opportunity for the Social Security Administration, in administering the program, to rebut the presumption.Specifically, the HEW interim regulations permit claimants to invoke a rebuttable presumption that a miner is "totally Page 501 U. S. 687 disabled due to pneumoconiosis" in one of two ways. First, the claimant can introduce an X-ray, a biopsy, or an autopsy indicating pneumoconiosis. 20 CFR § 410.490(b)(1)(i) (1990). Second, for a miner with at least 15 years of coal mine employment, a claimant may introduce ventilatory studies establishing the presence of a chronic respiratory or pulmonary disease. § 410.490(b)(1)(ii). In either case, in order to invoke the presumption, the claimant also must demonstrate that the"impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see §§ 410.416 and 410.456)."§ 410.490(b)(2).Once a claimant invokes the presumption of eligibility under § 410.490(b), the HEW interim regulations permit rebuttal by the SSA upon a showing that the miner is doing his usual coal mine work or comparable and gainful work, or is capable of doing such work. See § 410.490(c).The statutory changes adopted by the 1972 amendments and the application of HEW's interim regulations resulted in a surge of claims approvals under part B. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677, 686 (1983) (demonstrating that the overall approval rate for part B claims had substantially increased by December 31, 1974). Because the HEW interim regulations expired with the part B program, however, the Secretary of Labor was constrained to adjudicate all part C claims, i.e., those filed after June 30, 1973, by living miners, and after December 31, 1973, by survivors, under the more stringent permanent HEW regulations. See Sebben, 488 U.S. at 488 U. S. 110. Neither the Congress nor the Secretary of Labor was content with the application to part C claims of the unwieldy and restrictive permanent regulations. See Letter, dated Sept. 13, 1974, of William J. Kilberg, Solicitor of Labor, to John B. Rhinelander, General Counsel, Department of HEW, appearing in H.R.Rep. No. 94-770, p. 14 (1975). Not only did the application of the permanent regulations cause the DOL to process claims slowly, but the DOL's Page 501 U. S. 688 claims approval rate was significantly below that of the SSA. See Lopatto, supra, at 691. Accordingly, Congress turned its attention once again to the black lung benefits program.CThe Black Lung Benefits Reform Act of 1977 (BLBRA), 92 Stat. 95, approved and effective Mar. 1, 1978, further liberalized the criteria for eligibility for black lung benefits in several ways. First, the Act expanded the definition of pneumoconiosis to include "sequelae" of the disease, including respiratory and pulmonary impairments arising out of coal mine employment. See 30 U.S.C. § 902(b). Second, BLBRA required the DOL to accept a board certified or board-eligible radiologist's interpretation of submitted X-rays if the films met minimal quality standards, thereby prohibiting the DOL from denying a claim based on a secondary assessment of the X-rays provided by a Government-funded radiologist. See § 923(b). Finally, the BLBRA added a fifth presumption of eligibility, and otherwise altered the entitlement structure to make it easier for survivors of a deceased long-term miner to obtain benefits. See §§ 921(c)(5) and 902(f).In addition to liberalizing the statutory prerequisites to benefit entitlement, the BLBRA authorized the DOL to adopt its own interim regulations for processing part C claims filed before March 31, 1980. In so doing, Congress required that the "[c]riteria applied by the Secretary of Labor . . . shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973." § 902(f)(2).The Secretary of Labor, pursuant to this authorization, adopted interim regulations governing the adjudication of part C claims. These regulations differ significantly from the HEW interim regulations. See 20 CFR § 727.203 (1990). The DOL regulations include two presumption provisions similar to the two presumption provisions in the HEW interim regulations. Compare §§ 727.203(a)(1) and (2) with §§ 410.490(b)(1)(i) and (ii). To invoke the presumption of eligibility Page 501 U. S. 689 under these two provisions, however, a claimant need not prove that the "impairment . . . arose out of coal mine employment," as was required under the HEW interim regulations. See § 410.490(b)(2).In addition, the DOL interim regulations add three methods of invoking the presumption of eligibility not included in the HEW interim regulations. Specifically, under the DOL regulations, a claimant can invoke the presumption of total disability due to pneumoconiosis by submitting blood gas studies that demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood; by submitting other medical evidence establishing the presence of a totally disabling respiratory or pulmonary impairment; or, in the case of a deceased miner for whom no medical evidence is available, by submitting a survivor's affidavit demonstrating such a disability. See §§ 727.203(a)(3), (4), and (5).Finally, the DOL interim regulations provide four methods for rebutting the presumptions established under § 727.203. Two of the rebuttal provisions mimic those in the HEW regulations, permitting rebuttal upon a showing that the miner is performing or is able to perform his coal mining or comparable work. See §§ 727.203(b)(1) and (2). The other two rebuttal provisions are at issue in these cases. Under these provisions, a presumption of total disability due to pneumoconiosis can be rebutted if "[t]he evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment," or if "[t]he evidence establishes that the miner does not, or did not, have pneumoconiosis." See §§ 727.203(b)(3) and (4).IIThe three cases before us present the question whether the DOL's interim regulations are "more restrictive than" the HEW's interim regulations by virtue of the third and fourth rebuttal provisions, and therefore are inconsistent with the agency's Page 501 U. S. 690 statutory authority. In No. 89-1714, Pauley v. BethEnergy Mines, Inc., the Court of Appeals for the Third Circuit concluded that the DOL interim regulations were not more restrictive. BethEnergy Mines, Inc. v. Director, OWCP, 890 F.2d 1295 (1989). John Pauley, the now-deceased husband of petitioner Harriet Pauley, filed a claim for black lung benefits on April 21, 1978, after he had worked 30 years in the underground mines of Pennsylvania. Pauley stopped working soon after he filed his claim for benefits. At a formal hearing on November 5, 1987, the Administrative Law Judge (ALJ) found that Pauley had begun to experience shortness of breath, coughing, and fatigue in 1974, and that those symptoms had gradually worsened, causing him to leave his job in the mines. The ALJ also found that Pauley had arthritis requiring several medications daily, had suffered a stroke in January, 1987, and had smoked cigarettes for 34 years until he stopped in 1974.Because respondent BethEnergy did not contest the presence of coal workers' pneumoconiosis, the ALJ found that the presumption had been invoked under § 727.203(a)(1). Turning to the rebuttal evidence, the judge concluded that Pauley was not engaged in his usual coal mine work or comparable and gainful work, and that Pauley was totally disabled from returning to coal mining or comparable employment. See §§ 727.203(b)(1) and (2). The judge then weighed the evidence submitted under § 727.203(b)(3), and determined that respondent BethEnergy had sustained its burden of establishing that pneumoconiosis was not a contributing factor in Pauley's total disability and, accordingly, that his disability did not "arise in whole or in part out of coal mine employment." § 727.203(b)(3). See Carozza v. United States Steel Corp., 727 F.2d 74 (CA3 1984).Having determined that Pauley was not entitled to receive black lung benefits under the DOL interim regulations, the ALJ felt constrained by Third Circuit precedent to apply the Page 501 U. S. 691 HEW interim regulations to Pauley's claim. He first concluded that respondent BethEnergy's concession that Pauley had pneumoconiosis arising out of coal mining employment was sufficient to invoke the presumption of total disability due to pneumoconiosis under § 410.490(b). Because the evidence demonstrated Pauley's inability to work, and the ALJ interpreted § 410.490(c) as precluding rebuttal of the presumption by "showing that the claimant's total disability is unrelated to his coal mine employment," the judge found that BethEnergy could not carry its burden on rebuttal, and that Pauley was entitled to benefits.After the ALJ denied its motion for reconsideration, BethEnergy appealed unsuccessfully to the Benefits Review Board. It then sought review in the Court of Appeals for the Third Circuit. That court reversed. It pointed out that the decisions of the ALJ and the Benefits Review Board created "two disturbing circumstances." 890 F.2d at 1299. First, the court found it "surely extraordinary," ibid., that a determination that Pauley was totally disabled from causes unrelated to pneumoconiosis, which was sufficient to rebut the presumption under § 727.203(b)(3), would preclude respondent BethEnergy from rebutting the presumption under § 410.490(c). Second, the court considered it to be "outcome-determinative" that the purpose of the Benefits Act is to provide benefits to miners totally disabled at least in part due to pneumoconiosis if the disability arises out of coal mine employment, and that the ALJ had made unchallenged findings that Pauley's disability did not arise even in part out of such employment. 890 F.2d at 1299-1300. The court found it to be"perfectly evident that no set of regulations under [the Benefits Act] may provide that a claimant who is statutorily barred from recovery may nevertheless recover."Id. at 1300.Asserting that this Court's decision in Sebben, supra, was not controlling because that decision concerned only the invocation of the presumption, Page 501 U. S. 692 and not its rebuttal, the court then concluded that Congress' mandate that the criteria used by the Secretary of Labor be not more restrictive than the criteria applicable to a claim filed on June 30, 1973, applied only to the criteria for determining whether a claimant is "totally disabled," not to the criteria used in rebuttal. Finally, the court pointed out that its result would not differ if it applied the rebuttal provisions of § 410.490(c) to Pauley's claim, because subsections (c)(1) and (2) make reference to § 410.412(a), which refers to a miner's being "totally disabled due to pneumoconiosis." According to the Third Circuit, there would be no reason for the regulations to include such a reference"unless it was the intention of the Secretary to permit rebuttal by a showing that the claimant's disability did not arise at least in part from coal mine employment."890 F.2d at 1302.In the two other cases now before us, No. 90-113, Clinchfield Coal Co. v. Director, OWCP, and No. 90-114, Consolidation Coal Co. v. Director, OWCP, the Court of Appeals for the Fourth Circuit struck down the DOL interim regulations. John Taylor, a respondent in No. 90-113, applied for black lung benefits in 1976, after having worked for almost 12 years as a coal loader and roof bolter in underground coal mines. The ALJ found that Taylor properly had invoked the presumption of eligibility for benefits under § 727.203(a)(3), based on qualifying arterial blood gas studies demonstrating an impairment in the transfer of oxygen from his lungs to his blood. The ALJ then proceeded to weigh the rebuttal evidence, consisting of negative X-ray evidence, nonqualifying ventilatory study scores, and several medical reports respectively submitted by Taylor and by his employer, petitioner Clinchfield Coal Company. In light of this evidence, the ALJ concluded that Taylor neither suffered from pneumoconiosis nor was totally disabled. Rather, the evidence demonstrated that Taylor suffered from chronic bronchitis caused Page 501 U. S. 693 by 30 years of cigarette smoking and obesity. The Benefits Review Board affirmed, concluding that the ALJ's decision was supported by substantial evidence.The Court of Appeals reversed. Taylor v. Clinchfield Coal Co., 895 F.2d 178 (1990). The court first dismissed the argument that the DOL interim regulations cannot be considered more restrictive than HEW's as applied to Taylor because Taylor invoked the presumption of eligibility based on arterial blood gas studies, a method of invocation available under the DOL regulations but not under HEW's, and was therefore unable to use the rebuttal provisions of the HEW interim regulations as a benchmark. Id. at 182. The court reasoned that it was a "matter of indifference" how the claimant invoked the presumption of eligibility, and rejected the argument that the rebuttal provisions must be evaluated in light of corresponding invocation provisions."It is the fact of establishment of the presumption and the substance thereof which is of consequence in this case, not the number of the regulation which provides for such establishment."Ibid.Focusing on the DOL's rebuttal provisions in isolation, the Fourth Circuit determined that the third and fourth rebuttal methods "permit rebuttal of more elements of entitlement to benefits than do the interim HEW regulations," because the HEW regulations permit rebuttal "solely through attacks on the element of total disability," while the DOL regulations"allow the consideration of evidence disputing both the presence of pneumoconiosis and the connection between total disability and coal mine employment."Ibid. Accordingly, the court concluded that the DOL interim regulations were more restrictive than those found in § 410.490, and that the application of these regulations violated 30 U.S.C. § 902(f). [Footnote 3] Page 501 U. S. 694One judge dissented. Noting that the panel's decision was in conflict with the Sixth Circuit in Youghiogheny and Ohio Coal Co. v. Milliken, 866 F.2d 195 (1989), and with the Third Circuit in Pauley, he concluded that those decisions "do less violence to congressional intent, and avoid . . . upsetting the statutory scheme." 895 F.2d at 184.Albert Dayton, a respondent in No. 90114, applied for black lung benefits in 1979, after having worked as a coal miner for 17 years. The ALJ found that Dayton had invoked the presumption of eligibility based on ventilatory test scores showing a chronic pulmonary condition. The judge then determined that petitioner Consolidation Coal Company had successfully rebutted the presumption under §§ 727.203(b)(2) and (4) by demonstrating that Dayton did not have pneumoconiosis and, in any event, that Dayton's pulmonary impairment was not totally disabling. The Benefits Review Board affirmed, concluding that the medical evidence demonstrated that Dayton's pulmonary condition was unrelated to coal dust exposure, but was instead secondary to his smoking and "other ailments," and that the ALJ had correctly concluded that Consolidation had rebutted the presumption under § 727.203(b)(4). [Footnote 4]The Fourth Circuit reversed. Dayton v. Consolidation Coal Co., 895 F.2d 173 (1990). Relying on its decision in Taylor, the court held that 30 U.S.C. § 902(f) required Dayton's claim to be adjudicated "under the less restrictive rebuttal standards of § 410.490." 895 F.2d at 175. Concluding that the HEW regulations did not permit rebuttal upon a Page 501 U. S. 695 showing that the claimant does not have pneumoconiosis, the court stated that the ALJ's finding that Dayton does not have pneumoconiosis "is superfluous and has no bearing on the case." Id. at 176, n. *.In view of the conflict among the Courts of Appeals, we granted certiorari in the three cases and consolidated them for hearing in order to resolve the issue of statutory construction. 498 U.S. 937 (1990). [Footnote 5]IIIWe turn to the statutory text that provides that "[c]riteria applied by the Secretary of Labor . . . shall not be more restrictive than the criteria applicable" under the interim HEW regulations. 30 U.S.C. § 902(f)(2). See Sebben, 488 U.S. at 488 U. S. 113. Specifically, we must determine whether the third and fourth rebuttal provisions in the DOL regulations render the DOL regulations more restrictive than were the HEW regulations. These provisions permit rebuttal of the presumption of eligibility upon a showing that the miner's disability did not arise in whole or in part out of coal mine employment or that the miner does not have pneumoconiosis. [Footnote 6] Page 501 U. S. 696AIn the BLBRA, Congress specifically constrained the Secretary of Labor's discretion through the directive that the criteria applied to part C claims could "not be more restrictive than" that applied to part B claims. 30 U.S.C. § 902(f)(2). The claimants and the dissent urge that this restriction is unambiguous, and that no deference is due the Secretary's determination that her interim regulations are not more restrictive than the HEW's. In the alternative, both the claimants and the dissent argue that, regardless of whether the statutory mandate is clear, the only interpretation of the HEW interim regulations that warrants deference is the interpretation given those regulations by the Secretary of HEW. In our view, this position misunderstands the principles underlying judicial deference to agency interpretations, as well as the scope of authority delegated to the Secretary of Labor in the BLBRA.Judicial deference to an agency's interpretation of ambiguous provisions of the statutes it is authorized to implement reflects a sensitivity to the proper roles of the political and judicial branches. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 866 (1984) ("[F]ederal judges -- who have no constituency -- have a duty to respect legitimate policy choices made by those who do"); see also Silberman, Chevron -- The Intersection of Law & Policy, 58 Geo.Wash.L.Rev. 821, 822-24 (1990). As Chevron itself illustrates, the resolution of ambiguity in a statutory text is often more a question of policy than of law. See Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2085-2088 (1990). When Congress, through express delegation or the introduction of an interpretive gap in the statutory structure, has delegated policymaking authority to an administrative agency, the extent of judicial review of the agency's policy determinations is limited. Cf. Adams Fruit Co. v. Barrett, 494 U. S. 638, 494 U. S. 649 (1990) ("A precondition to deference under Chevron is a congressional Page 501 U. S. 697 delegation of administrative authority"); Chevron, 467 U.S. at 467 U. S. 864-866.It is precisely this recognition that informs our determination that deference to the Secretary is appropriate here. The Black Lung Benefits Act has produced a complex and highly technical regulatory program. The identification and classification of medical eligibility criteria necessarily require significant expertise, and entail the exercise of judgment grounded in policy concerns. In those circumstances, courts appropriately defer to the agency entrusted by Congress to make such policy determinations. See Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144, 499 U. S. 152-153 (1991); Aluminum Co. of America v. Central Lincoln Peoples' Utility District, 467 U. S. 380, 467 U. S. 390 (1984).In Sebben, we declined to defer to the Secretary's interpretation of the term "criteria" as used in § 902(f)(2), as including only medical, but not evidentiary, criteria, because we found Congress' intent to include all criteria in that provision to be manifest. See Sebben, 488 U.S. at 488 U. S. 113-114. With respect to the phrase "not . . . more restrictive than," Congress' intent is similarly clear: the phrase cannot be read except as a delegation of interpretive authority to the Secretary of Labor.That Congress intended in the BLBRA to delegate to the Secretary of Labor broad policymaking discretion in the promulgation of his interim regulations is clear from the text of the statute and the history of this provision. Congress declined to require that the DOL adopt the HEW interim regulations verbatim. Rather, the delegation of authority requires only that the DOL's regulations be "not . . . more restrictive than" HEW's. Further, the delegation was made with the intention that the program evolve as technological expertise matured. The Senate Committee on Human Resources stated:"It is the Committee's belief that the Secretary of Labor should have sufficient statutory authority . . . to Page 501 U. S. 698 establish eligibility criteria. . . . It is intended that, pursuant to this authority, the Secretary of Labor will make every effort to incorporate within his regulations . . . to the extent feasible the advances made by medical science in the diagnosis and treatment of pneumoconiosis . . . since the promulgation in 1972 of the Secretary of HEW's medical eligibility criteria."S.Rep. No. 95-209, p. 13 (1977).In addition, the Conference Report indicated that the DOL's task was more than simply ministerial when it informed the Secretary that"such [new] regulations shall not provide more restrictive criteria than [the HEW interim regulations], except that, in determining claims under such criteria, all relevant medical evidence shall be considered."H.R.Conf.Rep. No. 95-864, p. 16 (1977), U.S.Code Cong. & Admin.News 1977, pp. 237, 309 (emphasis added). As delegated by Congress, then, the Secretary's authority to promulgate interim regulations "not . . . more restrictive than" the HEW interim regulations necessarily entails the authority to interpret HEW's regulations and the discretion to promulgate interim regulations based on a reasonable interpretation thereof. From this congressional delegation derives the Secretary's entitlement to judicial deference.The claimants also argue that, even if the Secretary of Labor's interpretation of the HEW interim regulations is generally entitled to deference, such deference would not be appropriate in this instance because that interpretation has changed without explanation throughout the litigation of these cases. We are not persuaded. As a general matter, of course, the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views. See Bowen v. Georgetown University Hospital, 488 U. S. 204, 488 U. S. 212-213 (1988). However, the Secretary has held unswervingly to the view that the DOL interim regulations are consistent with the statutory mandate and not more restrictive than the HEW interim regulations. This view obviously informed the structure of the Page 501 U. S. 699 DOL's regulations. In response to comments suggesting that the DOL's proposed interim regulations might violate § 902(f)(2) because they required that all relevant evidence be considered in determining eligibility, the Secretary replied that"the Social Security regulations, while less explicit, similarly do not limit the evidence which can be considered in rebutting the interim presumption."See 43 Fed.Reg. 36,826 (1978). Moreover, this position has been faithfully advanced by each Secretary since the regulations were promulgated. See e.g., Sebben, 488 U.S. at 488 U. S. 119. Accordingly, the Secretary's defense of her interim regulations warrants deference from this Court.BHaving determined that the Secretary's position is entitled to deference, we must decide whether this position is reasonable. See Chevron, 467 U.S. at 467 U. S. 845. The claimants and the dissent argue that this issue can be resolved simply by comparing the two interim regulations. This argument is straightforward; it reasons that the mere existence of regulatory provisions permitting rebuttal of statutory elements not rebuttable under the HEW interim regulations renders the DOL interim regulations more restrictive than HEW's and, as a consequence renders the Secretary's interpretation unreasonable. See Tr. of Oral Arg. 22-24. Specifically, the claimants and the dissent assert that the HEW interim regulations plainly contain no provision, either in the invocation subsection or in the rebuttal subsection, that directs factual inquiry into the issue of disability causation or the existence of pneumoconiosis. Accordingly, under the claimants' reading of the regulations, there is no manner in which the DOL interim regulations can be seen to be "not . . . more restrictive than" the HEW regulations.The regulatory scheme, however, is not so straightforward as the claimants would make it out to be. We have noted before the Byzantine character of these regulations. See Sebben, 488 U.S. at 488 U. S. 109 (the second presumption is "drafted Page 501 U. S. 700 in a most confusing manner"); id. at 488 U. S. 129 (dissenting opinion) (assuming that the drafters "promulgated a scrivener's error"). In our view, the Secretary presents the more reasoned interpretation of this complex regulatory structure, an interpretation that has the additional benefit of providing coherence among the statute and the two interim regulations.The premise underlying the Secretary's interpretation of the HEW interim regulations is that the regulations were adopted to ensure that miners who were disabled due to pneumoconiosis arising out of coal mine employment would receive benefits from the black lung program. Under the Secretary's view, it disserves congressional intent to interpret HEW's interim regulations to allow recovery by miners who do not have pneumoconiosis or whose total disability did not arise, at least in part, from their coal mine employment. We agree. See Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 428 U. S. 22, n. 21 (1976) ("[A]n operator can be liable only for pneumoconiosis arising out of employment in a coal mine"); Mullins Coal Co. v. Director, OWCP, 484 U. S. 135, 484 U. S. 158 (1987) ("[I]f a miner is not actually suffering from the type of ailment with which Congress was concerned, there is no justification for presuming that the miner is entitled to benefits").The Secretary and the nonfederal petitioners contend that SSA adjudications under the HEW interim regulations permitted the factual inquiry specified in the third and fourth rebuttal provisions of the DOL regulations. According to the Secretary, subsection (b)(2) of HEW's invocation provisions, and the provisions incorporated by reference into that subsection, do the work of DOL's third and fourth rebuttal methods. Subsection (b)(2) of the HEW interim regulations provides that, in order to invoke a presumption of eligibility, the claimant must demonstrate that the"impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see §§ 410.416 and 410.456)."20 CFR § 410.490(b)(2) (1990). Section 410.416(a) provides: Page 501 U. S. 701"If a miner was employed for 10 years or more in the Nation's coal mines, and is suffering or suffered from pneumoconiosis, it will be presumed, in the absence of persuasive evidence to the contrary, that the pneumoconiosis arose out of such employment."See also § 410.456.The Secretary interprets the requirement in § 410.490(b)(2) that the claimant demonstrate that the miner's impairment "arose out of coal mine employment" as comparable to the DOL's third rebuttal provision, which permits the mine operator to show that the miner's disability "did not arise in whole or in part out of coal mine employment." § 727.203(b)(3). With respect to DOL's fourth rebuttal provision, the Secretary emphasizes that the statute defines pneumoconiosis as "a chronic dust disease . . . arising out of coal mine employment." See 30 U.S.C. § 902(b). Accordingly, she views the reference to §§ 410.416 and 410.456 in HEW's invocation provision, and the acknowledgment within these sections that causation is to be presumed "in the absence of persuasive evidence to the contrary," as demonstrating that a miner who is shown not to suffer from pneumoconiosis could not invoke HEW's presumption. [Footnote 7]Petitioners Clinchfield and Consolidation adopt the Third Circuit's reasoning in Pauley. The court in Pauley relied on the reference in the HEW rebuttal provisions to § 410.412(a)(1), which in turn refers to a miner's being "totally disabled due to pneumoconiosis." The Third Circuit reasoned that this reference must indicate"the intention of the Secretary Page 501 U. S. 702 [of HEW] to permit rebuttal by a showing that the claimant's disability did not arise at least in part from coal mine employment."890 F.2d at 1302.The claimants respond that the Secretary has not adopted the most natural reading of subsection (b)(2). Specifically, the claimants argue that miners who have 10 years of coal mine experience and satisfy the requirements of subsection (b)(1) automatically obtain the presumption of causation that § 410.416 or § 410.456 confers, and thereby satisfy the causation requirement inherent in the Act. In addition, the claimants point out that the reference in the HEW rebuttal provisions to § 410.412(a)(1) may best be read as a reference only to the definition of the term "comparable and gainful work," not to the disability causation provision of § 410.412(a). While it is possible that the claimants' parsing of these impenetrable regulations would be consistent with accepted canons of construction, it is axiomatic that the Secretary's interpretation need not be the best or most natural one by grammatical or other standards. EEOC v. Commercial Office Products Co., 486 U. S. 107, 486 U. S. 115 (1988). Rather, the Secretary's view need be only reasonable to warrant deference. Ibid.; Mullins, 484 U.S. at 484 U. S. 159.The claimants' assertion that the Secretary's interpretation is contrary to the plain language of the statute ultimately rests on their contention that subsections (b)(1)(i) and (ii) of the HEW interim regulations create a "conclusive" presumption of entitlement without regard to the existence of competent evidence demonstrating that the miner does not or did not have pneumoconiosis or that the miner's disability was not caused by coal mine employment. This argument is deficient in two respects. First, the claimants' premise is inconsistent with the text of the authorizing statute, which expressly provides that the presumptions in question will be rebuttable, see 30 U.S.C. §§ 921(c)(1), (2), and (4), and requires Page 501 U. S. 703 the Secretary of HEW to consider all relevant evidence in adjudicating claims under part B. See 30 U.S.C. § 923(b). [Footnote 8]Second, the presumptions do not, by their terms, conclusively establish any statutory element of entitlement. In setting forth the two rebuttal methods in subsection (c), the Secretary of HEW did not provide that they would be the exclusive methods of rebuttal. In fact, the claimants admit that "conclusively presume" is a term they "coined" for purposes of argument. Tr. of Oral Arg. 34. Although the delineation of two methods of rebuttal may support an inference that the drafter intended to exclude rebuttal methods not so specified, such an inference provides no guidance where its application would render a regulation inconsistent with the purpose and language of the authorizing statute. See Sunstein, 90 Colum.L.Rev. at 2109, n. 182 (recognizing that the principle expressio unius est exclusio alterius "is a questionable one in light of the dubious reliability of inferring specific intent from silence"); cf. Commercial Office Products Co., 486 U.S. at 486 U. S. 120 (plurality opinion) (rejecting the more natural reading of statutory language because such an interpretation Page 501 U. S. 704 would lead to "absurd or futile results . . . plainly at variance with the policy of the legislation as a whole") (internal quotations omitted).In asserting that the Secretary's interpretation is untenable, the claimants essentially argue that the Secretary is not justified in interpreting the HEW interim regulations in conformance with their authorizing statute. According to the claimants, the HEW officials charged with administering the black lung benefits program and with drafting the HEW interim regulations believed that it was virtually impossible to determine medically whether a miner's respiratory impairment was actually caused by pneumoconiosis or whether his total disability arose out of his coal mine employment. Faced with such medical uncertainty, and instructed to ensure the "prompt and vigorous processing of the large backlog of claims," see 20 CFR § 410.490(a) (1990), the claimants assert that HEW omitted from its criteria factual inquiries into disability causation and the existence of pneumoconiosis based on a "cost/benefit" conclusion that such inquiries would engender inordinate delay, yet generate little probative evidence. [Footnote 9] The dissent presents a similar view. Post at 501 U. S. 716-719. Page 501 U. S. 705We recognize that the SSA, under the HEW interim regulations, appeared to award benefits to miners whose administrative files contained scant evidence of eligibility. See The Comptroller General of the United States, General Accounting Office, Report to Congress: Examination of Allegations Concerning Administration of the Black Lung Benefits Program 6-10, included in Hearings on H.R. 10760 and S. 3183 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 440-444 (1976). We are not, however, persuaded that this circumstance requires the Secretary to award black lung benefits to claimants who do not have pneumoconiosis or whose disability did not arise in whole or in part out of coal mine employment. As an initial matter, contemporaneous analyses of claims approved by the HEW provide little support for the argument that the HEW made a "cost/benefit" decision to forgo inquiry into disease existence or disability causation. Rather, many of the claims allegedly awarded on the basis of insufficient evidence involved miners who were unable to present sufficient evidence of medical disability, not those who did not suffer from pneumoconiosis or were disabled by other causes. See ibid.; see also The Comptroller General of the United States, General Accounting Office, Program to Pay Black Lung Benefits to Miners and Their Survivors -- Improvements Are Needed, 45-47 (1977); H.R.Rep. No. 95-151, pp. 73-74 (1977) (Minority Views and Separate Views). Moreover, this argument ignores entirely the advances in medical technology that have occurred since the promulgation of the HEW interim regulations, advances that Congress could not have intended either the HEW or the DOL to ignore in administering the program. See S.Rep. No. 95-209, p. 13 (1977).Finally, we do not accept the implicit premise of this argument: that the Secretary cannot prevail unless she is able to Page 501 U. S. 706 demonstrate that her interpretation of the HEW interim regulations comports with HEW's contemporaneous interpretation of those regulations. As is stated above, the Secretary's interpretation of HEW's interim regulations is entitled to deference so long as it is reasonable. An interpretation that harmonizes an agency's regulations with their authorizing statute is presumptively reasonable, and claimants have not persuaded us that the presumption is unfounded in this case.IVWe conclude that the Secretary of Labor has not acted unreasonably, or inconsistently with § 402(f)(2) of the Federal Mine Safety and Health Act of 1977 as amended by the Black Lung Benefits Act, in promulgating interim regulations that permit the presumption of entitlement to black lung benefits to be rebutted with evidence demonstrating that the miner does not, or did not, have pneumoconiosis, or that the miner's disability does not, or did not, arise out of coal mine employment. Accordingly, we affirm the judgment of the Third Circuit in No. 89-1714. The judgments of the Fourth Circuit in No. 90-113 and No. 90-114 are reversed, and those cases are remanded for further proceedings consistent with this opinion. No costs are allowed in any of these cases.It is so ordered

U.S. Supreme CourtPauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991)Pauley v. BethEnergy Mines, Inc.Nos. 89-1714, 90-113 and 90-114Argued Feb. 20, 1991Decided June 24, 1991501 U.S. 680SyllabusCongress created the black lung benefits program to provide compensation for disability to miners due, at least in part, to pneumoconiosis arising out of coal mine employment. The program was first administered by the Social Security Administration (SSA) under the auspices of the then-existent Department of Health, Education, and Welfare (HEW), and later by the Department of Labor (DOL). Congress authorized these Departments, during their respective tenures, to adopt interim regulations governing claims adjudications, but constrained the Secretary of Labor by providing that the DOL regulations "shall not be more restrictive than" HEW's. As here relevant, the HEW interim regulations permit the invocation of a rebuttable statutory presumption of eligibility for benefits upon introduction by the claimant of specified medical evidence, 20 CFR § 410.490(b)(1), and a demonstration that the "impairment [thus] established . . . arose out of coal mine employment (see §§ 410.416 and 410.456)," § 410.490(b)(2). The referred-to sections presume, "in the absence of persuasive evidence to the contrary," that pneumoconiosis arose out of such employment. Once a claimant invokes the eligibility presumption, § 410.490(c) permits the SSA to rebut the presumption by two methods. In contrast, the comparable DOL interim regulations set forth four rebuttal provisions. The first two provisions mimic those in the HEW regulations. The third provision permits rebuttal upon a showing that the miner's disability did not arise in whole or in part out of coal mine employment, and the fourth authorizes rebuttal with evidence demonstrating that the miner does not have pneumoconiosis. In No. 89-1714, the Court of Appeals concluded that the DOL regulations were not "more restrictive than" the HEW regulations by virtue of the DOL's third rebuttal provision, and therefore reversed an administrative award of benefits to a claimant found to qualify under the HEW Page 501 U. S. 681 regulations, but not under the DOL provisions. In Nos. 90-113 and 90-114, the Court of Appeals struck down the DOL regulations as being "more restrictive than" HEW's, reversing DOL's denial of benefits to two claimants whose eligibility was deemed rebutted under the fourth rebuttal provision.Held: The third and fourth rebuttal provisions in the DOL regulations do not render those regulations "more restrictive than" the HEW regulations. Pp. 501 U. S. 695-706.(a) The Secretary of Labor's determination that her interim regulations are not more restrictive than HEW's warrants deference from this Court. Deference to an agency's interpretation of ambiguous provisions in the statutes it is authorized to implement is appropriate when Congress has delegated policymaking authority to the agency. See, e.g., 467 U. S. S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 866. Here, since the relevant legislation has produced a complex and highly technical regulatory program, requiring significant expertise in the identification and classification of medical eligibility criteria, and entailing the exercise of judgment grounded in policy concerns, Congress must have intended, with respect to the "not . . . more restrictive than" phrase, a delegation of broad policymaking discretion to the Secretary of Labor. This is evident from the statutory text, in that Congress declined to require that the DOL adopt the HEW interim regulations verbatim, and from the statute's legislative history, which demonstrates that the delegation was made with the intention that the black lung program evolve as technological expertise matured. Thus, the Secretary's authority necessarily entails the authority to interpret HEW's regulations and the discretion to promulgate interim regulations based on a reasonable interpretation thereof. Pp. 501 U. S. 696-699.(b) The Secretary of Labor's position satisfies Chevron's reasonableness requirement. See 467 U.S. at 467 U. S. 845. Based on the premise that the HEW regulations were adopted to ensure that only miners who were disabled due to pneumoconiosis arising out of coal mine employment would receive benefits, the Secretary interprets HEW's § 410.490(b)(2) requirement that the claimant demonstrate that the impairment "arose out of coal mine employment" as comparable to DOL's third rebuttal provision, and views subsection (b)(2)'s incorporation by reference of §§ 410.416 and 410.456 as doing the work of DOL's fourth rebuttal method, in light of the statutory definition of pneumoconiosis as "a . . . disease . . . arising out of coal mine employment." This interpretation harmonizes the two interim regulations with the statute. Moreover, the Secretary's interpretation is more reasoned than that of the claimants, who assert that the HEW regulations contain no provision, either in the invocation subsection or in the rebuttal subsection, that directs factual Page 501 U. S. 682 inquiry into the issue of disability causation or the existence of pneumoconiosis. The claimants' contention that § 410.490(b)(1) creates a "conclusive" presumption of entitlement without regard to the existence of competent evidence on these questions is deficient in two respects. First, the claimants' premise is inconsistent with the statutory text, which expressly provides that the presumptions in question will be rebuttable, and requires the Secretary of HEW to consider all relevant evidence. Second, although subsection (c)'s delineation of two rebuttal methods may support an inference that the drafter intended to exclude other methods, such an inference provides no guidance where its application would render a regulation inconsistent with the statute's purpose and language. The fact that the SSA, under the HEW regulations, appeared to award benefits to miners whose administrative files contained scant evidence of eligibility does not require the Secretary to forgo inquiries into disability causation and disease existence. The claimants' argument that HEW omitted such inquiries from its criteria based on a "cost/benefit" conclusion that the inquiries would engender inordinate delays, yet generate little probative evidence, finds scant support in contemporaneous analyses of the SSA awards; disregards entirely subsequent advances in medical technology that Congress could not have intended the HEW or the DOL to ignore; and is based on the unacceptable premise that the Secretary must demonstrate that her reasonable interpretation of HEW's regulations is consistent with HEW's contemporaneous interpretation of those regulations. Pp. 501 U. S. 699-706.No. 89-1714, 890 F.2d 1295 (CA3 1989), affirmed; No. 90-113, 895 F.2d 178 (CA4 1990), and No. 90-114, 895 F.2d 173 (CA4 1990), reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 501 U. S. 706. KENNEDY, J., took no part in the consideration or decision of the litigation. Page 501 U. S. 683

1984_84-5743

JUSTICE BLACKMUN delivered the opinion of the Court.Between 1976 and 1981, an Alabama statute required a jury that convicted a defendant of any one of a number of specified crimes "with aggravation" to "fix the punishment at death." Ala.Code § 13-11-2(a) (1975). [Footnote 1] The "sentence" Page 472 U. S. 374 imposed by the jury, however, was not dispositive. Instead, "[n]otwithstanding the fixing of the punishment at death by the jury," § 13-11-4, the trial judge then was to hear evidence of aggravating and mitigating circumstances and, after weighing those circumstances, to sentence the defendant to death or to life imprisonment without parole.This case concerns the constitutionality of the peculiar and unusual requirement of the 1975 Alabama Act that the jury "shall fix the punishment at death," even though the trial judge is the actual sentencing authority. [Footnote 2] The United States Court of Appeals for the Eleventh Circuit ruled that the scheme was facially unconstitutional. Ritter v. Smith, 726 F.2d 1505, 1515-1517, cert. denied, 469 U.S. 869 (1984). Shortly thereafter, however, the Supreme Court of Alabama, with two dissenting votes, ruled to the contrary in the present case. Ex parte Baldwin, 456 So. 2d 129, 138-139 (1984). We granted certiorari to resolve this significant conflict. 469 U.S. 1085 (1984).IAThe facts are sordid, but a brief recital of them must be made. Petitioner Brian Keith Baldwin, then 18 years of age, escaped from a North Carolina prison camp on Saturday, March 12, 1977. That evening, he and a fellow escapee, Edward Horsley, came upon 16-year-old Naomi Rolon, who was having trouble with her automobile. The two forcibly took over her car and drove her to Charlotte, N.C. There, both men attempted to rape her, petitioner sodomized her, and the two attempted to choke her to death. They then ran over her with the car, locked her in its trunk, and left Page 472 U. S. 375 her there while they drove through Georgia and Alabama. Twice, when they heard the young woman cry out, they stopped the car, opened the trunk, and stabbed her repeatedly. On Monday afternoon, they stole a pickup truck, drove both vehicles to a secluded spot, and, after again using the car to run over the victim, cut her throat with a hatchet. She died after this 40-hour ordeal.Petitioner was apprehended the following day driving the stolen truck. He was charged with theft. While in custody, he confessed to the victim's murder and led the police to her body. He was then indicted for "robbery . . . when the victim is intentionally killed," a capital offense, § 13 2(a)(2), and was tried before a jury in Monroe County. At the close of the evidence regarding guilt or innocence, the judge instructed the jury that, if it found the petitioner guilty, "the Legislature of the State of Alabama has said this is a situation [in] which . . . the punishment would be death by electrocution," Tr. 244-245, and the jury therefore would be required to sentence petitioner to death. Id. at 242. The jury found petitioner guilty, in the terms of the statute, of robbery with the aggravated circumstance of intentionally killing the victim, and returned a verdict form that stated: "We, the Jury, find the defendant guilty as charged in the indictment and fix his punishment at death by electrocution." App. 4.BUnder Alabama's 1975 Death Penalty Act, once a defendant was convicted of any one of 14 specified aggravated offenses, see Ala.Code § 13-11-2(a) (1975), and the jury returned the required death sentence, the trial judge was obligated to hold a sentencing hearing:"[T]he court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to Page 472 U. S. 376 sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7."§ 13-11-3. The judge was then required to sentence the defendant to death or to life imprisonment without parole:"Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death."§ 13-11-4. If the court imposed a death sentence, it was required to set forth in writing the factual findings from the trial and the sentencing hearing, including the aggravating and mitigating circumstances that formed the basis for the sentence. Ibid. The judgment of conviction and sentence of death were subject to automatic review by the Court of Criminal Appeals, and, if that court affirmed, by the Supreme Court of Alabama. §§ 13-11- 5, 12-22-150; Ala.Rule App. Proc. 39(c). See Beck v. State, 396 So. 2d 645, 664 (Ala.1981); Evans v. Britton, 472 F. Supp. 707, 713-714, 723-724 (SD Ala.1979), rev'd on other grounds, 628 F.2d 400 (CA5 1980), 639 F.2d 221 (1981), rev'd sub nom. Hopper v. Evans, 456 U. S. 605 (1982).CFollowing petitioner's conviction, the trial judge held the sentencing hearing required by § 13-11-3. The State reintroduced the evidence submitted at trial, and introduced petitioner's juvenile and adult criminal records, as well as Edward Horsley's statement regarding the crime. Petitioner then took the stand and testified that he had "a hard Page 472 U. S. 377 time growing up"; that he left home at the age of 13 because his father did not like him to come home late at night; that he dropped out of school after the ninth grade; that he made a living by "street hustling"; that he had been arrested approximately 30 times; and that he was a drug addict. App. 8-10. At the conclusion of petitioner's testimony, the trial judge stated:"Brian Keith Baldwin, today is the day you have in court to tell this judge whatever is on your mind . . now is your time to tell the judge anything that you feel like might be helpful to you in the position that you find yourself in. I want to give you every opportunity in the world that I know about. . . . Anything you feel like you can tell this Judge that will help you in your present position."Id. at 12. Petitioner then complained about various aspects of his trial, and concluded: "I ain't saying I'm guilty, but I might be guilty for murder, but I ain't guilty for robbery down here. That's all I got to say." Id. at 13.The judge stated that, "having considered the evidence presented at the trial and at said sentence hearing," id. at 17-18, the court found the following aggravating circumstances: the capital offense was committed while petitioner was under a sentence of imprisonment in the State of North Carolina from which he had escaped; petitioner previously had pleaded guilty to a felony involving the use of violence to the person; the capital offense was committed while petitioner was committing a robbery or in flight after the robbery; and the offense was especially heinous, atrocious, or cruel. [Footnote 3] The judge found that petitioner's age -- 18 at the Page 472 U. S. 378 time of the crime -- was the only mitigating circumstance. Id. at 18. He then stated:"The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted."Ibid.The Supreme Court of Alabama eventually affirmed the conviction and sentence. 456 So. 2d 129 (194). [Footnote 4] In his argument to that court, petitioner contended that the 1975 Act was facially invalid. Tracking the reasoning of the Eleventh Circuit in Ritter v. Smith, 726 F.2d at 1516-1517, he argued that the jury's mandatory sentence was unconstitutional because it was unguided, standardless, and reflected no consideration of the particular defendant or crime, and that the judge's sentence was unconstitutional because it was based in part upon consideration of the impermissible jury sentence, and was infected by it. The court rejected petitioner's arguments, Page 472 U. S. 379 holding that even though the jury had no discretion regarding the "sentence" it would impose, the sentencing procedure was saved by the fact that it was the trial judge who was the true sentencing authority, and he considered aggravating and mitigating circumstances before imposing sentence. 456 So. 2d at 139. [Footnote 5]IIIf the jury's "sentence" were indeed the dispositive sentence, the Alabama scheme would be unconstitutional under the principles announced in Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), and Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976) (plurality opinion). See Page 472 U. S. 380 also Roberts (Harry) v. Louisiana, 431 U. S. 633 (1977). In Woodson, the Court held that North Carolina's sentencing scheme, which imposed a mandatory death sentence for a broad category of homicidal offenses, violated the Eighth and Fourteenth Amendments in three respects. First, such mandatory schemes offend contemporary standards of decency, as evidenced by the frequency with which jurors avoid the imposition of mandatory death sentences by disregarding their oaths and refusing to convict, and by the consistent movement of the States and Congress away from such schemes. 428 U.S. at 428 U. S. 288-301. Second, by refusing to convict defendants who the jurors think do not deserve the death penalty, juries exercise unguided and unchecked discretion regarding who will be sentenced to death. Id. at 428 U. S. 302-303. Third, such mandatory schemes fail to allow particularized consideration of the character and record of the defendant and the circumstances of the offense. Id. at 428 U. S. 303-305. Alabama's requirement that the jury impose a mandatory sentence for a wide range of homicides, standing alone, would suffer each of those defects.The jury's mandatory "sentence," however, does not stand alone under the Alabama scheme. Instead, as has been described above, the trial judge thereafter conducts a separate hearing to receive evidence of aggravating and mitigating circumstances, and determines whether the aggravating circumstances outweigh the mitigating circumstances. The judge's discretion is guided by the requirement that the death penalty be imposed only if the judge finds the aggravating circumstance that serves to define the capital crime -- in this case the fact that the homicide took place during the commission of a robbery -- and only if the judge finds that the definitional aggravating circumstance, plus any other specified aggravating circumstance, [Footnote 6] outweighs Page 472 U. S. 381 any statutory and nonstatutory mitigating circumstances. § 13-11-4. Petitioner accordingly does not argue that the judge's discretion under § 13-11-4 is not "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action," Gregg v. Georgia, 428 U. S. 153, 428 U. S. 189 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). Nor is there any issue before this Court that the 1975 Act did not allow "the type of individualized consideration of mitigating factors" by the sentencing judge that has been held constitutionally indispensable in capital cases. [Footnote 7] Lockett v. Ohio, 438 U. S. 586, 438 U. S. 606 (1978) (plurality opinion); see also Page 472 U. S. 382 Eddings v. Oklahoma, 455 U. S. 104 (1982); Woodson v. North Carolina, 428 U.S. at 428 U. S. 304 (plurality opinion).Petitioner's challenge to the Alabama scheme rests instead on the provision of the 1975 Act that allows the judge to weigh "the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury" in determining whether death is the appropriate sentence. § 13-11-4. This Court has stated that a death sentence based upon consideration of"factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant,"would violate the Constitution. Zant v. Stephens, 462 U. S. 862, 462 U. S. 885 (1983). Relying upon Zant, petitioner contends that, because the jury's mandatory "sentence" would be unconstitutional standing alone, it is an impermissible factor for the trial judge to consider, as the statute appears to require, in the sentencing process. That argument conceivably might have merit if the judge actually were required to consider the jury's "sentence" as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Florida, 428 U. S. 242 (1976), and if the judge were obligated to accord some deference to it. The jury's verdict is not considered in that fashion, however, as the Alabama appellate courts' construction of the Act, as well as the judge's statements regarding the process by which he arrived at the sentence, so definitely indicates.AThe language of § 13-11-4, to be sure, in so many words does not preclude the sentencing judge from considering the jury's "sentence" in determining whether the death penalty is appropriate. The first clause of the section --"the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment Page 472 U. S. 383 without parole"-- does not authorize or require the court to weigh the jury's "sentence" in determining whether to refuse to impose the death penalty. The second clause --"or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death"-- does seem to authorize consideration of the jury's "sentence." It is not clear whether the second clause allows consideration of the jury's "sentence" only if the weighing of the aggravating and mitigating circumstances authorized in the first clause has indicated that the "sentence" should not be rejected, or whether the second clause allows the judge to ignore the first clause and count the jury's "sentence" as a factor, similar to an aggravating circumstance, weighing in favor of the death penalty. We therefore look to the Alabama courts' construction of § 13-11-4. See Proffitt v. Florida, supra; Jurek v. Texas, 428 U. S. 262, 462 U. S. 272-273 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).The Alabama appellate courts have interpreted the 1975 Act expressly to mean that the sentencing judge is to impose a sentence without regard to the jury's mandatory "sentence." The Alabama Court of Criminal Appeals has stated: "The jury's function is only to find guilt or innocence. The jury is not the sentencing authority." Jacobs v. State, 361 So. 2d 607, 631 (1977), aff'd, 361 So. 2d 640 (Ala.1978), cert. denied, 439 U.S. 1122 (1979). Indeed, the court has gone so far as to state:"No sentence exists until the pronouncement by the trial judge at the conclusion of the sentence hearing. It is for this reason the court cannot be said to be commuting a sentence of death imposed by the jury, but, in truth and in fact, it is sentencing the accused after a jury's finding of guilt."Beck v. State, 365 So. 2d 985, 1005, aff'd, 365 So. 2d 1006 (Ala.1978), rev'd on other grounds, 447 U. S. 625 (1980). Page 472 U. S. 384 The court further has described the judge's role as follows:"The sentencing hearing is one of the most important and critical stages under Alabama's death penalty law. The guilt stage has passed. Now an experienced trial judge must consider the particularized circumstances surrounding the offense and the offender and determine if the accused is to die or be sentenced to life imprisonment without parole. . . . The trial evidence must be reviewed to determine all of the aggravating circumstances leading up to and culminating in the death of the victim and then all the mitigating circumstances must be considered in determining if any outweigh the aggravating circumstances so found in the trial court's findings of fact."Richardson v. State, 376 So. 2d 205, 224 (1978), aff'd, 376 So.2d. 228 (Ala.1979). Conspicuously absent from the court's description of the judge's duty is any mention of according weight or deference to the jury's "sentence."The Supreme Court of Alabama agrees that "the jury is not the sentencing authority in . . . Alabama," and has described the sentencing judge not as a reviewer of the jury's "sentence," but as the sentencer:"In Alabama, the jury is not the body which finally determines which murderers must die and which must not. In fact, Alabama's statute mandatorily requires the court to""hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole,""and specifically provides that the court may refuse to accept the death penalty as fixed by the jury, and may 'sentence' the defendant to death or life without parole. Code of Ala.1975, § 13-11-4. That section provides that, if the court imposes a 'sentence of death,' it must set forth, in writing, the basis for the sentence."Jacobs v. State, 361 So. 2d at 644 (emphasis in original; footnote omitted). Page 472 U. S. 385 See also Ritter v. State, 429 So. 2d 928, 935-936 (Ala.1983); Beck v. State, 396 So. 2d at 659.BIn this case, moreover, it is clear that the sentencing judge did not interpret the statute as requiring him to consider the jury's "sentence," because he never described the "sentence" as a factor in his deliberations. After the jury returned its verdict, the trial judge informed petitioner:"Let me say this: the jury has found you guilty of the crime of robbery with the aggravated circumstances of intentionally killing the victim . . . and set your punishment at death by electrocution, but the law of this state provides first that there will be an additional hearing in this case, at which time the Court will consider aggravating circumstances, extenuating and all other circumstances, concerning the commission of this particular offense."(Emphasis added.) Tr. 249. In addition, in imposing the sentence, the judge stated:"The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances, and that the death penalty as fixed by the jury should be and is hereby accepted."(Emphasis added.) App. 18. None of these statements indicates that the judge considered the jury's verdict to be a factor that he added, or that he was required to add, to the scale in determining the appropriateness of the death penalty, or that he believed the jury's verdict was entitled to a presumption of correctness. The judge, of course, knew the Alabama system and all that it signified, knew that the jury's "sentence" was mandatory, and knew that it did not reflect consideration of any mitigating circumstance. The judge logically, therefore, would not Page 472 U. S. 386 have thought that he owed any deference to the jury's "sentence" on the issue whether the death penalty was appropriate for petitioner. [Footnote 8]IIIPetitioner contends, nevertheless, that a judge's decision to impose the death penalty must be swayed by the fact that the jury returned a "sentence" of death. He points to this Court's opinion in Beck v. Alabama, 447 U. S. 625, 447 U. S. 645 (1980), which expressed some skepticism about the influence the jury's "sentence" would have on a judge. Beck held unconstitutional the provision of the 1975 Act that precluded the jury from considering lesser included noncapital offenses. The Court reasoned that the provision violated due process, because where the jury's only choices were to convict a defendant of the capital offense and "sentence" him to death, or to acquit him, but the evidence would have supported a lesser included offense verdict, the factfinding process was tainted with irrelevant considerations. On the one hand, the Court reasoned, the unavailability of the option of convicting on a lesser included offense may encourage the jury to convict the defendant of a capital crime because it believes that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit because it believes the defendant does not deserve the death penalty. The unavailability of the lesser included offense option, when it is warranted by the evidence, thus "introduce[s] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case." Id. at 447 U. S. 642-643.In so holding, this Court rejected Alabama's argument that, even if the unavailability of a lesser included offense Page 472 U. S. 387 led a jury erroneously to convict a defendant, the fact that the judge was the true sentencer would ensure that the defendant was not improperly sentenced to death. It reasoned:"[I]t is manifest that the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State's Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence. Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in he performance of the jury's factfinding function."Id. at 447 U. S. 645-646 (footnote omitted). This Court's concern in Beck was that the judge would be inclined to accept the jury's factual finding that the defendant was guilty of a capital offense, not that the judge would be influenced by the jury's "sentence" of death. To "correct" an erroneous guilty verdict, the sentencing judge would have to determine that death was an inappropriate punishment, not because mitigating circumstances outweighed aggravating circumstances, but because the defendant had not been proved guilty beyond a reasonable doubt. Obviously, a judge will think hard about the jury's guilty verdict before basing a sentence on the belief that the defendant was not proved guilty of the capital offense. Indeed, the judge should think hard before rejecting the guilty verdict, because the determination of guilt is properly within the province of the jury, and the jury heard the same evidence regarding guilt as the judge.It does not follow, however, that the judge will be swayed to impose a sentence of death merely because the jury returned a mandatory death "sentence," when it had no opportunity to consider mitigating circumstances. The judge Page 472 U. S. 388 knows that determination of the appropriate sentence is not within the jury's province, and that the jury does not consider evidence in mitigation in arriving at its "sentence." The jury's "sentence" means only that the jury found the defendant guilty of a capital crime -- that is, that it found the fact of intentional killing in the course of a robbery -- and that, if the judge finds that the aggravating circumstances outweigh the mitigating circumstances, the judge is authorized to impose a sentence of death. The "sentence" thus conveys nothing more than the verdict of guilty, when it is read in conjunction with the provisions of the 1975 Act making the offense a capital crime, would convey. It defies logic to assume that a judge will be swayed to impose the death penalty by a "sentence" that has so little meaning. Despite its misdescribed label, it is not a sentence of death.Petitioner also argues that the requirement that the jury return a "sentence" of death "blurs" the issue of guilt with the issue whether death is the appropriate punishment, and may cause the jury arbitrarily to nullify the mandatory death penalty by acquitting a defendant who is proved guilty, but who the jury, without any guidance, finds undeserving of the death penalty. Petitioner's argument stems from Woodson, where the plurality opinion noted that American juries "persistently" have refused to convict "a significant portion" of those charged with first-degree murder in order to avoid mandatory death penalty statutes, and expressed concern that the unguided exercise of the power to nullify a mandatory sentence would lead to the same "wanton" and "arbitrary" imposition of the death penalty that troubled the Court in Furman. 428 U.S. at 428 U. S. 302-303. The Alabama scheme, however, has not resulted in such arbitrariness. Juries deliberating under the 1975 statute did not act to nullify the mandatory "sentence" by refusing to convict in a significant number of cases; indeed, only 2 of the first 50 defendants tried for capital crimes during the time the 1975 Act was in effect were acquitted. See Beck v. Alabama, 447 U.S. at 447 U. S. 641, n. 18. Thus, while the specter of a mandatory Page 472 U. S. 389 death sentence may have made juries more prone to acquit, thereby benefiting the two defendants acquitted, it did not render Alabama's scheme unconstitutionally arbitrary.IVThe wisdom and phraseology of Alabama's curious 1975 statute surely are open to question, as Alabama's abandonment of the statutory scheme in 1981 perhaps indicates. [Footnote 9] This Court has made clear, however, that "we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme." Spaziano v. Florida, 468 U. S. 447, 468 U. S. 464 (1984). See also Zant v. Stephens, 462 U.S. at 462 U. S. 884; Gregg v. Georgia, 428 U.S. at 428 U. S. 195 (opinion of Stewart, POWELL, and STEVENS, JJ.). Alabama's requirement that the jury return a "sentence" of death along with its guilty verdict, while unusual, did not render unconstitutional the death sentence the trial judge imposed after independently considering petitioner's background and character and the circumstances of his crime. Page 472 U. S. 390The judgment of the Supreme Court of Alabama is affirmed.It is so ordered

U.S. Supreme CourtBaldwin v. Alabama, 472 U.S. 372 (1985)Baldwin v. AlabamaNo. 84-5743Argued March 27, 1985Decided June 17, 1985472 U.S. 372SyllabusAlabama's 1975 Death Penalty Act (later repealed) required a jury that convicted a defendant of any one of a number of specified aggravated crimes to "fix the punishment at death." However, the "sentence" fixed by the jury was not dispositive, because the Act provided that,"[n]otwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances"brought out at a required sentencing hearing, could refuse to accept the death penalty and, instead, could impose a life sentence, or, after weighing such circumstances, "and the fixing of the punishment at death by the jury," could sentence the defendant to death. Petitioner was convicted under the Act of a specified capital offense, and the jury's verdict fixed his punishment at death. After conducting the required sentencing hearing and weighing the aggravating and mitigating circumstances, the judge accepted the death penalty as fixed by the jury. The Alabama Supreme Court ultimately affirmed the conviction and sentence, rejecting petitioner's contention that the Act was facially unconstitutional. The court held that, even though the jury had no discretion regarding the "sentence" it would impose, the sentencing procedure was saved by the fact that it was the trial judge who was the true sentencing authority, and he considered aggravating and mitigating circumstances before imposing sentence.Held: Alabama's requirement that the jury return a "sentence" of death along with its guilty verdict did not render unconstitutional the death sentence the trial judge imposed after independently considering petitioner's background and character and the circumstances of his crime. Pp. 472 U. S. 379-389.(a) Although the Alabama scheme would have been unconstitutional if the jury's mandatory death "sentence" were dispositive, there is no merit to petitioner's contention that the trial judge's sentence was unconstitutional because the Act required the judge to consider, and accord some deference to, the jury's "sentence." While the Act's language did not expressly preclude, and might seem to have authorized, the sentencing judge's consideration of the jury's "sentence" in determining whether the death penalty was appropriate, the Alabama appellate courts have interpreted the Act to mean that the sentencing judge was to impose a sentence without regard to the jury's mandatory "sentence." Moreover, Page 472 U. S. 373 it was clear that the sentencing judge here did not interpret the statute as requiring him to consider the jury's "sentence," because he never described the "sentence" as a factor in his deliberations. Pp. 472 U. S. 382-386.(b) Nor is there merit to the contention that a trial judge's decision to impose the death penalty must have been swayed by the fact that the jury returned a "sentence" of death. Beck v. Alabama, 447 U. S. 625, distinguished. The judge knew that determination of the appropriate sentence was not within the jury's province, and that the jury did not consider evidence in mitigation in arriving at its "sentence." Pp. 472 U. S. 386-389.456 So. 2d 129, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 472 U. S. 390. BRENNAN, J., filed a dissenting opinion, post, p. 472 U. S. 392. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 472 U. S. 393.

1990_89-1647

JUSTICE BLACKMUN delivered the opinion of the Court.In this admiralty case we primarily consider whether the United States Court of Appeals for the Ninth Circuit correctly refused to enforce a forum selection clause contained in tickets issued by petitioner Carnival Cruise Lines, Inc., to respondents Eulala and Russel Shute.IThe Shutes, through an Arlington, Wash., travel agent, purchased passage for a 7-day cruise on petitioner's ship, the TROPICALE. Respondents paid the fare to the agent, who forwarded the payment to petitioner's headquarters in Miami, Fla. Petitioner then prepared the tickets and sent them to respondents in the State of Washington. The face of each ticket, at its left-hand lower corner, contained this admonition:"SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES [bb]IMPORTANT![eb] PLEASE READ CONTRACT -- ON LAST PAGES 1, 2, 3"App. 15. The following appeared on "contract page 1" of each ticket:"TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET" * * * *"3. (a) The acceptance of this ticket by the person or persons named hereon as passengers shall be deemed to be an acceptance and agreement by each of them of all of the terms and conditions of this Passage Contract Ticket."* * * *"8. It is agreed by and between the passenger and the Carrier that all disputes and matters whatsoever arising under, in connection with or incident to this Contract Page 499 U. S. 588 shall be litigated, if at all, in and before a Court located in the State of Florida, U.S.A. to the exclusion of the Courts of any other state or country."Id. at 16.The last quoted paragraph is the forum selection clause at issue.IIRespondents boarded the TROPICALE in Los Angeles, Cal. The ship sailed to Puerto Vallarta, Mexico, and then returned to Los Angeles. While the ship was in international waters off the Mexican coast, respondent Eulala Shute was injured when she slipped on a deck mat during a guided tour of the ship's galley. Respondents filed suit against petitioner in the United States District Court for the Western District of Washington, claiming that Mrs. Shute's injuries had been caused by the negligence of Carnival Cruise Lines and its employees. Id. at 4.Petitioner moved for summary judgment, contending that the forum clause in respondents' tickets required the Shutes to bring their suit against petitioner in a court in the State of Florida. Petitioner contended, alternatively, that the District Court lacked personal jurisdiction over petitioner because petitioner's contacts with the State of Washington were insubstantial. The District Court granted the motion, holding that petitioner's contacts with Washington were constitutionally insufficient to support the exercise of personal jurisdiction. See App. to Pet. for Cert. 60a.The Court of Appeals reversed. Reasoning that, "but for" petitioner's solicitation of business in Washington, respondents would not have taken the cruise and Mrs. Shute would not have been injured, the court concluded that petitioner had sufficient contacts with Washington to justify the District Court's exercise of personal jurisdiction. 897 F.2d 377, 385-386 (CA9 1990). * Page 499 U. S. 589Turning to the forum selection clause, the Court of Appeals acknowledged that a court concerned with the enforceability of such a clause must begin its analysis with The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (1972), where this Court held that forum selection clauses, although not "historically . . . favored," are "prima facie valid." Id. at 407 U. S. 9-10. See 897 F.2d at 388. The appellate court concluded that the forum clause should not be enforced because it "was not freely bargained for." Id. at 389. As an "independent justification" for refusing to enforce the clause, the Court of Appeals noted that there was evidence in the record to indicate that "the Shutes are physically and financially incapable of pursuing this litigation in Florida," and that the enforcement of the clause would operate to deprive them of their day in court, and thereby contravene this Court's holding in The Bremen. 897 F.2d at 389.We granted certiorari to address the question whether the Court of Appeals was correct in holding that the District Court should hear respondents' tort claim against petitioner. 498 U.S. 807-808 (1990). Because we find the forum selection clause to be dispositive of this question, we need not consider petitioner's constitutional argument as to personal jurisdiction. See Ashwander v. TVA, 297 U. S. 288, 297 U. S. 347 (1936) (Brandeis, J., concurring) ("It is not the habit of the Court to decide questions of a constitutional nature unless Page 499 U. S. 590 absolutely necessary to a decision of the case,'" quoting Burton v. United States, 196 U. S. 283, 196 U. S. 295 (1905)).IIIWe begin by noting the boundaries of our inquiry. First, this is a case in admiralty, and federal law governs the enforceability of the forum selection clause we scrutinize. See Archawski v. Nanioti, 350 U. S. 532, 350 U. S. 533 (1956); The Moses Taylor, 4 Wall. 411, 71 U. S. 427 (1867); Tr. of Oral Arg. 36-37, 12, 47-48. Cf. Stewart Organization, Inc. v. Ricoh Corp., 487 U. S. 22, 487 U. S. 28-29 (1988). Second, we do not address the question whether respondents had sufficient notice of the forum clause before entering the contract for passage. Respondents essentially have conceded that they had notice of the forum selection provision. Brief for Respondent 26 ("The respondents do not contest the incorporation of the provisions nor [sic] that the forum selection clause was reasonably communicated to the respondents, as much as three pages of fine print can be communicated."). Additionally, the Court of Appeals evaluated the enforceability of the forum clause under the assumption, although "doubtful," that respondents could be deemed to have had knowledge of the clause. See 897 F.2d at 389 and n. 11.Within this context, respondents urge that the forum clause should not be enforced because, contrary to this Court's teachings in The Bremen, the clause was not the product of negotiation, and enforcement effectively would deprive respondents of their day in court. Additionally, respondents contend that the clause violates the Limitation of Vessel Owner's Liability Act, 46 U.S.C. App. § 183c. We consider these arguments in turn.IVABoth petitioner and respondents argue vigorously that the Court's opinion in The Bremen governs this case, and each side purports to find ample support for its position in that Page 499 U. S. 591 opinion's broad-ranging language. This seeming paradox derives in large part from key factual differences between this case and The Bremen, differences that preclude an automatic and simple application of The Bremen's general principles to the facts here.In The Bremen, this Court addressed the enforceability of a forum selection clause in a contract between two business corporations. An American corporation, Zapata, made a contract with Unterweser, a German corporation, for the towage of Zapata's ocean-going drilling rig from Louisiana to a point in the Adriatic Sea off the coast of Italy. The agreement provided that any dispute arising under the contract was to be resolved in the London Court of Justice. After a storm in the Gulf of Mexico seriously damaged the rig, Zapata ordered Unterweser's ship to tow the rig to Tampa, Fla., the nearest point of refuge. Thereafter, Zapata sued Unterweser in admiralty in federal court at Tampa. Citing the forum clause, Unterweser moved to dismiss. The District Court denied Unterweser's motion, and the Court of Appeals for the Fifth Circuit, sitting en banc on rehearing, and by a sharply divided vote, affirmed. 446 F.2d 907 (1971).This Court vacated and remanded, stating that, in general,"a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect."407 U.S. at 407 U. S. 12-13 (footnote omitted). The Court further generalized that,"in the light of present-day commercial realities and expanding international trade, we conclude that the forum clause should control absent a strong showing that it should be set aside."Id. at 407 U. S. 16. The Court did not define precisely the circumstances that would make it unreasonable for a court to enforce a forum clause. Instead, the Court discussed a number of factors that made it reasonable to enforce the clause at issue in The Bremen and Page 499 U. S. 592 that, presumably, would be pertinent in any determination whether to enforce a similar clause.In this respect, the Court noted that there was"strong evidence that the forum clause was a vital part of the agreement, and [that] it would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations."Id. at 407 U. S. 14 (footnote omitted). Further, the Court observed that it was not "dealing with an agreement between two Americans to resolve their essentially local disputes in a remote alien forum," and that, in such a case,"the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause."Id. at 407 U. S. 17. The Court stated that, even where the forum clause establishes a remote forum for resolution of conflicts, "the party claiming [unfairness] should bear a heavy burden of proof." Ibid.In applying The Bremen, the Court of Appeals in the present litigation took note of the foregoing "reasonableness" factors and rather automatically decided that the forum selection clause was unenforceable because, unlike the parties in The Bremen, respondents are not business persons, and did not negotiate the terms of the clause with petitioner. Alternatively, the Court of Appeals ruled that the clause should not be enforced because enforcement effectively would deprive respondents of an opportunity to litigate their claim against petitioner.The Bremen concerned a"far from routine transaction between companies of two different nations contemplating the tow of an extremely costly piece of equipment from Louisiana across the Gulf of Mexico and the Atlantic Ocean, through the Mediterranean Sea to its final destination in the Adriatic Sea."407 U.S. at 407 U. S. 13. These facts suggest that, even apart from the evidence of negotiation regarding the forum clause, it was entirely reasonable for the Court in The Page 499 U. S. 593 Bremen to have expected Unterweser and Zapata to have negotiated with care in selecting a forum for the resolution of disputes arising from their special towing contract.In contrast, respondents' passage contract was purely routine, and doubtless nearly identical to every commercial passage contract issued by petitioner and most other cruise lines. See, e.g., Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 910 (CA3 1988), cert. dism'd, 490 U.S. 1001 (1989). In this context, it would be entirely unreasonable for us to assume that respondents -- or any other cruise passenger -- would negotiate with petitioner the terms of a forum-selection clause in an ordinary commercial cruise ticket. Common sense dictates that a ticket of this kind will be a form contract the terms of which are not subject to negotiation, and that an individual purchasing the ticket will not have bargaining parity with the cruise line. But by ignoring the crucial differences in the business contexts in which the respective contracts were executed, the Court of Appeals' analysis seems to us to have distorted somewhat this Court's holding in The Bremen.In evaluating the reasonableness of the forum clause at issue in this case, we must refine the analysis of The Bremen to account for the realities of form passage contracts. As an initial matter, we do not adopt the Court of Appeals' determination that a nonnegotiated forum selection clause in a form ticket contract is never enforceable simply because it is not the subject of bargaining. Including a reasonable forum clause in a form contract of this kind well may be permissible for several reasons: first, a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. See The Bremen, 407 U.S. at 407 U. S. 13 and n. 15. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary Page 499 U. S. 594 effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum, and conserving judicial resources that otherwise would be devoted to deciding those motions. See Stewart Organization, 487 U.S. at 487 U. S. 33 (concurring opinion). Finally, it stands to reason that passengers who purchase tickets containing a forum clause like that at issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Cf. Northwestern Nat. Ins. Co. v. Donovan, 916 F.2d 372, 378 (CA7 1990).We also do not accept the Court of Appeals' "independent justification" for its conclusion that The Bremen dictates that the clause should not be enforced because "[t]here is evidence in the record to indicate that the Shutes are physically and financially incapable of pursuing this litigation in Florida." 897 F.2d, at 389. We do not defer to the Court of Appeals' findings of fact. In dismissing the case for lack of personal jurisdiction over petitioner, the District Court made no finding regarding the physical and financial impediments to the Shutes' pursuing their case in Florida. The Court of Appeals' conclusory reference to the record provides no basis for this Court to validate the finding of inconvenience. Furthermore, the Court of Appeals did not place in proper context this Court's statement in The Bremen that"the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause."407 U.S. at 407 U. S. 17. The Court made this statement in evaluating a hypothetical "agreement between two Americans to resolve their essentially local disputes in a remote alien forum." Ibid. In the present case, Florida is not a "remote alien forum," nor -- given the fact that Mrs. Shute's accident occurred off the coast of Mexico -- is this dispute an essentially local one inherently more suited to resolution in the State of Washington than in Florida. In Page 499 U. S. 595 light of these distinctions, and because respondents do not claim lack of notice of the forum clause, we conclude that they have not satisfied the "heavy burden of proof," ibid. required to set aside the clause on grounds of inconvenience.It bears emphasis that forum selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness. In this case, there is no indication that petitioner set Florida as the forum in which disputes were to be resolved as a means of discouraging cruise passengers from pursuing legitimate claims. Any suggestion of such a bad faith motive is belied by two facts: petitioner has its principal place of business in Florida, and many of its cruises depart from and return to Florida ports. Similarly, there is no evidence that petitioner obtained respondents' accession to the forum clause by fraud or overreaching. Finally, respondents have conceded that they were given notice of the forum provision and, therefore, presumably retained the option of rejecting the contract with impunity. In the case before us, therefore, we conclude that the Court of Appeals erred in refusing to enforce the forum selection clause.BRespondents also contend that the forum selection clause at issue violates 46 U.S.C. App. § 183c. That statute, enacted in 1936, see 49 Stat. 1480, provides:"It shall be unlawful for the . . . owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner . . . from liability, or from liability beyond any stipulated amount, for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent Page 499 U. S. 596 jurisdiction on the question of liability for such loss or injury, or the measure of damages therefor. All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect."By its plain language, the forum selection clause before us does not take away respondents' right to "a trial by [a] court of competent jurisdiction," and thereby contravene the explicit proscription of § 183c. Instead, the clause states specifically that actions arising out of the passage contract shall be brought "if at all," in a court "located in the State of Florida," which, plainly, is a "court of competent jurisdiction" within the meaning of the statute.Respondents appear to acknowledge this by asserting that, although the forum clause does not directly prevent the determination of claims against the cruise line, it causes plaintiffs unreasonable hardship in asserting their rights, and therefore violates Congress' intended goal in enacting § 183c. Significantly, however, respondents cite no authority for their contention that Congress' intent in enacting § 183c was to avoid having a plaintiff travel to a distant forum in order to litigate. The legislative history of § 183c suggests, instead, that this provision was enacted in response to passenger ticket conditions purporting to limit the shipowner's liability for negligence or to remove the issue of liability from the scrutiny of any court by means of a clause providing that "the question of liability and the measure of damages shall be determined by arbitration." See S.Rep. No. 2061, 74th Cong., 2d Sess. 6 (1936); H.R.Rep. No. 2517, 74th Cong., 2d Sess., 6 (1936). See also Safety of Life and Property at Sea: Hearings Before the Committee on Merchant Marine and Fisheries, 74th Cong., 2d Sess., pt. 4, pp. 20, 36-37, 57, 109-110, 119 (1936). There was no prohibition of a forum selection clause. Because the clause before us allows for judicial resolution of claims against petitioner and does Page 499 U. S. 597 not purport to limit petitioner's liability for negligence, it does not violate § 183c.VThe judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtCarnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990)Carnival Cruise Lines, Inc. v. ShuteNo. 89-1647Argued Jan. 15, 1991Decided April 17, 1991499 U.S. 585SyllabusAfter the respondents Shute, a Washington State couple, purchased passage on a ship owned by petitioner, a Florida-based cruise line, petitioner sent them tickets containing a clause designating courts in Florida as the agreed-upon fora for the resolution of disputes. The Shutes boarded the ship in Los Angeles, and, while in international waters off the Mexican coast, Mrs. Shute suffered injuries when she slipped on a deck mat. The Shutes filed suit in a Washington Federal District Court, which granted summary judgment for petitioner. The Court of Appeals reversed, holding, inter alia, that the forum-selection clause should not be enforced under The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, because it was not "freely bargained for," and because its enforcement would operate to deprive the Shutes of their day in court in light of evidence indicating that they were physically and financially incapable of pursuing the litigation in Florida.Held: The Court of Appeals erred in refusing to enforce the forum-selection clause. Pp. 499 U. S. 590-597.(a) The Bremen Court's statement that a freely negotiated forum-selection clause, such as the one there at issue, should be given full effect, 407 U.S. at 407 U. S. 12-13, does not support the Court of Appeals' determination that a nonnegotiated forum clause in a passage contract is never enforceable simply because it is not the subject of bargaining. Whereas it was entirely reasonable for The Bremen Court to have expected the parties to have negotiated with care in selecting a forum for the resolution of disputes arising from their complicated international agreement, it would be entirely unreasonable to assume that a cruise passenger would or could negotiate the terms of a forum clause in a routine commercial cruise ticket form. Nevertheless, including a reasonable forum clause in such a form contract well may be permissible for several reasons. Because it is not unlikely that a mishap in a cruise could subject a cruise line to litigation in several different fora, the line has a special interest in limiting such fora. Moreover, a clause establishing ex ante the dispute resolution forum has the salutary effect of dispelling confusion as to where suits may be brought and defended, thereby sparing litigants time and expense and conserving judicial resources. Furthermore, it is likely that passengers purchasing tickets Page 499 U. S. 586 containing a forum clause like the one here at issue benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Pp. 499 U. S. 590-594.(b) The Court of Appeals' conclusion that the clause here at issue should not be enforced because the Shutes are incapable of pursuing this litigation in Florida is not justified by The Bremen Court's statement that"the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause."Id. at 407 U. S. 17. That statement was made in the context of a hypothetical "agreement between two Americans to resolve their essentially local disputes in a remote alien forum." Ibid. Here, in contrast, Florida is not such a forum, nor -- given the location of Mrs. Shute's accident -- is this dispute an essentially local one inherently more suited to resolution in Washington than in Florida. In light of these distinctions, and because the Shutes do not claim lack of notice of the forum clause, they have not satisfied the "heavy burden of proof," ibid. required to set aside the clause on grounds of inconvenience. Pp. 499 U. S. 594-595.(c) Although forum selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness, there is no indication that petitioner selected Florida to discourage cruise passengers from pursuing legitimate claims or obtained the Shutes' accession to the forum clause by fraud or overreaching. P. 499 U. S. 595.(d) By its plain language, the forum selection clause at issue does not violate 46 U.S.C. App. § 183c, which, inter alia, prohibits a vessel owner from inserting in any contract a provision depriving a claimant of a trial "by court of competent jurisdiction" for loss of life or personal injury resulting from negligence. Pp. 499 U. S. 595-597.897 F.2d 377 (CA9 1990), reversed.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 499 U. S. 597. Page 499 U. S. 587

1967_891

MR. JUSTICE BRENNAN delivered the opinion of the Court.This action was brought by petitioner, the Secretary of Labor, in the District Court for the Southern District of New York for a judgment declaring void the May, 1965, election of officers conducted by respondent Local 6, and ordering a new election under the Secretary's supervision. The action is authorized by § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 534, 29 U.S.C. § 482(b). The Secretary charged that a bylaw of the Local which limited eligibility for major elective offices to union members who Page 391 U. S. 494 hold or have previously held elective office [Footnote 1] was not a "reasonable qualification" within the intendment of the provision of § 401(e) of the Act, 29 U.S.C. § 481(e), that "every member in good standing shall be eligible to be a candidate and to hold office (subject to . . . reasonable qualifications uniformly imposed). . . ." [Footnote 2] He charged further that enforcement of the bylaw "may have affected the outcome" of the election within the meaning of § 402(c), 29 U.S.C. § 482(C). [Footnote 3] Page 391 U. S. 495The District Court, after hearing, entered a judgment which declared that the prior-office requirement was not reasonable, but also declared that it could not be found that its enforcement in violation of § 401(e) "may have affected the outcome" of the election. The court therefore refused to set aside the May, 1965, election and to order a new election under the Secretary's supervision, but did grant an injunction against enforcement of the bylaw in future elections. 265 F. Supp. 510. The Court of Appeals for the Second Circuit reversed the provision of the judgment which declared the bylaw not to be reasonable and its enforcement violative of § 401(e), and set aside the injunction. [Footnote 4] The court found it unnecessary in that circumstance to decide whether enforcement of the bylaw at the election may have affected the outcome. 381 F.2d 500. We granted certiorari. 390 U.S. 919. We hold that the restriction was not reasonable and that its enforcement may have affected the outcome of the election. The Secretary is therefore entitled to an order directing a new election under his supervision. Page 391 U. S. 496ITitle IV is one of the seven titles of the Labor-Management Reporting and Disclosure Act (LMRDA). Earlier this Term, we observed that"Title IV's special function in furthering the overall goals of the LMRDA is to insure 'free and democratic' elections. The legislative history shows that Congress weighed how best to legislate against revealed abuses in union elections without departing needlessly from its longstanding policy against unnecessary governmental intrusion into internal union affairs."Wirtz v. Local 13, Glass Bottle Blowers Assn., 389 U. S. 463, 389 U. S. 470-471. The Court of Appeals, however, in considering the reasonableness of the bylaw, emphasized only the congressional concern not to intervene unnecessarily in internal union affairs, stating that,"[i]n deciding the issue of reasonableness, we must keep in mind the fact that the Act did not purport to take away from labor unions the governance of their own internal affairs and hand that governance over either to the courts or to the Secretary of Labor. The Act strictly limits official interference in the internal affairs of unions."381 F.2d at 504. But this emphasis overlooks the fact that the congressional concern to avoid unnecessary intervention was balanced against the policy expressed in the Act to protect the public interest by assuring that union elections would be conducted in accordance with democratic principles. As we said in Wirtz v. Bottle Blowers, supra, at 389 U. S. 473, decided after the Court of Appeals decided this case,". . . Congress, although committed to minimal intervention, was obviously equally committed to making that intervention, once warranted, effective in carrying out the basic aim of Title IV."Thus,"the freedom allowed unions to run their own elections was reserved for those elections which conform to the democratic principles Page 391 U. S. 497 written into § 401."Id. at 389 U. S. 471. In a companion case, Wirtz v. Local 125, Laborers' Int'l Union, 389 U. S. 477, 389 U. S. 483, we said that the provisions of § 401 are "necessary protections of the public interest as well as of the rights and interests of union members." In sum, in § 401,". . . Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member."Wirtz v. Bottle Blowers, supra, at 389 U. S. 475.A pervasive theme in the congressional debates about the election provisions was that revelations of corruption, dictatorial practices and racketeering in some unions investigated by Congress [Footnote 5] indicated a need to protect the rights of rank-and-file members to participate fully in the operation of their union through processes of democratic self-government, and, through the election process, to keep the union leadership responsive to the membership. This theme is made explicit in the reports of the Labor Committees of both Houses of Congress. [Footnote 6] It is Page 391 U. S. 498 reflected in the discrete provisions of Title IV and also of Title I, the "Bill of Rights" for union members. 29 U.S.C. § 411. Title IV, and particularly § 401, was the vehicle by which Congress expressed its policy. That section prescribes standards to govern the conduct of union elections: international union elections must be held at least once every five years, and local elections at least once every three years. Elections must be by secret ballot. Specific provisions insure equality of treatment in the mailing of campaign literature; require adequate safeguards to insure a fair election; guarantee a "reasonable opportunity" for the nomination of candidates, the right to vote, and the right of every member in good standing to be a candidate subject to "reasonable qualifications uniformly imposed," the guarantee with which we are concerned in this case. 29 U.S.C. §§ 481(a)-(e). Furthermore, although Congress emphatically gave unions the primary responsibility for enforcing compliance with the Act, Congress also settled enforcement authority on the Secretary of Labor to insure that serious violations would not go unremedied and the public interest Page 391 U. S. 499 go unvindicated. See Wirtz v. Bottle Blowers, supra; Wirtz v. Laborers' Union, supra; Calhoon v. Harvey, 379 U. S. 134. [Footnote 7]Congress plainly did not intend that the authorization in § 401(e) of "reasonable qualifications uniformly imposed" should be given a broad reach. The contrary is implicit in the legislative history of the section and in its wording that "every member in good standing shall be eligible to be a candidate and to hold office. . . ." This conclusion is buttressed by other provisions of the Act which stress freedom of members to nominate candidates for office. [Footnote 8] Unduly restrictive candidacy qualifications can result in the abuses of entrenched leadership that the LMRDA was expressly enacted to curb. The check of democratic elections as a preventive measure is seriously impaired by candidacy qualifications which substantially deplete the ranks of those who might run in opposition to incumbents.It follows therefore that whether the Local 6 bylaw is a "reasonable qualification" within the meaning of § 401(e) must be measured in terms of its consistency with the Act's command to unions to conduct "free and democratic" union elections. Page 391 U. S. 500IILocal 6 has 27,000 members, assets of$2,300,000, and assets in welfare, pension, and medical funds of some $30,000,000. The Local represents bartenders, maids, dining room employees, and kitchen employees of hotels, motels, and private clubs in New York. It is structured into six geographic districts, each with five craft departments, for hotel and motel employees, and a seventh district for private clubs. The various crafts have their own representatives in each hotel, motel, or club. An Assembly, composed in 1965 of 372 members, meets four times a year and is the basic representative body. The delegates are elected from among the craft units within each of the seven districts on the basis of one delegate for each 75 members of a craft. The Assembly, in turn, elects from its membership an Executive Board on the basis of one board member for each 500 members, augmented by principal officers and by nonvoting business agents, 31 of whom are elected from the seven districts and others who are appointed by the Assembly. The Executive Board meets monthly. There is also an Administrative Board made up of, in addition to general officers, seven district vice-presidents elected from the districts and elected or appointed delegates to the New York Hotel and Motel Trades Council. Finally, there are four paid full-time general officers -- President, Secretary-Treasurer, General Organizer, and Recording Secretary, all elected by the membership at large. Terms of office are three years. In practice, the affairs of the Local are administered by the general officers and the Administrative Board.The bylaw under challenge [Footnote 9] limited eligibility for positions as a general officer, district vice-president or elected Page 391 U. S. 501 business agent to members of either the Assembly or the Executive Board or members who, "at some time in the past, have served at least one term on either the Executive Board, the Assembly, or the old Shop Delegates Council." The Shop Delegates Council was abolished in 1951 and replaced by the Assembly. These qualifications apply, however, only to members who stand for election for office. Vacancies may not always be filled by election; the general officers may in such cases fill vacancies by appointment of members without prior office-holding experience, with the approval of the Executive Board and the Assembly.By the terms of the bylaw, in the May, 1965, election only 1725 of the 27,000 members were eligible to run for office. Of these, 1,182, or 70%, were eligible only because of service on the Shop Delegates Council which had been abolished 14 years earlier. Thus, only 543 of the eligibles, some 27% of the membership, had at some time or other served at least a term in the Assembly, designated in the bylaws as "the highest body of the Union," since its creation in 1951.Five elections were held between 1951 and 1965. All of them were won by the "Administration Party," whose slates were composed largely of incumbents. Until the May, 1965, election, there was only token opposition to those slates. Early in 1965, however, a "Membership Party" was organized. It attempted to field a slate of candidates to oppose the "Administration Party" slate for, among others, the four general offices and for 13 of the 27 vice-president and business agent posts. But Page 391 U. S. 502 enforcement of the bylaw disqualified the "Membership Party" candidates for the general office of Secretary-Treasurer and for eight of the district offices. [Footnote 10] Other "Membership Party" nominees were disqualified for lack of good standing. In result, the "Membership Party" slate was reduced to candidates for the offices of president, general organizer, and business agent in two districts. The "Administration Party" ran a full slate and elected its candidates by margins up to 7 to 1. Following the election, "Membership Party" members protested the validity of the bylaw and, after unsuccessfully exhausting internal union remedies, as required by § 402(a)(1), filed the complaint with the Secretary of Labor as authorized by that section, which, in due course, led to the Secretary's filing this action.Plainly, given the objective of Title IV, a candidacy limitation which renders 93% of union members ineligible for office can hardly be a "reasonable qualification." The practical effect of the limitation was described by the District Court:"In practice, it was not possible to be elected to the Assembly except with the blessing of the Administration Party conferred by selection to run for the Assembly on Row A [of a voting machine]. This was doubtless in large part because there was never a full slate of opposing candidates for the Assembly. The candidates to run on Row A for the Assembly were selected by the incumbent group of officers, and were put in nomination after caucuses of invited members, attended by officers. It was only natural that candidates selected to run on Row A for the Assembly would be supporters of the Page 391 U. S. 503 administration. All candidates on Row A were pledged to support each other. Dissidents could not be elected to the Assembly. . . .""* * * *" "Since 1951, the only way new members could become eligible for office was to win election to the Assembly. But, in this period, the only candidates which won such election were those who ran on Row A, the administration ticket. The only way to run on Row A was to be selected by the administration. Thus, dissidents could not become eligible to be opposing candidates for office, and effective opposition was thus sharply curtailed."265 F. Supp. at 516, 520.The Local attempts to defend the restriction as a "reasonable qualification" by citing the concededly impressive record of the "Administration Party" in running the Local's affairs since 1951. There is no reason to doubt that the Local has enjoyed enlightened and aggressive leadership. But that fact does not sustain the Local's burden. Congress designed Title IV to curb the possibility of abuse by benevolent, as well as malevolent, entrenched leaderships.The Local also argues that the high annual turnover in membership, the diverse interests of the various craft units and the multimillion-dollar finances of the Local justify the bylaw as a measure to limit the holding of important union offices to those members who have acquired a familiarity with the Local's problems by service in lesser offices. That argument was persuasive with the Court of Appeals, which said:"[I]t is not self-evident that basic minimum principles of union democracy require that every union entrust the administration of its affairs to untrained and inexperienced rank and file members. . . . It does not seem to us to be surprising Page 391 U. S. 504 that the union should hesitate to permit a cook or a waiter or a dishwasher without any training or experience in the management of union affairs to take on responsibility for the complex and difficult problems of administration of this union.""* * * *" "We do not believe that it is unreasonable for a union to condition candidacy for offices of greater responsibility upon a year [sic] of the kind of experience and training that a union member will acquire in a position such as that of membership in Local 6's Assembly."381 F.2d at 505.That argument is not, however, persuasive to us. It assumes that rank-and-file union members are unable to distinguish qualified from unqualified candidates for particular offices without a demonstration of a candidate's performance in other offices. But Congress' model of democratic elections was political elections in this country, and they are not based on any such assumption. Rather, in those elections the assumption is that voters will exercise common sense and judgment in casting their ballots. Local 6 made no showing that citizens assumed to make discriminating judgments in public elections cannot be relied on to make such judgments when voting as union members. Indeed, the Local is not faithful to its own premise. A member need not have prior service in union office to be appointed to a vacancy in any office. Also, many members of the powerful Administrative Board become such by reason of their appointments as delegates to the New York Hotel and Motel Trades Council, another example of important officers who are not required to have had prior service. Moreover, as the District Court found,"once such an officer is appointed, he automatically becomes a member of the Assembly and immediately becomes eligible to run thereafter for any union office. This enables the incumbent Page 391 U. S. 505 group to qualify members for elective office by a procedure not available to dissidents."265 F. Supp. at 520.The bylaw is virtually unique in trade union practice. It has its counterpart in some other locals of this International Union, but not in all, and it is not a requirement included in the International's constitution. Among other large unions only the International Ladies Garment Workers Union has a similar restriction, but that union provides members with the alternative of a union-conducted course in union management. Of 66 unions reporting receipts over $1,000,000 for 1964, only locals of ILGWU and Local 6 reported having this requirement.Control by incumbents through devices which operate in the manner of this bylaw is precisely what Congress legislated against in the LMRDA. Cf. Wirtz v. Bottle Blowers, supra, at 389 U. S. 474-475. Accordingly, we hold that the bylaw is not a "reasonable qualification" within the meaning of § 401(e).III.The Secretary was not entitled to an order for a supervised election unless the enforcement of the bylaw "may have affected" the outcome of the May, 1965 election, § 402(c), 29 U.S.C. § 482(c). The "may have affected" language appeared in the bill passed by the Senate, S. 1555. [Footnote 11] The bill passed by the House, H.R. 8342, Page 391 U. S. 506 and the Kennedy-Ervin bill introduced in the Senate, S. 505, required the more stringent showing that the violation actually "affected" the outcome. The difference was resolved in conference by the adoption of the "may have affected" language. [Footnote 12] Senator Goldwater explained,"The Kennedy-Ervin bill (S. 505), as introduced, authorized the court to declare an election void only if the violation of section 401 actually affected the outcome of the election, rather than may have affected such outcome. The difficulty of proving such an actuality would be so great as to render the professed remedy practically worthless. Minority members in committee secured an amendment correcting this glaring defect and the amendment is contained in the conference report."105 Cong.Rec.19765.The provision that the finding should be made "upon a preponderance of the evidence" was left undisturbed when the change was made. That provision is readily satisfied, however, as is the congressional purpose in changing "affected" to "may have affected" in order to avoid rendering the proposed "remedy practically worthless," by ascribing to a proved violation of § 401 the effect Page 391 U. S. 507 of establishing a prima facie case that the violation "may have affected" the outcome. This effect may, of course, be met by evidence which supports a finding that the violation did not affect the result. This construction is peculiarly appropriate when the violation of § 401, as here, takes the form of a substantial exclusion of candidates from the ballot. In such case, we adopt the reasoning of the Court of Appeals for the Second Circuit in Wirtz v. Local Union 410, IUOE, 366 F.2d 438, 443:"The proviso was intended to free unions from the disruptive effect of a voided election unless there is a meaningful relation between a violation of the Act and results of a particular election. For example, if the Secretary's investigation revealed that 20 percent of the votes in an election had been tampered with, but that all officers had won by an 8-1 margin, the proviso should prevent upsetting the election. . . . But in the cases at bar, the alleged violations caused the exclusion of willing candidates from the ballots. In such circumstances, there can be no tangible evidence available of the effect of this exclusion on the election; whether the outcome would have been different depends upon whether the suppressed candidates were potent vote-getters, whether more union members would have voted had candidates not been suppressed, and so forth. Since any proof relating to effect on outcome must necessarily be speculative, we do not think Congress meant to place as stringent a burden on the Secretary as the district courts imposed here."The District Court acknowledged that the issue was "governed by the teaching of Wirtz v. Local Unions 410, etc." and correctly held that, under its principle "a violation by disqualification of candidates does not automatically require a finding that the outcome may have Page 391 U. S. 508 been affected." 265 F. Supp. at 520-521. We cannot make out from the court's opinion, however, whether the violation was regarded as establishing a prima facie case that the outcome was affected. But if we assume that the court accorded the violation that effect, we disagree with its conclusion that the evidence met that case. The court cited the substantial defeat of those "Membership Party" candidates who did run, the lack of evidence that any of the disqualified nominees was a proven vote-getter, the lack of a substantial grievance or issue asserted by the "Membership Party" against the incumbents, and the overwhelming advantage enjoyed by the "Administration Party" of having a full slate of candidates. 265 F. Supp. at 521. We do not think that these considerations constitute proof supporting the court's conclusion. None of the factors relied on is tangible evidence against the reasonable possibility that the wholesale exclusion of members did affect the outcome. Nothing in them necessarily contradicts the logical inference that some or all of the disqualified candidates might have been elected had they been permitted to run. The defeat suffered by the few candidates allowed to run proves nothing about the performance that might have been made by those who did not. The District Court properly perceived that the bylaw necessarily inhibited the membership generally from considering making the race, but held that any inference from this was disproved by "the heavy vote in favor of the administration candidates. . . ." Ibid. But since 93% of the membership was ineligible under the invalid bylaw, it is impossible to know that the election would not have attracted many more candidates but for the bylaw. In short, the considerations relied on by the court are pure conjecture, not evidence. We therefore conclude that the prima facie case established by the Page 391 U. S. 509 violation was not met by evidence which supports the District Court's finding that the violation did not affect the result.The judgment of the Court of Appeals is reversed and the case is remanded to the District Court with direction to order a new election under the Secretary's supervision.It is so ordered

U.S. Supreme CourtWirtz v. Hotel Employees, 391 U.S. 492 (1968)Wirtz v. Hotel, Motel & Club Employees Union, Local 6No. 891Argued April 29, 1968Decided June 3, 1968391 U.S. 492SyllabusPetitioner, Secretary of Labor, charged that respondent union's bylaw which limited eligibility for major elective offices to union members who hold or have previously held elective office was not a reasonable qualification under § 401(e) of Title IV of the Labor-Management Reporting and Disclosure Act of 1959, and that enforcement of the bylaw "may have affected the outcome" of the election within the meaning of § 402(c). The union has 27,000 members, 93% of whom were ineligible to run for major office because of the bylaw. The restriction did not apply to vacancies filled by appointment. The District Court held the prior-office requirement unreasonable, but in view of the substantial defeat of opposition candidates who did run, lack of evidence that those disqualified were proven vote-getters, lack of substantial grievance against the incumbents, and the overwhelming advantage of the incumbent group in having a full slate of candidates, did not find that enforcement of the bylaw "may have affected the outcome" of the election. The court refused to set aside the election but granted an injunction against enforcement of the bylaw in future elections. The Court of Appeals reversed that part of the judgment declaring the bylaw not to be reasonable and set aside the injunction.Held:1. The bylaw, measured against the Act's requirement of "free and democratic" union elections, is not a "reasonable qualification" within the meaning of § 401(e) of the Act. Pp. 391 U. S. 496-505.(a) A limitation on candidacy for major office which renders 93% of the union members ineligible can hardly be a "reasonable qualification." P. 391 U. S. 502.(b) The restriction cannot be supported by the argument that the union enjoyed enlightened and aggressive leadership, since Congress designed Title IV of the Act to curb the possibility of abuse by benevolent as well as malevolent entrenched leaderships. P. 391 U. S. 503. Page 391 U. S. 493(c) The bylaw, virtually unique in union practice, is based on the undemocratic assumption that union members are unable to select qualified candidates for particular offices without a demonstration of performance in other offices. Pp. 391 U. S. 504-505.2. A proved violation of § 401 establishes a prima facie case that the outcome may have been affected and may be met by evidence supporting a finding to the contrary. The factors the District Court relied on were pure conjecture, and none of those factors is tangible evidence against the reasonable possibility that the wholesale exclusion of members did affect the outcome. Pp. 391 U. S. 505-509.381 F.2d 500, reversed and remanded.

1968_45

MR. JUSTICE DOUGLAS delivered the opinion of the Court.Respondents, who had been convicted by courts-martial, brought these suits for back pay. Augenblick, though charged with sodomy, was convicted of a lesser offense, an indecent act, and Juhl was convicted of selling overseas merchandise of an Air Force Exchange. Augenblick was sentenced to dismissal from the service; Juhl was sentenced to reduction in rank, partial forfeiture of pay, and confinement for six months. Each exhausted Page 393 U. S. 349 the remedies available to him [Footnote 1] and, not having obtained relief, brought suit in the Court of Claims to recover back pay [Footnote 2] on the ground that the court-martial infringed on his constitutional rights. The Court of Claims undertook to review the judgments of the courts-martial for constitutional defects, and rendered judgments for respondents. 180 Ct.Cl. 131, 377 F.2d 586; 181 Ct.Cl. 210, 383 F.2d 1009. The case is here on petition for writs of certiorari which we granted because of the importance of the question concerning the jurisdiction of the Court of Claims to review judgments of courts-martial. 390 U.S. 1038.Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, provides that military review of court-martial convictions shall be "final and conclusive" and "binding upon all . . . courts . . . of the United States." The legislative history of the provision makes clear that Page 393 U. S. 350 relief by way of habeas corpus [Footnote 3] was an implied exception to that finality clause (S.Rep. No. 486, 81st Cong., 1st Sess., 32; H.R.Rep. No. 491, 81st Cong., 1st Sess., 35) -- an exception not available to respondent Augenblick because he was discharged from the service, not imprisoned, and a remedy apparently not invoked by respondent Juhl during his short period of detention.An additional remedy, apparently now available but not clearly known at the time of these court-martial convictions, is review by the Court of Military Appeals. In United States v. Bevilacqua, 18 U.S.C.M.A. 10, 11-12, 39 C.M.R. 10, 11-12, decided November 8, 1968, that court held that it has jurisdiction"to accord relief to an accused who has palpably been denied constitutional rights in any court-martial, and that an accused who has been deprived of his rights need not go outside the military justice system to find relief in the civilian courts of the Federal judiciary. [Footnote 4]"Prior to the enactment of Article 76, the Court of Claims had entertained suits for back pay brought by servicemen who had been convicted by courts-martial. See, e.g., Keyes v. United States, 109 U. S. 336; Runkle v. United States, 122 U. S. 543; Swaim v. United States, 165 U. S. 553; United States v. Brown, 206 U. S. 240. These decisions, it is argued, were based on the theory that the Court of Claims had jurisdiction over back-pay suits where the courts-martial lacked "jurisdiction" in the traditional sense, viz., where"there is no law authorizing Page 393 U. S. 351 the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed."Keyes v. United States, supra, at 109 U. S. 340. From this premise, it is urged that when, in review of state convictions by way of federal habeas corpus, the concept of "jurisdiction" was broadened to include deprivation by the trial tribunal of the constitutional rights of a defendant (Moore v. Dempsey, 261 U. S. 86; Johnson v. Zerbst, 304 U. S. 458), the scope of collateral review of court-martial convictions was also broadened. That is the position of the Court of Claims which rejected the view that the adoption of Article 76 introduced a new regime and that 10 U.S.C. § 1552, which provides a remedy to correct a military record in order to "remove an injustice," [Footnote 5] see Ashe v. McNamara, 355 F.2d 277, is, apart from habeas corpus, the exclusive remedy. [Footnote 6]On that issue, there have been a variety of views expressed in this Court. See Burns v. Wilson, 346 U. S. 137, 346 U. S. 149, 346 U. S. 152-153. There is likewise unresolved the question whether, if the view of the Court of Claims is correct, the District Courts might have a like jurisdiction over suits not exceeding $10,000 under the Tucker Act, 28 U.S.C. § 1346(a)(2). [Footnote 7] After hearing argument and studying the record of these cases, we do not reach those questions. For we conclude that, even if we assume, arguendo, that a collateral attack on a court-martial judgment may be made in the Court of Claims Page 393 U. S. 352 through a back-pay suit alleging a "constitutional" defect in the military decision, these present cases, on their facts, do not rise to that level.The Court of Claims gave relief to Juhl because of the provision in paragraph 153(a) of the Manual for Courts-Martial which states that the court-martial "cannot" base a conviction "upon the uncorroborated testimony of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable."We do not stop to review the evidence which bears on this issue and which the Court of Claims sets forth in detail. See 181 Ct.Cl. at 215-225, 383 F.2d at 1012-1017.The Manual was prescribed by the President pursuant to Article 36 of the Uniform Code, 10 U.S.C. § 836. It is a guidebook that summarizes the rules of evidence applied by court-martial review boards. See Levy v. Resor, 17 U.S.C. M. 1. 135, 37 C.M.R. 399. The paragraph regarding accomplice testimony is a statutory rule of evidence. Such rules do not customarily involve constitutional questions. See Humphrey v. Smith, 336 U. S. 695; Whelchel v. McDonald, 340 U. S. 122. The Whelchel case involved various paragraphs of the Manual dealing with the defense of insanity. We did not sanction review of those paragraphs in a collateral remedy, but held that only a denial of the opportunity for the military to consider the defense of insanity "goes to the question of jurisdiction", and we added that "[a]ny error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts." 340 U.S. at 340 U. S. 124.Rules of evidence are designed in the interest of fair trials. But unfairness in result is no sure measure of unconstitutionality. When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions. Page 393 U. S. 353 Of course, if knowing use of its perjured character were linked with any testimony (Mooney v. Holohan, 294 U. S. 103; Brady v. Maryland, 373 U. S. 83), we would have a problem of different dimensions. But nothing of the kind is involved here.Augenblick's claim of constitutional defect in his court-martial concerns a phase in the discovery of evidence. He and a young airman, Hodges, were apprehended late at night in a parked car. The civilian police who arrested them turned them over to the Armed Forces Police who questioned them separately at a naval station in Washington, D.C. Hodges was then taken to an Air Force base in Maryland where he swore to a five-page written statement.Augenblick was questioned at the naval station after Hodges. During this questioning of both men, Agent James made a tape recording of the conversations. Agent Mendelson either took some notes or wrote up some notes later.Hodges apparently started out by denying that anything happened in the parked car, and later maintained that sodomy had taken place, though, as we have said, Augenblick's conviction was for an indecent act, not for sodomy. Hodges later received an honorable discharge, and it was the theory of the defense that he may have been induced to change his testimony on a promise that one would be given. It is indeed heavily impressed on us that Hodges was kept available for some months and left in good standing, in spite of his reprehensible conduct, and given an honorable discharge only after Augenblick was convicted.The defense moved for the production of the notes which Mendelson had taken -- or later typed up -- and of the tape which James had made. As to the notes, the law officer, without examining them in camera or otherwise, denied the request. As to the tapes, the law Page 393 U. S. 354 officer ordered that they be produced or that the Government produce witnesses at an out-of-court hearing who could explain their nonexistence. The tapes were not produced; but each agent who had had contact with the recording was called, except Mendelson, who was in Norfolk. James testified that there was a tape, but no one knew where it was or what had happened to it. The defense urged that Mendelson, to whom the tapes had apparently once been delivered, be called; but the law officer, after reading the record of Mendelson's testimony on the tape recording at a pretrial investigation, refused.The question of the production of Mendelson's "notes," as well as the question of the production of the tapes, bring into focus the Jencks Act, 18 U.S.C. § 3500. This Act, enacted after our decision in Jencks v. United States, 353 U. S. 657, provides that, when a witness testifies for the United States, the Government may be required to produce "any statement" of the witness which relates to his testimony. § 3500(b). The term "statement" is defined in subsection (e) as:"(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or""(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement."There is considerable doubt if Mendelson's "notes" fall within the definition of subsection (e). He testified at the court of inquiry that he made "rough pencil notes", and he said at the pretrial investigation, "I did jot down a couple of rough notes." Both the law officer and the Board of Review concluded that these "notes" were not a Page 393 U. S. 355 "substantially verbatim" statement producible under the Jencks Act.It is difficult to tell from this record the precise nature of Mendelson's "notes," whether they recorded part of Hodges' interview or whether they were merely a memorandum giving names, places, and hours. Certainly they were not a statement covering the entire interview, and, if they were a truncated version, they would pose the question reserved in Palermo v. United States, 360 U. S. 343. Since, on examination of the record, we are left in doubt as to the precise nature of the "notes," we cannot say that the command of the Jencks Act was disobeyed when they were not ordered to be produced.Moreover, we said in Palermo v. United States, supra, at 360 U. S. 353, that the administration of the Jencks Act must be entrusted to the "good sense and experience" of the trial judges subject to "appropriately limited review of appellate courts." We cannot conclude that, when it came to the "rough notes" of Mendelson, the law officer and Board of Review abused their discretion in holding that they need not be produced under the Jencks Act.The same is true of the rulings concerning production of the tapes. There is no doubt but that the tapes were covered by the Jencks Act, and an earnest effort was made to locate them. Their nature and existence were the subject of detailed interrogation at the pretrial hearing convened at the request of the defense. Four government agents testified concerning the interrogation of Hodges, the recording facilities used, the Navy's routine in handling and using such recordings, and the fate of the tape containing Hodges' testimony. The ground was covered once again at the court-martial. The tapes were not produced; the record, indeed, shows that they were not found, and their ultimate fate remains a mystery. The law officer properly ruled that the Government bore Page 393 U. S. 356 the burden of producing them or explaining why it could not do so.The record is devoid of credible evidence that they were suppressed. Whether Mendelson should have been recalled is a matter of debate, and perhaps doubt. But questions of that character do not rise to a constitutional level. Indeed, our Jencks decision and the Jencks Act were not cast in constitutional terms. Palermo v. United States, supra, at 360 U. S. 345, 360 U. S. 362. They state rules of evidence governing trials before federal tribunals, and we have never extended their principles to state criminal trials. It may be that, in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right. There is, for example, the command of the Sixth Amendment that criminal defendants have compulsory process to obtain witnesses for their defense. Palermo v. United States, supra, at 360 U. S. 362 (BRENNAN, J., concurring in result). But certain it is that this case is not a worthy candidate for consideration at the constitutional level.The Court of Claims, in a conscientious effort to undo an injustice, elevated to a constitutional level what it deemed to be an infraction of the Jencks Act and made a denial of discovery which "seriously impeded his right to a fair trial" a violation "of the Due Process Clause of the Constitution." 180 Ct.Cl. at 166, 377 F.2d at 606-607. But, apart from trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes place only where the barriers and safeguards are so relaxed or forgotten, as in Moore v. Dempsey, supra, that the proceeding is more a spectacle (Rideau v. Louisiana, 373 U. S. 723, 373 U. S. 726) or trial by ordeal (Brown v. Mississippi, 297 U. S. 278, 297 U. S. 285) than a disciplined contest.Reversed

U.S. Supreme CourtUnited States v. Augenblick, 393 U.S. 348 (1969)United States v. AugenblickNo. 45Argued November 21, 1968Decided January 14, 1969393 U.S. 348SyllabusEven if it is assumed, arguendo, despite the enactment of Article 76 of the Uniform Code of Military Justice (which provides that military review of court-martial convictions shall be "final and conclusive" and "binding upon all . . . courts . . . of the United States") that collateral attack on a court-martial judgment may be made in the Court of Claims through a back-pay suit alleging a "constitutional" defect in the military decision, the claims herein, which involve a rule of evidence concerning accomplice testimony, and the possible application of the Jencks Act, do not, on their facts, rise to the constitutional level. Pp. 393 U. S. 349-356.180 Ct.Cl. 131, 377 F.2d 586; 181 Ct.Cl. 210, 383 F.2d 1009, reversed.

1981_80-1240

JUSTICE STEVENS delivered the opinion of the Court.In 1975, respondents pleaded guilty in Illinois state court to a charge of burglary, an offense punishable at that time by imprisonment for an indeterminate term of years and a mandatory 3-year parole term. We granted certiorari to consider whether the failure of the trial court to advise respondents of that mandatory parole requirement before accepting their guilty pleas deprived them of due process of law. We are unable to reach that question, however, because we find that respondents' claims for relief are moot.IOn March 11, 1975, respondent Lawrence Williams appeared in Illinois state court and pleaded guilty to a single count of burglary. Before accepting the guilty plea, the trial judge elicited Williams' understanding of the terms of a plea agreement, in which his attorney and the prosecutor had Page 455 U. S. 626 agreed that Williams would receive an indeterminate sentence of from one to two years in prison in exchange for pleading guilty. The judge informed Williams that he would impose the bargained sentence, and advised him of both the nature of the charge against him and the constitutional rights that he would waive by pleading guilty. After the prosecutor established a factual basis for the plea, Williams indicated that he understood his rights and wished to plead guilty.At the time that Williams pleaded guilty, Illinois law required every indeterminate sentence for certain felonies, including burglary, to include a special parole term in addition to the term of imprisonment. [Footnote 1] During the plea acceptance hearing, neither the trial judge, the prosecutor, nor defense counsel informed Williams that his negotiated sentence included a mandatory parole term of three years.Williams was discharged from prison on May 20, 1976, and released on parole. On March 3, 1977, he was arrested for Page 455 U. S. 627 reasons that do not appear in the record and, on March 16, 1977, he was returned to prison as a parole violator. While in custody, Williams filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He alleged that he "was not informed" that a mandatory parole term had attached to his sentence until two months before his discharge from prison, and that "his present incarceration is therefore in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution." App. 12. Williams' petition did not ask the federal court to set aside his conviction and allow him to plead anew. It requested an order "freeing him from the present control" of the Warden and from "all future liability" under his original sentence. [Footnote 2]On January 4, 1978, the District Court found that Williams' guilty plea had been induced unfairly in violation of the Due Process Clause of the Fourteenth Amendment, and ordered Williams released from custody. United States ex rel. Williams v. Morris, 447 F. Supp. 95 (1978). The court expressly "opted for specific performance" of the plea bargain "rather than nullification of the guilty plea." Id. at 101. The relief granted was precisely what Williams had requested.Williams was not, however, immediately released from custody. The District Court entered a stay to give the State an opportunity to file a motion for reconsideration. Before that stay was lifted, Williams was released from prison on a special 6-month "supervisory release term." The District Court subsequently denied the State's motion to reconsider and the State appealed. [Footnote 3] While that appeal was pending, Page 455 U. S. 628 Williams' 6-month release term expired, and he was released from the custody of the Illinois Department of Corrections.The facts concerning respondent Southall are similar. Pursuant to a plea bargain with the prosecutor that was accepted in advance by an Illinois trial court, Southall pleaded guilty to a single charge of burglary and was sentenced to prison for a minimum period of one year and a maximum period not to exceed three years. The transcript of the plea acceptance proceeding contains no statement by the prosecutor, Southall's public defender, or the trial judge that the bargained and imposed sentence included the mandatory 3-year parole term. Like respondent Williams, Southall completed his sentence, was released on parole, and later declared a parole violator. [Footnote 4] While reincarcerated, he filed a petition for habeas corpus in federal court, seeking his "immediate release." App. 65. [Footnote 5] His case was consolidated in the District Court with that of respondent Williams.The District Court found "Southall's situation to be factually indistinguishable from Williams'." 447 F. Supp. at 102. The court thus granted Southall's petition for a writ of habeas corpus. The State filed an appeal from that decision, but discharged Southall in compliance with the decision of the District Court. [Footnote 6] Page 455 U. S. 629The Court of Appeals reversed on the ground that respondents had failed to exhaust an available state remedy. 594 F.2d 614 (CA7 1979). Before reaching that decision, however, the court requested the parties to submit supplemental briefs on the issue of mootness. The court concluded that the cases were not moot. It noted that Southall's mandatory parole term extended beyond the date of its decision, and thus could be reinstated. While Williams' parole term had expired, the court concluded that the controversy was still alive, because"there remain collateral consequences which might have lingering effects, since [Williams was] found guilty of [a] violatio[n] of the mandatory parole;"that violation "would remain upon [his] recor[d] with various possible adverse consequences." Id. at 615. [Footnote 7] Moreover, the court found the issue to be capable of repetition, yet evading review;"[i]t is obvious that, because of the short terms often remaining in the mandatory parole terms, the same issue may be expected to be raised as to other petitioners similarly situated, with doubtful expectations of resolution."Ibid.After the Court of Appeals had rendered its decision, respondent Southall was discharged from the custody of the Illinois Department of Corrections. [Footnote 8] On remand, the District Court concluded that, as a result of an intervening decision of the Illinois Supreme Court, exhaustion of state remedies would be futile. 483 F. Supp. 775 (1980). The court again entered judgment for respondents; since they had already Page 455 U. S. 630 been released from custody, the court simply entered an order "declaring void the mandatory parole terms." App. 39. The Court of Appeals affirmed that decision, 633 F.2d 71 (1980), and we granted the State's petition for certiorari. Sub nom. Franzen v. Williams, 452 U.S. 914.IIRespondents claim that their constitutional rights were violated when the trial court accepted their guilty pleas without informing them of the mandatory parole requirement. Assuming, for the sake of argument, that the court's failure to advise respondents of this consequence rendered their guilty pleas void, [Footnote 9] respondents could seek to remedy this error in two quite different ways. They might ask the District Court to set aside their convictions and give them an opportunity to plead anew; in that event, they might either plead not guilty and stand trial or they might try to negotiate a different plea bargain properly armed with the information that any sentence they received would include a special parole term. Alternatively, they could seek relief in the nature of "specific enforcement" of the plea agreement as they understood it; in that event, the elimination of the mandatory parole term from their sentences would remove any possible harmful consequence from the trial court's incomplete advice.If respondents had sought the opportunity to plead anew, this case would not be moot. Such relief would free respondents from all consequences flowing from their convictions, as well as subject them to reconviction with a possibly greater sentence. Cf. North Carolina v. Pearce, 395 U. S. 711. Thus, a live controversy would remain to determine whether Page 455 U. S. 631 a constitutional violation in fact had occurred, and whether respondents were entitled to the relief that they sought. [Footnote 10]Since respondents had completed their previously imposed sentences, however, they did not seek the opportunity to plead anew. [Footnote 11] Rather, they sought to remedy the alleged constitutional violation by removing the consequence that gave rise to the constitutional harm. In the course of their attack, that consequence expired of its own accord. Respondents are no longer subject to any direct restraint as a result of the parole term. They may not be imprisoned on the lesser showing needed to establish a parole violation than to prove a criminal offense. Their liberty or freedom of movement is not in any way curtailed by a parole term that has expired.Since respondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, this case is moot."Nullification of a conviction may have important benefits for a defendant . . . , but urging in a habeas corpus proceeding the correction of a sentence already served is another matter."North Carolina v. Rice, 404 U. S. 244, 404 U. S. 248.The Court of Appeals, relying on Carafas v. LaVallee, 391 U. S. 234, concluded that respondents' parole violations had sufficient "collateral effects" to warrant an exercise of federal Page 455 U. S. 632 habeas corpus relief. In Carafas, we held that an attack on a criminal conviction was not rendered moot by the fact that the underlying sentence had expired. On the basis of New York law, we noted that,"[i]n consequence of [the petitioner's] conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror."Id. at 391 U. S. 237 (footnotes omitted). These substantial civil penalties were sufficient to ensure that the litigant had "a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.'" Ibid. (quoting Fiswick v. United States, 329 U. S. 211, 329 U. S. 222). In Sibron v. New York, 392 U. S. 40, 392 U. S. 57, we stated 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."The doctrine of Carafas and Sibron is not applicable in this case. No civil disabilities such as those present in Carafas result from a finding that an individual has violated parole. [Footnote 12] At most, certain nonstatutory consequences may occur; employment prospects, or the sentence imposed in a future criminal proceeding, could be affected. Cf. People v. Halterman, 45 Ill.App.3d 605, 608, 359 N.E.2d 1223, 1225 (1977). [Footnote 13] The discretionary decisions that are made by an Page 455 U. S. 633 employer or a sentencing judge, however, are not governed by the mere presence or absence of a recorded violation of parole; these decisions may take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation. Any disabilities that flow from whatever respondents did to evoke revocation of parole are not removed -- or even affected -- by a District Court order that simply recites that their parole terms are "void." [Footnote 14]Respondents have never attacked, on either substantive or procedural grounds, the finding that they violated the terms of their parole. Respondent Williams simply sought an order "freeing him from the present control" of the Warden and from "all future liability" under his original sentence; Southall sought his "immediate release" from custody. Through the mere passage of time, respondents have obtained all the relief that they sought. In these circumstances, no live controversy remains.The Court of Appeals also held that this case was not moot, because it was "capable of repetition, yet evading review."Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515. Page 455 U. S. 634 That doctrine, however, is applicable only when there is "a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U. S. 147, 423 U. S. 149; Murphy v. Hunt, ante at 455 U. S. 482. Respondents are now acutely aware of the fact that a criminal sentence in Illinois will include a special parole term; any future guilty plea will not be open to the same constitutional attack. The possibility that other persons may litigate a similar claim does not save this case from mootness.The judgment of the Court of Appeals is vacated. The case should be dismissed as moot.It is so ordered

U.S. Supreme CourtLane v. Williams, 455 U.S. 624 (1982)Lane v. WilliamsNo. 80-1240Argued December 1, 1981Decided March 23, 1982455 U.S. 624SyllabusIn 1975, both respondents pleaded guilty in unrelated Illinois state court prosecutions for burglary, an offense punishable at that time by imprisonment for an indeterminate term of years and a mandatory 3-year parole term. Neither respondent, during his plea acceptance hearing, was informed that his negotiated sentence included the mandatory parole term. Each respondent completed his prison sentence, was released on parole, and was then reincarcerated for parole violation. While in custody, each filed petitions for federal habeas corpus, which were consolidated in the District Court, alleging that the failure of the trial courts to advise them of the mandatory parole requirement before accepting their guilty pleas deprived them of due process of law. The District Court found for respondents and, in accordance with the relief requested by them, merely ordered their release through "specific performance" of the plea bargains, rather than nullifying the guilty pleas and allowing them to plead anew. After a remand from the Court of Appeals based on a question as to exhaustion of state remedies, the District Court ultimately again entered judgment for respondents. Since they had already been discharged from custody, the court simply entered an order "declaring void the mandatory parole term[s]." The Court of Appeals affirmed.Held: Respondents' claims for relief are moot. Assuming that the failure to advise respondents of the mandatory parole requirement rendered their guilty pleas void, they could have sought to have their convictions set aside and to plead anew, and this case would not then be moot. Such relief would free them from all consequences flowing from their convictions, as well as subject them to reconviction with a possibly greater sentence, thus preserving a live controversy to determine whether a constitutional violation had occurred and whether respondents were entitled to the relief sought. However, by seeking "specific enforcement" of the plea agreement by elimination of the mandatory parole term from their sentences, respondents instead elected to attack only their sentences, and to remedy the alleged constitutional violation by removing the consequence that gave rise to the constitutional harm. Since their parole terms have now expired, they are no longer subject to any direct restraint Page 455 U. S. 625 as a result of the parole terms, and the case is moot. Neither the doctrine that an attack on a criminal conviction is not rendered moot by the fact that the underlying sentence has expired nor the doctrine that a case is not moot where it is "capable of repetition, yet evading review," is applicable here. Pp. 455 U. S. 630-634.633 F.2d 71, vacated.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 455 U. S. 634.

1969_25

MR. JUSTICE HARLAN delivered the opinion of the Court.This action was brought by respondent Vermont dairy farmers, "country" milk producers, seeking a judgment invalidating as contrary to the Agricultural Marketing Agreement Act of 1937, as amended, 50 Stat. 246, 7 U.S.C. § 601 et seq. (1964 ed. and Supp. IV), the so-called farm location differential provided for by order Page 396 U. S. 171 of the Secretary of Agriculture. [Footnote 1] The effect of that order is to require milk distributors to pay to milk producers situated at certain distances from milk marketing areas, "nearby" farmers, higher prices than are paid to producers located at greater distances from such areas. The District Court issued a preliminary injunction on January 16, 1967, against further payments, and, on respondents' motion for summary judgment, transformed its decree into a permanent injunction on June 15, 1967. The Court of Appeals for the District of Columbia Circuit affirmed. 131 U.S.App.D.C. 109, 402 F.2d 660 (1968). We granted certiorari to resolve the important issue of statutory construction involved in this aspect of the administration of the federal milk regulation program. 394 U.S. 958 (1969). Page 396 U. S. 172IBACKGROUNDOnce again, this Court must traverse the labyrinth of the federal milk marketing regulation provisions. [Footnote 2] While previous decisions have outlined the operation of the statute and the pertinent regulations, a brief odyssey through the economic and regulatory background is essential perspective for focusing the issue now before the Court.A. THE ECONOMICS OF THE MILE INDUSTRYThe two distinctive and essential phenomena of the milk industry are a basic two-price structure that permits a higher return for the same product, depending on its ultimate use, and the cyclical characteristic of production.Milk has essentially two end uses: as a fluid staple of daily consumer diet, and as an ingredient in manufactured dairy products such as butter and cheese. Milk used in the consumer market has traditionally commanded a premium price, even though it is of no higher quality than milk used for manufacture. While cost differences account for part of the discrepancy in price, they do not explain the entire gap. At the same time, the milk industry is characterized by periods of seasonal overproduction. The winter months are low in yield and, Page 396 U. S. 173 conversely, the summer months are fertile. In order to meet fluid demand which is relatively constant, sufficiently large herds must be maintained to supply winter needs. The result is oversupply in the more fruitful months. The historical tendency prior to regulation was for milk distributors, "handlers," to take advantage of this surplus to obtain bargains during glut periods. Milk can be obtained from distant sources and handlers can afford to absorb transportation costs and still pay more to outlying farmers whose traditional outlet is the manufacturing market. [Footnote 3] To maintain income, farmers increase production, and the disequilibrium snowballs.To protect against market vicissitudes, farmers in the early 1920's formed cooperatives. These cooperatives were effective in eliminating the self-defeating overproduction by pooling the milk supply and refusing to deal with handlers except on a collective basis. [Footnote 4] During Page 396 U. S. 174 the 1920's era of relative market stability, the nearby farmers enjoyed premium prices for their product. These favorable prices were apparently attributable to reduced transportation costs and also the nearby farmer's historic position as a fluid supplier. [Footnote 5]B. THE FIRST FEDERAL PROGRAMThe drop in commodity prices during the depression years destroyed the equilibrium of the 1920's, and utter chaos ensued. Congress, in an effort to restore order to the market and boost the purchasing power of farmers, enacted the licensing provisions of the Agricultural Adjustment Act, 48 Stat. 31, 35. Under § 8(3), the Secretary of Agriculture was empowered"[t]o issue licenses permitting processors, associations of producers, and others to engage in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof. Such licenses shall be subject to such terms and conditions, not in conflict with existing Acts of Page 396 U. S. 175 Congress or regulations pursuant thereto, as may be necessary to eliminate unfair practices or charges that prevent or tend to prevent the effectuation of the declared policy and the restoration of normal economic conditions in the marketing of such commodities or products and the financing thereof. The Secretary of Agriculture may suspend or revoke any such license, after due notice and opportunity for hearing, for violations of the terms or conditions thereof. . . ."Under the licensing system, base-rating plans not unlike the private arrangements that obtained in the 1920's were adopted. [Footnote 6] Producers were assigned bases which fixed the percent of their output that they would be permitted to sell at the Class I price that was paid for fluid milk. [Footnote 7] The viability of the licensing scheme was jeopardized, however, by judicial decisions disapproving a similarly broad delegation of power under the National Industrial Recovery Act provisions, 48 Stat. 195. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). With its agricultural marketing program resting on quicksand, Congress moved swiftly to eliminate the defect of overbroad delegation and to shore up the void in the agricultural marketing provisions. Section 8(3) of the 1933 Act was amended in 1935, and the pertinent language has been carried forward without significant Page 396 U. S. 176 change into § 8c of the present Act. Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, as amended, 7 U.S.C. § 608c (1964 ed. and Supp. IV). [Footnote 8] Page 396 U. S. 177C. THE PRESENT REGULATORY SCHEMEThe present system, which differs little in substance from the scheme conceived in 1937 for regulating the Boston market, [Footnote 9] provides for a uniform market price payable to all producers by all handlers. [Footnote 10] Prices are established for Class I and Class II uses. The total volume of milk channeled into the market in each category is multiplied by the appropriate coefficient price, and the two results are totaled and then divided by the total number of pounds sold. The result represents the average value of milk sold in the marketing area and is the basic "uniform" price. Were all producers to receive this price they would share on an equal basis Page 396 U. S. 178 the profits of Class I marketing and assume equally the costs of disposing of the economic surplus in the Class II market. The actual price to the producer is, however, the "blended" price, which is computed by adding and subtracting certain special differentials provided for by statute and order. See 7 CFR § 1001.64 (1969). The deduction for differential payments withheld for the benefit of nearby producers reduces the uniform "blended" price to those producers ineligible to collect this particular adjustment. [Footnote 11] The provision is contained in § 1001.72 of the order, and provides:"In making the payments to producers . . . , each handler shall add any applicable farm location differential specified in this section.""(a) With respect to milk received from a producer whose farm is located within any of the places specified in this paragraph, the differential shall be 46 cents per hundredweight, unless the addition of 46 cents gives a result greater than the Class I price determined under §§ 1001.60, 1001.62, and 1001.63 which is effective at the plant at which the milk is received. In that event, there shall be added a rate which will produce that price."A differential of 23� is provided for deliveries from farms in intermediate nearby zones. § 1001.72(b).The foregoing provisions appear in the so-called 1964 Massachusetts-Rhode Island Order, which consolidated into one region the four sub-markets which were previously Page 396 U. S. 179 regulated separately under the so-called four "New England" orders: the 1951 Boston order which carried forward the order adopted for the Boston area in 1937; the Springfield order promulgated in 1949, and the Southeastern New England order of 1958. Each order included a provision for a nearby differential payment to farmers within a stated radius of a designated market center. For example, the differential under the Boston order was payable to farmers located within a 40-mile radius of the State House in Boston; a slightly lower differential was paid to farmers within an 80-mile radius. Under the 1964 order, there is no central point for the computation of the radius for payment of the differential; the Secretary has retained the differential provisions as they appeared in the previous four orders. Farmers who would have been entitled to the differential under any one of the previous four marketing regulations continue to receive those payments under the present order. These nearby farmers are eligible for the differential on any shipments within the New England marketing area, even though their milk may actually be used outside the radius of their particular nearby zone.IITHE STATUTORY SCHEMEThe foundation of the statutory scheme is to provide uniform prices to all producers in the marketing area, subject only to specifically enumerated adjustments. The question before the Court, stated most simply, is whether payment of farm location differentials, set forth above, is a permissible adjustment under 8c(5)(b) to the general requirement of uniformity of price. [Footnote 12] Page 396 U. S. 180The Secretary has in the past labeled the "nearby" differential a "location" differential and defended its inclusion in his orders on that ground. The justification and argument are now, however, pitched in a different key. The Government has apparently abandoned all but one of the numerous theories advanced below, and pressed most vigorously in the Blair v. Freeman litigation (125 U.S.App.D.C. 207, 370 F.2d 229 (1966)), and it now stresses the provision in § 8c(5)(b) for "volume, market, and production differentials customarily applied by the handlers subject to such order."While the proper resolution of the issue is by no means self-evident, we are persuaded that "market . . . differentials customarily applied" contemplates cost adjustments. The plain thrust of the federal statute was to remove ruinous and self-defeating competition among Page 396 U. S. 181 the producers and permit all farmers to share the benefits of fluid milk profits according to the value of goods produced and services rendered. The Government's proposed reading of the Act, bottomed as it is on the historical payment of a premium to nearby farmers during the monopolistic era of the cooperative pools, would come to perpetuate economic distortion and freeze the milk industry into the competitive structure that prevailed during the 1920's.Without the benefit of government muscle to eliminate crippling price warfare in the summer months, neither nearby nor country producers could share in the monopoly-type profits that accrue from fluid milk sales. Absent regulation, only the handlers, if anyone, would stand to benefit from the "fluid" monopoly. While we cannot project what would be the case today if a free market prevailed, we might well anticipate that the nearby producers' winter advantages would be negligible in view of reduced transportation costs and more reliable refrigeration. Thus, even in winter, handlers might be free to play nearby and outlying farmers against each other, since handlers would be free of the leverage exercised by the nearby cooperatives during the 1920's. Nearby producers now seek the best of both worlds. Having achieved the security that comes with regulation, they seek under a regulatory umbrella to appropriate monopoly profits that were never secure in the unregulated market.We are reluctant to attribute such intent to Congress and simply in the name of administrative expertise, to follow a path not marked by the language of the statute. Indeed, such signposts as may be discerned from the legislative history point in a very different direction. The legislative history strongly suggests that "market differentials," as well as all the other differentials, contemplated particular understood economic adjustments. The House Report, in discussing the allowable adjustments Page 396 U. S. 182 characterize the market differential as a payment over and above the transportation costs, i.e., a location differential, for delivery to the primary market. [Footnote 13] Thus, farmers would share with handlers the savings from bypassing country-station processing and handling the milk only at the city plant.The significance of the legislative history emerges upon study of the subsequent administrative practice. The original Boston order obscures the market differential payment by providing, in place of a labeled adjustment, a two-price structure which allowed an additional 18� per cwt. for city-delivered milk over and above the costs of transporting the milk from the country plant. However, the testimony of Mr. Aplin for the Market Administrator erases any doubt that those responsible for administering the Act fully understood the meaning of the Committee's explanation of market differential. [Footnote 14] Page 396 U. S. 183Subsequent orders have combined the country station handling adjustment, properly the market differential, and the location-transportation differential into the so-called zone differential. [Footnote 15]The statute before us does not contain a mandate phrased in broad and permissive terms. Congress has spoken with particularity and provided specifically enumerated differentials, which negatives the conclusion that it was thinking only in terms of historical considerations. The prefatory discussion in the House Report emphasizes the congressional purpose to confine the boundaries of the Secretary's delegated authority. [Footnote 16] In these circumstances, an administrator does not have "broad dispensing power." See Addison v. Holly Hill Co., 322 U. S. 607, 322 U. S. 617 (1944). The congressional purpose is further illumined by the character of the other statutory differentials for "volume," Page 396 U. S. 184 "grade or quality," "location," and "production," [Footnote 17] all of which compensate or reward the producer for providing an economic service of benefit to the handler. [Footnote 18]The general language of the committee report indicating that Congress intended to carry forward the basic regulatory approach adopted under the 1933 Act, following the precedent of the 1920's, is stressed by the dissent to this opinion. This committee language, it is argued, reinforces the continuity connotations of the "customarily applied" language, a thrust that is not blunted Page 396 U. S. 185 by any specific language indicating a legislative purpose to treat all farmers equally.Legislative silence is a poor beacon to follow in discerning the proper statutory route. For here, the light illumines two different roads. If nearby payments had the notoriety and significance in the milk distribution industry attributed to them by the dissent, Congress could have given its blessing by carving out another specific exception to the uniform price requirement. In an Act whose very purpose was to avoid the infirmity of overbroad delegation and to set forth with particularity the details for a comprehensive regulatory scheme, it would have been a simple matter to include in a list of enumerated differentials, "nearby" payments, or at least allude to them in the report of the draftsmen. It is clear that Congress was not conferring untrammeled discretion on the Secretary and authorizing him to proceed in a vacuum. This was the very evil condemned by the courts that the 1935 amendments sought to eradicate. [Footnote 19] It would be perverse to assume that congressional drafters, in eliminating ambiguity from the old Act, [Footnote 20] were careless in listing their exceptions and selecting the illustrations from the committee report from which their words would ultimately derive content. [Footnote 21] Page 396 U. S. 186We consider our conclusions in no way undermined by the colloquy on the floor between Senator Copeland and Senator Murphy upon which the dissent places such emphasis. A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. Floor debates reflect, at best, the understanding of individual Congressmen. It would take extensive and thoughtful debate to detract from the plain thrust of a committee report in this instance. There is no indication, however, that the question of nearby differentials and the meaning of "market . . . differentials customarily applied" were precisely considered in the floor dialogue. The exchange is not only brief, but also inconclusive as to meaning. [Footnote 22] Indeed, Senator Murphy apparently acquiesced Page 396 U. S. 187 in Senator Copeland's implied criticism of the statute for providing uniform prices for distant and nearby producers within the marketing region. When Senator Copeland pursued his inquiry, asking whether the Act recognized the higher cost for taxes on nearby lands, Senator Murphy merely recited the differential provisions of the Act and suggested that they "adopt the present practice of business," but conspicuously lacking is an affirmative statement that any specific differential covered these costs. This is not impressive legislative history, especially in light of Senator Murphy's earlier agreement with Senator Copeland's statement that"[t]he provisions of the equalization . . . provide that a producer who is producing his milk on farms near to cities would receive the same price for his product as a farmer who produces his milk, say, 40 or 50 miles away from the same community,"and the specific business illustrations of the House Report. Page 396 U. S. 188IIISCOPE OF MARKET DIFFERENTIALWhile market differentials customarily applied need not be restricted to the sole illustration in the House Report, that illustration, taken in conjunction with the discussion of all the statutory differentials, suggests that the permissible adjustments are limited to compensation for rendering an economic service. [Footnote 23] The challenged nearby differentials do not fall into this category. [Footnote 24]Nor has the Secretary advanced any economic justification for these differential payments. It is plain from the administrative record that the nearby differential was included in the original Boston order as a recognition of the favored position of nearby producers in the fluid market and as an inducement to nearby farmers to approve the Secretary's order. (J.A. 237 [Footnote 25]) The only sense Page 396 U. S. 189 in which the handler may be said to gain economically is by virtue of the elimination of the nearby producer as a potential competitor. While this factor is mentioned in the findings accompanying the 1937 order, it has not Page 396 U. S. 190 been emphasized in the 1964 findings and the testimony at the 1963 hearings suggests that support in the record is indeed scant. That entry of the nearbys into the distribution market would bring unwanted competition is irrelevant if it does not jeopardize market stability. We think the analysis of the court below was correct: if there is any economic benefit here, producers should receive their compensation directly from the handlers, and not out of the market-wide pool. 131 U.S.App.D.C. at 114, 402 F.2d at 665.While petitioner nearby farmers do not concede so readily the absence of economic foundation for the differential, no justifications are advanced that find any substantial support in the record. The allusion to the evenness of production on nearby farms would not justify the exclusive payment of this differential to nearby farmers. If the Secretary intended a production differential, all producers who qualify would be eligible. Some amici and petitioners point to higher taxes on nearby lands and opportunity costs as reasons for retaining the differential. These are, admittedly, additional costs of nearby production, but they are of no concern to handlers, who seek only to obtain reliably milk at the cheapest price. See Kessel, Economic Effects of Federal Regulation of Milk Markets, 10 J.Law & Econ. 51 (1967). This Court has been slow to attribute to Congress an intent to compensate for inefficient allocation of economic resources. Cf. West Ohio Gas Co. v. Comm'n, 294 U. S. 63, 294 U. S. 72 (1935). While petitioners argue that the differential is a necessary inducement to keep the nearby farmers in business, the record does not reveal that the Secretary acted out of concern that the nearby farmers would quit the market, nor is there any evidence demonstrating the present necessity for nearby producers. In an era where efficient transportation is Page 396 U. S. 191 available, this may be of nominal concern. At most, this may have been an unspoken consideration in 1937. [Footnote 26]Since the Secretary made no findings to that effect, the Court need not consider whether they would justify payment of the nearby differential in view of the legislative history indicating that the statute contemplates adjustments primarily for economic costs to handlers that are absorbed or reduced by the producers. Further, if the representations of respondents are correct -- and they are not without support in the record -- it appears that the elimination of the 40-mile zone nearby differential payments of 46�, even with the suspension of the intermediate differential payments of 23�, would result in a higher uniform price to those farmers now receiving the 23� differential. [Footnote 27]IVPRIOR DECISIONSOur holding does not represent a departure from this Court's precedents. No opinion of this Court has ever explicitly approved the nearby differential. Reliance on United States v. Rock Royal Co-op., 307 U. S. 533 (1939), is misplaced. This Court's refusal to invalidate the payment of a nearby differential to farmers in certain counties named in the New York order must be taken in the context of that action, which was initiated by the Government against handlers who refused to obey the regulations. That decision did not repudiate the District Court's finding that the provision was "discriminatory as between producers." Id. at 307 U. S. 567. The narrow reach of our Rock Royal holding was recognized in Stark v. Page 396 U. S. 192 Wickard, 321 U. S. 288 (1944), where we noted that Rock Royal held the handlers without standing "to object to the operation of the producer settlement fund," id. at 321 U. S. 308, except as it affected handlers. The Court in Rock Royal went on to reject Rock Royal's contention that the payments placed those handlers without customers in the nearby counties at a competitive disadvantage.Our attention is also drawn to the First Circuit's decision in Green Valley Creamery v. United States, 108 F.2d 342 (1939). As in Rock Royal, supra, the parties did not have standing to raise the invalidity of the nearby differential. To the extent the First Circuit's view is contrary to our present holding, we disapprove it.VSIGNIFICANCE OF DEPARTMENTAL CONSTRUCTIONWhile this Court has announced that it will accord great weight to a departmental construction of its own enabling legislation, especially a contemporaneous construction, see Udall v. Tallman, 380 U. S. 1, 380 U. S. 16 (1965); Power Reactor Co. v. Electricians, 367 U. S. 396, 367 U. S. 408 (1961), it is only one input in the interpretational equation. Its impact carries most weight when the administrators participated in drafting and directly made known their views to Congress in committee hearings. See Power Reactor Co. v. Electricians, supra; United States v. American Trucking Assns., 310 U. S. 534, 310 U. S. 539 (1940). In such circumstances, absent any indication that Congress differed with the responsible department, a court should resolve any ambiguity in favor of the administrative construction if such construction enhances the general purposes and policies underlying the legislation. Page 396 U. S. 193 See American Power & Light Co. v. SEC, 329 U. S. 90, 329 U. S. 112-114 (1946).The Court may not, however, abdicate its ultimate responsibility to construe the language employed by Congress. Those props that serve to support a disputable administrative construction are absent here. There is no suggestion in the findings, nor have the parties explained, how the present differential contributes to the broad, general purpose of eliminating crippling competition. Nor, in the present case, has the Court's attention been drawn to any hearings that suggest that Congress acted with the particular administrative construction before it in either 1935 or 1937. And if those administrators who participated in drafting the 1935 Act understood market differentials to encompass the farm location differential, they obviously failed to communicate their understanding to the drafters of the committee report. It is also evident that the 1937 reenactment of the 1935 amendments was routine, and did not follow a comprehensive review of the issues that had been explored in detail by the 1935 draftsmen who wrote the committee reports. [Footnote 28]It is true that a report from the Federal Trade Commission set forth the computations employed under the 1936 Boston order which apparently provided for a Page 396 U. S. 194 nearby differential. [Footnote 29] But the stark figures, set forth in the appendix to the report without explication, can hardly be said to have given the administrative construction the "notoriety" that this Court found persuasive in Udall v. Tallman, 380 U.S. at 380 U. S. 18. In Udall, the Court was impressed by the fact that the Secretary's interpretation had "been a matter of public record and discussion." Id. at 380 U. S. 17. Even despite active congressional involvement in reviewing certain administrative action in connection with particular leases, the Court noted that it would not attribute ratification to Congress. Udall v. Tallman, supra. Nor can petitioners put flesh on this argument by citing § 4 of the 1937 reenactment, 50 Stat. 249, [Footnote 30] and the committee report, H.R.Rep. No. 468, 75th Cong., 1st Sess., 4 (1937), which merely states in the language of the Act that § 4 purports to ratify, legalize, and confirm all action taken pursuant to the agreement and order provisions under the 1035 statute. [Footnote 31] Page 396 U. S. 195VIRELEVANCE OF PRODUCER APPROVALPetitioners allude to the fact that the orders in question have been specifically approved by the farmers concerned as required by §§ 8c(9)(B)(i) and (ii) of the Act. [Footnote 32] While the contention is adumbrated, the argument appears to run as follows: since provision is made for approval of orders by the regulated subjects, the Secretary's discretion should be generously interpreted. Page 396 U. S. 196 If provision for such approval could ever legitimize a regulation not authorized by statute, the provision has no significance in the case before us, in light of the considerations already discussed. It is the Secretary, not the farmers, who is responsible for administering the statute and initiating orders. [Footnote 33]VIIPROPRIETY OF SUMMARY JUDGMENTAlthough the Secretary does not press the point, the private petitioners argue that this Court should, at the very least, reverse for a trial on the merits, or, alternatively, reverse with instructions to remand to the Secretary for further consideration.This is not a case where a department has acted without a formal record. In such instances, a trial might be appropriate to afford the department an opportunity to develop those facts which underpin its action. When action is taken on a record, the department cannot then present testimony in court to remedy the gaps in the record, any more than arguments of counsel on review can substitute for an agency's failure to make findings or give reasons. A remand to the Secretary is inappropriate in the absence of a request by the Government. Counsel for the Department has advanced no new theory for sustaining the order. Cf. SEC v. Chenery Corp., 318 U. S. 80, 318 U. S. 2 (1943).Unlike Addison v. Holly Hill Co., 322 U. S. 607 (1944), we do not have before us a definition in a regulation that is necessary to give meaning and content to the administrative Page 396 U. S. 197 scheme. Nor does our decision have the effect of engrafting a definition on a particular statutory term, a function that should, in the first instance, be left to the appropriate administrative body. The 1964 order, moreover, expressly provides for severance of any provision that is found invalid. See 7 CFR § 1001.96.VIIIDISPOSITION OF THE ESCROW FUNDPetitioner farmers' last line of retreat is their contention that they are entitled to escrow monies that have been accruing since the District Court's entry of the order granting the respondents' motion for a preliminary injunction. The court below struck an equitable balance in awarding to petitioners, nearby farmers, all escrow monies collected prior to the entry of final judgment by the District Court. This is a fair solution, and one this Court will not disturb. Petitioners have been on notice since Blair v. Freeman, 126 U.S.App.D.C. 207, 370 F.2d 229 (1966), that nearby differentials were bottomed on a shaky statutory premise. Lest losing parties be encouraged to prolong litigation by frivolous appeals in order to reap a windfall, we think respondents deserve the fruits of their victory as of the date of final judgment at trial.The judgment below isAffirmed

U.S. Supreme CourtZuber v. Allen, 396 U.S. 168 (1969)Zuber v. AllenNo. 25Argued October 16, 1969Decided December 9, 1969*396 U.S. 168SyllabusRespondent Vermont dairy farmers ("country" milk producers) brought this action to invalidate the so-called farm location differential provided for by order of the Secretary of Agriculture as contrary to the Agricultural Marketing Agreement Act of 1937. The effect of the order is to require milk distributors to pay milk producers situated close to milk marketing areas ("nearby" farmers) higher prices than are paid to producers located at greater distances from such areas. In the 1920's, prior to federal regulation, nearby farmers received higher prices for their milk in the Boston area than farmers at more distant points. The 1935 amendment to the Agricultural Adjustment Act, carried forward into § 8(c) of the Agricultural Marketing Agreement Act of 1937, provides, in part, for the payment to all producers"delivering milk to all handlers of uniform prices for all milk . . . subject only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made."The Department of Agriculture regulations provide a price differential for "nearby" farmers, and a lesser differential for intermediate nearby zones. The District Court granted an injunction against further payments of the differentials, and the Court of Appeals affirmed.Held:1. The statutory scheme, which was to provide uniform prices to all producers in the marketing area, subject only to specifically enumerated adjustments, contemplated that "market differentials . . . customarily applied" would be based on cost adjustments. Pp. 396 U. S. 179-187. Page 396 U. S. 169(a) The particularity and specificity of the enumerated differentials negate the conclusion that Congress was thinking only in terms of historical considerations. P. 396 U. S. 183.(b) The other statutory differentials, for "volume," "grade or quality," "location," and "production," all compensate the producer for providing an economic service benefiting the milk handler. Pp. 396 U. S. 183-184.(c) In a statute whose purpose was to avoid the infirmity of the overbroad delegation of the Agricultural Adjustment Act, it would have been simple to include "nearby" payments in the list of enumerated differentials, or at least to allude to them in the draftsmen's report. P. 396 U. S. 185.2. The "nearby" differentials do not fall into the category of the permissible adjustments, which are limited to compensation for rendering an economic service, and neither the Secretary of Agriculture nor the "nearby" farmer petitioners have advanced any economic justifications for them that have substantial record support. Pp. 396 U. S. 188-191.3. This holding does not depart from the Court's precedents. United States v. Rock Royal Co-op., 307 U. S. 533, distinguished. To the extent that Green Valley Creamery v. United States, 108 F.2d 342, contravenes this holding, it is disapproved. Pp. 396 U. S. 191-192.4. While according great weight to a department's contemporaneous construction of its own enabling legislation, the Court cannot abdicate its ultimate responsibility to construe the statutory language. Pp. 396 U.S. 192-194.5. Although the Secretary's orders have been specifically approved by the farmers concerned in accordance with § 9(b)(i) of the Act, such approval does not legitimize the regulation, which is not authorized by statute. Pp. 396 U. S. 195-196.6. A reversal for trial on the merits is not warranted, since the Department of Agriculture acted on a formal record, and a remand to the Secretary is inappropriate in the absence of a request by the Government, which has advanced no new theory for sustaining the regulation. Pp. 396 U. S. 196-197.7. The Court of Appeals' award to "nearby" farmer petitioners of the escrowed differential payments collected before the District Court entered final judgment will not be disturbed. P. 396 U. S. 197.131 U.S.App.D.C. 109, 402 F.2d 660, affirmed. Page 396 U. S. 170

1989_88-1281

Justice BLACKMUN delivered the opinion of the Court.In this case, we must decide whether a Territory or an officer of the Territory acting in his or her official capacity is a "person" within the meaning of 42 U.S.C. § 1983 (1982 ed.). Page 495 U. S. 184IPetitioners Alex Ngiraingas, Oscar Ongklungel, Jimmy Moses, Arthur Mechol, Jonas Ngeheed, and Bolandis Ngiraingas filed suit in the United States District Court for the District of Guam, alleging numerous constitutional violations and seeking damages under § 1983. [Footnote 1] The named defendants were the Government of Guam, the Guam Police Department, the Director of the Police Department in her official capacity, and various Guam police officers in their official and individual capacities.Petitioners were arrested by Guam police on suspicion of having committed narcotics offenses. The complaint, as finally amended, alleged that petitioners were taken to police headquarters in Agana, where officers assaulted them and forced them to write and sign statements confessing narcotics crimes.The District Court dismissed the claims against the Government of Guam and the Police Department on the ground that Guam was immune from suit under the Organic Act of Guam, 64 Stat. 384, § 3, as amended, 48 U.S.C. § 1421a, unless Congress or the Guam Legislature waived Guam's immunity. App. to Pet. for Cert. A-4 to A-6. The District Court also dismissed the action against the individual defendants in their official capacities, explaining that, because Page 495 U. S. 185 a judgment against the individuals in their official capacities would affect the public treasury, the real party in interest was the Government of Guam. Ibid.The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. 858 F.2d 1368 (1988) (superseding the opinion at 849 F.2d 372). Analogizing the Government to an administrative agency, the court ruled that Guam is "no more than" a federal instrumentality, and thus is not a person within the meaning of § 1983. 858 F.2d at 1371-1372. "For the same reasons," the Police Department, also, is not a person under § 1983. Id. at 1372. Finally, the Court of Appeals ruled that Guam officials may not be sued in their official capacities under § 1983, because a judgment against those defendants in their official capacities would affect the public treasury, and the suit essentially would be one against the Government itself. Ibid. [Footnote 2] Accordingly, the court affirmed the District Court's dismissal of the claims against the Government of Guam, the Guam Police Department, and the individual defendants in their official capacities. [Footnote 3] Page 495 U. S. 186Because of the importance of the question, and because at least one other Court of Appeals has advanced a different view as to whether a Territory is subject to liability under § 1983, [Footnote 4] we granted certiorari. 493 U.S. 807 (1989).IIAGuam, an island of a little more than 200 square miles located in the west central Pacific, became a United States possession at the conclusion of the Spanish-American War by the Treaty of Paris, Art. II, 30 Stat. 1755. Except for the period from December, 1941, to July, 1944, when Japan invaded and occupied the island, the United States Navy administered Guam's affairs from 1898 to 1950, when the Organic Act was passed. [Footnote 5] Among other things, the Act provided for an elected governor and established Guam as an unincorporated Territory. 48 U.S.C. §§ 1421a and 1422. It was said at the time that this unincorporated status did not promise eventual statehood. See H.R.Rep. No. 1365, App. No. 3, 81st Cong., 1st Sess., 9 (1949). The United States continues to this day to have a military presence in Guam, with an Air Force base, a Navy communications base, air and weather stations, and a large complex that serves the Seventh Fleet. [Footnote 6]To determine whether Guam constitutes a "person" within the meaning of § 1983, we examine the statute's language and purpose. The current version relates to "[e]very person who [acts] under color of any statute . . . of any State or Territory." Page 495 U. S. 187 The statute itself obviously affords no clue as to whether its word "person" includes a Territory. We seek, therefore, indicia of congressional intent at the time the statute was enacted. See District of Columbia v. Carter, 409 U. S. 418, 409 U. S. 425 (1973) (analysis of purposes and scope of § 1983 must "take cognizance of the events and passions of the time at which it was enacted"). See also United States v. Price, 383 U. S. 787, 383 U. S. 803 (1966).BOur review of § 1983's history uncovers no sign that Congress was thinking of Territories when it enacted the statute over a century ago in 1871. The historical background shows with stark clarity that Congress was concerned only with events "stateside.""Section 1983 was originally enacted as § 1 of the Civil Rights Act of 1871. The Act was enacted for the purpose of enforcing the provisions of the Fourteenth Amendment."Quern v. Jordan, 440 U. S. 332, 440 U. S. 354 (1979) (BRENNAN, J., concurring in the judgment); see also Carter, 409 U.S. at 409 U. S. 423. ("[Section] 1983 has its roots in § 1 of the Ku Klux Klan Act of 1871, Act of Apr. 20, 1871"). After the War Between the States, race relations in the Southern States were troubled. The Ku Klux Klan, organized by southern whites, commenced "a wave of murders and assaults . . . against both blacks and Union sympathizers." Id. at 409 U. S. 425. Congress was worried "about the insecurity of life and property in the South," and designed § 1 of the Act"primarily in response to the unwillingness or inability of the state governments to enforce their own laws against those violating the civil rights of others."Id. at 409 U. S. 425-426 (emphasis added). [Footnote 7]"The debates are replete with references to the Page 495 U. S. 188 lawless conditions existing in the South in 1871. There was available to Congress during these debates a report, nearly 600 pages in length, dealing with the activities of the Klan and the inabilities of the state governments to cope with it. This report was drawn on by many of the speakers"(footnote omitted). Monroe v. Pape, 365 U. S. 167, 365 U. S. 174 (1961) (overruled in certain other respects by Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978)).Because Congress was directly concerned with this unrest in the Southern States, it specifically focused on States in the legislation aimed at solving the problem. "As initially enacted, § 1 of the 1871 Act applied only to action under color of the law of any State.' 17 Stat. 13." [Footnote 8] Carter, 409 U.S. at 409 U. S. 424, n. 11. Persons acting under color of law of any Territory were not included. Viewed against "the events and passions of the time," id. at 409 U. S. 425, it is evident that Congress was not concerned with Territories when it enacted the Civil Rights Act of 1871, but was concerned, instead, with the "hundreds of outrages committed . . . through the agency of this Ku Klux organization [that had not been] punished" in the Southern States. Cong. Globe, 42d Cong., 1st Sess., 505 (1871) (remarks of Sen. Pratt). As to Congress' failure to include persons acting under color of law of any Territory, Page 495 U. S. 189 "[w]e can only conclude that this silence on the matter is itself a significant indication of the legislative intent of § 1." Quern, 440 U.S. at 440 U. S. 343. The omission demonstrates that Congress did not mean to subject Territories to liability under this statute.Further, the remedy provided by § 1983 was designed to combat the perceived evil."Congress recognized the need for original federal court jurisdiction as a means to provide at least indirect federal control over the unconstitutional acts of state officials."Carter, 409 U.S. at 409 U. S. 428."'The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage. . . .'"Ibid. (quoting Cong. Globe, 42d Cong., 1st Sess., 460 (1871) (remarks of Rep. Coburn)). Because the organization of the judicial system of a Territory was unlike those of the States, it would not have engendered such immediate concern."Under the organic acts, each territory had three justices appointed by the president for four-year terms. Sitting together, they constituted a supreme court; sitting separately, they acted as district judges. In both capacities, they had jurisdiction over cases arising under United States or territorial law."E. Pomeroy, The Territories and the United States 1861-1890, Studies in Colonial Administration 51 (1947). Thus, unlike the state courts, over which the Federal Government had no control, the territorial courts were created by acts of Congress, with judges appointed by the President, and were under the general control of the Federal Government.CFinally, the successive enactments of the statute, in context, further reveal the lack of any intent on the part of Congress to include Territories as persons. In 1871, the Act exposed to liability "any person [acting] under color of any law . . . of any State." Act of Apr. 20, 1871, § 1, 17 Stat. 13. Page 495 U. S. 190 Such persons in the 1871 Act could not possibly have included a Territory, because "Territories are not States' within the meaning of the Fourteenth Amendment," and a Territory could not have been a "person [acting] under color of" any state law. Carter, 409 U.S. at 409 U. S. 424, n. 11. Any attempt to interpret "person" as including a "Territory" would be too strained a reading of the statute, and would lead to a far more "awkward" interpretation than what a majority of the Court found significant in Will v. Michigan Dept. of State Police, 491 U. S. 58, 491 U. S. 64 (1989) (to read § 1983 as saying that "`every person including a State, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects . . . '" would be "a decidedly awkward way of expressing an intent to subject the States to liability").This reading of the original statute is supported by its next enactment. In 1874, the phrase "or Territory" was added to § 1, without explanation, in the 1874 codification and revision of the United States Statutes at Large. Rev.Stat. § 1979 (1874). See Carter, 409 U.S. at 409 U. S. 424, n. 11. But while the 1874 amendment exposed to liability "[e]very person [acting] under color of any [law] . . . of any . . . Territory," it did not expose a Territory itself to liability. In the same revision that added "Territory" to § 1, Congress amended § 2 of the Act of Feb. 25, 1871, 16 Stat. 431 (the "Dictionary Act"), "which supplied rules of construction for all legislation." Monell v. New York City Dept. of Social Services, 436 U. S. 658, 436 U. S. 719 (1978) (REHNQUIST, J., dissenting); see also Will, 491 U.S. at 491 U. S. 78 (BRENNAN, J. dissenting). In 1871, § 2 of the Dictionary Act defined "person" as including "bodies politic and corporate." [Footnote 9] The 1874 recodification omitted those three words and substituted "partnerships and corporations." [Footnote 10] Page 495 U. S. 191 It is significant that, at the time Congress added "Territory" to § 1983, so that a person acting under color of territorial law could be liable under the statute, Congress clarified the definition of those whose actions could give rise to § 1983 liability. Most significant is the asserted reason for doing so:"The reasons for the latter change [substituting 'partnerships and corporations' for 'bodies politic and corporate'] are that partnerships ought to be included; and that even if the phrase 'bodies politic' is precisely equivalent to 'corporations,' it is redundant; but if, on the contrary, 'body politic' is somewhat broader, and should be understood to include a government, such as a State, while 'corporation' should be confined to an association of natural persons on whom government has conferred continuous succession, then the provision goes further than is convenient. It requires the draughtsman, in the majority of cases of employing the word 'person,' to take care that States, Territories, foreign governments, &c., appear to be excluded."1 Revision of the United States Statutes as Drafted 19 (1872).As these comments make clear, at the time Congress first made it possible for a person acting under color of territorial law to be held liable, the very same Congress pointedly redefined the word "person" to make it clear that a Territory would not be included. [Footnote 11] It is evident that Congress did not Page 495 U. S. 192 intend to encompass a Territory among those "persons" who could be exposed to § 1983 liability."Just as '[w]e are not at liberty to seek ingenious analytical instruments' to avoid giving a congressional enactment the broad scope its language and origins may require, United States v. Price, 383 U.S. at 383 U. S. 801, so too are we not at liberty to recast the statute to expand its application beyond the limited reach Congress gave it."Carter, 409 U.S. at 409 U. S. 432.In conclusion, when we examine the confluence of § 1983's language, its purpose, and its successive enactments, together with the fact that Congress has defined "person" to exclude Territories, it becomes clear that Congress did not intend to include Territories as persons who would be liable under § 1983.Petitioners concede, Brief for Petitioners 4, 50, and we agree, that if Guam is not a person, neither are its officers acting in their official capacity.We hold that neither the Territory of Guam nor its officers acting in their official capacities are "persons" under § 1983. [Footnote 12] The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtNgiraingas v. Sanchez, 495 U.S. 182 (1990)Ngiraingas v. SanchezNo. 88-1281Argued Jan. 8, 1990Decided April 24, 1990495 U.S. 182SyllabusPetitioners filed suit in the District Court under 42 U.S.C. § 1983 against respondents -- the Guam Government, the Guam Police Department and its Director in her official capacity, and various police officers in their official and individual capacities -- alleging that petitioners were arrested and assaulted by the officers and forced to write and sign confessions. The District Court dismissed the claims. The Court of Appeals affirmed the dismissal with respect to the Government, the Police Department, and the individual defendants in their official capacities. Analogizing the Government of Guam to an administrative agency, the court ruled that Guam and the Police Department are no more than federal instrumentalities, and thus are not "persons" within the meaning of § 1983, which, in its current version relates to "[e]very person who [acts] under color of any statute . . . of any State or Territory." The court also found that the Guam officials could not be sued in their official capacities, because a judgment against them in such capacities would affect the public treasury and the suit essentially would be one against the Government itself.Held: Neither the Territory of Guam nor its officers acting in their official capacities are "persons" under § 1983. Pp. 495 U. S. 186-192.(a) Since § 1983's language affords no clue as to whether "person" includes a Territory, indicia of congressional intent at the time of enactment must be sought. Pp. 495 U. S. 186-192.(b) The omission of Territories from the original version of § 1983 shows that Congress did not mean to subject them to liability. Rather, in 1871, Congress was concerned with Ku Klux Klan activities that were going unpunished in the Southern States and designed § 1983's remedy to combat this evil, recognizing the need for original federal court jurisdiction as a means to provide at least indirect federal control over the unconstitutional acts of state officials. Territorial courts, in contrast, were under the Federal Government's general control, and would not have engendered such immediate concern. Pp. 495 U. S. 187-189.(c) The statute's successive enactments, in context, further reveal the lack of any congressional intent to include Territories as persons. In the 1871 version, persons could not possibly have included Territories, because Territories are not States within the meaning of the Fourteenth Page 495 U. S. 183 Amendment, and could not have been persons acting under color of state law. Cf. Will v. Michigan Dept. of State Police, 491 U. S. 58, 495 U. S. 64. This reading is supported by § 1983's next enactment in 1874, when Congress first added the phrase "or Territory," thus making it possible for a person acting under color of territorial law to be held liable. At the same time, however, Congress pointedly redefined the word "person" in the "Dictionary Act" -- which supplied rules of construction for all legislation -- to exclude Territories. Pp. 495 U. S. 189-192.(d) Since Guam is not a person, neither are its officers acting in their official capacity. P. 495 U. S. 192.858 F.2d 1368 (CA 9 1988), affirmed.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and O'CONNOR, JJ., joined, and in all but Part II-B of which SCALIA, J., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 495 U. S. 193. KENNEDY, J., took no part in the consideration or decision of the case.

1980_80-5049

JUSTICE BRENNAN delivered the opinion of the Court.An employee seeking a remedy for an alleged breach of the collective bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185(a). Republic Steel Corp. v. Maddox, 379 U. S. 650, 379 U. S. 652-653 (1965); see Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 424 U. S. 563 (1976); Vaca v. Sipes, Page 451 U. S. 682 386 U. S. 171, 386 U. S. 184 (1967). The question presented by these cases is whether, and in what circumstances, an employee alleging that his union breached its duty of fair representation in processing his grievance, and that his employer breached the collective bargaining agreement, must also attempt to exhaust the internal union appeals procedures established by his union's constitution before he may maintain his suit under § 301.IAfter eight years in the employ of ITT Gilfillan, Clifford E. Clayton, a member of the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) and a shop steward of its Local 509, was dismissed for violating a plant rule prohibiting defined misbehavior. Pursuant to the mandatory grievance and arbitration procedure established by the collective bargaining agreement between ITT and Local 509, Clayton asked his union representative to file a grievance on his behalf on the ground that his dismissal was not for just cause. The union investigated Clayton's charges, pursued his grievance through the third step of the grievance procedure, and made a timely request for arbitration. [Footnote 1] It then withdrew the request, choosing not to proceed to arbitration. Clayton was notified of the union's decision after the time for requesting arbitration had expired. [Footnote 2]The UAW requires every union member "who feels aggrieved by any action, decision, or penalty imposed upon Page 451 U. S. 683 him" by the union to exhaust internal union appeals procedures before seeking redress from a "civil court or governmental agency." UAW Constitution, Art. 33, § 12. These procedures, established by Arts 32 and 33 of the UAW Constitution and incorporated into Art. IV of Local 509's bylaws, direct the employee first to seek relief from the membership of his local. Art. 33, § 3. If not satisfied with the result obtained there, the employee may further appeal to the International Executive Board of the UAW, and eventually to either the Constitutional Convention Appeals Committee or to a Public Review Board composed of "impartial persons of good public repute" who are not members or employees of the union. Arts. 32, 33, §§ 3-11Clayton did not file a timely internal appeal from his local's decision not to seek arbitration of his grievance. [Footnote 3] Instead, six months after the union's withdrawal of its request for arbitration, Clayton filed this action under § 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. § 185(a), in the District Court for the Central District of California. He alleged that the union had breached its duty of fair representation by arbitrarily refusing to pursue his grievance past the third step of the grievance procedure, and that the employer had breached the collective bargaining agreement by discharging him without just cause. [Footnote 4]Both the union and the employer pleaded as an affirmative defense Clayton's failure to exhaust the internal union appeals procedures. App. 12, 18. The District Court sustained this defense, finding that Clayton had failed to exhaust the Page 451 U. S. 684 internal appeals procedures; that those procedures were adequate as a matter of law; that Clayton had been advised of their existence; and that his failure to exhaust could not be excused as futile. Record 397-404. Accordingly, the court dismissed Clayton's suit against both the union and the employer.The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of Clayton's suit against the union and reversed the dismissal of his suit against the employer. 623 F.2d 563 (1980). Focusing on the adequacy of the relief available under the internal union appeals procedures, the Court of Appeals held that Clayton's failure to exhaust was fatal to his claim against the union, because, by filing an internal appeal, Clayton might have received money damages, the relief he sought in his § 301 suit against the union. Id. at 566. However, the Court held that Clayton's failure to exhaust did not bar his suit against the employer, because the internal appeals procedures could not result in either reinstatement of his job, which was the relief Clayton sought from the employer under § 301, or in reactivation of his grievance. Id. at 569-570.In No. 80-5049, Clayton argues that his § 301 claim against the UAW and Local 509 should be allowed to proceed despite his failure to exhaust internal union procedures. I n No. 8054, ITT Gilfillan argues that, if Clayton's failure to exhaust bars his suit against the union, it must also bar his suit against the employer.The Courts of Appeals are divided over whether an employee should be required to exhaust internal union appeals procedures before bringing suit against a union or employer under § 301. Some hold that the employee's failure to exhaust internal union procedures may not be asserted as a defense by an employer. [Footnote 5] Others permit the defense to be Page 451 U. S. 685 asserted by an employer if the internal appeals procedures could result in reactivation of the grievance. [Footnote 6] With respect to a union, some courts hold that the employee's failure to exhaust is excused if union officials would be so hostile to an employee that he could not hope to obtain a fair hearing. [Footnote 7] Others would also excuse the employee's failure to exhaust if the substantive relief available through the internal procedures would be less than that available in his § 301 action. [Footnote 8]We granted certiorari to resolve the conflict. 449 U.S. 950 (1980). We reverse the dismissal of Clayton's suit against the union and affirm the reversal of the dismissal of his suit against the employer. We hold that, where an internal union appeals procedure cannot result in reactivation of the employee's grievance or an award of the complete relief sought in his § 301 suit, exhaustion will not be required with respect to either the suit against the employer or the suit against the union.IIIn Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), we were asked to decide whether an employee alleging a violation Page 451 U. S. 686 of the collective bargaining agreement between his union and employer must attempt to exhaust exclusive contractual grievance and arbitration procedures before bringing suit under § 301(a). [Footnote 9] In deciding that issue, we looked to principles of federal common law. See Textile Workers v. Lincoln Mills, 353 U. S. 448, 353 U. S. 457 (1957). Two considerations influenced our decision to require exhaustion. First, Congress had "expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the common law' of the plant." 379 U.S. at 379 U. S. 653. [Footnote 10] Second, a contrary rule, allowing an employee to bring suit under § 301 without attempting to exhaust the contractual grievance procedures, would "deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances." Ibid. [Footnote 11] The Page 451 U. S. 687 rule established by Republic Steel was thus intended to protect the integrity of the collective bargaining process, and to further that aspect of national labor policy that encourages private, rather than judicial, resolution of disputes arising over the interpretation and application of collective bargaining agreements. See Hines v. Anchor Motor Freight, Inc., 424 U.S. at 451 U. S. 567, 424 U. S. 570-571.The contractual procedures we required the employee to exhaust in Republic Steel are significantly different from the procedures at issue here. In these cases, the Court is asked to require exhaustion of internal union procedures. These procedures are wholly a creation of the UAW Constitution. They were not bargained for by the employer and union, and are nowhere mentioned in the collective bargaining agreement that Clayton seeks to have judicially enforced. [Footnote 12] Nonetheless, Clayton's employer and union contend that exhaustion of the UAW procedures, like exhaustion of contractual grievance and arbitration procedures, will further national labor policy, and should be required as a matter of federal common law. Their argument, in brief, is that an exhaustion requirement will enable unions to regulate their internal affairs without undue judicial interference, and that it will also promote the broader goal of encouraging private resolution of disputes arising out of a collective bargaining agreement.We do not agree that the policy of forestalling judicial interference with internal union affairs is applicable to these Page 451 U. S. 688 cases. [Footnote 13] This policy has been strictly limited to disputes arising over internal union matters such as those involving the interpretation and application of a union constitution. As we stated in NLRB v. Marine Workers, 391 U. S. 418 (1968), the policy of deferring judicial consideration of internal union matters does not extend to issues "in the public domain and beyond the internal affairs of the union." Id. at 391 U. S. 426, n. 8. [Footnote 14] Here, Clayton's dispute against his union is based upon an alleged breach of the union's duty of fair representation. This allegation raises issues rooted in statutory policies extending far beyond internal union interests. Page 451 U. S. 689 See United Parcel Service, Inc. v. Mitchell, ante at 451 U. S. 66, and n. 2 (STEWART, J., concurring); Hines v. Anchor Motor Freight, Inc., supra, at 424 U. S. 562; Vaca v. Sipes, 386 U.S. at 386 U. S. 182; Humphrey v. Moore, 375 U. S. 335 (1964).Our analysis, then, focuses on that aspect of national labor policy that encourages private, rather than judicial, resolution of disputes arising over collective bargaining agreements. Concededly, a requirement that aggrieved employees exhaust internal remedies might lead to nonjudicial resolution of some contractual grievances. For example, an employee who exhausts internal union procedures might decide not to pursue his § 301 action in court, either because the union offered him a favorable settlement or because it demonstrated that his underlying contractual claim was without merit. However, we decline to impose a universal exhaustion requirement lest employees with meritorious § 301 claims be forced to exhaust themselves and their resources by submitting their claims to potentially lengthy internal union procedures that may not be adequate to redress their underlying grievances.As we stated in NLRB v. Marine Workers, supra, at 391 U. S. 426, and n. 8, courts have discretion to decide whether to require exhaustion of internal union procedures. In exercising this discretion, at least three factors should be relevant: first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks under § 301; and third, whether exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim. If any of these factors are found to exist, the court may properly excuse the employee's failure to exhaust.Clayton has not challenged the finding of the lower courts that the UAW internal appeals procedures are fair and reasonable. He concedes that he could have received an impartial Page 451 U. S. 690 hearing on his claim had he exhausted the internal union procedures. See Glover v. St. Louis-San Francisco R. Co., 393 U. S. 324, 393 U. S. 330-331 (1969). Accordingly, our inquiry turns to the second factor, whether the relief available through the union's internal appeals procedures is adequate.In his suit under § 301, Clayton seeks reinstatement from his employer and monetary relief from both his employer and his union. [Footnote 15] Although, the UAW Constitution does not indicate on its face what relief is available through the internal union appeals procedures, [Footnote 16] the parties have stipulated that the Public Review Board can award backpay in an appropriate case, Tr. 35-36, and the two decisions of the Public Review Board reprinted in the joint appendix both resulted in awards of backpay. App. 89-109. It is clear, then. that at least some monetary relief may be obtained through the internal appeals procedures. [Footnote 17] Page 451 U. S. 691It is equally clear that the union can neither reinstate Clayton in his job, see n 15, supra, nor reactivate his grievance. Article IX of the collective bargaining agreement between Local 509 and ITT Gilfillan provides that the union may obtain arbitration of a grievance only if it gives"notice . . . to the Company in writing within fifteen (15) working days after the date of the Company's decision at Step 3 of the Grievance Procedure."By the time Clayton learned of his union's decision not to pursue the grievance to arbitration, this 15-day time limit had expired. See n 2, supra. Accordingly, the union could not have demanded arbitration even if the internal appeal had shown Clayton's claim to be meritorious. The union was bound by its earlier decision not to pursue Clayton's grievance past the third stage of the grievance and arbitration procedure. [Footnote 18] For the reasons that follow, we conclude that these restrictions on the relief available Page 451 U. S. 692 through the internal UAW procedures render those procedures inadequate. [Footnote 19]Where internal union appeals procedures can result in either complete relief to an aggrieved employee or reactivation of his grievance, exhaustion would advance the national labor policy of encouraging private resolution of contractual labor disputes. In such cases, the internal union procedures are capable of fully resolving meritorious claims short of the judicial forum. Thus, if the employee received the full relief he requested through internal procedures, his § 301 action would become moot, and he would not be entitled to a judicial hearing. Similarly, if the employee obtained reactivation of his grievance through internal union procedures, the policies underlying Republic Steel would come into play, [Footnote 20] and the employee would be required to submit his claim to the collectively bargained dispute resolution procedures. [Footnote 21] In either case, exhaustion of internal remedies could result in final resolution of the employee's contractual grievance through private, rather than judicial, avenues. Page 451 U. S. 693By contrast, where an aggrieved employee cannot obtain either the substantive relief he seeks or reactivation of his grievance, national labor policy would not be served by requiring exhaustion of internal remedies. In such cases, exhaustion would be a useless gesture: it would delay judicial consideration of the employee's § 301 action, but would not eliminate it. [Footnote 22] The employee would still be required to pursue judicial means to obtain the relief he seeks under § 301. Moreover, exhaustion would not lead to significant savings in judicial resources, because, regardless of the outcome of the internal appeal, the employee would be required to prove de novo in his § 301 suit that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement. [Footnote 23] As we recently stated, one of the important federal policies underlying § 301 is the "relatively rapid disposition of labor disputes.'" United Parcel Service, Inc. v. Mitchell, ante at 451 U. S. 63, quoting Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 383 U. S. 707 (1966). This policy is undermined by an exhaustion requirement unless the internal procedures are capable of either reactivating the employee's grievance or of redressing it. [Footnote 24] Page 451 U. S. 694In reliance upon the Court of Appeals' opinion in these cases, the UAW contends that, even if exhaustion is not required with respect to the employer, it should be required with respect Page 451 U. S. 695 to the union, because the relief Clayton seeks against the union in his § 301 suit is available through internal union procedures. But cf. n. 17, supra. We disagree. While this argument might have force where the employee has chosen to bring his § 301 suit only against the union, the defense should not be available where, as here, the employee has filed suit against both the union and the employer. A trial court requiring exhaustion with respect to the suit against the union, but not with respect to the suit against the employer, would be faced with two undesirable alternatives. If it stayed the action against the employer pending resolution of the internal appeals procedures, it would effectively be requiring exhaustion with respect to the suit against the employer, a result we have held would violate national labor policy. Yet if it permitted the action against the employer to proceed, and tolled the running of the statute of limitation in the suit against the union until the internal procedures had been exhausted, it could very well find itself with two separate § 301 suits, based on the same facts, proceeding at different paces in its courtroom. As we suggested in Vaca v. Sipes, 386 U.S. at 386 U. S. 197, this is a result that should be avoided if possible. The preferable approach is for the court to permit the employee's § 301 action to proceed against both defendants, despite the employee's failure to exhaust, unless the internal union procedures can reactivate the grievance or grant the relief that would be available in the employee's § 301 suit against both defendants.IIIIn contrast to contractual grievance and arbitration procedures, which are negotiated by the parties to a collective bargaining agreement and are generally designed to provide Page 451 U. S. 696 an exclusive method for resolving disputes arising under that agreement, internal union appeals procedures are created by the union constitution and are designed to settle disputes between an employee and his union that arise under that constitution. Because of this distinction, the policies underlying Republic Steel, encouraging private resolution of grievances arising out of the collective bargaining process, are not directly applicable to the issue whether to require exhaustion of internal union procedures.We conclude that the policies underlying Republic Steel are furthered by an exhaustion requirement only where the internal union appeals procedures can either grant the aggrieved employee full relief or reactivate his grievance. For only in those circumstances is there a reasonable possibility that the employee's claim will be privately resolved. If the internal procedures are not adequate to effect that relief, the employee should not be required to expend time and resources seeking a necessarily incomplete resolution of his claim prior to pursuing judicial relief. If the internal procedures are inadequate, the employee's failure to exhaust should be excused, and he should be permitted to pursue his claim for breach of the duty of fair representation and breach of the collective bargaining agreement in court under § 301.In this case, the internal union appeals panels cannot reactivate Clayton's grievance and cannot grant Clayton the reinstatement relief he seeks under § 301. We therefore hold that Clayton should not have been required to exhaust internal union appeals procedures prior to bringing suit against his union and employer under § 301.Affirmed

U.S. Supreme CourtClayton v. Automobile Workers, 451 U.S. 679 (1981)Clayton v. International Union, United Automobile, Aerospace &Agricultural Implement Workers of AmericaNo. 80-5049Argued March 4, 1981Decided May 26, 1981*451 U.S. 679SyllabusAfter being discharged for violation of his employer's plant rule prohibiting defined misbehavior, an employee, pursuant to the grievance and arbitration procedure mandated by the collective bargaining agreement between the employer and respondent union, asked his union representative to file a grievance on his behalf on the ground that his dismissal was not for just cause. The union pursued the grievance through the third step of the grievance procedure and requested arbitration, but it then withdrew the request. The union constitution required union members aggrieved by any action of the union to exhaust the internal union appeals procedures before seeking redress from a court. The employee, however, instead of filing an appeal from the union's decision not to seek arbitration of his grievance, filed an action in Federal District Court under § 301(a) of the Labor Management Relations Act, alleging that the union had breached its duty of fair representation, and that the employer had breached the collective bargaining agreement by discharging him without just cause. He sought reinstatement from the employer and monetary relief from both the employer and the union. The District Court sustained the union and the employer's affirmative defense that the employee had failed to exhaust the internal union appeals procedures, and accordingly dismissed the suit against both the union and the employer. The Court of Appeals affirmed the dismissal of the suit against the union, but reversed the dismissal against the employer. The court held that the employee's failure to exhaust was fatal to his claim against the union because, by filing an internal appeal, he might have received money damages, the relief he sought in his § 301 suit against the union. But the court held that the employee's failure to exhaust did not bar his suit against the employer, because the internal appeals procedures Page 451 U. S. 680 could not result in either reinstatement of his job, the relief sought from the employer under § 301(a), or reactivation of his grievance.Held: Where the internal union appeals procedures could not reactivate the employee's grievance or grant him the complete relief he sought under § 301(a), he should not have been required to exhaust such procedures prior to bringing suit against the union and the employer under § 301(a). Pp. 451 U. S. 685-696.(a) Because internal union appeals procedures, in contrast to contractual grievance and arbitration procedures negotiated by the parties to a collective bargaining agreement, are created by the union constitution and are designed to settle disputes between an employee and his union arising under the constitution, the policies encouraging private resolution of grievances arising out of the collective bargaining process are not directly applicable to the issue whether to require exhaustion of internal union procedures. Republic Steel Corp. v. Maddox, 379 U. S. 650, distinguished. Such policies are furthered by an exhaustion requirement only where the internal procedures can either grant the aggrieved employee full relief or reactivate his grievance. Pp. 451 U. S. 685-689.(b) If the internal procedures are inadequate to effect the relief sought by the employee, his failure to exhaust should be excused, and he should be permitted to pursue his claim for breach of the duty of fair representation and breach of the collective bargaining agreement in court under § 301. Here, although it appears that some monetary relief could be obtained through the internal procedures, it also appears that the union could neither reinstate the employee in his job nor reactivate his grievance because of certain time restrictions in the collective bargaining agreement for obtaining arbitration of a grievance. These restrictions on the relief available through the internal procedures rendered such procedures inadequate. The policy underlying § 301 to effect a relatively rapid disposition of labor disputes would be undermined by an exhaustion requirement unless the internal procedures are capable of either reactivating the employee's grievance or of redressing it. Pp. 451 U. S. 689-693.(c) Although the argument that exhaustion of internal procedures should be required might have force if the employee's § 301 suit is only against the union and the internal procedures are adequate to grant the relief sought against the union, the defense should not be available where, as here, the employee sued both the union and the employer. If a trial court required exhaustion of the internal procedures with respect to the suit against the union but not against the employer, it would be faced with the undesirable alternatives of either staying the suit against the employer pending such exhaustion, thus Page 451 U. S. 681 violating national labor policy, or of permitting the suit against the employer to proceed and tolling the statute of limitations against the union pending exhaustion, with the possible result that the court would find itself with two separate § 301 suits based on the same facts proceeding at different paces in its courtroom. Pp. 451 U. S. 694-695.623 F.2d 563, affirmed in part, reversed in part, and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 451 U. S. 696. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and STEWART and POWELL, JJ., joined, post, p. 451 U. S. 698.

1971_70-98

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case to determine whether the State's failure to keep a commitment concerning Page 404 U. S. 258 the sentence recommendation on a guilty plea required a new trial.The facts are not in dispute. The State of New York indicted petitioner in 1969 on two felony counts, Promoting Gambling in the First Degree, and Possession of Gambling Records in the First Degree, N.Y.Penal Law §§ 225.10, 225.20. Petitioner first entered a plea of not guilty to both counts. After negotiations, the Assistant District Attorney in charge of the case agreed to permit petitioner to plead guilty to a lesser included offense, Possession of Gambling Records in the Second Degree, N.Y.Penal Law § 225.15, conviction of which would carry a maximum prison sentence of one year. The prosecutor agreed to make no recommendation as to the sentence.On June 16, 1969, petitioner accordingly withdrew his plea of not guilty and entered a plea of guilty to the lesser charge. Petitioner represented to the sentencing judge that the plea was voluntary and that the facts of the case, as described by the Assistant District Attorney, were true. The court accepted the plea and set a date for sentencing. A series of delays followed, owing primarily to the absence of a pre-sentence report, so that, by September 23, 1969, petitioner had still not been sentenced. By that date, petitioner acquired new defense counsel.Petitioner's new counsel moved immediately to withdraw the guilty plea. In an accompanying affidavit, petitioner alleged that he did not know at the time of his plea that crucial evidence against him had been obtained as a result of an illegal search. The accuracy of this affidavit is subject to challenge since petitioner had filed and withdrawn a motion to suppress, before pleading guilty. In addition to his motion to withdraw his guilty plea, petitioner renewed the motion to suppress and filed a motion to inspect the grand jury minutes. Page 404 U. S. 259These three motions in turn caused further delay until November 26, 1969, when the court denied all three and set January 9, 1970, as the date for sentencing. On January 9, petitioner appeared before a different judge, the judge who had presided over the case to this juncture having retired. Petitioner renewed his motions, and the court again rejected them. The court then turned to consideration of the sentence.At this appearance, another prosecutor had replaced the prosecutor who had negotiated the plea. The new prosecutor recommended the maximum one-year sentence. In making this recommendation, he cited petitioner's criminal record and alleged links with organized crime. Defense counsel immediately objected on the ground that the State had promised petitioner before the plea was entered that there would be no sentence recommendation by the prosecution. He sought to adjourn the sentence hearing in order to have time to prepare proof of the first prosecutor's promise. The second prosecutor, apparently ignorant of his colleague's commitment, argued that there was nothing in the record to support petitioner's claim of a promise, but the State, in subsequent proceedings, has not contested that such a promise was made.The sentencing judge ended discussion, with the following statement, quoting extensively from the presentence report:"Mr. Aronstein [Defense Counsel], I am not at all influenced by what the District Attorney says, so that there is no need to adjourn the sentence, and there is no need to have any testimony. It doesn't make a particle of difference what the District Attorney says he will do, or what he doesn't do.""I have here, Mr. Aronstein, a probation report. I have here a history of a long, long serious criminal record. I have here a picture of the life history of this man. . . . "Page 404 U. S. 260"'He is unamenable to supervision in the community. He is a professional criminal.' This is in quotes. 'And a recidivist. Institutionalization -- '; that means, in plain language, just putting him away, 'is the only means of halting his anti-social activities,' and protecting you, your family, me, my family, protecting society. 'Institutionalization.' Plain language, put him behind bars.""Under the plea, I can only send him to the New York City Correctional Institution for men for one year, which I am hereby doing."The judge then imposed the maximum sentence of one year.Petitioner sought and obtained a certificate of reasonable doubt, and was admitted to bail pending an appeal. The Supreme Court of the State of New York, Appellate Division, First Department, unanimously affirmed petitioner's conviction, 35 App.Div.2d 1084, 316 N.Y.S.2d 194 (1970), and petitioner was denied leave to appeal to the New York Court of Appeals. Petitioner then sought certiorari in this Court. Mr. Justice Harlan granted bail pending our disposition of the case.This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor's offices. The heavy workload may well explain these episodes, but it does not excuse them. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities. Page 404 U. S. 261Disposition of charges after plea discussions is not only an essential part of the process, but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U. S. 742, 397 U. S. 751-752 (1970).However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. Moore v. Michigan, 355 U. S. 155 (1957). Fed.Rule Crim.Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge. [Footnote 1] The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must Page 404 U. S. 262 in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. Lynch v. Overholser, 369 U. S. 705, 369 U. S. 719 (1962); Fed.Rule Crim.Proc. 11. A court may reject a plea in exercise of sound judicial discretion.This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.On this record, petitioner "bargained" and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor's office have the burden of "letting the left hand know what the right hand is doing" or has done. That the breach of agreement was inadvertent does not lessen its impact.We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case Page 404 U. S. 263 to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty. [Footnote 2] We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.The judgment is vacated

U.S. Supreme CourtSantobello v. New York, 404 U.S. 257 (1971)Santobello v. New YorkNo. 70-98Argued November 15, 1971Decided December 20, 1971404 U.S. 257SyllabusAfter negotiations with the prosecutor, petitioner withdrew his previous not-guilty plea to two felony counts and pleaded guilty to a lesser included offense, the prosecutor having agreed to make no recommendation as to sentence. At petitioner's appearance for sentencing many months later, a new prosecutor recommended the maximum sentence, which the judge (who stated that he was uninfluenced by that recommendation) imposed. Petitioner attempted unsuccessfully to withdraw his guilty plea, and his conviction was affirmed on appeal.Held: The interests of justice and proper recognition of the prosecution's duties in relation to promises made in connection with "plea bargaining" require that the judgment be vacated and that the case be remanded to the state courts for further consideration as to whether the circumstances require only that there be specific performance of the agreement on the plea (in which case petitioner should be resentenced by a different judge), or petitioner should be afforded the relief he seeks of withdrawing his guilty plea. Pp. 404 U. S. 260-263.35 App.Div.2d 1084, 316 N.Y.S.2d 194, vacated and remanded.BURGER, C.J., delivered the opinion of the Court, in which DOUGLAS, WHITE, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 404 U. S. 263. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and STEWART, JJ., joined, post, p. 404 U. S. 267.

1977_76-1836

MR. JUSTICE STEVENS delivered the opinion of the Court.The question in this case is whether a district court's determination that an action may not be maintained as a class action pursuant to Fed.Rule Civ.Proc. 23 is a "final decision" Page 437 U. S. 465 within the meaning of 28 U.S.C. § 1291, [Footnote 1] and therefore appealable as a matter of right. Because there is a conflict in the Circuits over this issue, [Footnote 2] we granted certiorari, and now hold that such an order is not appealable under § 1291.Petitioner, Coopers & Lybrand, is an accounting firm that certified the financial statement in a prospectus issued in connection with a 1972 public offering of securities in Punta Gorda Isles for an aggregate price of over $18 million. Respondents purchased securities in reliance on that prospectus. In its next annual report to shareholders, Punta Gorda restated the earnings that had been reported in the prospectus for 1970 and 1971 by writing down its net income for each year by over $1 million. Thereafter, respondents sold their Punta Gorda securities and sustained a loss of $2,650 on their investment.Respondents filed this action on behalf of themselves and a class of similarly situated purchasers. They alleged that petitioner and other defendants [Footnote 3] had violated various sections of Page 437 U. S. 466 the Securities Act of 1933 and the Securities Exchange Act of 134. [Footnote 4] The District Court first certified, and then, after further proceedings, decertified the class.Respondents did not request the District Court to certify its order for interlocutory review under 28 U.S.C. § 1292(b). [Footnote 5] Rather, they filed a notice of appeal pursuant to § 1291. [Footnote 6] The Court of Appeals regarded its appellate jurisdiction as depending on whether the decertification order had sounded the "death knell" of the action. After examining the amount of respondents' claims in relation to their financial resources and the probable cost of the litigation, the court concluded that they would not pursue their claims individually. [Footnote 7] The Court Page 437 U. S. 467 of Appeal therefore held that it had jurisdiction to hear the appeal and, on the merits, reversed the order decertifying the class. Livesay v. Punta Gorda Isles, Inc., 550 F.2d 1106.Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U. S. 229, 324 U. S. 229-233. [Footnote 8] An order refusing to certify, or decertifying, a class does not, of its own force, terminate the entire litigation, because the plaintiff is free to proceed on his individual claim. Such an order is appealable, therefore, only if it comes within an appropriate exception to the final judgment rule. In this Page 437 U. S. 468 case, respondents rely on the "collateral order" exception articulated by this Court in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, and on the "death knell" doctrine adopted by several Circuits to determine the appealability of orders denying class certification.IIn Cohen, the District Court refused to order the plaintiff in a stockholder's derivative action to post the security for costs required by a New Jersey statute. The defendant sought immediate review of the question whether the state statute applied to derivative suits in federal court. This Court noted that the purpose of the finality requirement "is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results." Id. at 337 U. S. 546. Because immediate review of the District Court's order was consistent with this purpose, the Court held it appealable as a "final decision" under § 1291. The ruling had"settled conclusively the corporation's claim that it was entitled by state law to require the shareholder to post security for costs . . . [and] concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment. [Footnote 9]"To come within the "small class" of decisions excepted from the final judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. [Footnote 10] Abney v. United States, 431 U. S. 651, 431 U. S. 658; United States v. Page 437 U. S. 469 MacDonald, 435 U. S. 850, 435 U. S. 855. An order passing on a request for class certification does not fall in that category. First, such an order is subject to revision in the District Court. Fed.Rule Civ.Proc. 23(c)(1). [Footnote 11] Second, the class determination generally involves considerations that are "enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 371 U. S. 558. [Footnote 12] Finally, an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members. United Airlines, Inc. v. McDonald, 432 U. S. 385. For these reasons, as the Courts of Appeals have consistently recognized, [Footnote 13] the collateral order doctrine is not applicable to the kind of order involved in this case.IISeveral Circuits, including the Court of Appeals in this case, have held that an order denying class certification is appealable if it is likely to sound the "death knell" of the litigation. [Footnote 14] The "death knell" doctrine assumes that, without the incentive of a possible group recovery, the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final Page 437 U. S. 470 judgment and then seek appellate review of an adverse class determination. Without questioning this assumption, we hold that orders relating to class certification are not independently appealable under § 1291 prior to judgment.In addressing the question whether the "death knell" doctrine supports mandatory appellate jurisdiction of orders refusing to certify class actions, the parties have devoted a portion of their argument to the desirability of the small claim class action. Petitioner's opposition to the doctrine is based in part on criticism of the class action as a vexatious kind of litigation. Respondents, on the other hand, argue that the class action serves a vital public interest and, therefore, special rules of appellate review are necessary to ensure that district judges are subject to adequate supervision and control. Such policy arguments, though proper for legislative consideration, are irrelevant to the issue we must decide.There are special rules relating to class actions and, to that extent, they are a special kind of litigation. Those rules do not, however, contain any unique provisions governing appeals. The appealability of any order entered in a class action is determined by the same standards that govern appealability in other types of litigation. Thus, if the "death knell" doctrine has merit, it would apply equally to the many interlocutory orders in ordinary litigation -- rulings on discovery, on venue, on summary judgment -- that may have such tactical economic significance that a defeat is tantamount to a "death knell" for the entire case.Though a refusal to certify a class is inherently interlocutory, it may induce a plaintiff to abandon his individual claim. On the other hand, the litigation will often survive an adverse class determination. What effect the economic disincentives created by an interlocutory order may have on the fate of any litigation will depend on a variety of factors. [Footnote 15] Under the Page 437 U. S. 471 "death knell" doctrine, appealability turns on the court's perception of that impact in the individual case. Thus, if the court believes that the plaintiff has adequate incentive to continue, the order is considered interlocutory; but if the court concludes that the ruling, as a practical matter, makes further litigation improbable, it is considered an appealable final decision.The finality requirement in § 1291 evinces a legislative judgment that"[r]estricting appellate review to 'final decisions' prevents the debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, in practical consequence, but a single controversy."Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 417 U. S. 170. Although a rigid insistence on technical finality would sometimes conflict with the purposes of the statute, Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, even adherents of the "death knell" doctrine acknowledge that a refusal to certify a class does not fall in that limited category of orders which, though nonfinal, may be appealed without undermining the policies served by the general rule. It is undisputed that allowing an appeal from such an order in the ordinary case would run "directly contrary to the policy of the final judgment rule embodied in 28 U.S.C. § 1291 and the sound reasons for it. . . ." [Footnote 16] Yet several Courts of Appeals have sought to identify on a case-by-case basis those few interlocutory orders which, when viewed from the standpoint of economic prudence, may induce a plaintiff to abandon the litigation. These orders, then, become appealable as a matter of right.In administering the "death knell" rule, the courts have used two quite different methods of identifying an appealable class ruling. Some courts have determined their jurisdiction Page 437 U. S. 472 by simply comparing the claims of the named plaintiffs with an arbitrarily selected jurisdictional amount; [Footnote 17] others have undertaken a thorough study of the possible impact of the class order on the fate of the litigation before determining their jurisdiction. Especially when consideration is given to the consequences of applying these tests to pretrial orders entered in non-class action litigation, it becomes apparent that neither provides an acceptable basis for the exercise of appellate jurisdiction.The formulation of an appealability rule that turns on the amount of the plaintiff's claim is plainly a legislative, not a judicial, function. While Congress could grant an appeal of right to those whose claims fall below a specific amount in controversy, it has not done so. Rather, it has made "finality" the test of appealability. Without a legislative prescription, an "amount in controversy" rule is necessarily an arbitrary measure of finality, because it ignores the variables that inform a litigant's decision to proceed, or not to proceed, in the face of an adverse class ruling. [Footnote 18] Moreover, if the jurisdictional Page 437 U. S. 473 amount is to be measured by the aggregated claims of the named plaintiffs, appellate jurisdiction may turn on the joinder decisions of counsel, rather than the finality of the order. [Footnote 19]While slightly less arbitrary, the alternative approach to the "death knell" rule would have a serious debilitating effect on the administration of justice. It requires class action plaintiffs to build a record in the trial court that contains evidence of those factors deemed relevant to the "death knell" issue and district judges to make appropriate findings. [Footnote 20] And one Court of Appeals has even required that the factual inquiry be extended to all members of the class, because the policy against interlocutory appeals can be easily circumvented by joining "only those whose individual claims would not warrant the cost of separate litigation"; [Footnote 21] to avoid this possibility, the named plaintiff is required to prove that no member of the purported class has a claim that warrants individual litigation.A threshold inquiry of this kind may, it is true, identify some orders that would truly end the litigation prior to final judgment; allowing an immediate appeal from those orders may enhance the quality of justice afforded a few litigants. But this incremental benefit is outweighed by the impact of such an individualized jurisdictional inquiry on the judicial system's overall capacity to administer justice.The potential waste of judicial resources is plain. The district court must take evidence, entertain argument, and make findings; and the court of appeals must review that record and those findings simply to determine whether a discretionary class determination is subject to appellate review. And if the record provides an inadequate basis for this determination, a Page 437 U. S. 474 remand for further factual development may be required. [Footnote 22] Moreover, even if the court makes a "death knell" finding and reviews the class designation order on the merits, there is no assurance that the trial process will not again be disrupted by interlocutory review. For even if a ruling that the plaintiff does not adequately represent the class is reversed on appeal, the district court may still refuse to certify the class on the ground that, for example, common questions of law or fact do not predominate. Under the "death knell" theory, plaintiff would again be entitled to an appeal as a matter of right pursuant to § 1291. And since other kinds of interlocutory orders may also create the risk of a premature demise, the potential for multiple appeals in every complex case is apparent and serious.Perhaps the principal vice of the "death knell" doctrine is that it authorizes indiscriminate interlocutory review of decisions made by the trial judge. The Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292(b), [Footnote 23] was enacted to meet the recognized need for prompt review of certain nonfinal orders. However, Congress carefully confined the availability of such review. Nonfinal orders could never be appealed as a matter of right. Moreover, the discretionary power to permit an interlocutory appeal is not, in the first instance, vested in the courts of appeals. [Footnote 24] A party seeking review of a nonfinal order must first obtain the consent of the trial judge. This screening procedure serves the dual purpose of ensuring that such review will be confined to appropriate cases and avoiding time-consuming jurisdictional determinations in the court Page 437 U. S. 475 of appeals. [Footnote 25] Finally, even if the district judge certifies the order under § 1292(b), the appellant still "has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Fisons, Ltd. v. United States, 458 F.2d 1241, 1248 (CA7 1972). The appellate court may deny the appeal for any reason, including docket congestion. [Footnote 26] By permitting appeals of right from class designation orders after jurisdictional determinations that turn on questions of fact, the "death knell" doctrine circumvents these restrictions. [Footnote 27] Page 437 U. S. 476Additional considerations reinforce our conclusion that the "death knell" doctrine does not support appellate jurisdiction of prejudgment orders denying class certification. First, the doctrine operates only in favor of plaintiffs even though the class issue -- whether to certify, and if so, how large the class should be -- will often be of critical importance to defendants as well. Certification of a large class may so increase the defendant's potential damages liability and litigation costs that he may find it economically prudent to settle and to abandon a meritorious defense. Yet the Courts of Appeals have correctly concluded that orders granting class certification are interlocutory. Whatever similarities or differences there are between plaintiffs and defendants in this context involve questions of policy for Congress. [Footnote 28] Moreover, allowing appeals of right from nonfinal orders that turn on the facts of a particular case thrusts appellate courts indiscriminately into the trial process, and thus defeats one vital purpose of the final judgment rule --"that of maintaining the appropriate relationship between the respective courts. . . . This goal, in the absence of most compelling reasons to the contrary, is very much worth preserving. [Footnote 29] "Page 437 U. S. 477Accordingly, we hold that the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering it a "final decision" within the meaning of § 1291. [Footnote 30] The judgment of the Court of Appeals is reversed with directions to dismiss the appeal.It is so ordered

U.S. Supreme CourtCoopers & Lybrand v. Livesay, 437 U.S. 463 (1978)Coopers & Lybrand v. LivesayNo. 76-1836Argued March 22, 1978Decided June 21, 1978437 U.S. 463SyllabusRespondents, who had purchased securities in reliance on a prospectus, brought this action on behalf of themselves and a class of similarly situated purchasers, alleging that petitioner accounting firm had violated the federal securities laws. The District Court first certified the action as a class action under Fed.Rule Civ.Proc. 23, and then, after further proceedings, decertified the class. Respondents then filed a notice of appeal pursuant to 28 U.S.C. § 1291, under which courts of appeals have jurisdiction of appeals from all "final decisions" of the district courts except where a direct review may be had in the Supreme Court. After examining the amount of respondents' claims in relation to their financial resources and the probable cost of the litigation, the Court of Appeals concluded that they would not pursue their claims individually. On the basis of the "death knell" doctrine (which assumes that, without the incentive of a possible group recovery, the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination), the Court of Appeals held that it had jurisdiction to hear the appeal, and reversed the District Court's order decertifying the class. Respondents contend in this Court that an order denying class certification is appealable under both the "death knell" doctrine and the "collateral order" exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541.Held:1. The "collateral order" exception does not apply to a prejudgment order denying class certification because such an order is subject to revision in the District Court, Fed.Rule Civ.Proc. 23(c)(1); involves considerations that are "enmeshed in the factual and legal issues comprising the plaintiff's cause of action," Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 371 U. S. 558; and is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members. United Airlines, Inc. v. McDonald, 432 U. S. 385. Pp. 437 U. S. 468-469.2. Nor does the "death knell" doctrine support appellate jurisdiction of a prejudgment order denying class certification. Pp. 437 U.S. 469-476.(a) The formulation of an appealability rule that turns on the Page 437 U. S. 464 amount of the plaintiff's claim is plainly a legislative, not a judicial, function. Pp. 437 U. S. 472-473.(b) The alternative approach to the "death knell" rule that is based on a thorough study of the possible impact of the class order on the fate of the litigation would have a seriously debilitating effect on the administration of justice. The district court would have to take evidence, entertain argument, and make findings, which the court of appeals would have to review simply to determine whether a discretionary class determination is subject to appellate review, with the possibility of remand for further factual development. Further appeals from adverse rulings on other grounds could likewise be anticipated. Pp. 437 U. S. 473-474.(c) Perhaps the principal vice of the doctrine is that it authorizes indiscriminate interlocutory review of the trial judge's decisions, circumventing restrictions imposed by the Interlocutory Appeals Act of 1958. Pp. 437 U. S. 474-475(d) The doctrine favors only plaintiffs, even though the class issue will often be critically important to defendants as well. P. 437 U. S. 476.(e) Allowing appeals as a matter of right from nonfinal orders that turn on the facts of a particular case thrusts appellate courts indiscriminately into the trial process, thus defeating a vital purpose of the final judgment rule of maintaining the appropriate relationship between the respective courts. P. 437 U. S. 476.550 F.2d 1106, reversed. STEVENS, J., delivered the opinion for a unanimous Court.

1983_82-1371

JUSTICE POWELL delivered the opinion of the Court.The question presented is the validity of an injunction issued on behalf of a statewide class that requires the Secretary of Health and Human Services to adjudicate all future disputed disability claims under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., according to judicially established deadlines, and to pay interim benefits in all cases of noncompliance with those deadlines.ITitle II of the Social Security Act (Act) was passed in 1935. 49 Stat. 622, as amended, 42 U.S.C. § 401 et seq. Among other things, it provides for the payment of disability insurance Page 467 U. S. 106 benefits to those whose disability prevents them from pursuing gainful employment. 42 U.S.C. § 423. [Footnote 1] Disability benefits also are payable under the Supplemental Security Income (SSI) program established by Title XVI of the Act, 76 Stat.197, as amended, 42 U.S.C. § 1381. The disability programs administered under Titles II and XVI "are of a size and extent difficult to comprehend." Richardson v. Perales, 402 U. S. 389, 402 U. S. 399 (1971). Approximately two million disability claims were filed under these two Titles in fiscal year 1983. [Footnote 2] Over 320,000 of these claims must be heard by some 800 administrative law judges each year. [Footnote 3] To facilitate the orderly and sympathetic administration of the disability program of Title II, the Secretary and Congress have established an unusually protective four-step process for the review and adjudication of disputed claims. First, a state agency determines whether the claimant has a disability and the date the disability began or ceased. [Footnote 4] 42 U.S.C. § 421(a); 20 CFR § 404.1503 (1983). Second, if the claimant is dissatisfied with that determination, he may request reconsideration of the determination. This involves a de novo reconsideration of the disability claim by the state agency, Page 467 U. S. 107 and in some cases a full evidentiary hearing. §§ 404.907-404.921. Additional evidence may be submitted at this stage, either on the request of the claimant or by order of the agency. Third, if the claimant receives an adverse reconsideration determination, he is entitled by statute to an evidentiary hearing and to a de novo review by an Administrative Law Judge (ALJ). 42 U.S.C. § 405(b); 20 CFR §§ 404.929-404.961 (1983). Finally, if the claimant is dissatisfied with the decision of the ALJ, he may take an appeal to the Appeals Council of the Department of Health and Human Services (HHS). [Footnote 5] §§ 404.967-404.983. These four steps exhaust the claimant's administrative remedies. Thereafter, he may seek judicial review in federal district court. 42 U.S.C. § 405(g).In this class action, the named plaintiffs sought declaratory and injunctive relief from delays encountered in steps two and three above. The action was initiated by Leon Day in November, 1978, after his disability benefits were terminated and he suffered substantial delays in obtaining a reconsideration determination and in securing a hearing before an ALJ. [Footnote 6] After suffering similar delays, Amedie Maurais intervened in the action. [Footnote 7] On June 14, 1979, the District Court certified a statewide class consisting of:"All present and future Vermont residents seeking to secure Social Security disability benefits who, following an initial determination by the defendant that no disability Page 467 U. S. 108 exists, experience an unreasonable delay in the scheduling of and/or issuance of decisions in reconsiderations and fair hearings."App. to Pet. for Cert. 12a, n. 1.Plaintiffs argued before the District Court that the delays they had experienced violated their statutory right under 42 U.S.C. § 405(b) (1976 ed., Supp. V) to a hearing within a reasonable time. [Footnote 8] Both parties submitted the case to the District Court on motions for summary judgment. On the basis of the undisputed evidence, the District Court held that, as to all claimants for Title II disability benefits in Vermont, delays of more than 90 days from a request for hearing before an ALJ to the hearing itself were unreasonable. [Footnote 9] It granted partial summary judgment to the plaintiff class on that issue in December, 1979.After the submission of additional evidence, the District Court considered motions for summary judgment concerning the reasonableness of delays in the reconsideration process. The additional evidence also was undisputed. It consisted of factual summaries of 77 randomly selected disability cases submitted by the Secretary. The District Court noted that the"summaries support the positions of both parties. They show the reconsideration process is often time-consuming and Page 467 U. S. 109 complex. They also show that the process is replete with unexplained delay; other requests are processed with commendable dispatch."App. to Pet. for Cert. 25a. In 27 of the 77 cases, reconsideration determinations took longer than 90 days. In each of these 27, the District Court concluded that the delays were caused by agency inefficiencies, and were not justified by the "necessary steps in the reconsideration process." Id. at 28a. On the basis of this survey, the District Court concluded that, as a rule, delays of more than 90 days in making reconsideration determinations were unreasonable, and violated the claimant's statutory rights. [Footnote 10] In August, 1981, the District Court granted summary judgment for respondents on the reconsideration aspect of the case.In November, 1981, the District Court issued an injunction in favor of the statewide class that"ordered and directed [the Secretary] to conclude reconsideration processing and issue reconsideration determinations within 90 days of requests for reconsideration made by claimants. [Footnote 11]"The injunction also required ALJs to provide hearings within 90 days after the Page 467 U. S. 110 request is made by claimants. [Footnote 12] Finally, it ordered payment of interim benefits to any claimant who did not receive a reconsideration determination or hearing within 180 days of the request for reconsideration or who did not receive a hearing within 90 days of the hearing request. [Footnote 13] The Court of Appeals for the Second Circuit affirmed the District Court's determination that the challenged delays violated the statute and upheld the District Court's remedial order. Day v. Schweiker, 685 F.2d 19 (1982). We granted certiorari to consider whether it is appropriate for a federal court, without statutory authorization, to prescribe deadlines for agency adjudication of Title II disability claims and to order payment of interim benefits in the event of noncompliance. 461 U.S. 904 (1983). [Footnote 14] We conclude that the legislative history makes Page 467 U. S. 111 clear that Congress, fully aware of the serious delays in resolution of disability claims, has declined to impose deadlines on the administrative process. Accordingly, we vacate the judgment below.IIThe Secretary does not challenge here the determination that § 405(b) requires administrative hearings to be held within a reasonable time. Nor does she challenge the District Court's determination that the delays encountered in the cases of plaintiffs Day and Maurais violated that requirement. [Footnote 15] She argues only that a statewide injunction that imposes judicially prescribed deadlines on HHS for all future disability determinations is contrary to congressional intent, and constitutes an abuse of the court's equitable power. She argues in the alternative that, even if the injunction is appropriate, the order requiring payment of interim benefits in cases of noncompliance is not. The Secretary looks primarily to legislative history to support both arguments.AThe Secretary correctly points out that Congress repeatedly has been made aware of the long delays associated with resolution of disputed disability claims and repeatedly has considered and expressly rejected suggestions that mandatory deadlines be imposed to cure that problem. [Footnote 16] She argues Page 467 U. S. 112 that Congress expressly has balanced the need for timely disability determinations against the need to ensure quality decisions in the face of heavy and escalating workloads and limited agency resources. In striking that balance, the Secretary argues, the relevant legislative history also shows that Congress, to date, has determined that mandatory deadlines for agency adjudication of disputed disability claims are inconsistent with achievement of the Act's primary objectives, and that the District Court's statewide injunction flatly contradicts that legislative determination. We find this argument persuasive.Congressional concern over timely resolution of disputed disability claims under Title II began at least as early as 1975. [Footnote 17] It has inspired almost annual congressional debate since that time. [Footnote 18] The consistency with which Congress has expressed concern over this issue is matched by its consistent refusal to impose on the Secretary mandatory deadlines for resolution of disputed disability claims.In 1975, the House Social Security Subcommittee held hearings on the delays encountered in resolving disputed Social Security claims, [Footnote 19] and 60 Members of the House sponsored a bill imposing statutory deadlines for each step in the Page 467 U. S. 113 administrative review of disputed SSA claims. [Footnote 20] Expressions of concern were voiced in both the Senate and the House over the "huge backlog of some 103,000 cases awaiting hearing" before an ALJ. S.Rep. No. 94-550, p. 3 (1975); accord, H.R.Rep. No. 94-679, pp. 1-2 (1975). [Footnote 21] Despite this concern, the Staff of the House Subcommittee advised against statutory deadlines because of the potential "adverse effect on the quality and uniformity of disability adjudication which is already somewhat suspect." Staff of the Subcommittee on Social Security of the House Committee on Ways and Means, Appeals Process: Areas of Possible Administrative or Legislative Action, 94th Cong., 1st Sess., 1-2 (Comm.Print 1975). [Footnote 22] Congress agreed and refused to impose statutory deadlines on the Secretary.Bills proposing statutory deadlines have been proposed almost annually since 1975, [Footnote 23] and congressional concern over the delay problem has remained high. For example, in 1980, Congress directed the Secretary to submit a report recommending the establishment of appropriate and realistic deadlines for resolution of disputed SSA claims. It ordered the Page 467 U. S. 114 Secretary in doing so to consider"both the need for expeditious processing of claims for benefits and the need to assure that all such claims will be thoroughly considered and accurately determined."Pub.L. 96-265, § 308, 94 Stat. 458, note following 42 U.S.C. § 401. The Senate Report explained that"Congress could then evaluate the recommendations for consistency with the elements it wishes to emphasize and, if needed, take further action next year."S.Rep. No. 96-408, p. 59 (1979). [Footnote 24] The Secretary submitted a report in October, 1980, suggesting deadlines of 150 days for reconsideration determinations and 165 days from hearing to posthearing decision, both subject to certain exceptions. U.S. Dept. of Health and Human Services, Report to Congress, Implementation of Section 308, Public Law 96-265, p. 1 (Oct. 21, 1980). The Secretary, however, cautioned Congress that budget and staff limitations and burgeoning workloads "mitigate [sic] against the Department meeting its proposed time limitation objectives in every instance." Id. at 2. Since receiving the Secretary's report, Congress has refused to impose mandatory deadlines on the Secretary, or to direct her to promulgate them herself.Certainly in Congress the concern that mandatory deadlines would jeopardize the quality and uniformity of agency decisions has prevailed over considerations of timeliness. In its most recent comment on the subject, the House Committee Page 467 U. S. 115 on Ways and Means expressly disapproved mandatory hearing deadlines and indicated disagreement with recent judicial decisions imposing such time restrictions. Criticizing the decision in Blankenship v. Secretary of HEW, No. C75-0185L(A) (WD Ky., May 6, 1976), which had imposed judicially prescribed hearing deadlines on the Secretary and ordered the payment of interim benefits in the event of noncompliance, [Footnote 25] the Committee reported:"[The] Committee believes that a disability claimant is entitled to a timely hearing and decision on his appeal, but it also recognizes that the time needed before a well-reasoned and sound disability hearing decision can be made may vary widely on a case-by-case basis. . . . Establishing strict time limits for the adjudication of every case could result in incorrect determinations because time was not available to . . . reach well-reasoned decisions in difficult cases."H.R.Rep. No. 97-588, pp.19-20 (1982). [Footnote 26] Page 467 U. S. 116Finally, the Secretary points out that judicially imposed deadlines may vary from case to case and from State to State, requiring HHS to shuffle its staff nationwide. Not only would this tend seriously to disrupt agency administration, but wide variations in judicially imposed deadlines also would prevent realization of Congress' oft-repeated goal of uniform administration of the Act. See, e.g., S.Rep. No. 96-408, pp. 52-56 (1979) (emphasizing concern over "state-to-state" variations and expressing hope that current legislation would "both improve the quality of determinations and ensure that claimants throughout the Nation will be judged under the same uniform standards and procedures") (emphasis added). [Footnote 27]BLegislation enacted by Congress in 1980 and 1982 is fully consistent with the repeated rejection of proposals for mandatory deadlines and with efforts by Congress to ensure quality Page 467 U. S. 117 and uniformity in agency adjudication. In 1980, Congress amended § 405(b) to require that every initial determination of ineligibility contain an easily understandable discussion of the evidence and the reasons for the determination. Pub.L. 96-265, 94 Stat. 457, 42 U.S.C. § 405(b). At the same time, Congress added § 421(i) to require a tri-annual assessment of the continuing eligibility of recipients of disability benefits. Pub.L. 96-265, 94 Stat. 460, 42 U.S.C. § 421(i). Congress also included in the 1980 amendments a requirement that the Secretary review at least 65% of all determinations of eligibility made by state agencies in any fiscal year after 1982. Pub.L. 96-265, 94 Stat. 456 42 U.S.C. §§ 421(c)(2), (3). [Footnote 28] Before 1972, the Secretary had reviewed the majority of state determinations as a matter of course. A growing workload required the Secretary to abandon this practice for a sample review of only 5% of the state agency determinations. H.R.Rep. No. 96-100, p. 10 (1979). The 1980 amendment, requiring review of a substantially higher percentage of state agency disability determinations, presumably will have an effect on the timely resolution of disputed disability claims. [Footnote 29]Finally, in 1983, Congress provided that, effective January 1, 1984, an initial determination that previously granted disability benefits should be terminated entitles the claimant not only to a de novo review on reconsideration, but to a full evidentiary hearing as well. Pub.L. 97-455, 96 Stat. 2499, 42 U.S.C. § 405(b)(2). All of these changes will impose additional duties on the Secretary and her heavily burdened staff. In light of Congress' continuing concern that mandatory deadlines would subordinate quality to timeliness, and its recent efforts to ensure the quality of agency determinations, Page 467 U. S. 118 it hardly could have contemplated that courts should have authority to impose the very deadlines it repeatedly has rejected. [Footnote 30]CPersuasive evidence of the intention of Congress also is found in the distinction it has made between the resolution of SSI claims for old-age and survivor benefits and SSI claims for disability benefits. Section 405(b), governing eligibility determinations under Title II, and § 1383(c)(1), governing eligibility determinations under Title XVI, are virtually identical. In the event of adverse determinations, both require the Secretary to provide claimants with "reasonable notice and opportunity for a hearing." In the case of disputed SSI claims, however, § 1383(c)(2) requires a posthearing decision within 90 days of the hearing request, except in the case of disputed disability claims. This provision makes two things clear: (i) Congress will establish hearing deadlines when it deems them appropriate; and (ii) Congress has determined that it is inappropriate to subject disputed disability claims to mandatory deadlines. [Footnote 31]IIIThe Secretary also contends that, quite apart from the congressional rejection of the mandatory deadlines discussed above, the District Court's order unduly intruded upon the Page 467 U. S. 119 discretion with which Congress has granted the Secretary to adopt rules and procedures for the adjudication of claims. See Heckler v. Campbell, 461 U. S. 458, 461 U. S. 466 (1983); Schweiker v. Gray Panthers, 453 U. S. 34, 453 U. S. 43-44 (1981); Batterton v. Francis, 432 U. S. 416, 432 U. S. 425 (1977). We need not reach this broader contention, however, because of repeated congressional rejection of the imposition of mandatory deadlines on agency adjudication of disputed disability claims. [Footnote 32] In light of the unmistakable intention of Congress, it would be an unwarranted judicial intrusion into this pervasively regulated area for federal courts to issue injunctions imposing deadlines with respect to future disability claims. [Footnote 33] Accordingly, we vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. [Footnote 34]It is so ordered

U.S. Supreme CourtHeckler v. Day, 467 U.S. 104 (1984)Heckler v. DayNo. 82-1371Argued December 5, 1983Decided May 22, 1984467 U.S. 104SyllabusThe Social Security Act (Act) and implementing regulations provide a four-step process for the administrative review and adjudication of disputed disability benefit claims under Title II of the Act. First, a state agency determines whether the claimant has a disability and the date it began or ceased. Second, if the claimant is dissatisfied with that determination, he may request a de novo reconsideration, and in some cases a full evidentiary hearing. Third, if the claimant receives an adverse reconsideration determination, he is entitled to an evidentiary hearing and de novo review by an administrative law judge. Finally, if the claimant is dissatisfied with the administrative law judge's decision, he may appeal to the Appeals Council of the Department of Health and Human Services (HHS). Respondents brought an action in Federal District Court on behalf of a statewide class of claimants in Vermont, seeking declaratory and injunctive relief from delays encountered in steps two and three that allegedly violated their right under 42 U.S.C. § 405(b) (1976 ed., Supp. V) to a hearing within a reasonable time. Holding that delays of more than 90 days in making reconsideration determinations, and delays of more than 90 days in granting a hearing request, were unreasonable and violated claimants' statutory rights, the District Court issued an injunction in favor of the statewide class requiring the Secretary of HHS in the future to issue reconsideration determinations within 90 days of requests for reconsideration, to conduct hearings within 90 days of requests for hearings, and to pay interim benefits to any claimant who did not receive a reconsideration determination or hearing within 180 days of the request for reconsideration or who did not receive a hearing within 90 days of the hearing request. The Court of Appeals affirmed.Held: The District Court's injunction constituted an unwarranted judicial intrusion into the pervasively regulated area of claims adjudication under Title II. The legislative history shows that Congress, in striking the balance between the need for timely disability determinations and the need to ensure the accuracy and consistency of such determinations in the face of heavy workloads and limited agency resources, has concluded that mandatory deadlines for adjudication of disputed disability Page 467 U. S. 105 claims are inconsistent with the Act's primary objectives. In light of Congress' continuing concern that mandatory deadlines would subordinate quality to timeliness, and its recent efforts to ensure the quality of agency determinations, it hardly could have been contemplated that courts should have authority to impose judicially the very deadlines Congress repeatedly has rejected. Pp. 467 U. S. 111-118.685 F.2d 19, vacated and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 467 U. S. 120.

1958_218

MR. JUSTICE WHITTAKER delivered the opinion of the Court.These tax refund cases present the question whether petitioners, Parsons in No. 218 and Huss in No. 305, are entitled to an allowance for depletion on amounts received by them under contracts with the owners of coal-bearing lands for the strip-mining of coal from those lands and the delivery of it to the landowners. The cases were heard by the same courts below. The District Court ruled that petitioners had no depletable interest in the coal in place, and rendered judgment for the respondent collector in each case. The Court of Appeals affirmed both judgments. 255 F.2d 595, 599. Because of an asserted conflict with the principles applicable under the decisions of this Court, we granted certiorari in both cases. 358 U.S. 814.The pertinent facts in each case were found by the District Court, and are not challenged here. In substance, they are as follows:PARSONS, No. 218. Petitioners were members of a partnership ("Parsons") which, until the transactions involved here, was primarily engaged in road building. Rockhill Coal Co. ("Rockhill") owned bituminous coal-bearing lands in Pennsylvania. Much of the coal was located relatively near the surface, and was therefore removable by the strip-mining process. [Footnote 1] In 1942, Parsons expressed a desire to strip-mine coal from Rockhill's lands, but it refused to sign the written contract offered because the firm did not wish to be bound by a contract "which would take a long time, since, if an opportunity opened up, [it] wanted to go back to road building." It was then agreed that Parsons would, and it did, proceed under Page 359 U. S. 217 an oral agreement. Under that agreement, Parsons was to strip-mine coal from such sites and seams, within a generally described area of Rockhill's lands, as were designated by Rockhill. Parsons was to furnish, at its own expense, all of the equipment, facilities and labor which it thought necessary to strip-mine and deliver the coal to Rockhill's cars at a fixed point. For each ton of coal so mined and delivered, Rockhill was to pay Parsons a stated amount of money. [Footnote 2] Parsons was not authorized to keep or sell any of the coal, but was required to deliver all that was mined to Rockhill. The agreement was not for a definite term, nor did it obligate Parsons to mine the tract to exhaustion, but, to the contrary, it was agreed that, "if Parsons or Rockhill wanted to quit, all that was necessary to terminate the arrangement was the giving of a ten-day notice." However, if Rockhill thus canceled the agreement, and if"Parsons had previously gone to the expense of removing the overburden (thereby performing the heavy part of the work, as well as meeting wages and expenses in so doing), then Parsons would have the privilege of taking out the coal [so uncovered] and of being paid for it [even though] this took more than ten days."Operations continued under the agreement without notice of termination until August 1, 1950, when Parsons gave Rockhill notice that it would "quit" the work on September 1, 1950, and it ceased these operations on or near that date. Large amounts of stripable coal still remained on the tract and strip-mining thereon was continued by another contractor. Parsons' investment in equipment used in the work ran from a low in 1943 of $60,000 to a high in 1947 of $250,000. The equipment was movable Page 359 U. S. 218 and there is no evidence that it was not usable elsewhere or for other purposes.HUSS, No. 305. Petitioners were members of a partnership ("Huss") engaged in the business of strip-mining coal. Philadelphia and Reading Coal & Iron Co. ("Reading") owned anthracite coal-bearing lands in Schuylkill County, Pennsylvania. Much of the coal was so located that it could be removed by strip-mining. In 1944, Reading and Huss entered into a written contract [Footnote 3] under which Huss undertook to strip-mine the coal from such areas, within a generally described tract of Reading's land, as might be designated by Reading and that was not lying deeper than a prescribed distance from the surface. Huss was to furnish at its own expense all of the equipment, facilities and labor necessary to mine and deliver the coal to Reading's colliery. For each ton of coal so mined and delivered, Reading was to pay Huss a stated sum. [Footnote 4] That sum was agreed to be in"full compensation for the full performance of all work and for the furnishing of all material, labor, power, tools, machinery, implements and equipment required for the work."Huss was not authorized to keep or sell any of the coal. The contract was expressly terminable by Reading at any time upon 30 days' written notice "without specifying any reason therefor" and without liability for "any loss of anticipated profits or any other damages whatever." This right of termination was not exercised. Operations continued under the contract until July, 1947, by which time Page 359 U. S. 219 Huss had mined most of the strippable coal on the lands covered by the contract that lay within the stipulated distance from the surface, and the contract was then canceled by mutual agreement. Huss' investment in equipment used in the work ran from a low in 1944 of $100,000 to a high in 1947 of $500,000. All of the equipment was movable and usable elsewhere in strip-mining, and some of it was usable for other purposes.Whether a deduction from gross income shall be permitted for depletion of mineral deposits, or any interest therein, is entirely a matter of grace. [Footnote 5] We therefore must look first to the provisions and purposes of the statutes and to the decisions construing them to see what interests are permitted a deduction for depletion, and next to the contracts involved to see whether they gave to petitioners such an interest.The applicable statutes are §§ 23(m) and 114(b)(4)(A) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 23(m) and 26 U.S.C. (1946 ed.) § 114(b)(4) (A). Section 23(m) directs that a reasonable allowance for depletion shall be made"in the case of mines, . . . according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary,"and that, "[i]n the case of leases, the deductions shall be equitably apportioned between the lessor and lessee." And § 114(b)(4)(A) provides that the allowance shall be,"in the case of coal mines, 5 percentum . . . of the gross income from [mining] [Footnote 6] the property during the taxable year, excluding Page 359 U. S. 220 . . . any rents or royalties paid or incurred by the taxpayer in respect of the property."The purpose of the deduction for depletion is plain and has been many times declared by this Court."[It] is permitted in recognition of the fact that the mineral deposits are wasting assets, and is intended as compensation to the owner for the part used up in production."Helvering v. Bankline Oil Co., 303 U. S. 362, 303 U. S. 366. And see United States v. Ludey, 274 U. S. 295, 274 U. S. 302; Helvering v. Elbe Oil Land Development Co., 303 U. S. 372, 303 U. S. 375; Anderson v. Helvering, 310 U. S. 404, 310 U. S. 408; Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, 326 U. S. 603."The [depletion] exclusion is designed to permit a recoupment of the owner's capital investment in the minerals so that, when the minerals are exhausted, the owner's capital is unimpaired."Commissioner v. Southwest Exploration Co., 350 U. S. 308, 350 U. S. 312. Save for its application only to gross income from mineral deposits and standing timber, the purpose of "the deduction for depletion does not differ from the deduction for depreciation." United States v. Ludey, 274 U.S. at 274 U. S. 303. In short, the purpose of the depletion deduction is to permit the owner of a capital interest in mineral in place to make a tax-free recovery of that depleting capital asset.Although the sentence in § 23(m) that "In the case of leases, the deductions shall be equitably apportioned between the lessor and lessee" presupposes "that the deductions may be allowed in other cases" (Palmer v. Bender, 287 U. S. 551, 287 U. S. 557), the statute "must be read in the light of the requirement of apportionment of a single depletion allowance" (Helvering v. Twin Bell Oil Syndicate, 293 U. S. 312, 293 U. S. 321), for two or more persons "cannot be entitled to depletion on the same income" (Commissioner v. Southwest Exploration Co., 350 U. S. 308, 350 U. S. 309). It follows that if petitioners are entitled to a depletion allowance on the amounts earned under their contracts, Page 359 U. S. 221 the amounts allowable to the landowners for the depletion of their coal deposits would be correspondingly reduced.Dealing specifically with the problem of what interests in mineral deposits were permitted a deduction for depletion under the practically identical predecessors of §§ 23(m) and 114, this Court said in Palmer v. Bender, 287 U. S. 551, 287 U. S. 557:"The language of the statute is broad enough to provide at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital."The Court further said that the deduction is not"dependent upon the particular legal form of the taxpayer's interest in the property to be depleted, [and that] [i]t is enough if . . . he has retained a right to share in the oil produced. If so, he has an economic interest in the oil, in place, which is depleted by production. [Footnote 7]"Ibid. (Emphasis added.) The Court went on to hold that lessee of oil producing properties, by reserving from an assignment a royalty of "one-eighth of all the oil produced and saved," retained Page 359 U. S. 222 an economic interest in the oil in place, and were therefore entitled to an allowance for depletion against their gross income from that interest.Five years later, in 1938, the Court, in Helvering v. Bankline Oil Co., 303 U. S. 362, reaffirmed the test laid down in Palmer and added:"But the phrase 'economic interest' is not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit."303 U.S. at 303 U. S. 367. Applying that principle, the Court held that a processor who, by contracts with the owners of gas and oil wells, had acquired the right to take wet gas from the wellheads and to extract and sell the gasoline therefrom, paying the well owners a percentage of the proceeds of such sales, had not acquired an economic interest in the depleting gas in place. but only an economic advantage to be derived from the processing operations, and, that therefore the Page 359 U. S. 223 income from those operations was not subject to the depletion deduction.In his first regulations prescribed under the Internal Revenue Act of 1939, the Commissioner adopted almost literally the language we have quoted from Palmer and Bankline as the tests to be administratively applied in determining what interests in mineral deposits are entitled to the depletion allowance. See Treas.Reg. 103, § 19.23(m)-1, August 23, 1939. That language, with immaterial changes, has remained in the regulations ever since. During the years here involved, 1942 through 1950, the regulation in force was Treas.Reg. 111, § 29.23(m)-1, which, in pertinent part, provides:"Under [the provisions of §§ 23(m) and 114] the owner of an economic interest in mineral deposits or standing timber is allowed annual depletion deductions. An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the severance and sale of the mineral or timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner he possesses a mere economic advantage derived from production. . . ."Such are the interests that are permitted a deduction for depletion by the statutes as consistently interpreted by this Court and by the Commissioner.Petitioners do not dispute that these are the controlling principles, but rather they contend that they come within those that allow the deduction. They argue that, by their contracts to mine the coal, and particularly by contributing Page 359 U. S. 224 their equipment, organizations and skills to the mining project as required by those contracts, they, in legal effect, made a capital investment in, and thereby acquired an economic interest in, the coal in place, which was depletable by production, and that they are therefore entitled to take the deduction against their gross income derived from those mining operations.We take a different view. It stands admitted that, before and apart from their contracts, petitioners had no investment or interest in the coal in place. Their asserted right to the deduction rests entirely upon their contracts. Is there anything in those contracts to indicate that petitioners made a capital investment in, or acquired an economic interest in, the coal in place, as distinguished from the acquisition of a mere economic advantage to be derived from their mining operations? We think it is quite plain that there is not.By their contracts, which were completely terminable without cause on short notice, petitioners simply agreed to provide the equipment and do the work required to strip-mine coal from designated lands of the landowners and to deliver the coal to the latter at stated points, and in full consideration for performance of that undertaking the landowners were to pay to petitioners a fixed sum per ton. Surely those agreements do not show or suggest that petitioners actually made any capital investment in the coal in place, or that the landowners were to or actually did in any way surrender to petitioners any part of their capital interest in the coal in place. Petitioners do not factually assert otherwise. Their claim to the contrary is based wholly upon an asserted legal fiction. As stated, they claim that their contractual right to mine coal from the designated lands and the use of their equipment, organizations and skills in doing so, should be regarded as the making of a capital investment in, and the acquisition of an economic interest in, the coal in place. Page 359 U. S. 225 But that fiction cannot be indulged here, for it is negated by the facts.To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners' investments were in their equipment, all of which was movable -- not in the coal in place; (2) that their investments in equipment were recoverable through depreciation -- not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender, and did not actually surrender, to petitioners any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that petitioners could not sell or keep any of it, but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss, agreed to be in "full compensation for the full performance of all work and for the furnishing of all [labor] and equipment required for the work"; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due them under their contracts. The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal "was a personal covenant and did not purport to grant [petitioners] an interest in the [coal in place]." Helvering v. O'Donnell, 303 U. S. 370, 303 U. S. 372. Surely these facts show that petitioners did not actually make any capital investment in, or acquire any economic interest in, the coal in place, and that they may not fictionally be regarded as having done so."Undoubtedly, [petitioners] through [their] contracts obtained an economic advantage from [their] production of the [coal], but that is not sufficient. The controlling fact is that [petitioners] had no interest in the [coal] in Page 359 U. S. 226 place."Helvering v. Bankline Oil Co., 303 U.S. at 303 U. S. 368. Of course, the parties might have provided in their contracts that petitioners would have some capital interest in the coal in place, but they did not do so -- apparently by design. Instead, petitioners simply entered into contracts, terminable without cause on short notice, with the owners of coal-bearing lands to provide the equipment and do the work required to strip-mine and deliver coal from those lands, as independent contractors, for fixed unit prices."[Petitioners thus] bargaining for and obtained an economic advantage from the [mining] operations but that advantage or profit did not constitute a depletable interest in the [coal] in place"(Helvering v. O'Donnell, 303 U.S. at 303 U. S. 372), and, having "no capital investment in the mineral deposit which suffered depletion, [petitioners are] not entitled to the statutory allowance" (Helvering v. Bankline Oil Co., 303 U.S. at 303 U. S. 368). The judgments must therefore beAffirmed

U.S. Supreme CourtParsons v. Smith, 359 U.S. 215 (1959)Parsons v. SmithNo. 218Argued March 4, 1959Decided April 6, 1959*359 U.S. 215SyllabusUnder contracts with the owners of coal-bearing lands, which were terminable by the owners on short notice without cause, petitioners strip-mined coal for the owners and received for their services a fixed price per ton of coal extracted and delivered. Petitioners were not entitled to keep or sell any of the coal, but were required to deliver all they mined to the owners.Held: Petitioners were not entitled to percentage depletion deductions under §§ 23(m) and 114(b)(4) of the Internal Revenue Code of 1939 on the amounts received by them for their strip-mining operations, since they had no capital investment or economic interest in the coal in place. Pp. 359 U. S. 216-226.255 F.2d 595, 599, affirmed. Page 359 U. S. 216

1977_76-1750

MR. JUSTICE WHITE delivered the opinion of the Court.This case requires us to consider the scope of a judge's immunity from damages liability when sued under 42 U.S.C. § 1983.IThe relevant facts underlying respondents' suit are not in dispute. On July 9, 171, Ora Spitler McFarlin, the mother of respondent Linda Kay Spitler Sparkman, presented to Judge Harold D. Stump of the Circuit Court of DeKalb County, Ind., a document captioned "Petition To Have Tubal Ligation Performed On Minor and Indemnity Agreement." The document had been drafted by her attorney, a petitioner here. In this petition, Mrs. McFarlin stated under oath that her daughter was 15 years of age and was "somewhat retarded," although she attended public school and had been promoted each year with her class. The petition further stated that Linda had been associating with "older youth or young men" and had stayed out overnight with them on several occasions. As a result of this behavior and Linda's mental capabilities, it was stated that it would be in the daughter's best interest if she underwent a tubal ligation in order "to prevent unfortunate circumstances. . . ." In the same document, Mrs. McFarlin also undertook to indemnify and hold harmless Dr. John Hines, who was to perform the operation, and the DeKalb Memorial Hospital, where the operation was to take place, against all causes of action that might arise as a result of the performance of the tubal ligation. [Footnote 1] Page 435 U. S. 352The petition was approved by Judge Stump on the same day. He affixed his signature as "Judge, DeKalb Circuit Court," to the statement that he did"hereby approve the Page 435 U. S. 353 above Petition by affidavit form on behalf of Ora Spitler McFarlin, to have Tubal Ligation performed upon her minor daughter, Linda Spitler, subject to said Ora Spitler McFarlin covenanting and agreeing to indemnify and keep indemnified Dr. John Hines and the DeKalb Memorial Hospital from any matters or causes of action arising therefrom."On July 15, 1971, Linda Spitler entered the DeKalb Memorial Hospital, having been told that she was to have her appendix removed. The following day, a tubal ligation was performed upon her. She was released several days later, unaware of the true nature of her surgery.Approximately two years after the operation, Linda Spitler was married to respondent Leo Sparkman. Her inability to become pregnant led her to discover that she had been sterilized during the 1971 operation. As a result of this revelation, the Sparkmans filed suit in the United States District Court for the Northern District of Indiana against Mrs. McFarlin, her attorney, Judge Stump, the doctors who had performed and assisted in the tubal ligation, and the DeKalb Memorial Hospital. Respondents sought damages for the alleged violation of Linda Sparkman's constitutional rights; [Footnote 2] also asserted were pendent state claims for assault Page 435 U. S. 354 and battery, medical malpractice, and loss of potential fatherhood.Ruling upon the defendants' various motions to dismiss the complaint, the District Court concluded that each of the constitutional claims asserted by respondents required a showing of state action, and that the only state action alleged in the complaint was the approval by Judge Stump, acting as Circuit Court Judge, of the petition presented to him by Mrs. McFarlin. The Sparkmans sought to hold the private defendants liable on a theory that they had conspired with Judge Stump to bring about the allegedly unconstitutional acts. The District Court, however, held that no federal action would lie against any of the defendants because Judge Stump, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity. The court stated that"whether or not Judge Stump's 'approval' of the petition may, in retrospect, appear to have been premised on an erroneous Page 435 U. S. 355 view of the law, Judge Stump surely had jurisdiction to consider the petition and to act thereon."Sparkman v. McFarlin, Civ. No. F 75-129 (ND Ind., May 13, 1976). Accordingly, under Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351 (1872), Judge Stump was entitled to judicial immunity. [Footnote 3]On appeal, the Court of Appeals for the Seventh Circuit reversed the judgment of the District Court, [Footnote 4] holding that the "crucial issue" was "whether Judge Stump acted within his jurisdiction" and concluding that he had not. 52 F.2d at 174. He was accordingly not immune from damages liability under the controlling authorities. The Court of Appeals also held that the judge had forfeited his immunity "because of his failure to comply with elementary principles of procedural due process." Id. at 176.We granted certiorari, 434 U.S. 815 (1977), to consider the correctness of this ruling. We reverse.IIThe governing principle of law is well established, and is not questioned by the parties. As early as 1872, the Court recognized that it was"a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself."Bradley v. Fisher, supra at 80 U. S. 347. [Footnote 5] For that reason, the Court held that"judges Page 435 U. S. 356 of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. [Footnote 6]"13 Wall. at 80 U. S. 351. Later, we held that this doctrine of judicial immunity was applicable in suits under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. Pierson v. Ray, 386 U. S. 547 (1967).The Court of Appeals correctly recognized that the necessary inquiry in determining whether a defendant judge is immune from suit is whether, at the time he took the challenged action, he had jurisdiction over the subject matter before him. Because"some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction . . . ,"Bradley, supra, at 80 U. S. 352, the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only Page 435 U. S. 357 when he has acted in the "clear absence of all jurisdiction." [Footnote 7] 13 Wall. at 80 U. S. 351.We cannot agree that there was a "clear absence of all jurisdiction" in the DeKalb County Circuit Court to consider the petition presented by Mrs. McFarlin. As an Indiana Circuit Court Judge, Judge Stump had "original exclusive jurisdiction in all cases at law and in equity whatsoever . . . ," jurisdiction over the settlement of estates and over guardianships, appellate jurisdiction as conferred by law, and jurisdiction over"all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer."Ind.Code § 33 l l 3 (1975). [Footnote 8] This is indeed a broad jurisdictional grant; yet the Court of Appeals concluded that Judge Stump did not have jurisdiction over the petition authorizing Linda Sparkman's sterilization. Page 435 U. S. 358In so doing, the Court of Appeals noted that the Indiana statutes provided for the sterilization of institutionalized persons under certain circumstances, see Ind.Code §§ 16-13-13-1 through 16-13-13-4 (1973), but otherwise contained no express authority for judicial approval of tubal ligations. It is true that the statutory grant of general jurisdiction to the Indiana circuit courts does not itemize types of cases those courts may hear, and hence does not expressly mention sterilization petitions presented by the parents of a minor. But, in our view, it is more significant that there was no Indiana statute and no case law in 1971 prohibiting a circuit court, a court of general jurisdiction, from considering a petition of the type presented to Judge Stump. The statutory authority for the sterilization of institutionalized persons in the custody of the State does not warrant the inference that a court of general jurisdiction has no power to act on a petition for sterilization of a minor in the custody of her parents, particularly where the parents have authority under the Indiana statutes to "consent to and contract for medical or hospital care or treatment of [the minor] including surgery." Ind.Code § 16-8-4-2 (1973). The District Court concluded that Judge Stump had jurisdiction under § 33-4-4-3 to entertain and act upon Mrs. McFarlin's petition. We agree with the District Court, it appearing that neither by statute nor by case law has the broad jurisdiction granted to the circuit courts of Indiana been circumscribed to foreclose consideration of a petition for authorization of a minor's sterilization. The Court of Appeals also concluded that support for Judge Stump's actions could not be found in the common law of Indiana, relying in particular on the Indiana Court of Appeals' intervening decision in A.L. v. G.R.H., 163 Ind.App. 636, 325 N.E.2d 501 (1975). In that case, the Indiana court held that a parent does not have a common law right to have a minor child sterilized, even though the parent might "sincerely believe the child's adulthood would benefit therefrom." Id. at 638, 325 N.E.2d at 502. The opinion, however, Page 435 U. S. 359 speaks only of the rights of the parents to consent to the sterilization of their child, and does not question the jurisdiction of a circuit judge who is presented with such a petition from a parent. Although, under that case, a circuit judge would err as a matter of law if he were to approve a parent's petition seeking the sterilization of a child, the opinion in A.L. v. G.R.H. does not indicate that a circuit judge is without jurisdiction to entertain the petition. Indeed, the clear implication of the opinion is that, when presented with such a petition, the circuit judge should deny it on its merits, rather than dismiss it for lack of jurisdiction.Perhaps realizing the broad scope of Judge Stump's jurisdiction, the Court of Appeals stated that, even if the action taken by him was not foreclosed under the Indiana statutory scheme, it would still be "an illegitimate exercise of his common law power because of his failure to comply with elementary principles of procedural due process." 552 F.2d at 176. This misconceives the doctrine of judicial immunity. A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors. The Court made this point clear in Bradley, 13 Wall. at 80 U. S. 357, where it stated:"[T]his erroneous manner in which [the court's] jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever. . . ."We conclude that the Court of Appeals, employing an unduly restrictive view of the scope of Judge Stump's jurisdiction, erred in holding that he was not entitled to judicial immunity. Because the court over which Judge Stump presides is one of general jurisdiction, neither the procedural errors he may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered Page 435 U. S. 360 him liable in damages for the consequences of his actions.The respondents argue that, even if Judge Sump had jurisdiction to consider the petition presented to him by Mrs. McFarlin, he is still not entitled to judicial immunity, because his approval of the petition did not constitute a "judicial" act. It is only for acts performed in his "judicial" capacity that a judge is absolutely immune, they say. We do not disagree with this statement of the law, but we cannot characterize the approval of the petition as a nonjudicial act.Respondents themselves stated in their pleadings before the District Court that Judge Stump was "clothed with the authority of the state" at the time that he approved the petition, and that "he was acting as a county circuit court judge." Plaintiffs' Reply Brief to Memorandum Filed on Behalf of Harold D. Stump in Support of his Motion to Dismiss in Civ. No. F 75-129, p. 6. They nevertheless now argue that Judge Stump's approval of the petition was not a judicial act, because the petition was not given a docket number, was not placed on file with the clerk's office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem.This Court has not had occasion to consider, for purposes of the judicial immunity doctrine, the necessary attributes of a judicial act; but it has previously rejected the argument, somewhat similar to the one raised here, that the lack of formality involved in the Illinois Supreme Court's consideration of a petitioner's application for admission to the state bar prevented it from being a "judicial proceeding" and from presenting a case or controversy that could be reviewed by this Court. In re Summers, 325 U. S. 561 (1945). Of particular significance to the present case, the Court in Summers noted the following:"The record does not show that any process issued or that any appearance was made. . . . While no entry was placed by the Clerk in the file, on a docket, or in a judgment roll, the Court took cognizance of the petition and Page 435 U. S. 361 passed an order which is validated by the signature of the presiding officer."Id. at 325 U. S. 567. Because the Illinois court took cognizance of the petition for admission and acted upon it, the Court held that a case or controversy was presented.Similarly, the Court of Appeals for the Fifth Circuit has held that a state district judge was entitled to judicial immunity, even though,"at the time of the altercation [giving rise to the suit], Judge Brown was not in his judge's robes, he was not in the courtroom itself, and he may well have violated state and/or federal procedural requirements regarding contempt citations."McAlester v. Brown, 469 F.2d 1280, 1282 (1972). [Footnote 9] Among the factors relied upon by the Court of Appeals in deciding that the judge was acting within his judicial capacity was the fact that "the confrontation arose directly and immediately out of a visit to the judge in his official capacity." Ibid. [Footnote 10] Page 435 U. S. 362The relevant cases demonstrate that the factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. Here, both factors indicate that Judge Stump's approval of the sterilization petition was a judicial act. [Footnote 11] State judges with general jurisdiction not infrequently are called upon in their official capacity to approve petitions relating to the affairs of minors, as for example, a petition to settle a minor's claim. Furthermore, as even respondents have admitted, at the time he approved the petition presented to him by Mrs. McFarlin, Judge Stump was "acting as a county circuit court judge." See supra at 435 U. S. 360. We may infer from the record that it was only because Judge Stump served in that position that Mrs. McFarlin, on the advice of counsel, submitted the petition to him for his approval. Because Judge Stump performed the type of act normally performed only by judges, and because he did so in his capacity as a Circuit Court Judge, we find no Page 435 U. S. 363 merit to respondents' argument that the informality with which he proceeded rendered his action nonjudicial and deprived him of his absolute immunity. [Footnote 12]Both the Court of Appeals and the respondents seem to suggest that, because of the tragic consequences of Judge Stump's actions, he should not be immune. For example, the Court of Appeals noted that "[t]here are actions of purported judicial character that a judge, even when exercising general jurisdiction, is not empowered to take," 552 F.2d at 176, and respondents argue that Judge Stump's action was "so unfair" and "so totally devoid of judicial concern for the interests and wellbeing of the young girl involved" as to disqualify it as a judicial act. Brief for Respondents 18. Disagreement with the action taken by the judge, however, does not justify depriving that judge of his immunity. Despite the unfairness to litigants that sometimes results, the doctrine of judicial immunity is thought to be in the best interests of"the proper administration of justice . . . [, for it allows] a judicial officer, in exercising the authority vested in him [to] be free to act upon his own convictions, without apprehension of personal consequences to himself."Bradley v. Fisher, 13 Page 435 U. S. 364 Wall. at 80 U. S. 347. The fact that the issue before the judge is a controversial one is all the more reason that he should be able to act without fear of suit. As the Court pointed out in Bradley:"Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in those courts, in which there is great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the judge the severest labor, and often create in his mind a painful sense of responsibility."Id. at 80 U. S. 348.The Indiana law vested in Judge Stump the power to entertain and act upon the petition for sterilization. He is, therefore, under the controlling cases, immune from damages liability even if his approval of the petition was in error. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. [Footnote 13]It is so ordered

U.S. Supreme CourtStump v. Sparkman, 435 U.S. 349 (1978)Stump v. SparkmanNo. 76-1750Argued January 10, 1978Decided March 28, 1978435 U.S. 349SyllabusA mother filed a petition in affidavit form in an Indiana Circuit Court, a court of general jurisdiction under an Indiana statute, for authority to have her "somewhat retarded" 15-year-old daughter (a respondent here) sterilized, and petitioner Circuit Judge approved the petition the same day in an ex parte proceeding without a hearing and without notice to the daughter or appointment of a guardian ad litem. The operation was performed shortly thereafter, the daughter having been told that she was to have her appendix removed. About two years later, she was married, and her inability to become pregnant led her to discover that she had been sterilized. As a result, she and her husband (also a respondent here) filed suit in Federal District Court pursuant to 42 U.S.C. § 1983 against her mother, the mother's attorney, the Circuit Judge, the doctors who performed or assisted in the sterilization, and the hospital where it was performed, seeking damages for the alleged violation of her constitutional rights. Holding that the constitutional claims required a showing of state action and that the only state action alleged was the Circuit Judge's approval of the sterilization petition, the District Court held that no federal action would lie against any of the defendants because the Circuit Judge, the only state agent, was absolutely immune from suit under the doctrine of judicial immunity. The Court of Appeals reversed, holding that the "crucial issue" was whether the Circuit Judge acted within his jurisdiction, that he had not, that, accordingly, he was not immune from damages liability, and that, in any event, he had forfeited his immunity "because of his failure to comply with elementary principles of procedural due process."Held: The Indiana law vested in the Circuit Judge the power to entertain and act upon the petition for sterilization, and he is, therefore, immune from damages liability even if his approval of the petition was in error. Pp. 435 U. S. 355-364.(a) A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but, rather, he will be subject to liability only when he has acted in the "clear absence of all jurisdiction," Bradley v. Fisher, 13 Wall. 335, 80 U. S. 351. Pp. 435 U. S. 355-357. Page 435 U. S. 350(b) Here, there was not "clear absence of all jurisdiction" in the Circuit Court to consider the sterilization petition. That court had jurisdiction under the Indiana statute granting it broad general jurisdiction, it appearing that neither by statute nor by case law had such jurisdiction been circumscribed to foreclose consideration of the petition. Pp. 435 U. S. 357-358.(c) Because the Circuit Court is a court of general jurisdiction, neither the procedural errors the Circuit Judge may have committed nor the lack of a specific statute authorizing his approval of the petition in question rendered him liable in damages for the consequences of his actions. Pp. 435 U. S. 358-360.(d) The factors determining whether an act by a judge is "judicial" relate to the nature of the act itself (whether it is a function normally performed by a judge) and the expectation of the parties (whether they dealt with the judge in his judicial capacity), and here, both of these elements indicate that the Circuit Judge's approval of the sterilization petition was a judicial act, even though he may have proceeded with informality. Pp. 435 U. S. 360-363.(e) Disagreement with the action taken by a judge does not justify depriving him of his immunity, and, thus, the fact that, in this case, tragic consequences ensued from the judge's action does not deprive him of his immunity; moreover, the fact that the issue before the judge is a controversial one, as here, is all the more reason that he should be able to act without fear of suit. Pp. 435 U. S. 363-364.552 F.2d 172, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, in which MARSHALL and POWELL, JJ., joined, post, p. 435 U. S. 364. POWELL, J., filed a dissenting opinion, post, p. 435 U. S. 369. BRENNAN, J., took no part in the consideration or decision of the case. Page 435 U. S. 351

1956_33

MR. JUSTICE BURTON delivered the opinion of the Court.A joint trial in this case resulted in the conviction of five co-defendants on a federal charge of conspiring to deal unlawfully in alcohol. Only the petitioner, Orlando Delli Paoli, appealed. The principal issue is whether the trial court committed reversible error, as against petitioner, by admitting in evidence a confession of a co-defendant, made after the termination of the alleged conspiracy. The trial court declined to delete references to petitioner from the confession, but stated clearly that the confession was to be considered only in determining the guilt of the confessor, and not that of other defendants. For the reasons hereafter stated, we agree that, under the circumstances of this case, such a restricted admission of the confession did not constitute reversible error.In the United States District Court for the Southern District of New York, the jury convicted petitioner and four co-defendants, Margiasso, Pierro, Whitley, and King, of conspiring to possess and transport alcohol in unstamped containers and to evade payment of federal taxes on the alcohol. [Footnote 1] The Government's witnesses testified that they had observed actions of the defendants which disclosed the procedure through which Margiasso, Pierro, and petitioner supplied unstamped alcohol to their customers, such as King and Whitley. The Government also offered, for use against Whitley alone, his written confession made in the presence of a government agent and of his own counsel after the termination of the conspiracy. [Footnote 2] The court postponed the introduction of Whitley's Page 352 U. S. 234 confession until the close of the Government's case. At that time, the court admitted it with an emphatic warning that it was to be considered solely in determining the guilt of Whitley, and not in determining the guilt of any other defendant. The court repeated this admonition in its charge to the jury.The Court of Appeals affirmed petitioner's conviction, with one judge dissenting. 229 F.2d 319. We granted certiorari especially to consider the admissibility of Whitley's post-conspiracy confession. 350 U.S. 992.IPetitioner first attacks the sufficiency of the evidence connecting him with the conspiracy. The Government's evidence, exclusive of Whitley's confession, showed that the defendants' conspiracy to deal in unstamped alcohol centered around a garage used for storage purposes in a residential district of the Bronx in New York City and gasoline service station, also in the Bronx. The service station was used by Margiasso, Pierro, and petitioner as a place to meet customers and transfer alcohol.In December, 1949, petitioner, using the alias of "Bobbie London," was associated with Margiasso and Pierro in inspecting the garage and in negotiating for its purchase. For $2,000 in cash, title to the garage and an adjacent cottage was taken in the name of Pierro's sister. In 1950, the garage was repaired, its windows boarded up and its doors strengthened and padlocked. Petitioner lived not far away, in the Bronx, and was observed, from time to time at the garage or using a panel truck which was registered under a false name. During the daytime, this truck generally was parked near petitioner's home or the garage, but neighbors testified that it was in use late at night. In it petitioner transported various articles to the garage or elsewhere. On one occasion, petitioner, with Margiasso, loaded it with bundles of cartons suited to Page 352 U. S. 235 the packing of 5-gallon cans. Late in 1951, petitioner used an additional truck, also registered under a false name. In addition, he frequently drove to the service station in a Cadillac car. On December 18, 1951, he used this car in making delivery of a large package to a near-by bar.During December, 1951, the service station often was used as a meeting place for Margiasso, Pierro, and petitioner. Margiasso and petitioner were there on the evening of December 28. [Footnote 3] At about 7 and 10 p.m., respectively, King and Whitley arrived. Each turned over his car to Margiasso. Margiasso drove King's car to the garage and returned with it heavily loaded. King then drove it away. Government agents followed him until he stopped in Harlem. There they arrested him and took possession of 19 5-gallon cans of unstamped alcohol found in his car. Later in the evening, Margiasso took Whitley's car to the garage and was arrested in it when leaving the still-open garage. The agents thereupon seized 113 5-gallon cans of unstamped alcohol they found in the garage. Whitley, who had been waiting for Margiasso at the service station with $1,000 in a paper bag, was arrested on the agents' return with Margiasso.Petitioner's presence at the service station on the evening of December 28 was closely related to these events. He waited there with King for Margiasso to return with King's car containing the 19 cans of alcohol. Page 352 U. S. 236 He was there again with Margiasso at about 10 p.m., but left shortly before Whitley came. He returned while Margiasso, Whitley, and the agents were there, and was arrested while attempting to drive away.Petitioner contends that the above evidence shows merely that he was a friend and associate of Pierro and Margiasso. We conclude, however, from the record as a whole, that the jury could find, beyond a reasonable doubt, that petitioner was associated with Pierro and Margiasso in the purchase of the garage and the use of the panel truck, that he knew that unstamped alcohol was stored in the garage, that he had access to it, and that he was an active participant in the transfers of alcohol to Whitley and King. Accordingly, we agree with Circuit Judge Learned Hand's statement made for the court below, following his own summary of the evidence of petitioner's participation in the conspiracy:"Not only was all this enough to connect him with the business, but the jurors could hardly have failed to find that he was in the enterprise. The whole business was illegal, and carried on surreptitiously, and the possibility that unless he were a party to the venture, Pierro and Margiasso would have associated [with] him to the extent we have mentioned is too remote for serious discussion."229 F.2d at 320. [Footnote 4]IIIn considering the admissibility of the Whitley confession, we start with the premise that the other evidence against petitioner was sufficient to sustain his conviction. Page 352 U. S. 237 If Whitley's confession had included no reference to petitioner's participation in the conspiracy, its admission would not have been open to petitioner's objection. Similarly, if the trial court had deleted from the confession all references to petitioner's connection with the conspiracy, the admission of the remainder would not have been objectionable. The impracticality of such deletion was, however, agreed to by both the trial court and the entire court below, and cannot well be controverted.This Court long has held that a declaration made by one conspirator, in furtherance of a conspiracy and prior to its termination, may be used against the other conspirators. However, when such a declaration is made by a conspirator after the termination of the conspiracy, it may be used only against the declarant and under appropriate instructions to the jury.". . . Declarations of one conspirator may be used against the other conspirator not present on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both under a standard exception to the hearsay rule applicable to the statements of a party. Clune v. United States, 159 U. S. 590, 159 U. S. 593. See United States v. Gooding, 12 Wheat. 460, 25 U. S. 468-470. But such declaration can be used against the co-conspirator only when made in furtherance of the conspiracy. Fiswick v. United States, 329 U. S. 211, 329 U. S. 217; Logan v. United States, 144 U. S. 263, 144 U. S. 308-309. There can be no furtherance of a conspiracy that has ended. Therefore, the declarations of a conspirator do not bind the co-conspirator if made after the conspiracy has ended. That is the teaching of Krulewitch v. United States, supra [336 U.S. 440], and Fiswick v. United States, supra. Those cases dealt only with declarations of one conspirator after the conspiracy had ended. . . . "Page 352 U. S. 238"Relevant declarations or admissions of a conspirator made in the absence of the co-conspirator, and not in furtherance of the conspiracy, may be admissible in a trial for conspiracy as against the declarant to prove the declarant's participation therein. The court must be careful at the time of the admission and by its instructions to make it clear that the evidence is limited as against the declarant only. Therefore, when the trial court admits against all of the conspirators a relevant declaration of one of the conspirators after the conspiracy has ended, without limiting it to the declarant, it violates the rule laid down in Krulewitch. Such declaration is inadmissible as to all but the declarant."". . . These declarations [i.e., those admissible only as to the declarant] must be carefully and clearly limited by the court at the time of their admission, and the jury instructed as to such declarations and the limitations put upon them. Even then, in most instances of a conspiracy trial of several persons together, the application of the rule places a heavy burden upon the jurors to keep in mind the admission of certain declarations and to whom they have been restricted and, in some instances, for what specific purpose. While these difficulties have been pointed out in several cases, e.g., Krulewitch v. United States, supra, at 336 U. S. 453 (concurring opinion); Blumenthal v. United States, 332 U. S. 539, 332 U. S. 559-560; Nash v. United States, 54 F.2d 1006, 1006-1007, the rule has nonetheless been applied. Blumenthal v. United States, supra; Nash v. United States, supra; United States v. Gottfried, 165 F.2d 360, 367."Lutwak v. United States, 344 U. S. 604, 344 U. S. 617-618, 344 U. S. 619. See also Opper v. United States, 348 U. S. 84, 348 U. S. 95. Page 352 U. S. 239Petitioner contends that Krulewitch v. United States, 336 U. S. 440, requires the exclusion of a post-conspiracy confession of a co-conspirator. That case dealt with the scope of the co-conspirators' exception to the hearsay rule. This Court held that the utterance of a co-conspirator made after the termination of the conspiracy was inadmissible against other co-conspirators. Unlike the instant case, the declarant was not on trial, and the question whether his utterance, implicating other alleged conspirators, could be admitted in a joint trial solely against the declarant, under proper limiting instructions was neither presented nor decided.The issue here is whether, under all the circumstances, the court's instructions to the jury provided petitioner with sufficient protection so that the admission of Whitley's confession, strictly limited to use against Whitley, constituted reversible error. The determination of this issue turns on whether the instructions were sufficiently clear and whether it was reasonably possible for the jury to follow them. [Footnote 5]When the confession was admitted in evidence, the trial court said:"The proof of the Government has now been completed except for the testimony of the witness Greenberg as to the alleged statement or affidavit of the defendant Whitley. This affidavit or admission will Page 352 U. S. 240 be considered by you solely in connection with your determination of the guilt or innocence of the defendant Whitley. It is not to be considered as proof in connection with the guilt or innocence of any of the other defendants.""The reason for this distinction is this: an admission by defendant after his arrest of participation in alleged crime may be considered as evidence by the jury against him, together with other evidence, because it is, as the law describes it, an admission against interest which a person ordinarily would not make. However, if such defendant, after his arrest, implicates other defendants in such an admission, it is not evidence against those defendants, because, as to them, it is nothing more than hearsay evidence."The substance of this admonition was repeated several times during the cross-examination of one of the government agents before whom the confession was made, and a final warning to the same effect was included in the court's charge to the jury. [Footnote 6] Nothing could have been Page 352 U. S. 241 more clear than these limiting instructions. Petitioner, who made no objection to these instructions at the trial, concedes their clarity.We may also fairly proceed on the basis that the jury followed these instructions. Several factors favor this conclusion: (1) The conspiracy was so simple in its character that the part of each defendant in it was easily understood. There was no mass trial, and no multiplicity of evidentiary restrictions. (2) The separate interests of each defendant were emphasized throughout the trial. Margiasso and petitioner were represented by one attorney. Each of the other defendants was represented by a separate attorney. Throughout the trial, the separate interests of each defendant were repeatedly emphasized by his attorney and recognized by the court. [Footnote 7] A separate trial never was requested on behalf of any defendant. (3) The trial court postponed the introduction of Whitley's confession until the rest of the Government's case was in, thus making it easier for the jury to consider Page 352 U. S. 242 the confession separately from the other testimony. This separation was pointed out by the trial court. Neither side thereafter introduced any evidence. (4) In the main, Whitley's confession merely corroborated what the Government already had established. In the light of the Government's uncontradicted testimony implicating petitioner in the conspiracy, the references to petitioner in the confession were largely cumulative. (5) There is nothing is the record indicating that the jury was confused, or that it failed to follow the court's instructions.It is a basic premise of our jury system that the court states the law to the jury, and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court's instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice."To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions. There is nothing in this record to call for reversal because of any confusion or injustice arising from the joint trial. The record contains substantial competent evidence upon which the jury could find petitioner guilty."Opper v. United States, 348 U. S. 84, 348 U. S. 95. See also Lutwak v. United States, 344 U. S. 604, 344 U. S. 615-620; Blumenthal v. United States, 332 U. S. 539, 332 U. S. 552-553. Page 352 U. S. 243There may be practical limitations to the circumstances under which a jury should be left to follow instructions, but this case does not present them. As a practical matter, the choice here was between separate trials and a joint trial in which the confession would be admitted under appropriate instructions. Such a choice turns on the circumstances of the particular case, and lies largely within the discretion of the trial judge. Accordingly, we conclude that leaving petitioner's case to the jury under the instructions here given was not reversible error, and the judgment of the Court of Appeals is affirmed.Affirmed

U.S. Supreme CourtDelli Paoli v. United States, 352 U.S. 232 (1957)Delli Paoli v. United StatesNo. 33Argued October 18, 1956Decided January 14, 1957352 U.S. 232SyllabusPetitioner is one of five co-defendants convicted in a joint trial in a federal court on a federal charge of conspiring to deal unlawfully in alcohol. Without deleting references to petitioner, the court admitted in evidence a confession of another co-defendant, made after termination of the conspiracy, but the court stated clearly at the time, on several other occasions, and in its charge to the jury, that the confession was to be considered only in determining the guilt of the confessor, and not that of any of the other defendants. The conspiracy was simple; the separate interests of each defendant were emphasized throughout the trial; admission of the confession was postponed to the end of the Government's case; in the main, the confession merely corroborated what the Government had already established; its references to petitioner were largely cumulative; and there was nothing in the record indicating that the jury was confused or failed to follow the court's instructions.Held: petitioner's conviction is sustained. Pp. 352 U. S. 233-243.1. The evidence admitted against petitioner was sufficient to sustain his conviction. Pp. 352 U. S. 234-236.2. Under the circumstances of this case, the court's instructions to the jury provided petitioner with sufficient protection, so that the admission of his co-defendant's confession, strictly limited to use against the confessor, did not constitute reversible error against petitioner. Krulewitch v. United States, 336 U. S. 440, distinguished. Pp. 352 U. S. 236-243.(a) The court's instructions to the jury were sufficiently clear. Pp. 352 U. S. 239-241.(b) On the record in this case, it is fair to assume that the jury followed the court's instructions. Pp. 352 U. S. 241-242.229 F.2d 319 affirmed. Page 352 U. S. 233